Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Finlande (Ratification: 2015)

Article 1 of the Convention. Definition of domestic work and domestic worker. The Committee welcomes the Government’s first and second reports on the application of the Convention, received in 2017 and 2018, respectively. The Committee notes that there is no specific definition of “domestic work” and “domestic worker” in the national legislation. The Government states that the general legislation applying to employment relationships also applies to domestic work, regardless of the job duties. The Committee requests 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 3(2)(a). Freedom of association and collective bargaining. The Committee 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, the Committee recalls that the specific characteristics of domestic work, often involving triangular employment relationships, a high degree of dependence on the employer (especially in the case of migrant domestic workers) and the frequent isolation of domestic workers in their workplaces, are all factors that 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, the Committee requests the Government to indicate the manner in which domestic workers’ freedom of association and collective bargaining rights are ensured in practice, particularly the measures taken or envisaged to ensure the promotion and protection of the right of domestic workers and their employers to establish and join organizations, federations and confederations of their own choosing.

Article 4. Minimum age. The Government indicates that domestic workers under the age of 18 are covered by the Employment Contracts Act (55/2001) and the Young Workers Act (998/1993). The Committee notes that the Young Workers Act establishes, inter alia, the minimum employment age, sets maximum permissible working hours for young workers and requirements to ensure safe and healthy work. Section 2(1) of the Act establishes that a person may be admitted to work if he/she has reached the age of 15 and is not subject to compulsory school attendance. The Government adds that under section 2(2) of the Young Workers Act: “a person may be admitted to work if he/she has reached the age of 14 or will reach that age in the course of the calendar year and if the work in question consists of light work that is not hazardous to his/her health or development and does not hinder school attendance, for at most half of the school holidays and temporarily during schoolwork or otherwise, for individual work performances of a short duration”. The Committee requests the Government to provide information clarifying the minimum age for young persons to enter into domestic work and detailing the measures taken to ensure that the work hazardous to the young domestic worker’s safety, health and development and does not hinder school attendance.

Article 5. Abuse, harassment and violence. The Government reports that domestic workers are afforded the same protections as all other workers under national legislation, specifically under the Employment Contracts Act (55/2001), the Occupational Health Care Act (1383/2001) and the Occupational Safety and Health Act (738/2002). It adds that harassment is treated as a criminal offence under sections 1–9 of the Criminal Code. Recalling the specific characteristics of domestic work, especially the situation of female migrant domestic workers, who are highly vulnerable to abuse and exploitation, the Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure that domestic workers are effectively protected against all forms of abuse, harassment and violence. The Committee also requests the Government to provide information on the impact of such measures, as well as on the manner in which it is ensured that domestic workers, especially migrant domestic workers, are informed of the protections available to them under the national legislative framework.

Article 6. Fair terms of employment. Decent working and living conditions. The Government indicates that national legislation affords domestic workers the same protections as all other workers. Therefore, domestic workers’ terms and conditions of employment are in compliance with at least the minimum levels established by national law. The Committee notes that the legislation cited by the Government in its report does not contain provisions addressing privacy and decent living and working conditions for domestic workers. It recalls that, in relation to live-in domestic workers, Paragraphs 17 and 18 of the Domestic Workers Recommendation, 2011 (No. 201), establish that: “when these are provided, accommodation and food should include, taking into account national conditions, the following: (a) a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock, the key to which should be provided to the domestic worker; (b) access to suitable sanitary facilities, shared or private; (c) adequate lighting and, as appropriate, heating and air conditioning in keeping with prevailing conditions within the household; and (d) meals of good quality and sufficient quantity, adapted to the extent reasonable to the cultural and religious requirements, if any, of the domestic worker concerned”. The Recommendation also provides that, in the event of termination of employment at the initiative of the employer for reasons other than serious misconduct, live-in domestic workers should be given a reasonable period of notice and time off during the notice period to enable them to seek alternative employment and accommodation. The Committee requests the Government to indicate the measures taken or envisaged to ensure that all domestic workers, particularly migrant domestic workers, enjoy fair terms of employment, decent working conditions and, if they reside in the household, decent living conditions that respect their privacy, and the manner in which such measures are ensured in practice.

Article 7. Information on terms of employment. The Government indicates that the Employment Contracts Act, which applies to all workers, including domestic workers, does not require an employment contract to be established in writing; therefore, an employment contract may be made orally, in writing or electronically. It adds that, pursuant to section 4(2) of the Employment Contracts Act (55/2001), the employer is required to provide an employee whose employment is for an indefinite term or for a term in excess of one month, with written information on the principal terms of work by the end of the first pay period at the latest, unless these terms are specified in a written employment contract. The Committee notes that the Government does not specify which terms and conditions must be included in an agreement between a domestic worker and his/her employer. The Committee therefore requests the Government to indicate the measures taken to ensure that domestic workers are informed of their terms and conditions of employment – especially the particulars listed in this Article – in an appropriate, verifiable and easily understandable manner, particularly in respect of migrant domestic workers recruited from abroad to work in Finland.

Article 8. Migrant domestic workers. The Committee recalls that, as required by the Convention, a migrant domestic worker should receive a written contract or a written job offer prior to travelling to the country. The Committee requests the Government to provide detailed information with regard to the manner in which effect is given to this provision and, in particular, 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, in accordance with Article 8 of the Convention. In addition, the Committee requests the Government to indicate 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. Travel and identity documents. The Government reports that, pursuant to the Finnish Constitution, Finnish citizens and foreigners legally resident in Finland have the fundamental right to freely move within the country and to choose their place of residence. It adds that an employer is not legally allowed to take possession of the employee’s travel and identification documents or to otherwise restrict the employee’s freedom of movement. The Committee requests the Government to provide information on the specific measures taken or envisaged to ensure that domestic workers are entitled to keep their travel and identity documents in their possession, and the manner in which these measures are applied in practice.

Article 10. Hours of work, rest and leave. Stand-by hours and night work. The Government indicates that the Employment Contracts Act and the Annual Holiday Act (162/2005) are generally applied to employment relationships and hence also to domestic work. In addition, the Working Hours Act regulates regular working hours, excess working hours, night work, shift work, rest periods and Sunday work. In relation to stand-by time, the Committee notes the Government’s reference to section 5 of the Working Hours Act, which establishes that “an employer and an employee can agree that the employee be required to remain at home or otherwise available to be called in to work when necessary.” The Government indicates that stand-by time is not included in working hours, but that the length and frequency of stand-by time must not excessively disrupt the employee’s free time. It further indicates that at least half of the time the employee spends on stand-by at home must be remunerated either in pay or by corresponding free time during regular working hours. The Government adds that domestic workers may be assigned night work under section 26(1) of the Working Hours Act, which provides for care work to be performed in the employer’s home at night. The Committee requests the Government to provide precise information on the manner in which it is ensured 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 shall be regarded as hours of work, as contemplated by Article 10(3) of the Convention. In addition, the Committee requests the Government to indicate the manner in which equal treatment between domestic workers and other workers is ensured under this Article, particularly in respect of care work performed at night.

Article 11. Minimum wage. The Government indicates that the Employment Contracts Act and its provisions concerning minimum wage and payment of wages apply to domestic work. The Committee notes that, under section 10 of the Act, entitled “Minimum pay in the absence of a collective agreement”, if a generally applicable collective agreement is not applicable to a domestic worker’s employment, and the employer and the employee have not agreed on the amount of remuneration to be paid, the employee shall be paid a “reasonable normal remuneration”. The Committee requests the Government to indicate the manner in which a “reasonable normal remuneration” is determined.

Article 12(2). Method of payment. The Committee notes that the Government indicates that there are no provisions in Finland setting up how large a proportion of wages may be paid as benefits in kind. The Government refers that the tax authorities have determined values for benefits in kind. The Tax Administration issues a decision on the principles for calculating the value of benefits in kind for each year in advance. This decision covers the most common types of benefits in kind such as accommodation, car, meal and phone benefits. The Government adds that any benefits not specified in the decision shall be valued at their fair value. The Committee requests the Government to take steps to adopt all necessary and appropriate measures to limit the conditions under which a limited proportion of the remuneration of domestic workers may be paid in kind, in accordance with the provisions of Article 12(2), and to specify the proportion of remuneration that may be paid in kind.

Article 13. Occupational safety and health. The Government reports that the Occupational Health Care Act and the Occupational Safety and Health Act apply to all workers, including domestic workers. The Committee requests the Government to provide detailed 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, as well as on the impact of such measures. It also requests the Government to indicate the nature and outcome of any consultations held in this regard with organizations of employers and workers, including with organizations representative of domestic workers and those representative of employers of domestic workers, where these exist.

Article 14. Social security. The Government states that the general provisions on social security apply to domestic workers. It adds that domestic workers are entitled to residence-based social security and public health services on the same terms as other permanent residents in Finland. Moreover, the social security agreements that Finland has signed require that all workers arriving in Finland be treated equally. The Committee requests the Government to indicate the measures taken and their application in practice to ensure that domestic workers enjoy conditions that are not less favourable than those applied to workers generally in respect of social security protection, including with respect to maternity protection. The Government is also requested to provide information on prior consultations held with employers’ and workers’ organizations as well as organizations representative of domestic workers and organizations representative of employers of domestic workers in respect of such measures.

Article 15(1)(d) and (2). Private employment agencies. The Government indicates that private employment agencies in Finland are governed by the Act on Public Employment and Business Services (916/2002), which is based on the Private Employment Agencies Convention, 1997 (No. 181), and the EU Directive on Temporary Agency Work. It adds that the terms and conditions of the employment relationships of employees who use the services of employment agencies are subject to the same employment legislation as all other employment relationships. The Committee notes that the Government does not indicate whether adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies with regard to domestic workers, or whether it has concluded bilateral, regional or multilateral agreements to prevent such abuses and fraudulent practices in the context of the recruitment, placement and employment of domestic workers. The Committee requests the Government to provide information on the measures taken to prevent the abovementioned abuses and fraudulent practices in relation to domestic workers, particularly migrant domestic workers. It also requests the Government to provide practical information on the investigation 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 provide information on the nature and outcome of the consultations required under Article 15(2) of the Convention.

Article 16. Access to justice. Part IV of the report form. The Government states that domestic workers, in the same manner as other workers, can file a civil or criminal suit concerning their employment relationship in a court of law, either personally or through a representative. The Committee requests the Government to indicate the measures taken or envisaged, if any, to establish effective and accessible complaint mechanisms and the measures taken to ensure compliance with national legislation for domestic workers, including in relation to inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. It also requests the Government to provide copies or extracts of any decisions rendered by courts of law or other dispute resolution mechanisms involving questions of principle relating to the application of the Convention.

Article 17. Complaint mechanisms. Inspection. The Government indicates that the principle of domiciliary peace (the privacy of the household) is enshrined in section 10 of the Constitution. In this respect, the Government indicates that, in domestic work, even if the employer and employee specifically agree that the work is to be carried out in the employer’s home, this consent does not automatically extend the powers of the occupational safety and health authorities to conduct an inspection in premises protected by the principle of domiciliary peace. It adds that it is often possible to obtain sufficient information for the purposes of monitoring working conditions without entering private households for an inspection. The Government nevertheless indicates that an occupational accident or a report of misconduct may constitute reasonable cause for conducting an inspection in a private household. The Committee requests the Government to provide information on the measures taken or envisaged, if any, to establish and maintain effective and accessible complaint mechanisms for domestic workers, and to supply precise and detailed information on the law and policy governing inspections in relation to domestic work, as well as to provide statistical information on the number of inspections carried out in private households where domestic work is being performed, the number and type of any violations detected, and the sanctions imposed.