Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Articles 1(1) and 2(1) of the Convention

1. Freedom of domestic workers to terminate employment. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can leave their employment and their possibility to have recourse to courts if necessary. The Committee noted that the Labour Code currently in force excludes domestic workers. It also noted the Government’s indications that the new draft Labour Code would cover this category of workers and, pursuant to section 5 of the draft Labour Code, the competent Minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted that the new Labour Code has not yet been adopted, the Committee requested the Government to supply a copy of any ministerial order or other legislative text specifying the rules governing the relationship between domestic servants and their employers.

The Committee notes from the Government’s report that the Council of Ministers issued Order No. 362, of 4 April 2004, concerning the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, under the chairmanship of the Minister of Social Affairs and Labour. It also notes a model contract for migrant domestic workers and similar categories, prepared by the Ministry of Interior, which contains provisions governing their employment, including a provision concerning termination of an employment contract by either party, subject to prior notice.

While noting this information with interest, the Committee reiterates the firm hope that the new Labour Code, once adopted, will provide adequate protection for domestic workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted. The Committee would appreciate it if, pending the adoption of these provisions, the Government would provide information on the activities of the permanent committee on migrant workers referred to above, as well as sample copies of contracts of employment concluded with domestic workers in accordance with the model contract issued by the Ministry of Interior. Please also communicate a copy of the Council of Minister’s Order No. 362, which was referred to by the Government as annexed to the report, but has not been received in the ILO.

2. Trafficking in persons for the purpose of exploitation. In its earlier comments, the Committee noted the Government’s statement in its reply to the Committee’s 2000 general observation on the subject that the victims of forced labour have the right to refer to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of forced labour to stay in the country at least for the duration of court proceedings.

The Committee notes the Government’s indication in the report that section 22 of Act No. 17 of 1959, which governs foreigners’ residence, authorizes foreigners on whom a repatriation order has been issued in accordance with the law, to ask for a grace period not exceeding three months, subject to submitting a guarantee. The Government adds that a foreign worker who has received an order to leave the country in accordance with the law, but who has a civil case before the court, is authorized to mandate a lawyer or any other person to represent him in the civil case.

While noting this information, the Committee hopes that the Government will indicate any other measures taken or contemplated to encourage the victims to turn to the authorities, such as, e.g., protection of victims willing to testify from reprisals by the exploiters. Please also indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons for the purpose of exploitation.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. In its earlier comments, the Committee noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Committee noted that the Government had referred in its reports to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.

The Committee pointed out that the abovementioned provisions do not appear to be sufficient to give effect to Article 25 of the Convention which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence", and that "it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced".

The Committee reiterates its hope that the Government will take the necessary measures  in order to give full effect to this Article of the Convention. Pending the adoption of such measures, the Committee asks the Government to provide information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

The Committee is also addressing a request on certain other points directly to the Government.