Domestic Workers Convention, 2011 (No. 189) - Colombia (Ratification: 2014)

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

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 31 August 2018, in which they place emphasis on the measures adopted in recent years to protect and extend the rights of men and women domestic workers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), received on 1 September 2018, and the Government’s response, received on 19 November 2018. The Committee requests the Government to provide its comments on the observations of the ANDI and the IOE.

Article 3(1), (2)(a) and (3) of the Convention. Freedom of association and collective bargaining. In reply to the Committee’s previous comments, the Government reiterates that the guarantees of the exercise of the fundamental rights of freedom of association and collective bargaining recognized in articles 39 and 55 of the Political Constitution apply to domestic workers under the same conditions as to other workers. The Government indicates that labour and social security inspectors have the power to levy fines for acts that are in violation of the right to organize. In this regard, section 39(2)(a) of Act No. 50 of 1990 includes, among the acts by employers that are in violation of the right to organize, making it difficult for their personnel to join a union through the use of handouts or promises, or making it a condition for obtaining or retaining a job; and dismissing, suspending or changing conditions of work by reason of workers’ activities to establish trade unions. Moreover, the offence of the violation of the rights of association and assembly is criminalized by section 200 of Act No. 1453 of 2011. The Government indicates in its report that six organizations of domestic workers are registered in the database of the union register. The CTC, CUT and CGT indicate that, although the number of organizations of domestic workers has increased, their membership continues to be very low in comparison with the actual number of domestic workers. According to the calculations of the workers’ confederations, there are around one million men and women domestic workers in the country, of whom approximately 1,000 are unionized, as a result of which the unionization rate is 0.1 per cent in the domestic work sector. They add that domestic workers exercise their right to organize in hiding out of fear of dismissal, and usually on non-working days. The workers’ confederations refer to cases of the dismissal of domestic workers on the grounds of their trade union membership or participation in trade union activities, as well as the fact that there has not been any collective bargaining in the domestic work sector. In response, the Government indicates that there have been no administrative procedures for violations of the rights of domestic workers arising out of their trade union membership as a result of complaints lodged by domestic workers or workers’ organizations. Finally, the Government indicates that, within the framework of the tripartite round table to follow up the implementation of the Convention, organizations of domestic workers and of employers are participating in the design and development of public policies with a view to promoting decent work in the domestic work sector. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to ensuring the effective exercise in practice of the right to freedom of association and collective bargaining of domestic workers.

Article 3(2)(b). Forced labour. In response to the Committee’s previous comments, the Government refers once again to article 17 of the Constitution, which prohibits slavery, servitude and trafficking in human beings, and article 25, which recognizes the right of all persons to work in decent and fair conditions. In their observations, the CUT, CTC and CGT report cases in which they allege that domestic workers are required to perform work that is not included in their contract of employment and to work in houses other than those of their employers or enterprises. They also report that the labour inspection services do not carry out investigations into forced labour since, as a criminalized act, they consider it to be a matter for criminal investigation, and not for the labour authorities. The Government reports the absence of complaints in the database of the Ministry of Labour in relation to the cases denounced by the workers’ confederations. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged to guarantee in practice the protection of domestic workers from all forms of forced or compulsory labour. The Committee also requests the Government to provide statistical data on the number and nature of the offences reported in relation to cases of forced labour in the domestic sector, the investigations conducted, prosecutions and convictions.

Articles 3(2)(c) and 4. Child labour. Minimum age. The Government reports the development of the public policy component on the prevention and eradication of child labour and the protection of young workers 2017–27. The general objectives of the policy include action to address child domestic labour which, in view of its size, the extent of the violations, the circumstances and context in which it is performed, places girls, boys and young persons at a risk that is not visible. The Committee also notes the information provided by the Government on the action undertaken by the Ministry of Labour in relation to child labour between July 2016 and April 2017, including: inspections of the places in which minors work to follow up the authorizations issued for work by boys, girls and young persons; and training for labour and social security inspectors on the legislation in force on the protection of boys, girls and young persons. The workers’ confederations report that cases of child domestic work frequently involve the daughters of rural workers in houses in cities, where they are confined to the workplace and do not have access to education. With reference to the authorizations issued for work by minors, the Government indicates that between June 2016 and April 2018, a total of 5,048 authorizations were issued, 249 applications were refused and 136 were renewed. Moreover, 4,095 inspections were undertaken of the working conditions of minors engaged in work. In this regard, the Committee notes the indication by the CUT, CTC and CGT that cases in which authorizations are issued are more numerous than those in which they are denied, and that the Government does not indicate the authorizations issued in the domestic work sector. They also report alleged cases of the corruption of labour inspectors in relation to authorizations for work by minors. The Government indicates that in order to issue an authorization, labour inspectors have to comply with the requirements set out in section 3(36) of Decision No. 1796 of 2018, which prohibits work by minors in activities related to domestic work in their own households and in those of third parties for over 15 hours a week. With regard to the alleged cases of the corruption of the labour inspection services, the Government observes that the workers’ confederations have not provided evidence to support their allegations. It also reports the adoption of various measures by the Ministry of Labour to identify and bring to an end possible cases of corruption, including the establishment of a telephone line for complaints. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to the eradication of child labour in the domestic work sector, including those adopted under the public policy component for the prevention and eradication of child labour and the comprehensive protection of young workers 2017–27. The Committee also requests the Government to provide statistical data on cases of child domestic labour that are identified, the investigations conducted, prosecutions and sanctions imposed.

Articles 3(2)(d) and 11. Discrimination based on sex and race. Minimum wage. In its previous comments, the Committee referred to comments it had made concerning the Equal Remuneration Convention, 1951 (No. 100), and anticipated that the Government would take the necessary measures to amend the relevant legislation with a view to ensuring equal remuneration for men and women domestic workers for work of equal value. Moreover, noting that women Afro-Colombian domestic workers receive remuneration that is lower than the national minimum wage, it requested the Government to provide detailed information on the manner in which the application in practice is ensured in the domestic work sector of section 143(b) of the Substantive Labour Code, which prohibits differences in wages based, inter alia, on sex and race. The Government reports that on 18 May 2018 a proposed amendment to Act No. 1496 of 2011 was submitted to the Gender Subcommission of the Standing Tripartite Dialogue Commission on Wage and Labour Policies to guarantee equal wages and remuneration from work for women and men, establish machinery to eradicate any form of discrimination and adopt other provisions with a view to introducing the principle of equal wages for work of equal value. However, the Committee observes that the Government has not provided information in its report on the measures adopted to guarantee in practice the application of section 143(b) of the Substantive Labour Code in the domestic work sector with a view to the elimination of wage differences based, inter alia, on sex and race. The Committee also notes the indication by the CUT, CTC and CGT that domestic workers receive daily pay, depending on the city, of between 20,000 and 50,000 Colombian pesos, which is below the minimum wage. In that regard, the Government indicates that the remuneration received by domestic workers cannot be lower than the minimum wage and that they should also receive payment for overtime. The Government adds that ignorance of these rights does not exempt employers from their responsibilities or from sanctions for failure to comply with these provisions. The Committee requests the Government to provide information on the situation in relation to the proposed amendment to Act No. 1496 of 2011 and to provide a copy once it has been adopted. The Committee once again requests the Government to provide detailed information on the manner in which the application is ensured in practice of section 143(b) of the Substantive Labour Code in the domestic work sector, including reports from the labour inspectorate detailing the number of violations detected and the remedial action taken in this respect.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Committee notes that, in reply to its previous comments, the Government reiterates that domestic workers are protected on an equal footing with other workers by Act No. 1010 of 2006, under which measures are taken to prevent, correct and penalize work-related and other forms of harassment in the context of employment relationships. However, the Government does not indicate the manner in which full protection is ensured for domestic workers in the event of any of the extenuating circumstances set out in section 3 of Act No. 1010 of 2006, such as violent emotions, excusable passion or state of anger (which is not applicable in the event of sexual harassment), previous good conduct and discretionary compensation, even partial, for the damages caused. The Committee also notes the Government’s indication that the Labour Equity Group with a focus on gender of the Ministry of Labour has undertaken various activities to prevent and combat labour harassment and sexual harassment of women workers, including the training of labour inspectors in the various territorial departments, as well as the development of a tool for their use with a view to the identification of the types of violence referred to in complaints, and particularly those based on gender. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to ensuring compliance in practice with this Article of the Convention, especially in the case of migrant domestic workers. The Committee also requests the Government to provide statistical data on the number of complaints received by the various competent bodies concerning harassment, abuse and violence in the context of domestic work, their outcome, the penalties imposed on those responsible and the compensation granted. Moreover, recalling that section 3 of Act No. 1010 of 2006 provides for very broad attenuating circumstances in the case of workplace harassment, the Committee encourages the Government to remove those attenuating circumstances in order to ensure the full protection of domestic workers in the event of such circumstances.

Article 7. Understandable information on conditions of employment. Written contract of employment. In response to the Committee’s previous comments, the Government indicates that the Sub-directorate for Employment Formalization and Protection of the Ministry of Labour has undertaken awareness-raising and promotional activities on the labour rights of domestic workers, including participation in the media and the production of booklets and brochures. Through the National Citizens’ Service Programme, information is also provided to workers and employers on their rights and obligations, as well as on the various complaint mechanisms available. This information is available in the territorial departments and municipal inspection services throughout the country, as well as over a free telephone line. The CUT, CTC and CGT indicate that oral contracts continue to be used in general in the domestic work sector, and do not include the minimum terms and conditions set out in this Article of the Convention. The workers’ confederations allege that, in the absence of a written contract setting out the work to be performed, domestic workers are obliged to carry out additional unpaid work and to perform work that is not related to domestic work. They also emphasize that the Government has not adopted any type of model contract in the domestic work sector, and has not held consultations on this subject with the representative organizations of domestic workers. In its reply, the Government indicates that it plans to adopt measures for the preparation of a model employment contract for the domestic work sector. 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 in an appropriate, verifiable and easily understandable manner, especially in the case of migrant domestic workers. The Committee also requests the Government to provide information regarding the way in which the model contract for the sector will include the elements set out in this Article of the Convention and requests the Government to provide a copy of the model contract when it has been finalized and to indicate whether it was adopted in consultation with the organizations of employers and workers.

Articles 8(1) and 9(c). Migrant domestic workers. Written job offers. Right to keep in their possession their travel and identity documents. With reference to the requirement to provide a written contract to migrant workers prior to them crossing national borders, the Government refers once again to section 37 of Act No. 1636 of 2013 and Decision No. 1481 of 2014, which establish the requirements to be met by management service and job placement agencies in order to recruit workers, including domestic workers, abroad. Section 4 of the Decision provides that “any regulations governing the provision of services shall contain specialized information, guidance and prevention module which shall be brought to the attention of users at the commencement of the provision of the service and at the final stage of pre-selection”. Regulations for the provision of services have to meet these requirements in order to receive the prior technical approval necessary for authorization to be issued by the Special Administrative Unit of the Public Employment Service. However, the Committee observes that the information module does not contain many of the terms and conditions that must be set out in the contract of employment in accordance with the provisions of Article 7 of the Convention, including the provision of food and accommodation, if applicable, and terms and conditions relating to the termination of employment. In their observations, the workers’ confederations emphasize the increasing number of women migrant domestic workers from the Bolivarian Republic of Venezuela. They allege that these women workers, due to their situation of particular vulnerability, earn on average half of the wages received by national female domestic workers. Moreover, they are not registered with the social security system as dependent workers and are not entitled to social benefits. The workers’ confederations report that, out of fear that their irregular migratory situation could be reported, migrant female domestic workers do not initiate action or make a complaint when their rights are violated and are afraid to join unions. They add that in the departments of Santander and North Santander (which are on the border with the Bolivarian Republic of Venezuela), the National Union of Food Workers (SINTRAIMAGRA) has received complaints or requests for advice by irregular Venezuelan female migrant domestic workers concerning allegations of sexual harassment, the failure to pay wages or the payment of wages below the minimum wage. The Government reports the inspection, supervision and control activities carried out to verify the working conditions of migrant workers and identify possible abusive recruitment practices, especially in the case of Venezuelan nationals. It adds that, between January 2017 and September 2018, the Territorial Department of Santander was consulted on six occasions by migrant domestic workers concerning compensation for their unfair dismissal, the payment of social benefits and the non-payment of wages. However, the Government indicates that no complaints have been received and no administrative measures have been taken in relation to the acts alleged by the trade union confederations in their observations. In that regard, the Committee notes that the Government has still not indicated the provision that guarantees that migrant workers are entitled to keep in their possession their travel and identity documents. The Committee requests the Government to adopt the necessary measures to guarantee that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer or a contract of employment which includes the terms and conditions set out in Article 7 prior to crossing national borders for the purpose of taking up domestic work. In light of the observations made by the workers’ confederations, the Committee also requests the Government to continue providing information on the consultations held and the complaints received, as well as the inspections conducted in relation to the conditions of work of migrant domestic workers, and particularly those from the Bolivarian Republic of Venezuela. The Committee also once again requests the Government to provide detailed information indicating the manner in which it is ensured in practice that domestic workers are entitled to keep in their possession their travel and identity documents.

Article 10(3). Periods during which workers remain at the disposal of the household. In response to the Committee’s previous comments, the Government refers to the memorandum of 8 July 2018 of the Directorate of Inspection, Supervision, Control and Territorial Management, which provides that the working hours of domestic workers vary depending on their employment arrangement (live-out, live-in or daily). The Government reiterates that for domestic workers who reside in the household of the employer (live-in) the working day is a maximum of ten hours a day, while for other domestic workers (live-out or daily workers) the maximum working day is eight hours. When service is required beyond these time limits, it is necessary to recognize and pay overtime hours in accordance with the terms of the labour legislation. The Committee however notes that the Government does not indicate in its report whether 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 requests for their services (periods of immediate availability for work) are regarded as paid hours of work. The Committee reiterates its request to the Government to provide information on the manner in which it is guaranteed 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 paid hours of work, in accordance with Article 10 of the Convention.

Article 13. Specific and effective measures to ensure safety and health in domestic work. The Committee notes that, in response to its previous comments, the Government refers to the adoption of Decision No. 1111 of 27 March 2017, which determines the Minimum Standards of the Occupational Safety and Health Management System for employers and contractors. Section 2 of the Decision provides that “the Minimum Standards of the Occupational Safety and Health Management System … for individuals engaged in domestic service shall be established by an independent administrative act”. However, the Government does not provide information in its report on the specific minimum safety and health standards established in the domestic work sector. The Committee also notes that the Government reports, based on the statistical data of the Directorate of Labour Risks and the Federation of Colombian Insurers (FASECOLDA), that the number of domestic workers registered with labour risk administrators increased from 121,404 in 2017 to 125,069 in the first quarter of 2018. The Committee requests the Government to provide information on the application in practice of the minimum standards of the Occupational Safety and Health Management System established for the domestic work sector. It also requests the Government to continue providing statistical information, disaggregated by sex, on the number of domestic workers covered by insurance through labour risk administrators.

Article 14. Social security. In response to the Committee’s previous comments, the Government reports that between January 2015 and January 2017, the number of domestic workers registered fell from 101,335 to 96,159 for health protection, from 92,953 to 89,988 for pension coverage, from 100,933 to 95,935 for risk insurance and from 98,731 to 95,891 for family subsidies. The CUT, CTC and CGT emphasize that the number of domestic workers registered with the social security system continues to be very low (only 10 per cent). The Committee also notes that measures have continued to be taken to promote the registration of domestic workers with the social security system, including hourly domestic workers. The Government refers, among other measures, to the holding of a meeting on 27 April 2018, supported by the ANDI, to develop measures to strengthen awareness-raising concerning Act No. 1788 of 7 July 2016, which guarantees universal access to entitlement to the service bonus for men and women domestic workers, and the implementation of measures to raise awareness of Decree No. 2616 of 2013, establishing a weekly contribution mechanism to the pension system. However, the Government reports that lack of knowledge by domestic employers and workers of the applicable legislation continues to be an obstacle to its effective implementation. The Government also reports difficulties relating to the application of Decree No. 2616 of 2013, which does not refer to the registration of daily workers with the health system. The Committee requests the Government to continue providing information on the measures adopted or envisaged with a view to promoting the registration of domestic workers with the social security system. The Committee also requests the Government to continue providing statistical data, disaggregated by sex, on the number of domestic workers paying social security contributions, including an indication of the modality.

Article 15(1)(a), (b) and (e) and (2). Private employment agencies. In response to the Committee’s previous comments, the Government indicates that Decree No. 1072 of 2015, issuing the single decree regulating labour, provides that public and private employment management and placement agencies are service providers to the Public Employment Service. Such agencies are required to comply with the principles of the Public Employment Service for the provision of management and placement services, establish rules regulating the provision of services and inform users of them, and provide basic employment management and placement services free of charge for workers. The Government adds that, in the event of failure to comply with the requirements for the provision of employment management and placement services, the penalties include fines, suspension or the withdrawal of authorization. The Committee requests the Government to provide statistical data on the number of complaints received for alleged abuses and fraudulent practices by private employment agencies in relation to domestic workers, the violations identified and the penalties imposed.

Article 17(1). Complaint mechanisms. The Government indicates that, through the territorial departments, labour inspection services and labour guidance and support centres, guidance is provided to domestic workers on their rights and duties in relation, among other issues, to working time, wages, the payment of work on Sundays and public holidays, entitlement to social benefits and the service bonus. Advice is also provided to workers concerning their requests, complaints, claims, suggestions and denunciations. The Government indicates that between June 2016 and March 2018 the territorial departments were consulted on 29,719 occasions by domestic workers seeking information. The Government adds that, between January 2016 and April 2018, a total of 7,232 conciliation procedures were undertaken by labour inspectors in relation to disputes between workers and employers in the domestic work sector. In their observations, the workers’ confederations emphasize that the figures show a very sharp increase in the number of conciliation procedures, in contrast with the low number of labour inspections conducted (between June 2016 and March 2018, there were only 16 labour inspections in the domestic work sector and 53 penalties were handed down for violations of the rights of workers). In this regard, the workers’ confederations consider that conciliation does not safeguard or protect the rights of domestic workers, as labour inspectors act as mere mediators in the unequal employment relationship that generally exists between domestic workers and their employers. The CUT, CTC and CGT consider that effective complaint procedures are necessary to guarantee that violations of the rights of domestic workers are investigated and punished. The Government expresses the view that the high number of conciliation procedures is due to the fact that in the event of the violation of their rights domestic workers tend to opt for this expeditious means of resolving disputes, as it allows the flexible settlement of disputes and achieves the desired results. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged to ensure compliance in practice with this Article of the Convention. The Committee also requests the Government to continue providing detailed information on the number of complaints made by domestic workers to the various competent bodies, the penalties imposed and the compensation granted.

Article 17(2) and (3). Labour inspection and penalties. In response to the Committee’s previous comments, the Government indicates that the inspection of the working conditions of domestic workers, including internal domestic workers, is part of the national inspection system. However, the fact that the workplace is the home of the employer makes inspection difficult. Inspection in the domestic work sector therefore requires a different approach, as a result of which supervision of compliance with labour and social security provisions by the labour inspection services is carried out by requesting a series of elements from the employer with a view to carrying out a preliminary verification and/or administrative labour investigation. The Government reports that between June 2016 and March 2018 a total of 15 inspections were carried out in relation to all labour undertaken in households through a preliminary verification and an inspection in the case of administrative labour investigations. However, the Committee observes that the Government has not indicated which of the inspections were undertaken in the domestic work sector. The CUT, CTC and CGT emphasize that the conditions have not yet been established under which the access of the inspection services is authorized to household premises, having due respect for privacy. The workers’ confederations consider that it is necessary to prepare a labour inspection strategy for the domestic work sector and to establish a body of inspectors specialized in the sector in each territorial department of the Ministry of Labour. The Committee requests the Government to continue providing information on the measures adopted or envisaged for the development and application in practice of a labour inspection strategy for the domestic work sector, as well as for the application of the legislation and sanctions, having due regard for the special characteristics of domestic work. The Committee also requests the Government to provide information on the number of inspections in the domestic work sector, the number of violations identified and the penalties imposed. The Committee also reiterates its request for the Government to specify, insofar as compatible with national laws and regulations, the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18. Measures for the implementation of the provisions of the Convention. The Government reports the various activities undertaken within the context of the tripartite round table to follow up the implementation of the Convention. In this respect, the Government refers to the presentation on 17 October 2017 of the Inter-Union Agenda for the Domestic Work Sector by the Confederation of Women Afro-Colombian Domestic Service Workers in Colombia (USTRAD) and the SINTRAIMAGRA. The contents of the Agenda were presented on 22 March 2018 and include the development of activities in relation to the legal aspects of domestic work, the Afro-Colombian and gender components in the sector, social security, inspection, supervision and control, as well as awareness-raising and educational campaigns. The Committee requests the Government to provide detailed information on the activities of the tripartite round table to follow up the implementation of the Convention, as well as copies of the annual reports that the Ministry of Labour submits to the Congress of the Republic on the action taken and progress achieved in guaranteeing decent working conditions in the domestic work sector.

Application of the Convention in practice. The Committee requests the Government to continue providing information on any judicial or administrative decisions relating to the application of the Convention and to provide copies of the decisions.

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

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 31 August 2018, in which they place emphasis on the measures adopted in recent years to protect and extend the rights of men and women domestic workers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), received on 1 September 2018, and the Government’s response, received on 19 November 2018. The Committee requests the Government to provide its comments on the observations of the ANDI and the IOE.

Article 6 of the Convention. Fair terms of employment and decent working conditions. In its previous comments, the Committee requested the Government to take the necessary measures to amend sections 77 and 103 of the Substantive Labour Code to ensure that domestic workers have the same trial period, the same period of notice for the termination of fixed-term contracts and the same guarantees as other workers. It also requested the Government to indicate the measures envisaged or adopted to ensure that domestic workers, like other workers generally, enjoy fair terms of employment and decent working conditions. The Committee notes that the Government indicates once again that the labour rights and guarantees recognized in national legislation apply equally to domestic workers, on the basis, among other provisions, of Article 13 of the Constitution, which sets out the principle of equality, and Article 53, which establishes the minimum labour rights recognized for all workers. The Committee notes with interest ruling No. C-028/19, of 30 January 2019, of the Constitutional Court of Colombia, which declares inapplicable section 77(2) of the Substantive Labour Code, which provided for the presumption of a trial period of 15 days in the contracts of domestic workers, while subsection 1 did not establish any such presumption for other workers, but provided that the trial period was to be set out in writing. Section 77(2) was declared inapplicable on the grounds that it was incompatible with Articles 13 and 53 of the Political Constitution. The Constitutional Court emphasized in particular that “the precept included differentiated treatment in respect of domestic work, which is undertaken mainly by women with few means and a social protection deficit”. It also found that “as it is established that the majority of their labour relations are agreed through verbal contracts, in which the presumption of the trial period applies, which is not the case of employees engaged in other types of work, in contravention of the principles set out in Article 53 of the Constitution respecting equality of opportunities and the performance of work under decent and just conditions.” With regard to section 103 of the Substantive Labour Code, which provides for a written notice period of 30 days for the termination of fixed-term contracts, except in the case of domestic workers, for whom there is a notice period of only seven days, the CUT, CTC and CGT indicate that no measures have been adopted to amend the section with a view to guaranteeing equality for domestic workers in relation other workers with regard to the period of notice required for the termination of contracts of employment. The Committee therefore reiterates its request to the Government to take the necessary measures to amend section 103 of the Substantive Labour Code with a view to ensuring that domestic workers benefit from the same period of notice for the termination of fixed-term contracts, as well as the same guarantees as other workers. The Committee also requests the Government to continue providing information on the measures adopted or envisaged to ensure in practice that domestic workers, like workers generally, enjoy fair terms of employment and decent working conditions, as envisaged in Article 6 of the Convention.

Articles 6, 9(a) and 10. Workers who reside in the household. Decent living conditions that respect their privacy. Equality in respect of other workers in relation to hours of work and overtime compensation. In response to its previous comments, the Government indicates that domestic work can take three forms: internal, that is those who reside in the household; external, that is those who do not reside in the household; and daily, that is domestic workers who do not reside in the household and only work certain days of the week, for one or more employers. The Government adds that the working hours of domestic workers therefore vary depending on the form of their work. In this regard, the Government reiterates that the ordinary maximum hours of work established by law for external or daily domestic workers are eight in the day and 48 in the week. All hours that are worked in addition to the maximum number of hours established are considered to be overtime and paid as such. With regard to domestic workers who reside in the household, the Government refers once again to ruling No. C-372 of 1998 of the Constitutional Court, under the terms of which such domestic workers may not work more than ten hours a day. According to the High Court, when the hours of work a domestic worker are over that limit, such hours must be paid as overtime, under the terms of the labour legislation. The Government adds that the domestic worker and the employer may agree fewer hours than the legal maximum, in which case the wages paid will be proportional to the hours worked. The CUT, CTC and CGT observe that measures have not been taken to eliminate the discrimination existing for domestic workers who reside in the household in relation to other workers with regard to maximum hours of work and overtime pay. The workers’ organizations reiterate that in practice such different treatment implies that, due to the exception to maximum working hours establishing a maximum of ten hours a day for live-in domestic workers, the additional two hours that they may work, are not included and therefore not paid as overtime, compared to the situation of other workers, for whom maximum daily hours of work are set at eight. In its reply, the Government reiterates that the limit of ten hours of work a day established by the case law of the Constitutional Court is applied to live-in domestic workers, while the normal maximum statutory working time of eight hours a day is applied to other domestic workers. The Government adds that, although the maximum weekly limit of 48 hours set out in section 161 of the Substantive Labour Code does not apply to live-in domestic workers, Sunday is the compulsory day of rest for all workers. In the event that work is performed on a Sunday, the appropriate supplement has to be paid, and if more than three Sundays are worked in a month, the employer is required to grant the worker the corresponding compensatory rest. Finally, the Committee notes that the Government has not provided information in its report on the existence of provisions regulating the quality of food, the nature of accommodation or the right to privacy that must be enjoyed by domestic workers who reside in the household. The Committee recalls that, under the terms of Article 9(a) of the Convention, each member shall take measures to ensure that domestic workers are free to reach agreement with their potential employer on whether to reside in the household. When workers reside in the household, legal provisions on their living conditions are an essential component of the promotion of decent work for them. The Committee considers that the legislation should set out the obligations of employers in this respect. The Committee once again requests the Government to take the necessary measures to guarantee equal conditions in terms of normal hours of work between domestic workers who do not reside in the household and those who do. The Committee also once again requests the Government to provide information on the measures adopted to ensure that domestic workers who reside in the household receive overtime compensation under equal conditions with other workers. It also requests the Government to provide detailed information on the manner in which the quality of food, the nature of their accommodation and the right to privacy of domestic workers who reside in the household are regulated.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the first report provided by the Government. The Committee also notes the observations of the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 28 September 2016. The Committee requests the Government to provide its comments in this respect.

Articles 3(1), (2)(a) and (3), of the Convention. Freedom of association and collective bargaining. The Government indicates that freedom of association and collective bargaining rights are protected under article 39 of the Constitution and section 353(1) of the Substantive Labour Code, which also apply, without any restrictions, to domestic workers. The Government also refers to the existence of an organization of domestic workers, the Domestic Workers’ Association (UTRASD). The Committee nevertheless notes that the CTC, CUT and CGT emphasize that there is no effective recognition of domestic workers’ right to collective bargaining, as there appear to be only 500 unionized domestic workers and no collective bargaining has yet been conducted in the sector. They also point out that there are numerous obstacles to the unionization of domestic workers, such as the large number of domestic workers who work in the informal economy; gender discrimination in the sector, where most of the workers are women; the geographic dispersion of workers; limited rest time; widespread conditions of poverty and vulnerability; and the difficulties encountered in obtaining permission for absence from work. The Committee requests the Government to provide detailed information on the measures taken or envisaged to fulfil its obligations under the Convention to guarantee the effectiveness in practice of the right of domestic workers to freedom of association and collective bargaining.

Article 3(2)(b). Forced labour. The Government reports that article 17 of the Constitution prohibits all forms of slavery, servitude and trafficking in human beings and that article 25 recognizes the right of all persons to work in decent and fair conditions. The Government adds that, in accordance with Act No. 985 of 2005 and as part of the Comprehensive National Strategy to Combat Trafficking in Persons (2007–12), measures are being taken to combat trafficking in persons and to protect victims. In this respect, the Committee refers to its 2014 comments on the application of the Forced Labour Convention, 1930 (No. 29), in which it noted the observations of CUT and the CGT indicating that the Strategy referred to above continues to be tenuous, as there has been no decrease in the number of trafficking victims, most of whom are vulnerable workers (women, children and indigenous workers). The Committee also notes that the CGT, CTC and CUT refer to the existence of studies that have verified cases of forced labour in the domestic work sector, but that the low rate of unionization and labour inspections in the sector mean that there is no current assessment of the real conditions of domestic work. The Committee requests the Government to provide detailed information on the specific measures taken or envisaged to guarantee in law and practice the protection of domestic workers from all forms of forced or compulsory labour.

Articles 3(2)(c) and 4. Child labour. Minimum age. The Government indicates that section 2, subsection 10.2, of Resolution No. 1677 of 2008 prohibits the employment of children under the age of 18 years “in the households of third parties, domestic work and in cleaning, washing and ironing work”. The Committee nevertheless notes that the CTC, CUT and CGT underscore the lack of effective measures to guarantee the elimination of domestic work by children and young persons in practice. The Committee refers to its 2014 comments on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), in which it noted the establishment of an internal working group specializing in the elimination of child labour with a view to the protection of child domestic workers from hazardous work. The Committee requests the Government to provide detailed information on how the elimination of child labour is guaranteed in practice, in accordance with the provisions of the legislation in force.

Articles 3(2)(d) and 11. Discrimination based on sex and race. Minimum wage. The Government indicates that article 53 of the Constitution establishes the adjustable minimum living wage as a fundamental right for all workers. With regard to non-discrimination based on sex, section 143(1) of the Substantive Labour Code (as amended by section 7 of Act No. 1496 of 2011) provides that “equal wages shall be paid for equal work performed in the same post, with the same hours of work and conditions of efficiency…” and that subsection 143(2) prohibits differences in wages based on, inter alia, sex and race. In this respect, the Committee refers to its comments on the application of the Equal Remuneration Convention, 1951 (No. 100), in which it recalled that this definition is more restrictive than the principle of equal remuneration for men and women for work of equal value set forth in Convention No. 100, and asked the Government to take the necessary measures to ensure that this principle is adequately reflected in the legislation. The Committee notes that the CGT, the CTC and CUT indicate that, according to statistical data from the National Administrative Department of Statistics (DANE), in 2015 there were 725,000 registered domestic workers, 95 per cent of whom were women and most of whom were indigenous persons, Afro-Colombians and/or migrants. The workers’ organizations also refer to the study “Sweeping Away Invisibility” (Barriendo la invisibilidad) published in 2013, which investigated the situation of Afro-Colombian domestic workers in the city of Medellin. The study showed that in 2012, 61.9 per cent of the workers studied were paid a monthly wage of between 301,000 Colombian pesos (COP) and COP566,000, when the minimum wage in Colombia in 2002 was COP566,700; 21.4 per cent were paid between COP151,000 and COP300,000; and only 11.9 per cent were paid over COP566,000. The Committee refers to its previous comments on the application of Convention No. 100 and trusts that the Government will take the necessary measures to amend the relevant legislation with a view to ensuring equal remuneration for men and women domestic workers for work of equal value. Moreover, noting the statistical data provided by the “Sweeping Away Invisibility” study on the remuneration received by Afro-Colombian domestic workers, which is less than the national minimum wage, the Committee requests the Government to provide detailed information on the manner in which the application in practice of section 143(b) of the Substantive Labour Code is guaranteed in the domestic work sector, with a view to the elimination of differences in wages based on, inter alia, sex and race.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government indicates that domestic workers are protected on an equal footing with other workers pursuant to Act No. 1010 of 2006, under which measures are taken to prevent, correct and penalize work-related and other forms of harassment in the context of employment relationships. In this respect, the Committee refers to its 2016 comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that section 3 of the Act establishes as extenuating circumstances, inter alia, violent emotion, excusable passion or state of anger (which is not applicable in the case of sexual harassment), previous good conduct and discretionary compensation (including partial compensation) for the harm caused. The Committee also notes that the CGT, CTC and CUT emphasize the lack of action by the Government to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence. Recalling the special characteristics of domestic work, especially in the case of migrant domestic workers, who are particularly vulnerable to abuse, harassment and violence, the Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with this Article of the Convention. Moreover, noting that section 3 of Act No. 1010 of 2006 establishes very broad extenuating circumstances in relation to work-related harassment, the Committee requests the Government to indicate the manner in which the full protection of domestic workers is ensured in such circumstances.

Article 6. Fair terms of employment and decent working conditions. The Government, with reference to the principle of equality established in article 13 of the Constitution, indicates that all the rights recognized in the national legal system apply equally to domestic workers. It also refers to article 25, which provides that all persons shall be entitled to work in fair and decent conditions, and to article 53, which establishes the minimum labour rights recognized for all workers. The Committee nevertheless notes that the CGT, CTC and CUT point out that section 77(2) of the Substantive Labour Code provides, in relation to the general regime for workers, that the trial period must be stipulated in writing, while section 77(1) provides that in domestic workers’ employment contracts, the trial period is presumed to be the first 15 days of service. The workers’ organizations also emphasize that section 103 of the Substantive Labour Code provides that in order to terminate a fixed-term contract, written notice must be given 30 days in advance, except in the case of domestic workers, for whom such notice is required only seven days in advance. The Committee requests the Government to take the necessary measures to amend sections 77 and 103 of the Substantive Labour Code to ensure that domestic workers have the same trial period, the same period of notice for the termination of fixed-term contracts and the same guarantees as other workers. The Committee also requests the Government to indicate the measures envisaged or taken to ensure that domestic workers, like other workers in general, enjoy fair terms of employment and decent working conditions.

Article 7. Understandable information on conditions of employment. Written contract of employment. The Government states that section 37 of the Substantive Labour Code provides that contracts of employment may be oral or written and that sections 38 and 39 establish the mandatory clauses in oral and written contracts, respectively. The Government adds that the Ministry of Labour has taken measures to disseminate and promote domestic workers’ labour rights, for example, by publishing the “Domestic Service – Labour Guide” booklet and conducting campaigns to raise awareness of these rights and to encourage the registration of domestic workers in the general social security system. The Committee notes that, at the 18 August 2016 meeting of the Subcommittee on International Affairs of the Standing Committee for Dialogue on Wage and Labour Policies of the Ministry of Labour, the representative of the Ministry of Labour announced that the adoption of a model employment contract for domestic service was planned during the upcoming tripartite round table on the application of Convention No. 189. The Committee nevertheless notes that this model is not currently available on the website of the Ministry of Labour and that the Government does not indicate whether it has been adopted. The Committee further notes that the CGT, CTC and CUT indicate that due to the large number of domestic workers who work in the informal economy, contracts are usually oral and are not based on the minimum terms and conditions established in this Article of the Convention. The Committee requests the Government to provide information on the measures taken or envisaged to guarantee the application in practice of this Article of the Convention. The Committee hopes that the model contract for the sector includes the elements set out in this Article of the Convention and requests the Government to provide a copy of the model contract when it has been finalized and to indicate whether it was adopted in consultation with the organizations of employers and workers.

Articles 8(1) and 9(c). Migrant domestic workers. Written job offers. Right to keep in possession travel and identity documents. The Government reports that, in accordance with section 37 of Act No. 1636 of 2013, Resolution No. 1481 of 2014 establishes the criteria that agencies providing employment management and job placement services must meet in order to recruit workers, including domestic workers, abroad. The Committee nevertheless notes that these regulations do not contain provisions which require migrant domestic workers who are recruited in one country for domestic work in another to receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies. The Committee also notes that the Government does not indicate the provisions which guarantee that migrant workers may keep in their possession their travel and identity documents. The Committee requests the Government to provide detailed information in its next report on the measures taken or envisaged to ensure that effect is given to these provisions of the Convention.

Articles 6, 9(a) and 10. Workers who reside in the household. Decent living conditions that respect their privacy. Equality in respect of other workers in relation to hours of work and overtime compensation. The Committee notes that the Government does not provide information on the existence of provisions regulating the quality of food, the nature of accommodation or the right to privacy that domestic workers who reside in the household should enjoy. The Committee recalls that under Article 9(a) of the Convention, each Member shall take measures to ensure that domestic workers are free to reach agreement with their potential employer on whether to reside in the household. When workers reside in the household, the provisions governing their living conditions play an essential role in the promotion of decent work. It is important for legislation to establish the obligations of employers in this respect. With regard to hours of work, the Government indicates that the working day of domestic workers is the working day established in section 161 of the Substantive Labour Code for all workers, that is, a maximum of eight hours a day; however, for domestic workers who reside in the household, the working day is a maximum of ten hours a day, in accordance with Constitutional Court Judgment C–372 of 1998. The Government adds that section 159 of the Substantive Labour Code establishes that overtime is any hours that exceed ordinary hours of work, or at least hours that exceed the legal maximum. In this respect, the Committee notes that the CGT, CTC and CUT emphasize the discrimination suffered by domestic workers in relation to their ordinary hours of work and remuneration since the maximum hours of work for domestic workers who reside in the household are, generally, ten hours and therefore the two additional hours of work longer compared with those of other workers, whose maximum hours of work are eight hours, and which are not considered overtime and therefore not paid as such. They add that, according to the “Sweeping Away Invisibility” study, 91 per cent of the domestic workers who reside in the household worked between ten and 18 hours a day and 89 per cent of the domestic workers residing outside of the household worked between nine and ten hours, and that in 90.5 per cent of cases, domestic workers were not paid overtime. The Committee requests the Government to take the necessary measures to guarantee equal conditions in terms of normal hours of work between domestic workers who do not reside in the household and those who do. The Committee also requests the Government to provide information on the measures taken to ensure that domestic workers who reside in the household receive overtime compensation under equal conditions with other workers.

Article 10(3). Periods during which workers remain at the disposal of the household. The Government does not provide information on whether 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 are regarded as hours of work. The Committee requests the Government to provide detailed information on the manner in which effect is given to this provision of the Convention.

Article 13. Specific and effective measures to ensure safety and health in domestic work. The Government indicates that the protection afforded to all workers in relation to occupational risk prevention and the promotion of safety and health under Act No. 1562 of 2012 and Decree No. 1443 of 2014 applies to domestic workers. The Committee nevertheless notes that the CGT, CTC and CUT emphasize the lack of specific measures to guarantee domestic workers’ safety and health in practice and the widespread failure of employers to register domestic workers with the occupational risk scheme. The Committee requests the Government to provide information on any measures taken or envisaged to ensure the occupational safety and health of this category of workers, with due regard for the specific characteristics of domestic work.

Article 14. Social security. The Government indicates that domestic workers, like other workers, are entitled to be registered with the General Comprehensive Social Security System, in accordance with the provisions of Act No. 100 of 1993 (as amended by Act No. 797 of 2003). The Committee notes with interest the measures taken by the Government to ensure fair terms of access to social security for domestic workers in relation to other workers. The Government refers to, inter alia, the regulation of domestic workers’ registration with the family compensation scheme (Decree No. 721 of 2013), social security contributions for dependent workers who work for periods of less than one month (Decree No. 2616 of 2013) and the rules governing contributions on the service bonuses of domestic workers (Act No. 1788 of 7 July 2016). The Government indicates that, as a result of the adoption of Decree No. 721 of 2013, the number of domestic workers registered with the family compensation scheme increased from some 8,000 in April 2013 to 89,122 in December 2014. The Government adds that domestic workers have access to the general maternity protection scheme established by sections 236 to 244 of the Substantive Labour Code. The Committee requests the Government to provide statistical data, disaggregated by sex, on the number of domestic workers who contribute to the social security system and to indicate the form in which the contributions are paid.

Article 15(1)(a), (b) and (e) and (2). Private employment agencies. The Government refers to Act No. 50 of 1990 and Decree No. 3115 of 1997, which establish the requirements for the authorization of the operation of private employment agencies and their obligations, as well as penalties for non-compliance. The Committee nevertheless notes that the Government has not provided any information on whether adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices by private employment agencies in relation to domestic workers. The Committee requests the Government to provide detailed information on the measures taken or envisaged to give effect to this Article of the Convention. The Committee also requests the Government to provide detailed information on any consultations held in this regard with the most representative organizations of employers and workers, as well as with organizations representative of domestic workers and with those representative of employers of domestic workers.

Article 17(1). Complaint mechanisms. The Government indicates that domestic workers may file complaints with the regional offices of the Ministry of Labour to protect their labour rights. The Committee notes that the CGT, CTC and CUT indicate that the Ministry of Labour has established “Colabora” Citizen Support Centres, which received 4,790 complaints from domestic workers between 2014 and the first four months of 2015. The workers’ organizations nevertheless point out that these centres only provide information. They also refer to Judgment T-185/16, in which the Constitutional Court found that domestic workers are a vulnerable group that require special constitutional protection, and to the need to create specific support and complaint mechanisms for domestic workers and to adopt measures to facilitate their access to justice. The Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure the application in practice of this Article of the Convention, including legal advice mechanisms, information on procedures and mechanisms that are accessible and in a format or language that is understandable for migrant domestic workers, and other measures intended to inform domestic workers of their labour rights, such as awareness-raising campaigns.

Article 17(2) and (3). Labour inspection and penalties. The Committee notes that the CGT, CTC and CUT indicate that there is no labour inspection strategy for the domestic work sector that takes into account the special characteristics and conditions of this work. The workers’ organizations stress the importance of inspections in the domestic work sector, in particular taking into account that special constitutional protection has been granted to domestic workers in the light of their vulnerable conditions and pointing out that forced labour, child labour and violence frequently occur in the sector. The Committee requests the Government to provide information on the measures taken or envisaged for the development and implementation of a labour inspection strategy for the domestic work sector, as well as enforcement and penalties with due regard for the special characteristics of domestic work. The Committee also requests the Government to provide information on the number of inspections in the sector, the number of infringements detected and penalties imposed. The Committee further requests the Government to specify, in so far as compatible with national laws and regulations, the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18. Measures to implement the provisions of the Convention. The Government reports that, pursuant to section 3 of Act No. 1788 of 7 July 2016, a tripartite round table was set up to monitor the implementation of the Convention. The Government adds that under this provision, the Ministry of Labour shall present annual reports to the Congress of the Republic on the action taken and progress made in ensuring decent working conditions in the domestic work sector. The Committee requests the Government to provide information in its next report on the activities of the tripartite round table to monitor the implementation of the Convention, as well as copies of the annual reports presented by the Ministry of Labour to the Congress of the Republic on the action taken and progress made in ensuring decent working conditions in the domestic work sector.

Application of the Convention in practice. The Committee requests the Government to provide information on any judicial or administrative decisions relating to the application of the Convention.