Solicitud directa (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Portugal (Ratificación : 2015)

The Committee notes the observations of the General Confederation of Portuguese Workers (CGTP-IN) and the General Workers’ Union (UGT), received on 19 November 2019, as well as the observations of the Portuguese Industrial Confederation (CIP), received on 19 November 2019. In addition, the Committee notes the observations of the Portuguese Confederation of Trade and Services of Portugal (CCSP) received on 4 November 2020.

Article 1(1)(c) of the Convention. Definitions. The Committee notes with interest the comprehensive and detailed information provided by the Government in its 2019 and 2021 reports. It notes the Government’s indication that sections 2(1) and 2(3) of Decree-Law No. 235/92 of 24 October, concerning the legal framework on the labour relationship arising from domestic work contracts, are generally consistent with the definitions contained in Article 1 of the Convention, which emphasize work performed in households. In this respect, the Committee notes that the national legislation referring to the “domestic service contract”, which requires an individual to regularly provide services, in exchange for remuneration and under the supervision of a third party, to meet the needs of a household and its members. Section 2(1) enumerates a non-exclusive list of “domestic service” tasks, including cooking, cleaning the home and caregiving services. The Committee nevertheless notes that the legislation does not provide a definition of domestic work or domestic worker. The Committee invites the Government to indicate the measures taken or envisaged to incorporate a definition of “domestic worker” in national legislation or collective agreements that is fully compatible with the Convention. The Committee may further wish to request the Government to indicate in what manner it ensures that persons who perform domestic work occasionally or sporadically, but do so on an occupational basis, are covered by the guarantees established in the Convention.

Article 2. Exclusions. The Government reports that, pursuant to section 2(3) of Decree-Law No. 235/92, domestic work does not include the provision of services on a casual basis, or the performance of a particular task with irregular frequency, nor does it include work as an au pair or work performed on an autonomous or voluntary basis. It adds that section 2(2) of Decree-Law No. 235/92 provides that the legal framework relevant to domestic work contracts does apply, with the necessary adaptations, to not-for-profit legal persons and to households on their behalf, provided that they are not covered by another legal framework and that they provide services similar to domestic work, such as meal preparation, clothes washing, and childcare. In this context, the Committee recalls that, irrespective of the type of contract held by workers providing domestic services, the definition of domestic worker laid down in Article 1(b) of the Convention excludes only those persons who perform domestic work occasionally or sporadically and not on an occupational basis. The Committee therefore invites the Government to provide information on the manner in which those workers performing domestic tasks in or for a household, who are excluded from the application of the domestic work legislation, are afforded equivalent protections to those enjoyed by other workers. In addition, the Committee requests the Government to provide information on consultations held with the most representative organizations of employers and workers and with organizations representative of domestic workers and their employers, prior to the adoption of the abovementioned exclusions.

Article 3(1) and 3(2)(a). Human rights. Freedom of association and collective bargaining. The Government indicates that the rights, freedoms and guarantees set out in the Portuguese Constitution (articles 24 to 57), including the labour rights (set out in articles 53 to 57), apply to all Portuguese citizens and foreign persons. The Committee notes that, pursuant to article 15 (c) of the Constitution, foreign nationals and stateless persons remaining or residing in Portugal enjoy the same rights and have the same obligations as Portuguese citizens. The Government further refers to articles 46 and 55 of the Portuguese Constitution, which recognize the right of all workers to free association without discrimination, including the freedom to form and join trade union organizations. Section 440 of the Labour Code also provides for freedom of association rights, stipulating that workers and employers have the right to form trade union organizations and employer organizations, respectively, at all levels to promote their interests. The Committee nevertheless notes that the Government does not supply information on how domestic workers’ freedom of association and collective bargaining rights are ensured in practice. In this respect, it wishes to recall that the specific characteristics of domestic work, which often involve triangular employment relationships, a high degree of dependence on the employer (especially in the case of migrant domestic workers) and frequent isolation in the domestic workplace, are all factors that often make it particularly difficult for domestic workers to form and join unions. Thus, protection of domestic workers’ freedom of association and collective bargaining rights take on special importance in the domestic work sector.Taking into account the particular characteristics of domestic work, and the specific challenges domestic workers face in forming and joining associations of their own choosing, as well as in engaging in collective bargaining, the Committee requests the Government to indicate the manner in which domestic workers’ freedom of association and collective bargaining rights are promoted and effectively ensured in practice. In addition, and noting that women make up the majority of all domestic workers in Portugal, the Committee requests the Government to provide detailed updated information on the manner in which equality of opportunity and treatment – including in terms of remuneration – is ensured in the domestic work sector.

It further requests the Government to indicate the measures taken or envisaged to ensure that both national and migrant domestic workers in Portugal and their employers are aware of their rights and obligations under the legislation.

Article 4. Minimum age. The Government refers to the legal framework governing the minimum age for entry into work established in sections 66 to 83 of the Labour Code and the Legal Framework for the Promotion of Occupational Safety and Health; sections 61 to 72 of Law No. 102 of 2009, as amended. The Committee notes in this regard that section 67 of the Labour Code requires the employer to ensure the education or training of the minor in his or her employment, and to grant the minor leave without pay to attend the educational or vocational course or courses in question. The Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure effective compliance with the protections afforded to minor domestic workers working in a private household under section 67 of the Labour Code.

Article 5. Protection against workplace abuse, harassment and violence. The Committee notes the Government’s indication that workplace harassment is prohibited pursuant to section 29 of the Labour Code, as amended by Law No. 73/2017 of 16 August, which provides for criminal penalties and the right to compensation in the event of harassment. It notes that harassment is defined to include both sexual and moral harassment. According to the report, “harassment is understood to mean undesired behaviour, specifically discriminatory behaviour, displayed when accessing employment or during employment, work or vocational training that has the aim or effect of disturbing or embarrassing an individual, harming their dignity or creating an intimidating, hostile, degrading, humiliating or destabilizing environment for them. Sexual harassment refers to undesired behaviour of a sexual nature that may be verbal, nonverbal or physical and has the aim or effect described above”.The Committee requests the Government to provide detailed information on nature and scope of measures taken or envisaged to ensure that domestic workers are effectively protected against all forms of abuse, harassment and violence. In particular, the Committee requests the Government to provide information, including statistical data disaggregated by sex, on the impact of such measures, as well as on the manner in which it is ensured that national and migrant domestic workers are informed of procedures and mechanisms available to them in the event that they are subjected to violence, abuse or harassment in the domestic workplace.

Article 6. Fair terms of employment, decent working and living conditions. The Government indicates that Portuguese legislation grants domestic workers the same labour protections as all other workers. It refers to Law No. 60/2018 of 21 August, which guarantees equal remuneration between men and women workers, as well as to section 24 of the Labour Code, which establishes the right of all workers to equality of opportunity and treatment in terms of access to employment, vocational training, promotions, career paths and working conditions. Section 24 provides that workers may not have their rights privileged, favoured, undermined or renounced or their responsibilities waived on account of their parentage, age, sex, sexual orientation, civil status, family circumstances, socioeconomic circumstances, education, social status or origin, genetic heritage, reduced capacity for work, disability, chronic disease, nationality, ethnic or racial origin, country of origin, language, religion, political or ideological beliefs or trade union affiliation. The Committee requests the Government to provide detailed updated information on the nature, scope and impact of measures taken to give effect to the principle of fair treatment of domestic workers in relation to other workers and to ensure that they enjoy decent working and living conditions.

Article 7 of the Convention. Terms and conditions of employment. The Government refers to section 3 of Decree-Law No. 235/92, which provides that: “Domestic work contracts are not required to take a special form, except in the case of fixed-term contracts”, in which case the employer must comply with section 141(1) of the Labour Code. That provision requires fixed-term labour contracts to be in writing and to contain: (a) the parties’ names, signatures and addresses or registered addresses; (b) a description of the worker’s activities and corresponding remuneration; (c) the location of the workplace and the normal hours of work; (d) the starting date of the employment; (e) the duration of the contract; and (f) the date of conclusion of the contract. The Committee notes that, pursuant to section 106(1) and (3) of the Labour Code, the domestic employer is required to inform the domestic worker of his or her terms and conditions of employment which, in addition to those contained in section 3 of Decree-Law No. 235/92, must indicate the duration of holidays, the notice period to be observed in the event of termination, the amount and periodicity of remuneration; and the employer’s workplace accident insurance policy number, among other items. The Committee notes that these provisions do not address repatriation of the domestic worker. The Committee requests the Government to indicate the manner in which effect is given to Article 7(g) on paid annual leave and daily and weekly rest periods, (h) on the provision of food and accommodation, if provided, (i) the probation or trial period, if any, and (j) the terms of repatriation, if applicable. The Government is also requested to provide detailed information on the manner in which persons who provide domestic work services on a casual basis are provided with equivalent protections.

Article 8. Migrant domestic workers. The Committee notes that the Government does not provide information on whether it has entered into agreements governing freedom of movement and cooperation between ILO Members to ensure effective application of the Convention to migrant domestic workers (Article 8(2) and (3)). In addition, the Government does not provide information concerning the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited (Article 8(4)). The Government is requested to indicate the manner in which it is ensured that migrant domestic workers recruited in one country for domestic work in another receive a written job offer or contract of employment prior to crossing the border that is enforceable in the country in which the work is to be performed, as required under Article 7 of the Convention. In addition, the Committee requests the Government to indicate the nature and scope of measures taken in cooperation with other ILO Members to ensure the effective application of the Convention to migrant domestic workers. The Government is also requested to communicate information on the laws, regulations or other measures that specify the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of their employment contract, where these exist.

Article 9. Freedom to reach an agreement with the employer on whether to reside in the household. Periods of rest and leave. Travel and identity documents. The Government refers to section 7(1) of Decree-Law No. 235/92, which stipulates that “domestic work contracts may or may not include terms on the provision of accommodation and/or meals”. The legislation does not, however, expressly indicate whether or not domestic workers are free to reach an agreement with their employer or potential employer on whether or not they will reside in the household. With respect to periods of rest and leave, section 14 of Decree-Law No. 235/92 establishes the domestic worker’s right to breaks and nightly rest periods of at least 8 consecutive hours which should not be interrupted, except for serious or unexpected reasons, in cases of force majeure, or when the worker has been hired to care for ill persons or children up to the age of three. Section 15 of Decree-Law No. 235/92 establishes the domestic worker’s right to a weekly rest day. Referring to sections 97, 129 (1)(a) and 199 of the Labour Code, the Government indicates that the term “rest” refers to periods of rest that do not constitute working time and during which the worker is not under the employer’s supervision. In this context, the Committee notes that section 199 of the Labour Code defines “rest period” simply as a period which is not a period of work. In addition, the Committee notes that section 199-A of the Labour Code provides that the employer is required to refrain from contacting the worker during the worker’s rest period, except in cases of force majeure. With respect to the issue of the domestic worker’s right to retain travel and identity documents, the Committee notes the Government’ reference to section 160(7) of the Portuguese Criminal Code, which provides that: “any party that retains, conceals, damages or destroys the identification or travel documents of a person who is the victim of a crime envisaged in sections 1 and 2 shall be sentenced to up to 3 years of prison, unless a more serious penalty is applicable under another legal provision”, regardless of their consent (see section 160(8)). The Committee requests the Government to provide information on the manner the domestic worker’s freedom to reach an agreement on whether or not to reside in the employer’s household is guaranteed. In addition, noting that section 160(7) of the Criminal Code applies to workers who are the victims of a crime, it requests the Government to provide additional detailed information on the manner in which Article 9(c) of the Convention is given effect.

Article 10. Equal treatment between domestic workers and other workers in relation to normal hours of work. Weekly rest period. Periods during which the domestic worker is not free to dispose of his or her time. The Government indicates that, while section 13(1) of Decree-Law No. 235/92 provides that “the normal working week may not exceed forty-four hours”, section 203(1) of the Labour Code provides that “normal working hours may not exceed eight hours a day and forty hours a week”. The Government notes in its report that this provision has not been expressly revoked. The Committee notes that section 15 of Decree-Law No. 235/92 provides for a weekly rest day, as required under Article 10(2). It notes, however, that the Government’s report provides no information in respect of the application of Article 10(3) of the Convention. The Committeerequests the Government to provide detailed updated information on the manner in which it is ensured that domestic workers enjoy equal treatment in terms of normal hours of work, in light of the discrepancy between the 44-hour work week for domestic workers established in Decree-Law No. 235-92 and the 40-hour work week established for workers generally under section 203 (1) of the Labour Code. In addition, the Government is requested to provide concrete information on the manner in which effect is given to Article 10(3) of the Convention.

Article 13. Occupational safety and health. The Government indicates that section 26 of Decree-Law No. 235/92 establishes occupational safety and health measures to be taken in the context of domestic work. The employer is required to take measures to ensure that the domestic workplace, appliances, products and working methods do not pose safety and health risks to domestic workers. The Committee invites the Government to provide detailed information on the measures taken to ensure the application of the legal framework on occupational safety and health to domestic workers, due regard being taken of the specific characteristics of domestic work, as well as on the impact of such measures. The Government is also requested to indicate the consultations held in respect of the measures to be taken in relation to occupational safety and health for domestic workers with organizations of employers and workers and with organizations representative of domestic workers and those representative of employers of domestic workers, where these exist.

Article 15. Private employment agencies. The Government reports that Decree-Law No. 260/2009 of 25 September regulates the activities of private employment agencies, including temporary work agencies. It adds that the Decree-Law is aligned with the provisions of the Private Employment Agencies Convention, 1997 (No. 181) and Article 15 of this Convention. The Government also indicates that section 23(f) of Decree-Law No. 260/2009 and section 187(4) of the Labour Code prohibit private employment agencies from charging fees to jobseekers who use their services. The Government provides information on social security agreements, which entered into with Cabo Verde, India, Mozambique and Philippines and seek to ensure equal treatment for migrant workers in terms of social security, including with respect to the portability of acquired benefits. The Government is requested to provide detailed information on the conditions governing the operation of private employment agencies recruiting or placing domestic workers. It is also requested to provide practical information on the number and outcome of investigations of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers, including migrant domestic workers. In addition, the Government is requested to continue to provide updated information regarding any bilateral, regional or multilateral agreements entered into to prevent abuses and fraudulent practices in recruitment, placement and employment.

Article 16. Access to justice. The Government reports that the right to access the law and the courts is a fundamental right enshrined in article 20 of the Portuguese Constitution. It adds that, on 9 May 2019, the Council of Ministers approved a new legal framework on accessing the law and the courts to improve accessibility to the law and legal support and better serve the citizens who need it, thereby enhancing social justice. This will allow a broader section of society to access the law, while also ensuring that legal protection is better aligned with the financial means of each citizen. The legal framework includes the establishment of an Observatory responsible for ensuring the quality and the ongoing supervision of the system for accessing the law and the courts. In addition, the Committee welcomes the examples of court decisions provided by the Government in its report.The Government is requested to communicate updated information on the measures taken or envisaged to ensure effective and accessible complaints mechanisms and means of ensuring compliance with national legislation for domestic workers, including measures for inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. In addition, the Committee requests the Government to provide updated information on the nature and impact of the activities of the Observatory, as well as to continue to provide examples of court decisions relevant to the application of the Convention.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. The Committee requests the Government to provide detailed updated information on the number and results of labour inspections conducted in private premises where domestic workers undertake their work, and the sanctions imposed in the event of violations, including any remedial action for domestic workers.

Article 18. Implementation. In its observations, the CGTP-IN indicates that since the ratification of the Convention in 2015, no measures have been taken to align the national legislation with the provisions of the Convention, or with the provisions of the Labour Code, to the detriment of domestic workers. It adds that the legal framework for domestic service contracts is governed by Decree-Law No. 235/92, a special law governing domestic work that is more than 20 years old. The CGTP-IN submits that Decree-Law No. 235/92 of 24 October 1992 has never been amended and is not in conformity with the provisions of the Convention. The CGTP-IN considers that it is necessary to do away with the current legal framework, and apply the general labour law to domestic workers, subsequently introducing specific regulations governing domestic employment relationships into the general labour legislation, including introducing provisions that establish the conditions in which labour inspectors may access the family household to verify the working conditions of these workers. The Government indicates in its report that domestic workers enjoy the same rights and entitlements as all other categories of workers in Portugal. The Committee also notes the observations of the CCSP, which call for the Government to include in its report information concerning the devastating impact of the COVID-19 pandemic on the domestic work sector, which was one of the sectors most affected by the crisis. In this context, the Committee also notes the observations of the UGT, which highlighted that domestic work is among the most precarious and poorly remunerated forms of work, and one in which undeclared work is prevalent, often leaving domestic workers without labour protections. The Committee requests the Government to provide detailed updated information concerning measures taken or envisaged to ensure that domestic workers effectively enjoy the same rights as other workers in practice, including any developments in relation to the legislative framework governing domestic employment. In addition, in light of the observations of the CCSP, the Committee requests the Government to provide information, including disaggregated statistical data, on the impact of the COVID-19 pandemic on both live-in and live-out domestic workers, as well as on the nature, scope and impact of measures taken to mitigate the effects of the pandemic on this vulnerable category of workers.