Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Irlande (Ratification: 2014)

Autre commentaire sur C189

Demande directe

2022
2020
2019
2017

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see in particular articles 12 and 15 of the Convention below), as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Irish Congress of Trade Unions (ICTU) received on 9 October 2019. The Committee requests the Government to provide its comments in this respect.

Article 1 of the Convention. Definition of domestic work and domestic worker. In its 2017 direct request, the Committee requested the Government to indicate any measures taken to incorporate a definition of domestic work or domestic worker into Irish legislation. The Government indicates that Irish employment law does not treat domestic workers as a separate category and that its employment rights legislation applies to all workers who are working under a contract of employment, including legally employed domestic workers, who are defined under the Code of Practice for Protecting Persons Employed in Other People’s Homes (the Code of Practice). In its observations, the ICTU maintains that, as there has been no employment permit for the domestic work sector, some domestic workers, through no fault of their own, have found themselves classified as undocumented. It adds that clear and transparent mechanisms for undocumented domestic workers who are victims of exploitation and crime are needed as such workers are generally not willing to seek justice through state authorities such as the Gardaí or the Workplace Relations Commission (WRC), as they face risks of detection, detention and deportation. In this respect, the Committee notes the Government’s indication that, if workers – including migrant domestic workers – who are not legally entitled to work in Ireland can demonstrate that they took all reasonable steps to comply with the requirement to have a work permit, they can request the Minister for Business, Enterprise and Innovation to take a civil case for recompense under section 4 of the Employment Permits Amendment Act, 2014. The Committee notes that, when the WRC receives a complaint involving a person described as a domestic worker, it investigates to establish whether a person has statutory entitlements under employment law. The Committee further notes that the Government does not indicate whether a person who performs domestic work on an occupational basis, but does so only occasionally or sporadically is considered as a domestic worker. Recalling that, due to the particular characteristics of domestic work, specific attention should be given to providing a definition of domestic work in the national legislation, the Committee reiterates its request that the Government indicate any measures taken or envisaged to incorporate a definition of domestic work and domestic worker into the national legislation. It also reiterates its request that the Government 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. The Committee also requests the Government to provide information on the manner in which it is ensured that migrant domestic workers, including those who may be undocumented, are informed of their rights to redress in the event of violations of their rights. In particular, the Government is requested to provide information on the number of cases brought by undocumented migrant domestic workers under section 4 of the Employment Permits Amendment Act of 2014 and the outcomes.

Article 3(2)(a). Freedom of association and collective bargaining. The Committee notes that the right of all workers to freedom of association are enshrined as fundamental rights in the Irish Constitution. The Government adds that it promotes collective bargaining through national law and the development of an institutional framework supportive of a voluntary system of industrial relations premised on freedom of contract and freedom of association. It indicates that it promotes the work of trade unions through providing grant aid to the ICTU. The Committee notes, however, that the Government does not provide information on any measures taken or envisaged in relation to domestic workers’ exercise of their freedom of association and collective bargaining rights, nor does it indicate the manner in which such rights are ensured in practice. Recalling that the particular characteristics of domestic work frequently make it particularly difficult for domestic workers to form and join unions, as well as to collectively bargain, the Committee reiterates its request that the Government indicate the manner in which domestic workers’ freedom of association and collective bargaining rights are ensured in practice. The Government is also requested to provide information on measures taken or envisaged to inform domestic workers and their employers of their rights and obligations under Article 3(2)(a) of the Convention.

Article 3(2)(d). Elimination of discrimination in respect of access to employment. In its previous comments, the Committee urged the Government to take steps to amend section 2 of the Employment Equality Acts 1998–2015 (EEA), which excludes “persons employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of such persons”, thereby permitting employers of domestic workers to make recruitment decisions on discriminatory grounds. The Committee notes the Government’s explanation that, while the exception set out in section 2 of the EEA applies to the recruitment process, once a domestic worker is employed, the protections of the EEA attach. The Government also refers to the Code of Practice, which encourages employers to implement non-discriminatory practices. The Committee refers to its 2018 observation in the context of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that overly broad exceptions excluding domestic workers from protections against discrimination in respect of access to employment could lead to discriminatory practices against these workers, contrary to the provisions of Convention No. 111. The Committee pointed out that the right to respect for private and family life should not be construed as protecting conduct that infringes the fundamental right to equality of opportunity and treatment in employment and occupation. The Committee therefore once again urges the Government to take the necessary measures to amend section 2 of the Employment Equality Act to ensure that domestic workers are protected against discrimination in employment and occupation, including in respect of access to employment.

Article 5. Abuse, harassment and violence. In response to the Committee’s 2017 direct request, the Government indicates that, in the main, acts of violence are treated as a criminal matter that should be reported to the Gardaí. In addition, the Safety, Health and Welfare at Work Act, 2005 requires employers to eliminate workplace hazards, and applies to violence at the workplace. The Government indicates that all employees, including domestic workers, are protected against harassment at work under the EEA, and that the Unfair Dismissals Acts 1977–2007, provide for workers’ right to bring a claim for constructive dismissal in the event of being forced to leave their job due to bullying in the workplace. The Government indicates that migrant domestic workers who are victims of forced or compulsory labour receive the protections afforded to victims of human trafficking under the National Referral Mechanism. The Committee notes that, according to the “Trafficking in Human Beings in Ireland” annual report 2017, there were nine victims of trafficking for domestic servitude, all of whom were female. In its observations, the ICTU expresses concern regarding the lack of data on migrants, documented and undocumented, employed in the domestic sector. The Committee requests the Government to provide detailed information on the nature and impact of measures adopted to ensure that domestic workers, both documented and undocumented, are effectively protected against all forms of abuse, harassment and violence. The Committee also requests the Government to provide statistical data on the number of complaints of harassment, abuse and violence received by the various state authorities in the context of domestic work, their outcome, the penalties imposed on those responsible and the compensation granted.

Article 7. Information on terms of employment. The Committee notes that the WRC has published a guide to the “Employment Rights of Domestic Workers in Ireland”, which is available on its website in eight languages. Moreover, in the context of labour inspections involving migrant domestic workers, the WRC has produced multilingual cards with confidential contact details to be used by workers when they were unable to freely communicate with inspectors during the inspection, or if they wish to receive further information. The Committee notes that the WRC considers this to be especially useful in domestic work inspections. The Government indicates that the Citizens Information website includes information on the entitlements of citizens, including on the employment rights of domestic workers. Specialist non-governmental organizations, such as the Migrant Rights Centre of Ireland, also provide information, advocacy and outreach services to migrant domestic workers. The Committee recalls that the Code of Practice requires employers to supply their employees with a written statement setting out their terms and conditions of employment and that the employer may only require the employee to carry out the duties specified therein. The Committee once again notes that there are no provisions in the Code of Practice governing food and accommodation, where these are provided, the probationary (or trial) period, or repatriation. The Committee notes that Ireland does not have a statutory probation period and that probation is a matter of contract between the employer and the employee. The Committee reiterates its request that the Government indicate the measures taken or envisaged to ensure that domestic workers are informed of their terms and conditions of employment – especially the particulars enumerated in this Article of the Convention, including the provision of food and accommodation, the period of probation and the conditions of repatriation, if applicable – in an appropriate, verifiable and easily understandable manner, particularly in respect of migrant domestic workers mediated from abroad to work in Ireland.

Article 8(1), (2) and (4). Migrant domestic workers. Requirements of a written job offer. Repatriation. The Government indicates that citizens of the European Economic Area (EEA) employed as domestic workers in Ireland enjoy the same protections afforded to Irish citizens under national employment law. It also indicates that non-EEA nationals wishing to work in Ireland are governed by the Employment Permits Acts 2003–2014. Under this legislation, non-EEA nationals require a valid employment permit, or relevant immigration permission from the Minister for Justice and Equality to enable them to reside and work in Ireland without having an employment permit. The Committee notes, however, that persons recruited abroad for domestic work in Ireland are not eligible for an employment permit under the Irish system. The Government explains that Ireland’s general policy is to promote the sourcing of labour and skills needs from within the workforce of the European Union and other EEA States. Where specific skills prove difficult to source within the EEA, an employment permit may be sought in respect of a non-EEA national who possesses such skills. Domestic work is listed as an ineligible occupation for a work permit under the Irish employment permit system. In its observations on this point, the ICTU points out that the experience of migrant workers in some sectors has not been positive, either for migrants or for conditions in the sectors, referring to the atypical scheme in the fishing sector. It adds that any such scheme in any sector needs to be accompanied by flanking measures – such as enforceable sectoral norms, to protect the labour market. Regarding measures taken in cooperation with other ILO Members to ensure the effective application of the Convention, the Government indicates that the WRC Inspectorate is part of the EUROPOL EMPACT Labour Exploitation group and participates in EU-wide joint action days. The Committee reiterates its request that the Government 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 8 of the Convention. The Government is also requested to provide information on measures taken or envisaged to enable migrant domestic workers to be eligible to receive permits providing that they have complied with all other requirements under Irish legislation. The Committee also 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.

Article 12(2). Payment in kind. The Committee notes that the Low Pay Commission, in its report of May 2017, concluded that the allowances for board and lodging as a reckonable component for calculating the national minimum wage should be retained. Thereafter, the Government increased the board and lodgings rates in line with the percentage increase in the national minimum wage rate on 1 January 2018. In this respect, the Government indicates that, since 1 January 2019, the national minimum wage was increased to €9.80 per hour, as set out in the National Minimum Wage Order 2018. Since 1 February 2020, it was further increased to €10.10 per hour, as provided in the National Minimum Wage Order 2020.The Government indicates that, regarding the food and accommodation allowance, WRC inspections found that only 25 per cent of domestic employees interviewed lived in the employer’s house or premises. The Committee recalls that paragraph 14, subparagraph (d) of the Domestic Workers Recommendation, 2011 (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”. The Committee once again requests the Government to adopt the necessary measures to ensure that, when a domestic worker resides in accommodation provided by the household, no deduction is made from the worker’s remuneration with respect to the accommodation, unless otherwise agreed to by the domestic worker.

Article 13. Effective measures to ensure the safety and health of domestic workers. The Government indicates that the Health and Safety Authority (HSA) has not received any complaints in relation to domestic workers, nor has it investigated any occupational accidents in the sector. It also indicates that, the HSA consults the social partners when it develops guidance on the legislative requirements of the Safety, Health and Welfare at Work Act, 2005. The Committee notes the Government’s indication that there are currently no known organizations representative of domestic workers or of employers of domestic workers in Ireland. The ITCU expresses the view that the HSA could engage other interested organizations, such as Migrant Rights Centre Ireland’s (MRCI) Domestic Workers Action Group in this context. The Government indicates that the MRCI has not contacted the HSA, but stresses that any affected group may make a submission in relation to any measure proposed. The Committee reiterates its request that the Government provide detailed updated information on the nature and impact of measures taken to ensure the occupational safety and health of domestic workers, due regard being taken of the specific characteristics of domestic work. It requests the Government to indicate the organizations of employers and workers consulted with respect to the development and implementation of any such measures.

Article 15. Private employment agencies. The Committee recalls that private employment agencies are subject to inspection by WRC inspectors. The Government indicates that domestic workers can pursue a complaint against both the private employment agency and the end user (the household employing the domestic worker). The Committee notes that, between 2016 and 2018, WRC inspectors carried out a compliance campaign targeting 97 identified agencies dealing with placements of au pairs, which resulted in 16 of the agencies obtaining Employment Agency licences and 78 ceasing operations. The Committee notes that, in 2018, WRC inspectors carried out five domestic work inspections, one of which was found non-compliant. As a result, €1,200 in wage arrears were recovered for the employee. In 2019, WRC inspectors carried out 4 domestic work inspections and recovered €7,877 in wage arrears for the workers concerned. In its observations, the ICTU expresses concerns regarding the situation of au pairs in Ireland who, while they are recognized by the Government as domestic workers, are nevertheless depicted by au pair agencies as not having the status of workers and as a cheap childcare solution. The ICTU calls for a public information campaign initiated by the Government to inform the public that au pairs are covered by employment legislation. The Committee requests the Government to provide its comments in this respect. The Committee 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.

Article 16. Access to justice. In response to its previous comments, the Committee notes the Government’s indication that the WRC has been involved in implementing two instances of redress under the “civil provisions” of the Employment Permits (Amendments) Act, 2014. The Committee notes that redress through the WRC and Labour Court involving domestic workers has been gained in a number of cases, which helped raise public awareness of the rights of domestic workers. The Committee requests the Government to continue to provide information on the functioning and impact of the redress and enforcement mechanisms available to domestic workers, including measures for inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. It reiterates its request that the Government provide information on decisions rendered by courts of law or other dispute resolution mechanisms involving questions of principle relating to the application of the Convention.

Article 17. Labour inspection and penalties. Access to household premises. The Committee recalls that WRC inspectors have been carrying out inspections of domestic workplaces since 2011. The Government indicates that, between 2011 and 2016, 210 domestic work inspections were carried out, of which 95 were carried out in private homes and that, in 2018, five domestic work inspections were carried out. The Committee recalls that, under the employment and health and safety legislation, dwellings may be entered with the occupiers’ consent or with a warrant issued by the district court. The Government indicates that, to date, HSA inspectors have not used either of these options to enter a private dwelling for the purposes of inspecting, or investigating any complaint or incident relating to domestic workers. It also indicates that the HSA has not received any complaints regarding occupational safety and health matters in relation to domestic workers. The Committee requests the Government to continue to provide detailed information on the manner in which inspections are conducted in private premises where domestic workers undertake their work, including statistical information on the number of inspections, the nature of violations detected, and the sanctions imposed.

[The Government is asked to reply in full to the present comments in 2022.]