Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Paraguay (Ratification: 2013)

Autre commentaire sur C189

Observation

2019

Demande directe

2019
2017

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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.