Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Colombia (Ratificación : 2014)

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.