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

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

Article 1 of the Convention. Definition. Sporadic or occasional domestic workers. In its previous comments, the Committee noted that section 2 of Act No. 5407/15 on domestic work (Act No. 5407) defines domestic work as any “subordinate, regular, remunerated service in employment, whether or not resident in the household, consisting of cooking, cleaning and other tasks inherent to a household, residence or private dwelling”. The Committee requested the Government to indicate the manner in which it ensures that sporadic or occasional workers who perform domestic work on an occupational basis are protected by the safeguards provided for in the Convention. In this regard, the Government indicates in its report that such workers are also covered by Act No. 5407, provided that the work they perform its covered by the provisions of section 3 of the Act. By way of example, the Government refers to domestic workers who are employed for short periods. The Committee observes, however, that the inclusion of the term “regular” in the definition of a domestic worker could give rise to interpretations under which workers who perform domestic work occasionally or sporadically are not considered to be domestic workers. In this regard, the Committee recalls that the definition of a domestic worker established in Article 1 of the Convention only excludes sporadic workers when they do not perform domestic work on an occupational basis. The Committee draws the Government’s attention to the preparatory work for the Convention, which indicates that this specification was included in this provision to ensure that day labourers and similar precarious workers remain included in the definition of domestic worker (see Report IV(1), International Labour Conference, 100th Session, 2011, page 5). Consequently, the Committee requests the Government to adopt the necessary measures with a view to amending section 2 of Act No. 5407 so that domestic workers who do not work regularly, but for whom domestic work is an occupation, are expressly included in the definition of domestic work.

Article 2. Exclusions. Domestic workers who perform paramedical work. The Committee notes that section 3(2)(h) of Act No. 5407 provides that “carers of the sick, elderly or disabled” are considered to be domestic workers. However, section 4(b) excludes from the scope of application of this Act those workers who “perform both domestic work and specialized paramedical work of grooming, cleaning or caring for older adults and persons with disabilities and/or health problems”. The Committee requests the Government to provide detailed information on the exclusion referred to in section 4(b) of Act No. 5407. It also requests the Government to indicate the criteria that distinguish this paramedical work from the work of “carers of the sick, elderly or disabled” referred to in section 3(2)(h) of Act No. 5407, and to provide information on the application of both sections. The Committee also requests the Government to provide information on the consultations held previously with the most representative employers’ and workers’ organizations in this respect.

Workers who perform their services independently and using their own supplies. In its previous comments, the Committee noted that section 4(c) of Act No. 5407 excludes from its scope of application domestic workers who perform their services “independently and using their own supplies”. The Committee requested the Government to indicate the reason for this exclusion and to specify the manner in which it ensures that the protection afforded to these workers is at least equivalent to that provided for in the Convention. The Committee also requested the Government to provide information on the consultations held previously with the most representative employers’ and workers’ organizations in this respect. In its reply, the Government indicates that the general provisions of the Labour Code apply to such workers. The Government adds that this would be the case for drivers who use their own vehicles, who work for more than one employer and manage their working time. The Government also indicates that the proposal to exclude this category of workers was presented to and approved by the Tripartite Commission for Equal Opportunities of Paraguay (CTIO), in which the representatives of the social partners participate. The Committee notes, however, that the Government does not indicate the reasons why independent domestic workers are excluded or the criteria used to define a domestic worker as independent. In this respect, the Committee recalls that Article 2 of the Convention establishes that it applies to all domestic workers. The Convention therefore applies to all workers performing domestic work, irrespective of who provides the equipment, materials or other items used for that purpose. The Committee requests the Government to provide a detailed indication of the criteria by which a domestic worker is considered to “perform his or her services independently”. The Committee also requests the Government to provide information on the specific Labour Code regulations that govern such workers and their application in practice.

Article 5. Protection against abuse, harassment and violence. The Committee notes the enactment of Act No. 5777/16 on the comprehensive protection of women against all forms of violence (Act No. 5777) and Decree No. 6973 of 27 March 2017 regulating the Act. Act No. 5777 aims to establish policies and strategies to prevent violence against women, assistance mechanisms and comprehensive measures of protection, penalties and remedies, in both the public and private sectors. In this context, the Committee notes the statistics provided by the Government indicating that, during the period from 2014–17, the vast majority of domestic workers in the country – 94.4 per cent – were women. Furthermore, the Government indicates that domestic employment accounts for 7 per cent of the labour force in the country, and 17 per cent of women in employment. Section 5(g) of Act No. 5777 defines workplace violence as any mistreatment of or discrimination against women in the workplace by superiors or colleagues of equal or lower rank through, inter alia, humiliating and disparaging comments, threats of dismissal or unjustified dismissal, dismissal during pregnancy, and the imposition of duties outside of their functions or work services outside of agreed hours. The Committee also notes the detailed information provided by the Government in relation to the support and promotion measures for women’s rights, including domestic workers, carried out by the General Directorate for the Promotion of Working Women. Among other measures, the Government refers to the establishment of the Labour Affairs Service (SAAL), an administrative body that replaces the former Attention Centre for Domestic Workers (CTAD), with which employers and workers from various sectors, including the domestic work sector, can lodge complaints. The Committee also notes the statistical information provided by the Government on the number of complaints lodged with the SAAL in relation to domestic work. Nevertheless, the Government does not indicate which of those complaints involved cases of abuse, harassment and violence. Furthermore, the Government indicates that it does not have a record of cases brought before a court of law or relocation and rehabilitation programmes for men and women domestic workers who are victims of workplace violence. Lastly, the Government reports the establishment of national telephone line called 137 “SOS MUJER” (SOS WOMAN), which is an operational security system for women victims of domestic and intra-family violence, available 24 hours a day, seven days a week. The Committee requests the Government to provide information on the specific measures adopted to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence. The Committee also requests the Government to provide statistical information on the number of complaints of harassment, abuse and violence in the context of domestic work lodged with the competent bodies – including those lodged with the Labour Affairs Service (SAAL) and the courts – the outcomes and the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9. Freedom to reach an agreement with the employer or potential employer on whether to reside in the household. Travel and identity documents. In reply to the Committee’s previous comments, the Government indicates that, in accordance with section 6 of Act No. 5407/15, work may be arranged with or without residence in the household, as agreed by the parties, and the domestic worker is therefore free to agree with the employer whether or not they wish to reside in the household for which they work. With regard to the right of domestic workers to keep their travel and identity documents, section 8(c) of Act No. 5407 establishes that any clause obliging a domestic worker to permanently surrender his or her identity documents to the employer shall be null and void. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure in practice that domestic workers: (a) are free to reach agreement with their employer on whether to reside in the household where they work; and (b) are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave. The Committee also requests the Government to provide information on the measures envisaged or adopted to guarantee in practice that domestic workers who reside in the household for which they work enjoy decent living conditions that respect their privacy, as provided for in paragraph 17 of the Domestic Workers Recommendation, 2011 (No. 201).

Article 7. Information on terms and conditions of employment. In its previous comments, the Committee requested the Government to indicate how it ensures that domestic workers are informed in an appropriate, verifiable and easily understandable manner of paid annual leave, daily and weekly rest periods and, where applicable, the terms of repatriation. The Government refers to the model contract for the domestic work sector available on the web page of the Ministry of Labour, Employment and Social Security (MTESS), which contains all the elements provided for in Article 7 of the Convention, except the conditions of repatriation. The Government indicates that this contract contains the basic clauses, but the contracting parties may, if they so wish, incorporate further clauses according to their needs. The Government adds that repatriation of workers is carried out with the support of the Secretariat for Paraguayan Returnees and Refugees (SEDEREC). However, the Committee observes that the Government does not specify how it ensures that domestic workers are informed of the conditions of repatriation, where applicable. In addition, through the SAAL, MTESS officials inform workers, including domestic workers, of their rights and obligations. However, the Committee observes that, according to the Permanent Household Survey, in 2017, only 5.3 per cent of domestic workers had a written employment contract, while 94.6 per cent had a verbal contract. The Committee requests the Government to continue providing information on the measures adopted or envisaged to ensure that domestic workers are informed in practice of their terms and conditions of employment – particularly those set out in the Convention, including the conditions of repatriation, where applicable – in an appropriate, verifiable and easily understandable manner, especially those domestic workers from underprivileged communities, including those belonging to indigenous and tribal communities. The Committee also requests the Government to continue providing statistical information on the number of employment contracts registered in the domestic work sector.

Article 12. Payment in kind. In its previous comments, the Committee requested the Government to provide information on the applicability to domestic workers of section 231 of the Labour Code, which provides for a limit on payments in kind of 30 per cent of the wages. The Committee also requested the Government to specify the cases in which it is possible to revoke the presumption established in section 12 of Act No. 5407, under which the remuneration of domestic workers includes, in addition to cash wages, the provision of food, and for those who are resident in the household, the provision of accommodation. The Committee notes the Government’s indication that the wages of domestic workers must be paid in cash and the limit on payments in kind established in section 231 of the Labour Code therefore does not apply to the domestic work sector. The Government adds that the SAAL follows this interpretation in the legal advice it gives to employers and workers in the domestic work sector. With regard to the presumption established in section 12 for domestic workers resident in the household, the Committee recalls that paragraph 14(d) of Recommendation No. 201 provides 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”. Consequently, the Committee requests the Government to adopt the necessary measures with a view to amending section 12 of Act No. 5407 in order to expressly prohibit the deduction of the food and accommodation provided from the wages of domestic workers.

Article 13. The right to a safe and healthy working environment. The Committee notes the formulation in 2017 of the “Guide to Occupational Safety and Health for Domestic Workers in Paraguay” with the technical assistance of the ILO and the participation of representatives of the relevant institutions in the field, as well as the most representative employers’ and workers’ organizations, including organizations from the domestic work sector. The objective of the Guide is to equip employers and domestic workers with an information and awareness-raising tool on their respective rights and obligations in the field of occupational safety and health, with a view to improving working conditions, reducing accidents at work and occupational diseases, and promoting the existing social protection mechanisms for these cases. The Committee notes the detailed information contained in the Guide on the specific risks faced by domestic workers when performing their various regular duties, the preventive measures against such risks, as well as the benefits and situations covered under the social security scheme for occupational risks (occupational risks, accidents at work, commuting accidents and occupational diseases). The Committee requests the Government to continue providing information on the measures adopted or envisaged to give effect to Article 13 of the Convention. The Committee also requests the Government to provide statistical information, disaggregated by sex and department, on the number of domestic workers registered with the social security scheme for occupational risks.

Article 14. Conditions not less favourable than those applicable to workers generally in respect of social security protection, including maternity. In reply to its previous comments, the Committee notes that, according to statistical information from the General Directorate of Social Security of the MTESS, the number of domestic workers covered by the insurance of the Social Welfare Institute fell from 27,105 in 2015 to 17,044 in 2018. The Committee notes the various measures adopted with a view to facilitating and incentivizing the registration of domestic workers with social security. In October 2017, the General Directorate of Social Security, with the technical assistance of the ILO, published the “Social Security Guide for Domestic Workers”. Various stakeholders, including workers’ and employers’ organizations from the domestic work sector, participated in its drafting. The Guide contains information on, inter alia, the requirements and processes for registration and coverage by the compulsory social security scheme for domestic work, the risks and contingencies it covers, social security contributions, short-term benefits, as well as retirement benefits and pensions. The Committee notes that, according to the Guide, domestic workers can find out about their social security payment compliance through the web services provided by the Social Welfare Institute. Furthermore, in the event that the employer does not register or affiliate the domestic worker, the workers can apply for ex officio registration from the Social Welfare Institute or the MTESS by means of a complaint. In 2018, the Social Welfare Institute and the MTESS launched an information and awareness-raising campaign on domestic work with the aim of informing and raising public awareness of the benefits of formalizing domestic work for both employers and workers. In addition, the Committee notes the adoption of MTESS Resolution No. 2660/2019 regulating the registration of social security for part-time employment and establishing its entry into force for the domestic work sector as an emergency measure. Section 2 of the Resolution establishes that the Social Welfare Institute shall register domestic workers as part-time workers provided that the written contract of employment states that the employment relationship is established on this contractual basis and the weekly working hours are adjusted to between 16 and 32 hours. In relation to protection of maternity, the Government reports the adoption of Act No. 5508/15 on the promotion and protection of maternity and support for breastfeeding, which also applies to domestic workers. The Government indicates that domestic workers have access to the benefits provided for by that legislation, such as maternity leave of 126 days, the payment of the social security maternity allowance and the right to security of tenure at work. According to statistical information from the Social Welfare Institute, in 2017, some 4 per cent of domestic workers registered with social security received the maternity allowance. The Committee requests the Government to continue providing detailed and updated information on the measures adopted or envisaged with a view to promoting the registration of domestic workers with social security. The Committee also requests the Government to provide statistical information disaggregated by sex and form of employment – full- or part-time – on the number of domestic workers registered with social security, as well as on the number of domestic workers who contribute to the maternity allowance and those who have benefited from it.

Article 15. Private employment agencies. In its previous comments, the Committee requested the Government to provide information on the measures adopted or envisaged to give full effect to this Article of the Convention. Furthermore, the Committee urged the Government to contemplate adhering to the obligations of the Employment Service Convention, 1948 (No. 88), and the Private Employment Agencies Convention, 1997 (No. 181). In its reply, the Government indicates that it does not have a register of private employment agencies. The Committee requests the Government to provide detailed information on the conditions governing the operation of private employment agencies that employ or place domestic workers. Furthermore, the Committee requests the Government to indicate the measures adopted to ensure that adequate mechanisms and procedures are in place for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers. The Committee also requests the Government to indicate the measures adopted or envisaged to ensure fees charged by private employment agencies are not deducted directly or indirectly from the remuneration of domestic workers.

Article 16. Access to justice. In reply to the Committee’s previous comments, the Government indicates that, in the event that domestic workers wish to take legal action and do not have sufficient resources, they may refer the matter to the Ministry of Public Defence (MDP), which is an independent and autonomous institution that defends its users, monitoring the effective application of due process within its sphere of competence. The Committee notes that several actions have been carried out to disseminate and raise awareness of the labour rights and obligations of domestic workers, with the participation of domestic workers, aimed at both employers and workers. By way of example, the Government refers to the preparation and subsequent dissemination of information leaflets on Act No. 5407. In addition, forums, seminars and high-level meetings have been held to promote the rights of domestic workers in the context of the Tripartite Commission on Equal Opportunities (CTIO). The Committee requests the Government to continue providing information on the measures taken or envisaged with a view to ensuring that domestic workers are aware of their labour rights so that they can make informed decisions and are aware of the administrative and judicial remedies available to them. The Committee also requests the Government to continue providing information on the number of complaints lodged by domestic workers with the various competent bodies, the penalties imposed on those responsible and the compensation granted.

Article 17(1). Complaint mechanisms. In reply to the Committee’s previous comments, the Government indicates that, through the SAAL, free advice is given to workers and employers in the domestic work sector. The SAAL also provides, inter alia, mediation services and complaints mechanisms. With regard to the complaints procedure, the Government indicates that the SAAL sends an initial notification to the employer inviting the employer to attend mediation. If the employer does not appear, a second and final invitation to mediation is sent. The Government reports that, between 2016 and June 2018, the SAAL provided advice to 5,451 persons in the domestic work sector, 1,664 complaints were received and 1,738 mediations were held. The Government adds that some of these cases have been broadcast weekly on social networks with a view to raising awareness of the rights of domestic workers. The Committee requests the Government to continue providing updated information on the different services provided by the Labour Affairs Service (SAAL) in the domestic work sector.

Article 17(2) and (3). Labour inspection and penalties. Access to the premises of the household. The Committee notes that the Government refers to, among other provisions, section 16 of Act No. 5115/13, establishing that the General Directorate of Labour Inspection and Supervision is the competent body for the inspection, surveillance and supervision of labour laws. The Government indicates that, in the area of domestic work, labour inspections are carried out by court order. In this regard, article 34 of the National Constitution provides that “any private space is inviolable. It may only be entered or sealed by judicial order and in accordance with the law. On an exceptional basis, such measures may also be taken in the case of flagrante delicto or to prevent an imminent offence, or to prevent damage to persons or property”. The Government also reports that, in 2018, the General Directorate of Labour Inspection and Supervision, along with the General Directorate of Social Security, appointed six inspectors to deliver information materials in various neighbourhoods of Asunción, as part of the campaign to formalize domestic employment. The Committee notes, however, that the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, noted in the report mentioned in the Committee’s observation the lack of capacity in the labour inspectorate (only 25 labour inspectors for the whole country) to monitor and enforce relevant provisions of the Labour Code (according to the information received, the labour inspectorate is small and its capacity is centralized in Asunción). The Special Rapporteur indicated that such a situation could create a culture of impunity in certain regions and sectors, leaving workers highly vulnerable to exploitation, including contemporary forms of slavery (see A/HRC/39/52/Add.1, paragraph 35). In this respect, the Committee reminds the Government of the need to strengthen labour inspection controls and to impose dissuasive administrative and criminal penalties. While noting the Government’s indications regarding the complexity of carrying out labour inspections in the domestic work sector due to the inviolability of the home, the Committee reminds the Government of the possibility of having recourse to ILO technical assistance. The Committee requests the Government to provide information on the number of inspections in the sector, the number of violations detected and the penalties imposed.

Part VI. Observations by the social partners. The Committee notes that the Government has not provided information on the comments made by and the discussions held with the social partners regarding the implementation of the Convention. The Committee reiterates its request in this respect.

Part IV on court decisions. The Committee notes that the Government has not included copies of court decisions in its report. The Committee requests the Government to provide court decisions relating to the application of the Convention.

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

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.

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

Article 1 of the Convention. Definition. In its first report, the Government indicates that section 2 of Act No. 5407/15 on domestic work (Act No. 5407) defines domestic work as any “subordinate, regular, remunerated service in employment, whether or not resident in the household, consisting of cooking, cleaning and other tasks inherent to a household, residence or private dwelling”. The Committee notes that this definition seems to exclude those who work sporadically. In this respect, the Committee recalls that the definition of domestic worker set out in Article 1 of the Convention excludes occasional workers only when the domestic work is not performed on an occupational basis. In this regard, the Committee draws the Government’s attention to the preparatory work for the Convention, in which it is emphasized that this clarification was included to ensure that day labourers and similar precarious workers are included in the definition of domestic worker (see Report IV(1), ILC, 100th Session, 2011, page 5). The Committee requests the Government to indicate the manner in which it ensures that sporadic or occasional workers who perform domestic work on an occupational basis are protected by the safeguards provided for in the Convention.

Article 2. Exclusions. The Committee notes that section 4 of Act No. 5407 provides for the exclusion of three categories of workers from the application of the Convention. In particular, it notes that section 4(c) excludes from the application of the Convention domestic workers who perform their services “independently and using their own supplies”. The Committee requests the Government to indicate the reason for this exclusion and to specify the manner in which it ensures that the protection afforded to these workers is at least equivalent to that provided for in the Convention. The Committee also requests the Government to provide information on the consultations held previously with the most representative employers’ and workers’ organizations in this respect, as provided for in Article 2(2) of the Convention.

Articles 3(b) and (c) and 4. Forced labour. Elimination of child labour. Minimum age. The Government indicates that article 9 of the Constitution establishes that every person has the right to protection of their freedom and security and that article 10 of the Constitution prohibits slavery, personal servitude and human trafficking. The Committee also notes that the Government has made efforts in recent years to eradicate the practice of “criadazgo”. In particular, it notes that section 5 of Act No. 5407 establishes the minimum age to perform domestic work at 18 years and that section 26 of the same Act removes any reference to domestic work from the Childhood and Adolescence Code. The Committee requests the Government to provide information on the application in practice of Act No. 5407, particularly on the control mechanisms established to ensure that minors are not employed as domestic workers and the penalties imposed in case of violation.

Article 5. Protection against abuse, harassment and violence. The Government reports that section 153 of the Labour Code requires employers to treat domestic workers with due consideration, not subjecting them to verbal or physical abuse. Nevertheless, the Committee notes that this provision was repealed with the adoption of Act No. 5407 and was not replaced with an equivalent provision. The Committee also notes that Resolution No. 124 of 15 February 2010 established the Care Centre for Women Domestic Workers (CATD), which is responsible for responding to and assisting domestic workers; receiving complaints and mediating in the case of disputes with employers. The Committee requests the Government to provide more detailed information on the operation of the Care Centre for Women Domestic Workers, particularly on the complaint mechanisms for abuse, harassment and violence and to indicate whether there have been prosecutions of these cases. The Committee also requests the Government to indicate whether programmes exist for the relocation and rehabilitation of domestic workers who have been victims of abuse, harassment and violence. The Committee further requests the Government to provide statistics on the Centre’s activities, particularly on the number of complaints received, mediations conducted and cases referred to the courts.

Article 6. Fair terms of employment. Decent working and living conditions that respect their privacy. The Government reports that article 86 of the Constitution establishes the right of all residents of Paraguay to lawful work, freely chosen and performed in decent and fair conditions. The Government adds that section 15 of Act No. 5407 provides for the right of all workers to a dignified existence, fair working conditions and technical and vocational training to develop their skills, earn a better income and contribute effectively to the progress of the nation. The Committee notes that sections 12, 13 and 14 of Act No. 5407 set out the working conditions of domestic workers, according to the type of service agreed, namely whether or not they reside in the household. The Committee requests the Government to provide information on the type of supervision which has been or will be implemented by the Government to ensure that the working conditions of domestic workers, whether or not they reside in the household, are in conformity with national legislation.

Article 7. Information on terms and conditions of employment. The Government indicates that section 7 of Act No. 5407 repeals section 44(a) of the Labour Code, which provided that employment contracts could be concluded verbally if they were for domestic service, and provides that a domestic work employment contract shall be set out in writing and enumerates the elements which shall be included. The Committee notes that this provision provides for all the elements included in Article 7, with the exception of paid annual leave, daily and weekly rest periods and the terms of repatriation. Nevertheless, the Committee notes that the model contract provided by the Government contains all the elements set out in Article 7, apart from the terms of repatriation. The Committee requests the Government to indicate how it ensures that domestic workers are informed in an appropriate, verifiable and easily understandable manner of paid annual leave, daily and weekly rest periods and, where applicable, the terms of repatriation.

Article 9. Freedom to reach an agreement with the employer or potential employer on whether to reside in the household. Travel and identity documents. Section 6 of Act No. 5407 establishes that the work may be agreed with or without residence in the household, as agreed between the parties. The Committee also notes that section 14 of Act No. 5407 establishes the right of domestic workers, whether or not they reside in the household, to a break of one or two hours, respectively, and that section 15 of Act No. 5407 grants workers who do not reside in the household a weekly break of no less than 24 consecutive hours. The Committee also notes that section 213 of the Labour Code, which is general in scope, provides for the right of all workers to a period of uninterrupted rest of a minimum of ten hours at the end of their working day. Regarding travel and identity documents, the Committee notes the Government’s indication that no provisions exist in this respect. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that domestic workers who reside in the household are free to leave it during the periods of their leave. It also requests the Government to provide information on the measures taken or adopted to ensure that migrant domestic workers are entitled to keep in their possession their travel and identity documents.

Article 10. Equal treatment between domestic workers and workers generally in relation to normal hours of work. The Government indicates that section 13 of Act No. 5407 establishes that the normal working day for workers who reside in the household shall not exceed eight hours a day or 48 hours a week, when work is performed during the day, and six hours a day or 42 hours a week, when work is performed at night, which is in line with the provisions of section 194 of the Labour Code, applicable to all workers. Furthermore, section 15 of Act No. 5407 establishes that the weekly rest period for workers who do not reside in the household shall not be shorter than 24 hours, while section 213 of the Labour Code, applicable to all workers, establishes the right of all workers to one day of rest a week. The Committee notes that, while Act No. 5407 does not cover annual leave, section 218 of the Labour Code provides for the right to a period of paid leave for each year of continued service for the same employer. The Committee requests the Government to provide information on the manner in which it enforces the protection of normal working hours, as set out in Act No. 5407 and the Labour Code. The Committee also requests the Government to provide information on the manner in which it ensures 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 paid work.

Article 11. Minimum wage. The Government indicates that section 10 of Act No. 5407 provides that the statutory minimum wage for domestic work must not be lower than 60 per cent of the statutory minimum wage for miscellaneous unspecified activities, which amounts to a 20 per cent rise in comparison with the previous provision. The Committee recalls that, despite the amendment, the current legislation does not ensure the equality of domestic workers with other workers in relation to the statutory minimum wage, as provided for in Article 11. The Committee requests the Government to provide information on the manner in which it gives effect to Article 11, and particularly on the measures taken or envisaged to ensure wage equality for domestic workers with workers in other occupations. The Committee also requests the Government to provide copies of court decisions concerning the failure of the employer to pay a domestic worker the minimum wage.

Article 12. Payment in kind. The Committee notes section 12 of Act No. 5407, which provides that, unless otherwise established, it is assumed that the remuneration of domestic workers normally includes, in addition to cash wages, the provision of food, and for those who are resident in the household, the provision of accommodation. With respect to payment in kind, the Committee notes that section 231 of the Labour Code provides that workers shall be paid in legal tender, and prohibits payment with vouchers, promissory notes, coupons or in any other form alleged to represent legal tender. However, the Committee notes that section 231(2) provides for, in exceptional circumstances, up to 30 per cent of a wage to be paid in kind, if the supplies are suitable for the personal use of and benefit the workers and provided that the value attributed to them is fair and reasonable. This provision also establishes that, if the value of the payment in kind is not set out in the contract of employment, it shall be fixed by the competent authority. Taking these provisions into account, and considering that, apart from food and accommodation, payment in kind is not regulated by Act No. 5407, section 231 of the Labour Code would seem to be applicable. The Committee requests the Government to provide information on the applicability of section 231 of the Labour Code to domestic workers. It also requests the Government to specify the cases in which the presumption established in section 12 of Act No. 5407 may be revoked.

Article 13. The right to a safe and healthy working environment. The Committee notes that sections 272–282 of the Labour Code generally regulate occupational safety and health. However, the Committee notes that these provisions are general in nature and thus do not give full effect to Article 13, which provides that each Member shall take effective measures, with due regard for the specific characteristics of domestic work. The Committee reminds the Government that Paragraph 19 of the Domestic Workers Recommendation, 2011 (No. 201), encourages member States to take measures to protect domestic workers by eliminating or minimizing work-related hazards and risks, provide an adequate and appropriate system of inspection, establish procedures for collecting and publishing statistics on accidents and diseases, advise on occupational safety and health and develop training programmes. The Committee requests the Government to provide information on the measures taken or envisaged to ensure the occupational safety and health of domestic workers, due regard being taken of the specific characteristics of domestic work.

Article 14. Conditions not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity. The Government indicates that domestic workers have been gradually incorporated into the social security system and that, with the adoption of Act No. 5407, their inclusion in the social security system became mandatory. The Committee also notes that section 19 of Act No. 5407, in the case of workers with several employers, allows contributions to be pro rata in proportion to the hours worked, while section 20 establishes the financing method of mandatory social security. However, the Committee notes that social security coverage remains very limited in practice. The Committee requests the Government to provide up-to-date statistics on the number of domestic workers registered with the general social protection scheme, disaggregated by age and sex. It also requests the Government to provide information on the manner in which it promotes the registration of domestic workers with the social protection system.

Article 15. Private employment agencies. The Government refers to section 16 of the Labour Code, which requires the State to take responsibility for the vocational and technical training of workers, formulate an appropriate economic policy and provide suitable employment to unemployed or inactive workers. The Committee notes that section 25 of the Labour Code defines an intermediary as an association or person who recruits or participates in the recruitment of the services of workers to perform work for the benefit of the employer. Nevertheless, it observes that in practice there is no official register of private employment agencies. The Committee requests the Government to provide information of the measures adopted or envisaged to give full effect to Article 15 of the Convention. The Committee also encourages the Government to consider the possibility of accepting the obligations of the Employment Service Convention, 1948 (No. 88), and the Private Employment Agencies Convention, 1997 (No. 181).

Article 16. Access to justice. The Government reports that all residents in the country have the right to register a complaint with the competent judicial bodies. In this respect, the Government indicates that article 16 of the Constitution provides that the judicial defence of persons and their rights is inviolable and that all persons have the right to be tried by courts and judges. It also indicates that article 47 of the Constitution provides for guarantees of equality of access to justice and that the Code of Labour Procedures provides that all workers in the country have access to ordinary tribunals. The Committee notes that, through Resolution No. 124 of 15 February 2010, the Care Centre for Women Domestic Workers (CATD) was established, with the role of providing an alternative means of dispute resolution, responding to the concerns of workers, receiving complaints and conducting mediation. The Committee requests the Government to provide information on the existence of education programmes for domestic workers with a view to informing them of their labour rights in order that they can make informed decisions and are aware of the administrative and legal remedies at their disposal. It also requests the Government to indicate whether free legal assistance is available for domestic workers who wish to take legal action.

Article 17. Complaint mechanisms. The Government indicates that, under section 408 of the Labour Code, the enforcement and application of labour laws is supervised by the competent administrative authority, through an efficient service of inspection and monitoring. The Committee notes that, under section 16 of Act No. 5115/13, the General Directorate of Labour Inspection and Supervision is responsible for ensuring compliance with labour and social security legislation throughout the national territory. The Government adds that inspection and supervision in the domestic work sector is conducted by court order. As the Constitution guarantees the inviolability of private residences, it is necessary to obtain an inspection warrant from a competent court. The Committee notes that sections 385–390 of the Labour Code establish penalties for employers who are not in compliance with the provisions of the Labour Code, particularly those concerning compulsory statutory breaks, maternity leave, breaks for breastfeeding and the minimum wage. The Committee requests the Government to provide information on the measures taken or envisaged to establish complaint and monitoring mechanisms to ensure compliance with national legislation on the protection of domestic workers, and particularly the measures regarding labour inspection. The Committee reminds the Government of the need to strengthen labour inspection and impose dissuasive administrative and penal sanctions. The Committee also requests the Government to provide information on the number of labour inspections conducted since the entry into force of Act No. 5704, on the number and type of violations detected and the administrative or penal sanctions imposed.

Part IV of the report form. Court decisions. The Committee notes the court decisions provided by the Government in several cases alleging non payment of wages and unfair dismissal. The Committee requests the Government to continue providing court decisions relating to the application of the Convention.

Part VI of the report form. Observations by the social partners. The Committee requests the Government to provide information on the comments made by and the discussions held with the social partners regarding the implementation of the Convention.