Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Jamaïque (Ratification: 2016)

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Articles 1 and 2. Definitions and exclusions. The Committee welcomes the Government’s first report on the application of the Convention. It notes the Government’s indication that Jamaica has no legislation specific to domestic workers, and that the national legislation, which is of a general nature, applies to all workers in Jamaica. The Government refers to the definitions of “domestic worker” set out in the National Insurance Act, 1966 and the National Insurance (Miscellaneous Provisions) Regulations, 1966, which define a domestic worker in relation to the nature of the tasks performed. The Government adds that it is currently reviewing Jamaica’s minimum wage legislation with a view to amending it to bring it into compliance with the Convention. The Committee notes with interest the Government’s indication that the proposed definition of “domestic work” to be included in the minimum wage legislation is the same as that found in the Convention, whereas the proposed definition of “domestic worker” is “a worker who is employed to do domestic work for wages on a regular continuous basis”. The Committee further notes that, in consultation with the Jamaica Employers’ Federation (JEF), the Jamaica Confederation of Trade Unions (JCTU) and the Jamaica Household Workers Union (JHWU), domestic workers employed as day labourers were excluded from the application of the Convention. The Government explains that this category of workers was excluded on the basis that they would not be working on a continuous basis for an employer, nor would they be working a 40-hour work week. It adds that, in some cases, domestic workers employed as day labourers work for multiple employers during the course of one week. The Committee further notes the Government’s indication that, due to the extent of the informal economy in the country, the difficulty lies in determining whether domestic work is being done on an occupational basis. With respect to the definition of domestic worker, in its 2022 General Survey on Securing Decent Work for Nursing Personnel and Domestic Workers: Key Actors in the Care Economy, paragraph 565, the Committee recalled that the definition of domestic worker set out in Article 1(b) of the Convention covers “any person engaged in domestic work within an employment relationship”. The Committee observed that the broad approach adopted by the Convention “includes domestic workers engaged on a part-time basis and those working for multiple employers, nationals and non-nationals, as well as both live-in and live-out domestic workers” (2022 General Survey, paragraph 569). It noted that the Convention’s definition of “domestic worker” excludes solely those workers who perform domestic work “only occasionally or sporadically and not on an occupational basis” (Article 1(c)). The Committee recalled that the expression “and not on an occupational basis” was intended to ensure the inclusion in the definition of “domestic worker” of day labourers and similar precarious workers, including care workers (2022 General Survey, paragraphs 562-563). With regard to the issue of informal work, the Committee welcomes the Government’s indication that, in collaboration with the ILO, it has launched an initiative for developing an action plan to transition household workers (those who work a 40-hour work week) to the formal economy. The Committee wishes to stress that the inclusion of domestic workers within the scope of national labour legislation can facilitate their transition from informal and often precarious work arrangements to a formalized employment relationship (2022 General Survey, paragraph 575). The Committee encourages the Government to adopt and implement definitions of “domestic work” and “domestic worker” that are fully compatible with Article 1 of the Convention. It further requests the Government to provide updated information with regard to the review of the minimum wage legislation and to provide a copy of the modifications adopted. The Committee also requests the Government to provide detailed updated information on the nature and impact of any measures taken or envisaged to ensure that domestic workers in an employment relationship enjoy equivalent protections to those afforded by the Convention, regardless of their contractual status.

Article 3. Fundamental Rights. With respect to the protection of the fundamental labour rights of domestic workers, the Committee notes the Government’s indication that, pursuant to section 4 of the Labour Relations and Industrial Disputes Act, 1975, all workers, including domestic workers, are entitled to be members of a trade union of their choice, and to engage in the activities of any trade union to which they belong, as well as to decide not to join a trade union. The Government adds that the Jamaica Household Workers Union (JHWU) is the recognized bargaining agent representing the domestic work sector. The Committee notes that the Government does not provide information regarding the right of domestic workers in Jamaica (whether nationals or migrants) to establish trade unions, nor does the report provide information concerning the protection of domestic workers from child labour and forced labour practices, or from discrimination in employment.The Committee requests the Government to provide detailed updated information on the measures taken to ensure the effective promotion and protection of all of the fundamental principles and rights at work to which domestic workers are entitled.

Article 4. Minimum Age. Education and vocational training. The Committee notes the Government’s indication that the Child Care and Protection Act, 2004, provides protection to children in respect of the minimum age for employment. The Committee recalls that, at the time of ratifying the Minimum Age Convention, 1973 (No. 138), on 19 June 1976, Jamaica declared 15 years to be the minimum age for admission to employment or work within its territory. In its 2019 comments on the application of Convention No. 138 by Jamaica, the Committee noted that section 34(1) and (2) of the Child Care and Protection Act, 2004 (CCP) permits the employment of a child between the ages of 13 and 15 in the performance of “light” duties included on a list of prescribed occupations, or in authorized artistic performances. The Committee notes that section 34(3)(a) provides that no person shall employ a child under 15 “in the performance of any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual or social development”. In addition, with respect to access to education for domestic workers under 18, the Government refers to section 28 of the CCP, which requires persons “having custody, charge or care of a child between the ages of 4 and 16 [to] take such steps as are necessary to ensure that the child is enrolled and attends school”. The Committee requests the Government to clarify whether, following the ratification of Convention No. 138, the provisions of section 34 of the CCP permitting the employment of child domestic workers between 13 and 15 is still implemented. In addition, the Government is requested to provide a copy of the list of prescribed occupations for children currently in force. Moreover, noting that section 28 of the CCP applies to children between the ages of 4 and 16, the Committee requests the Government to provide detailed information on the manner in which Article 4(2) of the Convention is given effect to ensure that work performed by domestic workers between the ages of 16 and 18 does not prevent them from attending compulsory education or interfere with opportunities for their further education and training.

Article 5. Effective protections against workplace abuse, harassment and violence. The Government reports that workers, including domestic workers, may report any acts of workplace abuse, harassment or violence to the Pay and Conditions of Employment Branch of the Ministry of Labour and Social Security (MLSS). It also refers to the Offences against the Person Act, 1864, as amended, which includes sexual offences (section 1(A)(d)). The Government indicates that, in the event that a report of abuse, harassment or violence is received by the MLSS, the worker is encouraged to report the matter to the Jamaica Constabulary Force. With respect to violence, harassment and abuse in the workplace, the Committee notes the adoption of the Sexual Harassment (Protection and Prevention) Act, 2021, by both Houses of Parliament in October 2021. Noting that the Sexual Harassment (Protection and Prevention) Act, 2021explicitly includes domestic workers, the Committee requests the Government to provide information on the date on which the Act entered into force. In addition, the Committee requests the Government to provide information on the implementation of the Act and its impact on domestic workers, as well as on any additional measures taken or envisaged to give full effect to this Article of the Convention.

Articles 6 and 7. Fair terms of employment and decent living conditions. Information regarding terms of employment. The Committee notes the Government’s indication that decent living conditions and respect for privacy for live-in domestic workers are encouraged, but that there is currently no legislation in place that addresses breaches of privacy or unsatisfactory working conditions in relation to these workers. The Government adds that, through amendments to the Minimum Wage Act, it intends to set out the terms and conditions of employment, including decent living conditions and privacy, that employers must maintain in relation to their domestic workers. The Committee also notes that the proposed amendments will include a model that will set out the particulars concerning the employment contract required by Article 7 of the Convention. The Committee requests the Government to take measures to give full effect to the provisions of Articles 6 and 7 for the protection of live-in as well as live-out domestic workers, to ensure that they enjoy fair terms of employment equivalent to those enjoyed by other workers. In relation to ensuring decent living conditions for live-in domestic workers, the Committee invites the Government to take into consideration the guidance provided under Paragraph 17 of the Domestic Workers Recommendation, 2011 (No. 201) addressing minimum living conditions and privacy concerns. The Government is requested to provide a copy of the proposed amendments to the Minimum Wage legislation, as well as of any other measures taken to give effect to these provisions.

Article 8. Migrant domestic workers. The Committee notes the Government’s indication that, pursuant to the Foreign Nationals and Commonwealth Citizens Employment Act, 1973, nationals of other CARICOM countries who come to Jamaica for work are exempt from the requirement of obtaining work permits. In contrast, workers from other countries are required to apply for work permits, which requires them to provide documentary evidence of employment, such as an employment contract. The Government also indicates that Jamaica amended the Caribbean Community Free Movement of Skilled Persons Act in 2013 to cover ten categories of skilled nationals who are able to work in the country. The Committee further notes that no measures have been taken in cooperation with other ILO Members to ensure the effective application of the Convention to migrant domestic workers. The Committee requests the Government to indicate the manner in which Article 8(1) is given effect with respect to migrant domestic workers from countries outside of the Caribbean Community, to ensure that these workers receive an enforceable written job offer or contract containing the terms and conditions of employment referred to in Article 7, prior to crossing national borders to take up employment in Jamaica. It further requests the Government to provide detailed updated information on measures taken or envisaged to give effect to Article 8 of the Convention.

Article 9. Agreement on whether or not to reside in the household. Travel and identity documents. The Committee notes the Government’s indication that the national legislation is silent on the matters addressed under Article 9 of the Conventionand that these are instead left up to agreements between the employer and domestic worker. Noting the unequal bargaining power that generally exists between the domestic worker and employer, the Committee requests the Government to take specific measures to effectively ensure the protection of the rights set out in Article 9. The Committee requests the Government to provide information on any such measures taken or envisaged.

Articles 10 and 11. Minimum wages. Period of weekly rest. The Government indicates that the Minimum Wage Act provides minimum wage coverage for domestic workers, and that this is complemented by the Employment (Equal Pay for Men and Women) Act, 1975, which requires all categories of workers to receive equal pay for equal work. In respect of weekly rest periods, the Government indicates that the proposed amendment to the Minimum Wage Act will redefine the rest day to be “24 consecutive hours”. The Committee requests the Government to provide a copy of the amendments to the Minimum Wage Act once these are adopted, and to provide detailed updated information on the manner in which it is ensured that domestic workers enjoy minimum wage coverage as well as equal treatment with other workers in relation to normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave.

Article 12. Modalities of payment of wages. Proportion of payments in kind. The Government indicates that there is no legislation stipulating the modalities of payment of wages that is applicable to domestic workers, but that all workers are paid in the currency of Jamaica. The Committee requests the Government to provide information on the manner in which it is ensured that domestic workers are paid in cash at regular intervals of at least once per month. In addition, the Government is requested to provide information on any measures taken or envisaged to impose limitations on the proportion of the remuneration of workers, including domestic workers, that may be made through payments in kind.

Article 13. Occupational safety and health. The Government reports that, in consultation with representative organizations of employers and workers, including the Jamaica Household Workers Union (JHWU), provisions regarding the occupational safety and health of domestic workers will be included in the proposed Occupational Safety and Health Bill. The Committee requests the Government to communicate a copy of the Bill once it has been adopted.

Article 14. Social security protections. The Committee notes the Government’s indication that the National Insurance Maternity Benefit Act of 1980 establishes the maternity allowance, which is available to a qualified domestic worker from a period not earlier than 11 weeks and not later than 6 weeks before the delivery date. To qualify, the domestic worker must have been registered under the scheme and made at least 26 weekly contributions during the 52-week period before the expected delivery date. The Government is requested to indicate the measures taken to ensure that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protections, including other benefits, such as social security, unemployment insurance and health insurance.

Article 15. Migrant domestic workers. The Government indicates that the Employment Agencies Unit within the MLSS, which carries out its function pursuant to the Employment Agencies Regulation Act, 1957, is responsible for ensuring that private employment agencies observe the provisions of Article 15. To this end, theUnit investigates complaints of abuse and fraudulent practices. Where it is determined that a complaint amounts to a criminal matter, it is referred to the Jamaica Constabulary Force for further action. The Committee notes that, pursuant to section 16(2)(e) of the Employment Agencies Regulation Act, 1957, measures may be taken with a view to “regulating the fees to be charged by employment agencies for their services”. The Committee notes that the MLSS webpage for the Employment Agencies Unit indicates that “placement fees charged by overseas employment agencies may not exceed $45,000 JMD”, whereas placement fees charged by local employment agencies may not exceed a one-time deduction of one-third of the worker’s first week’s pay. In this respect, the Committee wishes to draw the attention of the Government to Article 15(1) of the Convention, which requires Members to take measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers. The Committee requests the Government to provide detailed updated information on the manner in which Article 15 of the Convention is given effect. In particular, it requests the Government to take measures to ensure that domestic workers are not charged (directly or indirectly) placement fees by private employment agencies.

Article 16. Access to courts, tribunals or other dispute resolution mechanisms. The Government reports that domestic workers enjoy equal access to dispute resolution services provided by the MLSS, noting that all categories of workers may have their cases heard at the Industrial Disputes Tribunal regardless of whether or not they are unionized. Domestic workers may also seek redress through the Resident Magistrate Court, where a case officer from the MLSS will provide witness of fact. The Committee requests the Government to provide updated information, including statistical data, on the number and type of complaints brought by domestic workers to the MLSS and the outcome of such cases.

Article 17. Complaint mechanisms. Labour inspection. The Government reports that the MLSS, through its network of Parish and Regional Offices, accommodates telephone, electronic, letter and walk-in complaints. It adds that, where possible, inspections may be carried out by Labour Officers within the scope of their authority. The Committee welcomes the information provided by the Government relative to the number and type of complaints received from 2017 to 2019. The Committee requests the Government to provide concrete detailed information regarding the measures taken or envisaged to strengthen labour inspection services to monitor working conditions in the domestic sector and to receive, investigate and address complaints of alleged violations. It further requests the Government to provide information on the manner in which inspections may be conducted in households where domestic workers perform their work.