Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Domestic Workers Convention, 2011 (No. 189) - Paraguay (Ratification: 2013)

Articles 3(2)(b) and (c), and 4. Forced labour. Abolition of child labour. The Committee recalls that, for more than ten years in its comments regarding the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), it has been requesting the Government to intensify its efforts to combat the exploitation of domestic child labour within the context of the criadazgo system. In addition, several United Nations human rights bodies have repeatedly drawn the attention of the Government to the need to eradicate and criminalize the practice of criadazgo. The Committee notes that, according to the report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, of 20 July 2018, child labour was prohibited under Act No. 5407 of 2015. However, despite its inclusion in the worst forms of child labour set out in Decree No. 4951, alongside child domestic work, criadazgo is not defined in Paraguayan law, nor is it criminalized under the national regulatory framework. Also in relation to criadazgo, the Committee recalls that, in 2012, the Comprehensive Act against Trafficking in Persons was approved (Act No. 4788/12). Under this Act, a number of cases of criadazgo have been tried as internal trafficking. The report of the Special Rapporteur indicates that, broadly speaking, criadazgo refers to the practice whereby a child (usually a girl) from a poor rural household is sent to live with another family in an urban area, ostensibly to secure access to food and education. Once in the new household, the child undertakes domestic work for the receiving families, which is normally not remunerated. According to information received by the Special Rapporteur, there were 46,933 cases of criadazgo in Paraguay, accounting for approximately 2.5 per cent of the total number of children under 18 years of age in the country. The Special Rapporteur notes that although there has reportedly been a significant reduction in the number of the children engaged in criadazgo, the number of children living away from their parents and engaged in a form of domestic labour is still too high. The report also highlights that children in such cases are often particularly vulnerable to violence and abuse, and there are cases of extreme physical abuse of children by the families for whom they were working, including murder and sexual violence (see A/HRC/39/52/Add.1, paragraphs 37 and 38). The Committee notes the information provided by the Government in relation to the efforts made with a view to eliminating criadazgo. In this regard, the Government reports that a bill criminalizing criadazgo and the worst forms of child labour is pending discussion in the Senate plenary. The Committee observes that section 1 of the bill defines “criadazgo” as “exposing a child or adolescent to residence in a house or other place of residence or dwelling that is not that of the father, mother, guardian or custodian, whether or not he or she performs duties, without a court order authorizing such cohabitation”. Section 2 establishes prison sentences of up to two years or fines for those who submit or expose boys or girls to the practice of criadazgo, and of up to five years and fines for cases in which the perpetrator puts the victim’s life or physical wellbeing in danger. In addition, the National Committee for the Eradication of Child Labour approved the “Criadazgo Protocol”, in the context of updating the “Interagency Intervention Guide for Workers Under the Age of 18”. The Government indicates that the Ministry of Labour, Employment and Social Security (MTESS), through the General Directorate for the Protection of Children and Young People, has provided training on this protocol for more than 1,200 people in the departments of Alto Paraná, Itapuá, Concepción, Guaira, Boquerón and San Pedro.

The Committee notes, however, that the Special Rapporteur on contemporary forms of slavery noted in the above-mentioned report that, besides closing the legal protection gap relating to criadazgo, the Government should address its socioeconomic root causes. According to the report, extreme poverty and a lack of economic alternatives for parents reportedly often influence their decision to allow their children to face potential exploitation in the context of criadazgo. The Government reports that it has undertaken awareness-raising campaigns on the worst forms of child labour, including criadazgo and unpaid domestic work by children in the household of a third party, with small-scale family agriculture producers, taking into consideration the characteristics of each district and the needs of the population. The Committee refers to its comments on Convention No. 182, in which it requests the Government to intensify its efforts to combat the exploitation of child labour, particularly domestic work by children, within the context of the criadazgo system. The Committee also requests the Government to provide information on the status of the bill criminalizing criadazgo and the worst forms of child labour, and to provide a copy once it has been adopted. The Committee further requests the Government to provide detailed and updated information on the measures adopted with a view to ending child labour in domestic work in practice, including training activities for judges, magistrates and labour inspectors, as well as awareness-raising campaigns for the population.

Article 10. Equal treatment between domestic workers and workers generally in relation to normal hours of work. In its previous comments, the Committee requested the Government to provide information on the manner in which it ensures the effective application of the protections related to normal hours of work to domestic workers. The Committee also requested the Government indicate the manner in which it guarantees the right of domestic workers to annual leave, as provided for in section 218 of the Labour Code, and 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 are regarded as hours of work. The Government reiterates that section 13 of Act No. 5407 establishes for domestic workers who do not reside in the household “an ordinary working day of eight hours per day or 48 hours per week when the work is performed during the day, and of seven hours per day or 48 hours per week when the work is performed at night”. The Committee observes, however, that the above-mentioned section does not establish limits on the working day for domestic workers who reside in the household. Regarding the right to annual leave, the Government refers to section 154(b) of the Labour Code, which establishes the right of domestic workers to “paid annual leave like other workers, in terms of duration and cash remuneration”. However, the Committee notes that the Government does not provide information on the manner in which it ensures the effective application of the protections related to normal working hours. The Government also fails to indicate the manner in which it ensures that periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the employer are regarded as hours of work. In this respect, the Committee notes that section 193 of the Labour Code defines the effective working day as “the period during which the worker remains at the disposal of the employer”. The Committee requests the Government to adopt the necessary measures with a view to amending section 13 of Act No. 5407 to ensure equal conditions in terms of normal working hours for domestic workers who do not reside in the household and those who do. The Committee reiterates its request to the Government to provide information on the manner in which it ensures the effective application of the protections related to normal hours of work. Lastly, the Committee requests the Government to indicate whether section 193 of the Labour Code applies to domestic workers and, if not, to adopt the necessary measures to ensure that the 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 for their services are regarded as hours of work.

Article 11. Minimum wage. In its direct request of 2017, the Committee noted that section 10 of Act No. 5407 increased the minimum wage for domestic workers from 40 per cent to 60 per cent of the statutory minimum wage established for other workers. The Committee drew the Government’s attention to the fact that that this provision does not ensure the equality of domestic workers with other workers in relation to the statutory minimum wage, and requested the Government to adopt measures in that respect. The Committee also requested the Government to provide copies of court decisions concerning the failure of the employer to pay a domestic worker the minimum wage. The Committee notes that, according to information from the Permanent Household Survey (EPH), as a consequence of this increase in the minimum wage, the percentage of domestic workers who receive remuneration under the minimum wage established for the domestic work sector increased from 16.6 per cent in 2013 to 31.4 per cent in 2017. The Committee notes with interest the adoption of Act No. 6338 amending section 10 of Act No. 5407/15 on domestic work, on 2 July 2019. Act No. 6338 directly increases the wages of domestic workers from 60 per cent to 100 per cent of the minimum wage established for other workers. It also provides that persons who perform domestic work in split shifts or working days shorter than the maximum working day cannot receive remuneration proportionally lower than the statutory minimum wage established for domestic work. Lastly, the Committee observes that the Government has not provided information on court decisions concerning the failure of the employer to pay the minimum wage to a domestic worker. The Committee requests the Government to provide information on the impact in practice of the amendment to section 10 of Act No. 5407/2015, including statistical information on wage trends for domestic workers, disaggregated by sex and age. The Committee reiterates its request to the Government to provide copies of court decisions concerning the failure of the employer to pay a domestic worker the minimum wage.