Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Domestic Workers Convention, 2011 (No. 189) - Panama (Ratification: 2015)

Application of the Convention. Part V of the report form. The Committee notes that section 231 of the Labour Code sets out the regime applicable to domestic workers, which establishes working conditions for domestic workers which are less favourable than those envisaged in the legislation for other workers in such areas as normal hours of work and the requirement to conclude the contract of employment in writing. The Committee notes that the Government refers to the preparation of a preliminary draft Bill No. 012 (Bill No. 438) of 19 July 2016 which amends the provisions of the Labour Code and Family Code establishing the working conditions for persons engaged in domestic work and issues other provisions. The Government indicates that the Bill is undergoing its second reading by the National Assembly. The Committee notes that the Bill represents significant progress in the harmonization of Panamanian legislation with the requirements of the Convention in such areas as the establishment of a maximum working day of eight hours which is the same as for other workers, and the requirement for the contract of employment to be set out in writing, in the same way as for all other workers. The Committee requests the Government to continue providing information on the progress made in the adoption of the draft Bill No. 012 (Bill No. 438) of July 2016 and to provide a copy once it has been adopted.

Article 1(1)(c) of the Convention. Occasional or sporadic domestic workers. Section 230 of the Labour Code provides that “domestic workers are workers who perform, in a habitual and continuous manner, the services of cleaning, assistance or other household tasks for a person or the members of a family”. Section 1(31) of Act number 51 of 2005 amending the Basic Act of the Social Security Fund and issuing other provisions, defines a domestic worker as “an employee who is engaged in a habitual and continuous manner in household work, such as cleaning, assistance, cooking, washing and services in private residences, which do not give rise to financial or commercial benefit for the employer”. The Committee notes that the inclusion of the terms “in a habitual and continuous manner” in the definitions of domestic workers referred to above may lead to the understanding that workers who perform domestic work in a discontinuous or sporadic manner are not considered to be domestic workers. Nevertheless, it is necessary to emphasize that the definition of domestic worker contained in the Convention only excludes sporadic workers when the domestic work that they perform is not undertaken on an occupational basis, but that this specification is not envisaged in the definitions referred to above. In this regard, the preparatory work for the Convention indicates clearly that this specification was included in this provision of the Convention to ensure that daily labourers and other precarious workers in a similar situation are included in the definition of domestic worker. The Committee requests the Government to consider the possibility of adopting the necessary measures to ensure that occasional or sporadic workers who perform domestic work on an occupational basis are included in the definition of domestic workers and are accordingly covered by the Convention.

Article 3(2)(a) and (3). Freedom of association and collective bargaining. Article 68 of the Constitution and section 335 of Labour Code recognize the right to organize of all employers and workers. The Government indicates that the Social Organizations Department of the General Directorate of Labour registered the first representative organizations of domestic workers in 2018: the Union of Men and Women Domestic and Allied Workers of Panama (SITRADSIP) and the National Union of Men and Women Household and Allied Workers (SINATHA). However, the Committee notes that the Government has not provided information in its report on the specific measures adopted which take into account the special characteristics of domestic work, with a view to the promotion and effective protection of the right to organize and collective bargaining of domestic workers. In this regard, the Committee recalls that the specific characteristics of domestic work, which often includes a high level of dependence on the employer (especially in the case of migrant workers) and the frequent isolation of domestic workers in their workplace, are all factors which make it especially difficult for domestic workers to establish and join unions. Accordingly, the protection of freedom of association and the right to collective bargaining is of a special importance in this sector. Emphasizing the need to take into account the specific characteristics of domestic work, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to guarantee in practice the right to freedom of association and collective bargaining of domestic workers.

Article 3(2)(b). Elimination of all forms of forced or compulsory labour. The Committee refers to its 2017 comments on the application of the Forced Labour Convention, 1930 (No. 29), in which it noted the strengthening of the legislative and institutional framework to combat trafficking of persons through the adoption of Act No. 79 of 2011 to combat trafficking in persons and related activities and the establishment of the National Committee against Trafficking in Persons (CNTP). The Act reinforces the legislative framework by broadening the definition of the crime of trafficking, including trafficking for labour exploitation, and introduces new provisions into the Penal Code which criminalize a number of violations related to trafficking and penalizes other forms of exploitation, such as forced labour and slavery. The Committee also noted the numerous measures adopted by the Government within the framework of the National Plan to Combat Trafficking in Persons (PNTdP), including information and awareness-raising activities on action to combat trafficking in persons. However the Committee notes that the Government has not provided specific information in its report on the application in practice of this Article of the Convention in relation to domestic workers. The Committee requests the Government to provide information on the application in practice of the legal framework in force to combat smuggling and trafficking in persons in relation to domestic workers, including statistical information on the number and nature of the violations reported, investigations, prosecutions and convictions in this regard.

Articles 3(2)(c) and 4(1). Child labour. The Committee notes that all the provisions of the national legislation which regulate child labour set the minimum age for admission to employment at 14 years of age, with the exception of section 716 of the Family Code, which authorizes young persons between 12 and 14 years of age to perform domestic work. However, this provision was found unconstitutional by the ruling of 13 November 1995 of the Supreme Court of Justice on the grounds that it is contrary to the Constitution, which prohibits work by persons under 14 years of age. Moreover, section 120 of the Labour Code prohibits work by persons under 18 years of age during the night, on additional days and on Sundays and national holidays or days of national mourning. Furthermore, section 1(16) of the List of Hazardous Types of Child Labour in the context of the worst forms of child labour, as amended by Executive Decree No.1 of 5 January 2016, prohibits work by persons under 18 years of age in “activities in domestic service whether or not they involve sleeping in the household of the employer or mean that it is not possible to leave the premises; without rest days or a limited number of such days; working long days; continuous working days, or without fixed hours; and caring for property and/or persons.” Nevertheless the Committee notes that, according to the survey carried out within the framework of the project on the prevention and elimination of the worst forms of child domestic labour in Central America and the Dominican Republic, child domestic labour in Panama, of 2002, of the International Programme on the Elimination of Child Labour (IPEC), 50 per cent of girls engaged in child labour are under 15 years of age. The project has also found that boys, girls and young persons begin to work at increasingly low ages as the adult women domestic workers surveyed began their employment relationship at 15 years of age, while the child domestic workers surveyed began at 10 and 12 years of age, and there were also child domestic workers aged 8 and 9 years. The Committee notes, in this context, the adoption, with the technical assistance of the ILO, of the “Roadmap for comprehensive action against child labour in domestic work” with the objective of establishing a mechanism determining the procedure to be followed in cases of child labour in the domestic sector and the authorities responsible for each of the stages. The Government indicates that the Directorate against Child Labour and the Protection of Young Workers (DIRETIPAT) of the Ministry of Labour is taking action to prevent child labour and to address its worst forms within the context of the strategic tripartite instrument “Roadmap to make Panama a country free of child labour and its worst forms”, prepared with ILO technical assistance. The Government adds that, in view of the specific characteristics of child domestic work, among which it emphasizes the fact that it is a hidden activity performed in the household of a private person or of third parties, action by the authorities is complex. Child domestic work is therefore addressed through the National System for the Protection of Children and Young Persons with a view to developing a comprehensive and immediate response for child workers. Finally, the Committee notes that, in its concluding observations of 28 February 2018, the Committee on the Rights of the Child (CRC) reiterated its recommendation to the Government to expedite the harmonization of the legislative framework with the international standards established in the Minimum Age Convention, 1976 (No. 138), and to repeal exceptions to the Convention (CRC/C/PAN/CO/5-6, paragraph 37). The Committee requests the Government to provide information on the number of complaints of child domestic work received, the penalties imposed on those responsible and the compensation granted to the victims. The Committee also requests the Government to take the necessary measures to harmonize the national legislative framework with the Minimum Age Convention, 1973 (No. 138), and to repeal the exceptions to the Convention with a view to ensuring the effective abolition of child domestic work. The Committee further requests the Government to provide detailed information on the process that is followed and the various authorities which intervene in cases in which the existence of child domestic work is detected.

Article 5. Protection of the right to education. Article 91 of the Constitution provides that first level education or general basic education is compulsory. The Committee also notes that various provisions of the national legislation establish the requirement for minors engaged in work to complete general basic education, including section 512 of the Family Code and sections 123, second subsection, 117(2) and 122 of the Labour Code. With reference to domestic workers, section 231(8) of the Labour Code provides that “domestic workers shall be entitled to the granting by their employer of the necessary leave to attend school, on condition that it is compatible with their hours of work”. The Committee therefore notes that, in view of the provisions of this section, domestic workers who are minors are entitled to be granted by their employer the necessary leave to attend school, but only when this is compatible with their hours of work. The Committee requests the Government to adopt the necessary measures to amend section 231(8) of the Labour Code to ensure that work performed by domestic workers under 18 years of age does not deprive them of compulsory education, or interfere with their opportunities to participate in further education or vocational training.

Article 4(2). Protection against abuse, harassment and violence. The Government refers to Act No. 82 of 2013, reforming the Penal Code, which criminalizes femicide and penalizes acts of violence against women. Section 3 of the Act provides that “violence against women shall be understood as any action, omission or discriminatory practice based on belonging to the feminine sex in the public or private spheres, which places women at a disadvantage in comparison with men, causes their death, physical, sexual, psychological, economic harm or suffering or prejudices their wealth, as well as the threat of such acts, coercion or arbitrary deprivation of liberty, including acts perpetrated by the State and its agents”. Section 4 defines various types of violence, such as sexual harassment, which is defined in subsection 2 as “any unwanted act or conduct of a sexual nature which interferes with work, … which is established as a condition for employment or creates an intimidatory environment or causes the victim harm to their physical or psychological well-being”. In this respect, the Committee refers to its 2015 comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it indicated that, while it considered that the adoption of the Act was in itself a step forward, it also took the view that to address sexual harassment only through criminal proceedings is not sufficient because of the sensitivity of the issue and the higher burden of proof, especially if there are no witnesses, which is often the case. However, section 14 of the Act recognizes the right of victims of violence to receive guidance, legal advice and free, immediate and specialized technical and legal assistance, as well as the right to compensation where the care, support and comprehensive rehabilitation received gives rise to costs. The Government indicates that the Ministry of Labour provides advice free of charge to men and women domestic workers through the General Directorate of Labour of the Department of Labour Relations, which includes guidance to workers to ensure that they are not victims of abuse, harassment or violence. The Government adds that, in cases where a worker lodges a complaint against the employer, the latter is required to appear in person to respond to the claims made. The Government indicates that 10 per cent of men and women domestic workers request advice from the Ministry of Labour, of whom 8 per cent resolve their dispute. The Committee refers to its comments on the Convention, and particularly those in which it requests the Government to consider the possibility of including a provision in the Labour Code or adopting specific legislation on sexual harassment at work that lays down a definition of sexual harassment which includes both quid pro quo and hostile working environment harassment, and affords adequate protection to men and women domestic workers and establishes adequate penalties. The Committee also requests the Government to provide information of the application in practice of this Article of the Convention, including statistical data on the number of complaints received of harassment, abuse and violence in the context of domestic work, as lodged with the various competent bodies, disaggregated by sex, the outcome of the complaints, the penalties imposed on those responsible and the compensation granted. Taking into consideration the fact that the Convention protects both men and women domestic workers, the Committee requests the Government to provide information on the manner in which it is guaranteed in practice that men domestic workers enjoy effective protection against any form of abuse, harassment or violence.

Articles 6 and 9. Fair terms of employment and decent working and living conditions. Articles 19 and 20 of the Constitution, as recalled by the Government, provide for non-discrimination and equality of treatment for all men and women workers, with the guarantee that all of their rights are respected. The Government reports on the preparation of the “Plan of Action for Equality of Opportunities for Women 2016–19”, in which the component entitled “Economy, Labour and Family” sets out among its objectives support and promotion of policies and programmes which guarantee non-precarious employment in all sectors, taking into account the specific needs of particular groups and communities of women, including action to ensure compliance with labour standards for domestic workers and the identification of the training needs of this category of workers, with a view to creating employment opportunities for them on the basis of their knowledge and efficient performance. With reference to the living conditions of domestic workers, the Government indicates in general in its report that when domestic workers accept their employment relationship they are free to agree the conditions offered by the employer on a voluntary basis in accordance with their needs. Section 231(9) of the Labour Code provides that the food provided for domestic workers shall be healthy, abundant and nutritious, and accommodation shall be comfortable and clean. However, the Committee notes that the Government has not provided information in its report on the measures adopted to ensure that domestic workers, like workers generally, benefit from decent living conditions which respect to their privacy if they reside in the household. In this regard, the Committee draws the Government’s attention to Article 17 of the Domestic Workers Recommendation, 2011 (No. 201), which indicates the conditions that should be met by accommodation and food when they are provided to domestic workers, including “a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock, the key to which should be provided to the domestic worker”. The Committee also notes that the legislation does not contain provisions establishing that domestic workers are free to reach agreement with their employer or their potential employer on whether to reside in the household, that they are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave, and are entitled to keep in their possession their travel and identity documents. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that domestic workers, like workers generally, enjoy fair terms of employment and decent working conditions, including the measures adopted within the context of the “Plan of Action for Equality of Opportunities for Women 2016–19”. It also requests the Government to provide detailed information on the measures adopted or envisaged to ensure that domestic workers: (a) are free to reach agreement with their employer or potential employer on whether to reside in the household; (b) are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and (c) are entitled to keep in their possession their travel and identity documents. The Committee also requests the Government to provide information on the measures envisaged or adopted to ensure in practice that domestic workers who reside in the household benefit from decent living conditions that respect their privacy, as envisaged in Paragraph 17 of Recommendation No. 201.

Article 7. Understandable information on terms and conditions of employment. The Committee notes that section 67, first subsection, of the Labour Code provides that “the contract of employment shall be in writing and shall be signed at the beginning of employment relationship in three copies, one for each party. The enterprise shall keep its copy, the worker shall be provided with her or his copy at the time of signature and the other shall be provided to the General Directorate of Labour, or to the regional directorates of the Ministry of Labour and Social Welfare, which shall keep a daily record of the contracts submitted”. Section 68 sets out the minimum content of contracts of employment in writing. However, the Committee notes that section 67, second subsection (2), explicitly excludes from this requirement contracts of employment relating to domestic work. Similarly, section 231(1) of the Labour Code provides that “the contract may be oral or writing, but in any case shall take into account the presumptions set out in section 69”. Section 69 provides that, “in the absence of a written contract, certain of the acts or circumstances alleged by the worker which should have been set out in the contract shall be assumed. This presumption may be set aside upon presentation of proof that does not admit reasonable doubts”. The Government indicates that, during the first half of 2018 (January–June), a total of 171 employment contracts relating to domestic service were registered, of which 99 were concluded by men and 72 by women. The Government adds that the Ministry of Labour has organized information and aware-raising days on the rights and recognition of the minimum wage of men and women domestic workers with a view to ensuring that they are aware of their rights. In this respect, the Government provides a copy in its report of a brochure containing information on the rights of domestic workers, including the right to a written contract of employment. The Government refers to the creation of a webpage to inform workers of the rights and benefits set out in the Labour Code. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure in practice that domestic workers are informed of their terms and conditions of employment, and particularly those set out in this Article of the Convention, in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts, in accordance with national laws and regulations or collective agreements. The Committee also requests the Government to provide information on any measures adopted to establish a model contract in the domestic work sector.

Article 8. Migrant domestic workers. The Government indicates that persons who engage a foreign national to perform domestic work may request a visa for domestic workers for a period of one year, renewable four times, on condition that the applicant continues to work for the same employer. The Government adds that employers of migrant domestic workers are required to comply with the provisions of Legislative Decree No. 3 of 22 February 2008, establishing the National Migration Service, migration careers and issuing other provisions. In particular, section 89 of the Legislative Decree establishes penalties for employers of migrant workers who retain their identity documents, travel documents or passports, and who do not comply with the minimum provisions respecting labour, health and social security set out in the national legislation. The Government indicates that both the domestic worker and the employer are required to notify the National Migration Service of Panama of the termination of the contract of employment, which is a reason for the cancellation of the domestic work visa. However, the Committee notes that the Government has not provided information in its report on the application in practice of this Article of the Convention. The Committee requests the Government to provide detailed information on the national legislation which requires that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment, which includes the conditions set out in Article 7, prior to crossing national borders for the purpose of taking up the domestic work (Article 8(1)). The Committee also requests the Government to indicate any measures adopted in cooperation with other ILO member States to ensure the effective application of the Convention to migrant domestic workers (Article 8(3)) Furthermore, it requests the Government to indicate the laws, regulations or other measures which regulate the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited (Article 8(4)).

Article 10(1). Equality of treatment between domestic workers and workers generally in relation to hours of work. The Committee notes that article 66 of the Constitution and section 31 of the Labour Code establish a maximum working day of eight hours. However, section 231(2) of the Labour Code provides that “domestic workers shall not be subject to a schedule of hours of work, but shall benefit from a minimum absolute rest period between 9 p.m. and 6 a.m. …”. The Committee notes that the Supreme Court of Justice, in its ruling of 10 August 1994, gave its views on the alleged unconstitutional nature of the first phrases of section 231(2) of the Labour Code, which could give rise to the understanding that the maximum working day for domestic work is 15 hours, compared to the maximum working day of eight hours established for other categories of workers. The Plenary Session of the Supreme Court of Justice found that section 231(2), of the Labour Code “does not establish hours of work, but refers to the period of absolute rest that must be enjoyed by any domestic worker every day. The intention of the legislator in this case was not to establish hours of work for domestic workers, but to ensure that they benefit from a continuous and uninterrupted period of rest during which they are not under the requirement to perform any work. This does not imply that the working day of domestic workers is 15 hours, as indicated by the complainant. This is not the case because … domestic workers, due to the special characteristics of the work performed, in general remain in the household in which they work”. Accordingly, the Supreme Court found that section 231(2) of the Labour Code does not establish a working day of 15 hours for domestic workers, but seeks to ensure that domestic workers benefit from “a continuous and uninterrupted period of rest during which they are not required to perform any work.” Finally, the Committee notes that, according to the study entitled “The socio-cultural and juridical institutionalization of inequality: Paid domestic work in Panama”, prepared by the United Nations Development Fund for Women (UNIFEM), the National Institute for Women (INAMU) and the Council of Ministers for Women of Central America and the Dominican Republic (COMMCA) in 2007, a high percentage of these workers have working days of between 10 and 12 hours. In particular, the study indicates that 51.30 per cent of full-time domestic workers who sleep in the household work between 49 and 84 hours a week, followed by 31.80 per cent who work between 42 and 48 hours and 17.10 per cent who work between 36 and 40 hours. Among full-time women domestic workers who do not sleep in the household, 41.10 per cent work between 42 and 48 hours. The Committee requests the Government to provide information on the manner in which section 231(2) of the Labour Code is applied in practice so as to ensure equality of treatment between domestic workers and workers in general in relation to normal hours of work, overtime compensation and periods of daily rest. The Committee also requests the Government to take the necessary measures to amend section 231(2) of the Labour Code with a view to establishing a maximum working day of eight hours for all domestic workers.

Article 10(3). Periods during which domestic workers are not free to dispose of their time as they please. The Committee notes that section 34 of the Labour Code provides that paid working time is calculated during the day as consisting of “the time during which the worker is at the exclusive disposal of the employer; the time during which a worker is inactive during the working day when the inactivity is not of their volition or due to the legal reasons for the suspension of the contract; and the time required to take meals during the working day when, due to the nature of the work, it is necessary for the worker to remain on the premises or place where the work is performed”. The Committee also notes that, in its ruling of 10 August 1994, the Plenary Session of the Supreme Court of Justice ruled on the application to domestic work of the so-called “criterion of availability”, in accordance with section 33 of the Labour Code, which is all the time that the worker cannot dispose of freely because he or she is at the disposal of the employer. The Plenary Session of the Supreme Court of Justice indicated that this criterion should be applied with care in the case of domestic workers, as it considered that the fact of being at the disposal of the employer between 6:01 a.m. and 9:00 p.m., under the terms of section 231(2) of the Labour Code, does not imply that the worker is occupied for the whole of the time performing the work assigned, since during the 15 hours the domestic worker engages in personal activities, such as taking breakfast, lunch, dinner or resting. The Committee therefore notes that section 33 of the Labour Code is applied in a more flexible manner to domestic workers, such that all of the time during which domestic workers are not free to dispose of their time, as they remain at the disposal of the employer, is not considered to be working time. The Committee requests the Government to take the necessary measures to ensure that periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls are regarded and paid as hours of work.

Article 11. Minimum wage. Non-discrimination based on sex. Article 66 of the Constitution provides that “the law shall establish the manner in which the minimum wage or remuneration of workers is adjusted periodically with a view to covering the needs of the family and raising the standard of living in accordance with the specific conditions of each region and each economic activity (…)”. Section 172 of the Labour Code provides that all workers have the right to receive a minimum wage. The Government indicates that, in accordance with section 174 of the Labour Code, the minimum wage is adjusted every two years, and that domestic workers also have access to the minimum wage. In this regard, the Government indicates that, in accordance with Executive Decree No. 75 of 26 December 2017 fixing new rates of the minimum wage, applicable throughout the national territory, the monthly minimum wage of domestic workers is 250,000 or 225,000 Panamanian balboas (PAB) depending on the region in which they work. The Decree establishes a minimum hourly wage of 1.53PAB an hour for workers in agriculture, stock-raising, hunting, forestry, aquaculture and fishing in small enterprises and 1.87PAB an hour for workers in large enterprises (with 11 or more employees). The Committee notes that this may give rise to discriminatory situations, as a minimum monthly wage is established for domestic workers, while a minimum hourly wage is established for other workers. Taking into account the fact that, in accordance with section 231(2) of the Labour Code, domestic workers may work up to 15 hours a day, whereas the national legislation establishes a maximum of eight hours a day for other workers, the establishment of a minimum monthly wage is to the detriment of domestic workers, who may work many more hours than other workers. As a consequence, a minimum wage is established for domestic workers which is lower than the wage for other categories of workers. Article 67 of the Constitution, with respect to equal remuneration, provides that “equal wages or remuneration shall always apply for equal work under identical conditions, whoever performs the work, without distinction based on sex, nationality, age, race, social class, political or religious beliefs”. Section 10 of the Labour Code provides that “equal wages shall be paid for equal work in the service of the same employer, performed in the same job, working day, conditions of efficiency and seniority.” In this regard, the Committee refers to its 2015 comments on the application of the Equal Remuneration Convention, 1951 (No. 100), in which it recalled that for over 20 years it had been referring to the need to amend section 10 of the Labour Code to bring it in to full conformity with the principal of equal remuneration for men and women for work of equal value. The Committee emphasizes the particular relevance of this observation since, according to the data of the National Institute of Statistics and Census (INEC), in March 2016, there were 60,419 women domestic workers and 10,779 men domestic workers. Taking into account the fact that domestic workers receive the lowest minimum wage due to the fact that a monthly rate is set, the Committee requests the Government to take the necessary measures to establish a minimum hourly wage for domestic workers in the same way as for other workers. The Committee refers to its 2015 comments on the application of Convention No. 100, and particularly those in which it requests the Government to take the necessary measures to bring the legislation into compliance with the principle of the Convention, and particularly to amend section 10 of the Labour Code with a view to ensuring the principle of equal remuneration for men and women domestic workers for work of equal value, and it requests the Government to provide detailed information on this subject.

Article 12(2). Payments in kind. Section 144 of the Labour Code provides that “wages in kind are understood solely to be the proportion received by the worker or her or his family in the form of food, accommodation and clothing intended for immediate personal use. Provisions supplied free of charge by the employer to the worker shall not be considered as wages in kind and may not be deducted from wages in cash. For legal purposes, although the value of remuneration in kind shall not be determined in each specific case, it shall be considered as being equivalent to 20 per cent of the total wage received by the worker. In no event may the wages in kind agreed be greater than 20 per cent of the total wage”. With regard to domestic workers, section 231(9) of the Labour Code provides that, “unless agreed otherwise, it shall be presumed that the remuneration of the domestic worker includes, in addition to payment in cash, the provision of food and accommodation”. In this regard, the Committee recalls that Article 14(d) of Recommendation No. 201 indicates that, when provision is made “for the payment in kind of a limited proportion of remuneration, Members should consider (…) ensuring that when a domestic worker is required to live in accommodation provided by the household, no deduction may be made from the remuneration with respect to that accommodation, unless otherwise agreed to by the worker (…)”. The Committee requests the Government to indicate whether the limit on payments in kind of 20 per cent of the total wage established in section 144 of the Labour Code is applicable to domestic workers and, if not, to adopt the necessary measures with a view to ensuring that, when the payment of a limited proportion of the remuneration of domestic workers is in the form of payments in kind, this proportion is not less favourable than those generally applicable to other categories of workers. It also requests the Government to take the necessary measures to ensure that payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable.

Articles 13 and 14. Effective measures to ensure occupational safety and health. Effective access to social security. The Government does not indicate in its report whether measures have been adopted to ensure the occupational safety and health of domestic workers and, if so, whether such measures have due regard for the specific characteristics of domestic work. With regard to access to social security, the Government indicates that, under the terms of Act 51 of 2005, amending the Basic Act of the Social Security Fund and issuing other provisions, men and women domestic workers are entitled to the benefits provided by the compulsory scheme, the sickness and maternity scheme and the invalidity, old-age and survivor’s scheme, including health care, maternity leave and retirement benefits. The Government adds that domestic workers, like other workers, are protected by the maternity provisions set out in article 72 of the Constitution. The Government indicates that, during the first half of 2017, the Ministry of Labour, together with the Social Security Fund, organized four days of registration and affiliation to the social security system for domestic workers with a view to ensuring compliance with the national legislation on social security. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the occupational safety and health of domestic workers which have due regard to the specific characteristics of domestic work. The Committee also requests the Government to provide information on the number of domestic workers registered with the Social Security Fund, disaggregated by sex and age.

Article 15(1)(a) to (d) and (2). Private employment agencies. The operation of private employment agencies is regulated by Executive Decree No. 32 of 15 April 2016. Section 4(7) of the Executive Decree establishes the requirement for private placement agencies or enterprises to be subject to inspections by the General Directorate of Employment in collaboration with the Directorate of Labour Inspection, including scheduled inspections and those occasioned by complaints. Section 6 sets out a series of rules for the operation of private employment agencies or enterprises, such as the requirement that recruited workers shall receive the highest minimum wage established in the district in accordance with the commercial activity and the service provided. Section 7 provides that the violation of any of the provisions of the Executive Decree by private employment agencies or enterprises shall be penalized by fines. The Government indicates that the Department for the Registration of Employment Agencies is responsible for ensuring strict compliance with international conventions, as well as with the legal provisions respecting employment, and for seeking the application of corrective measures and the corresponding penalties, through officials authorized in coordination with the Directorate of Labour Inspection. The Government adds that a manual of procedures and functions is currently being prepared to govern the operation of the Department. However, the Government does not provide information in its report on the conclusion of bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment where domestic workers are recruited in one country for work in another. Finally, the Government indicates that consultations have not been held with the social partners on the application in practice of this Article of the Convention. The Committee requests the Government to provide information on the number and type of complaints made to Department for the Registration of Employment Agencies concerning abuses and fraudulent practices by private employment agencies or enterprises in relation to domestic workers, and the penalties imposed. The Committee also requests the Government to indicate whether bilateral, regional or multilateral agreements have been concluded to prevent abuses and fraudulent practices in recruitment, placement and employment where domestic workers are recruited in one country for work in another. It further requests the Government to take the necessary measures to hold consultations on the application in practice of this Article of the Convention with the most representative organizations of employers and workers, and with organizations representative of domestic workers and those representative of employers of domestic workers, where such organizations exist.

Article 17(1). Complaint mechanisms. The Government indicates that the Conciliation and Decision Boards are the bodies responsible for the application of the labour legislation in procedures initiated by domestic workers relating to unjustified dismissal, complaints, entitlements that are owed, such as wages, leave, the payment of the 13th month and maternity protection. The Government indicates that in 2017 and the first half of 2018, a total of 62 complaints were made by domestic workers at the national level. The Committee requests the Government to continue providing information on the number of complaints made by domestic workers to the various competent bodies, the penalties imposed on those responsible and the compensation granted.

Article 17(2). Labour Inspection. Article 26 of the Constitution provides that “the home or residence is inviolable. No one may enter them without the consent of the owner except with the written authorization of the competent authority and for specific purposes, or to provide assistance to the victims of crimes or disasters. Public officials in the labour, social security and health services may, with prior identification, make visits to homes or in compliance with social and public health legislation”. In this regard, the Government indicates in its report that the legislation does not clearly specify the possibility for labour inspectors to enter the home. The Government adds that it is a requirement for the employer to allow inspection and monitoring by the administrative and judicial labour authorities, which must be conducted in the enterprise, establishment or business, such that once that the National Directorate of Inspection is aware of any type of complaint made by a man or woman domestic worker, it may initiate an inspection to ensure that their rights are not impaired. However, the Government indicates that, during the period covered by the report, no labour inspections have been carried out in relation to domestic work due to the difficulties arising in relation to entry into the workplace. Although it is clear that labour inspectors are authorized to enter freely and without previous authorization, at any hour of the day or night, any workplace liable to inspection, this is difficult in the case of domestic work, which is performed in the home. Consequently, only in the event that the owner of the home gives consent, or with a judicial warrant, can the labour inspection services have access to the home. While noting the Government’s request for ILO technical assistance on this matter, the Committee encourages the Government to take the necessary measures to formulate and give effect to measures relating to labour inspection and the application of legal provisions and penalties, with due regard to the specific characteristics of domestic work and to amend, if necessary, the national legislation.