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

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

Autre commentaire sur C189

Observation

2022

Demande directe

2022
2018

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The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 30 August 2021. The Committee requests the Government to send its reply in this respect.

Impact of the COVID-19 pandemic. The Committee notes that, in its observations, CONUSI reports the deterioration of domestic workers’ working and living conditions in the context of the pandemic. CONUSI maintains that, during the lockdowns imposed during the state of emergency declared in the country, many domestic workers were trapped in the households where they worked and many others could not go to their workplaces because they did not have a written work contract, despite the fact that domestic work was included in the essential activities during the pandemic. Furthermore, within the framework of the health emergency, CONUSI emphasizes the growing poverty of domestic workers and their families, as well as the existence of obstacles preventing them from accessing the subsidies granted by the Government. In this regard, CONUSI indicates that many domestic workers who were not registered with the Ministry of Labour and Labour Development (MITRADEL) or with the social security system could not access the economic and livelihood assistance programme, “Solidarity Plan”, since there were no mechanisms to verify their contract. It adds that other domestic workers who lost their jobs were also ineligible for the programme, even though they received lower wages than most workers in the country, as they did not pay social security contributions. CONUSI also highlights the lack of statistical information on the impact of the pandemic on the domestic work sector, for example, on the number of domestic workers who were dismissed from their jobs or on changes to their working conditions (reduction or extension of working hours). The Committee also notes the survey conducted among domestic workers affiliated with the Union of Workers in the Domestic and Allied Services (SINGRETRADS-CS-CS) within the framework of the report “Domestic work in Panama in the midst of the crisis caused by the COVID-19 pandemic” by the Pan American Health Organization (PAHO) in Panama, together with SINGRETRADS-CS-CS. According to the survey, 36 per cent of the women workers in the survey reported having lost their jobs permanently during the pandemic, while 35 per cent maintained their employment relationship and 29 per cent maintained their employment relationship with changes, such as a reduction in the number of working days, or temporary suspension without economic support. The crisis had an impact on the wages of 93 per cent of the women who participated in the survey. The report indicates that while this situation was not exclusive to domestic workers, unlike other sectors with a heavier presence in formal employment, 48 per cent of the women domestic workers in the survey could not access the assistance programmes implemented to mitigate the effects of the economic crisis (57 per cent of this figure did not have access as they were foreign women migrants, 21 per cent as they were not registered with MITRADEL and 22 per cent because the aid did not extend to their communities). The Committee notes the information provided by the Government on the various measures taken to protect workers’ rights in the context of the COVID-19 pandemic. The Government indicates that the Labour Inspection Directorate provides advice and guidance on workers’ rights and obligations and represents and defends workers’ labour rights before administrative and judicial authorities free of charge. It also provides information on the establishment of a domestic workers’ registry on the MITRADEL website, aimed at identifying the number of domestic workers and their employment status. The Committee invites the Government to provide updated and detailed information on the impact of the pandemic on the application of the Convention, including specific information on the measures taken or envisaged to mitigate the effects of the pandemic on the decent work and living conditions of all domestic workers in the country, including migrant domestic workers and those in the informal economy.

Article 1(1)(c) of the Convention. Occasional or sporadic domestic workers. In its previous comments, the Committee noted that section 230 of the Labour Code and section 1(31) of Act number 51 of 2005 define domestic workers as workers who perform various household tasks “in a habitual and continuous manner”. In this respect, the Committee emphasized that the definition of domestic worker contained in the Convention only excludes sporadic workers when the domestic work that they perform is not undertaken on an occupational basis, but that this specification is not envisaged in the definitions mentioned. The Committee requested the Government to consider the possibility of adopting the necessary measures to ensure that occasional or sporadic workers who perform domestic work on an occupational basis are included in the definition of domestic workers and are accordingly covered by the Convention. The Committee notes that the Government merely indicates that the above is governed by the provisions of the Labour Code. Therefore, given that the current formulation of the definition of domestic worker established in the legislation excludes occasional or sporadic workers who perform domestic work on an occupational basis, the Committee requests the Government to indicate how it ensures that such workers enjoy the guarantees laid down in the Convention.

Article 3(2)(a) and (3). Freedom of association and collective bargaining. The Committee notes the Government’s indication that, on 1 August 2019, a meeting was held between the Director of the Gender and Equality Office of MITRADEL and representatives of SINGRETRADS and the National Union of Household and Allied Workers (SINATHA). In connection with this meeting, guidance and training was provided on gender equality and domestic workers’ rights in the light of this Convention. A proposal was also made to draw up a common agenda to work jointly on the promotion of domestic workers’ rights, particularly in relation to the follow-up to social security affiliation campaigns and the improvement of assistance for these workers through the labour directorates and the National Directorate for Free Advice and Defence for Workers. The Government also indicates that MITRADEL, through the Panamanian Institute of Labour Education, conducts seminars and training aimed at promoting lifelong education of members of workers’ organizations. In this regard, CONUSI indicates that the Government does not specify which of those seminars and training were targeted at domestic workers’ organizations. It further indicates that the Government does not provide information on the impact of such actions and that they do not guarantee in practice the right to freedom of association and collective bargaining of domestic workers. The Committee requests the Government to provide detailed information on the measures taken or envisaged that take into consideration the specific characteristics of domestic labour, with a view to ensuring in practice the right to freedom of association and collective bargaining of domestic workers. It also requests the Government to indicate whether progress has been made in drawing up a common agenda between the Gender and Equality Office of MITRADEL and the domestic workers’ organizations to work jointly on the promotion of domestic workers’ rights, and to provide information in this respect.

Article 3(2)(b). Elimination of all forms of forced or compulsory labour. The Committee notes the statistical information, disaggregated by sex, nationality, victims’ level of education, and purpose of trafficking (sexual, labour, servitude or other) provided by the Government regarding the number of complaints in relation to the trafficking and smuggling of persons received between 2018 and 2021. The Government indicates, however, that only one complaint of forced labour was registered in the domestic work sector. The Government reports that the victim was a 17-year-old girl from an indigenous community and that the perpetrator was given an 80-month prison sentence and ordered to pay US$2,000 in compensation. CONUSI emphasizes the need to implement a fast-track complaints procedure with the labour and security authorities that allows for cases of forced labour in the domestic work sector to be reported and victims’ anonymity to be maintained. It also indicates that training is needed for workers’ organizations relating to these offences and the relevant reporting channels. The Committee requests the Government to continue providing information on the application in practice of the legal framework in force against trafficking and smuggling of persons with regard to domestic workers, including statistical information on the number and nature of offences reported, investigations carried out, prosecutions and sentences handed down in this respect. The Committee also requests the Government to provide detailed information on the process being implemented and the different authorities involved in cases where forced labour in the domestic work sector is identified, as well as the manner in which victims’ anonymity is guaranteed.

Articles 3(2)(c) and 4(1). Child labour. In response to the Committee’s previous comments, the Government reiterates that the Directorate against Child Labour and the Protection of Young Workers (DIRETIPAT) is responsible for overseeing compliance with the labour protection standards for adolescent workers and for ensuring that they are not hired for tasks not authorized in the legislation, including child domestic labour, which is prohibited, with certain exceptions, by Executive Decree No. 1 of 5 January 2016. Regarding the process used for intervention in child domestic labour issues, the Government indicates that complaints may be filed by telephone, anonymously or in person, with various institutions, such as DIRETIPAT, the labour inspectorate, the national police for children and young persons and the National Secretariat for Children, Young Persons and the Family (SENNIAF). Once the complaints have been received, they must automatically be referred to SENNIAF. The Government indicates that, between 2019 and May 2021, three complaints regarding child domestic labour were processed. It also indicates that, between January and May 2021, 258 inspections were conducted aimed at ensuring the safety and well-being of adolescent domestic workers. The Committee notes, however, that the Government does not provide information on the number and nature of the offences identified during these inspections, the penalties imposed on the perpetrators and the reparations granted to the victims. The Government also indicates that DIRETIPAT has launched awareness-raising days among the public on the risks of domestic child labour. Lastly, the Government refers to the implementation of the Guide for Comprehensive Care of Child Domestic Workers, which is overseen by SENNIAF. In this regard, CONUSI indicates in its observations that there have been reports of cases of abuse of minors in homes managed by SENNIAF. The Committee requests the Government to continue providing detailed and updated information on the number and nature of registered complaints of child domestic labour, the penalties imposed on the perpetrators and the reparations granted to the victims. It also requests the Government to provide detailed and updated information on the measures adopted under the Guide for Comprehensive Care of Child Domestic Workers, and on their impact.

Article 4(2). Protection of the right to education. In its previous comments, the Committee noted that section 231(8) of the Labour Code provides that “domestic workers shall be entitled to the granting by their employer of the necessary leave to attend school, on condition that it is compatible with their hours of work”, which implies that they are granted the necessary leave to attend school only when this is compatible with domestic workers’ hours of work. The Government indicates that MITRADEL, together with DIRETIPAT, carries out inspections, provides advice and follows up on complaints submitted regarding non-compliance with the compulsory schooling that must be provided to underage domestic workers. However, the Government does not indicate whether steps have been taken to amend article 231(8) of the Labour Code. The Committee once again requests the Government to adopt the necessary measures to amend section 231(8) of the Labour Code to ensure that work performed by adolescent domestic workers under 18 years of age does not deprive them of compulsory education or compromise their opportunities to participate in further education or vocational training.

Article 5. Protection against abuse, harassment and violence. The Committee refers to its 2021 direct request on the application of Convention No. 111, in which it noted the enactment of Act No. 7 of 14 February 2018, adopting measures to prevent, prohibit and penalize discriminatory acts and other such provisions. The Act defines sexual or moral harassment as “any systematic, continual or repeated action or omission in which a person insinuates, invites, requests, pursues, limits or restricts rights, curtails freedom, acts grossly with insults, or humiliates another person in order to obtain a sexual favour or affect their dignity”. The Act provides that non-compliance with the established provisions shall incur the penalty of a fine of 550 to 1,000 Panamanian balboas (section 8(1)). The Government refers in general to the possibility for all workers to file complaints via the MITRADEL website. CONUSI, however, claims that this measure is insufficient to ensure the submission of complaints by all domestic workers who are victims of abuse, harassment or violence. The Committee notes that the Government’s report does not include specific information on the treatment of complaints made by domestic workers concerning sexual harassment at work, nor on the application in practice of this Article of the Convention. The Committee refers to its comments relating to the application of Convention No. 111, in particular those in which it requests the Government to provide information on the internal complaints and settlements procedures adopted under section 6(2) of Act No. 7 of 14 February 2018. The Committee requests the Government to send information on the handling of complaints by domestic workers on sexual harassment in the workplace through these procedures. In addition, it requests the Government to send detailed and updated information on the number and type of cases of harassment, abuse or violence in the workplace identified in the domestic work sector and complaints submitted – including in judicial proceedings in civil, administrative and criminal courts – and the results of such cases, the penalties imposed and the reparations granted.

Article 7. Understandable information on terms and conditions of employment. The Government reiterates that domestic workers can access information on their rights through the MITRADREL website. The Government reiterates that, under section 231 of the Labour Code, employment contracts may be verbal or written. The Government adds that, based on a study conducted by the Gender and Equality Office, only 21 per cent of domestic workers had a written contract. The Committee also notes the Government’s indication that domestic workers’ contracts can be registered free of charge on the MITRADEL website. According to information available on the website, the registration process includes verification that the employment contracts cover the minimum terms and conditions established for the employment contracts of all workers in section 68 of the Labour Code. With regard to migrant domestic workers, it is further provided that the employment contract shall be for a determined period of one year from the approval of the domestic visa by the Migration Institute. The Committee notes, however, that the Government does not indicate whether measures have been taken to establish a model contract in the domestic work sector. The Government also indicates that awareness-raising campaigns on domestic workers’ rights have been carried out in the media, and guidance has been provided to employers on compliance with the minimum wage obligation established for domestic workers. The Committee requests the Government to provide detailed and updated information on the number of domestic worker employment contracts registered on the MITRADEL website. In addition, it requests the Government to continue providing information on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner, as well as the impact of those measures.

Article 12(2). Payments in kind. In response to its previous observations, the Committee notes the Government’s indication that the limit on payments in kind of 20 per cent of the total wage established in section 144 of the Labour Code is not applicable to domestic workers. The Government adds that section 231(9) of the Labour Code applies to domestic workers. This section provides that, unless otherwise agreed, it is presumed that the remuneration for domestic employees covers, in addition to payment in cash, the provision of food and accommodation. The Committee notes that the regulations established for domestic workers are clearly less favourable than those established for other workers, as no limits are established on the payment of remuneration in the form of payments in kind. The Committee further recalls that Paragraph 14(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 …” Lastly, the Committee notes that the Government does not indicate whether measures have been taken to ensure that payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to the payments in kind is fair and reasonable. The Committee therefore requests the Government to take the necessary measures to amend section 231(9) of the Labour Code with a view to ensuring that domestic workers enjoy conditions no less favourable than those governing generally for the rest of the categories of workers in relation to payment of a limited proportion of the remuneration in the form of payment in kind. It also once again requests the Government to take the necessary measures to ensure that payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable.

Article 13. Effective measures to ensure occupational safety and health. The Committee notes that the Government does not include information in its report on the application of this Article of the Convention. The Committee therefore once again requests the Government to indicate the measures adopted or envisaged to ensure the occupational safety and health of domestic workers which have due regard to the specific characteristics of domestic work.

Article 14. Effective access to social security. The Committee notes the information provided by the Government relating to measures taken with a view to promoting domestic workers’ effective access to social security. The Government refers, inter alia, to the conclusion of cooperation agreements with the Social Security Fund (CSS) to streamline procedures for affiliation to the social security scheme for domestic workers and promote the registration of domestic worker contracts with the Directorate of Labour of MITRADEL or through the database on its web page. It also refers to the launch of awareness and information campaigns for employers and workers to formalize employment contracts. The Government reports that 8,254 male domestic workers and 25,080 female domestic workers are registered with the Social Security Fund. CONUSI indicates in its observations that these data are insufficient, since they do not indicate a corresponding period, nor do they allow for a comparison with the rest of the categories of workers. CONUSI adds that, taking into consideration the number of domestic workers according to the 2019 household survey, only 37.6 per cent of domestic workers are affiliated to the social security system. The Committee requests the Government to continue providing detailed and updated information on the number of members of the Social Security Fund (CSS), disaggregated by sex and age, and to indicate the percentage they represent of the total number of domestic workers in the country. It also requests the Government to continue sending detailed and updated information on the measures taken or envisaged to ensure domestic workers’ access to social security, and their impact.

Article 15(1)(a) to (d) and (2). Private employment agencies. The Committee notes the Government’s indication that, with the support of the International Organization for Migration (IOM), training has been provided to private employment agencies on ethical, safe and responsible recruitment and hiring. The Government indicates that there are 70 licensed private employment agencies throughout the country and that 20 licences have been issued and 10 renewed. The Committee notes that, according to information available on the IOM website, under the International Recruitment Integrity System, on 31 August 2021, a binational session on ethical recruitment of migrant workers in the domestic work sector was held. Participants comprised representatives of workers’ organizations of Panama and Nicaragua, including members of the Regional Inter-union Committee for the Rights of Migrant Workers. The objective of this event was to raise awareness and provide training on the human and fundamental rights of migrant workers in the domestic work sector. During the session, the Deputy Director of the National Migration Service of Panama indicated that Nicaraguan nationals represent 40 per cent of the domestic work visas granted by the National Migration Service. The Committee notes, however, that the Government does not provide information on complaints received concerning abuses and fraudulent practices by private employment agencies or enterprises relating to domestic workers. Nor does the Government indicate whether bilateral, regional or multilateral agreements have been concluded to prevent such abuses and fraudulent practices, or whether consultations have been held with the social partners regarding the application in practice of this Article of the Convention. The Committee once again requests the Government to provide information on the number and type of complaints registered by the Department for the Registration of Employment Agencies concerning abuses and fraudulent practices by private employment agencies or enterprises in relation to domestic workers, and the penalties imposed. The Committee also once again requests the Government to indicate whether bilateral, regional or multilateral agreements have been concluded to prevent abuses and fraudulent practices in recruitment, placement and employment where domestic workers are recruited in one country for work in another. In addition, it once again requests the Government to take the necessary measures to hold consultations on the application in practice of this Article of the Convention with the most representative organizations of employers and workers, and with organizations representative of domestic workers and those representative of employers of domestic workers, where such organizations exist.

Article 17(1). Complaint mechanisms. The Committee notes that, under Executive Decree No. 86 of 2 April 2020, the MITRADEL digital platform for the submission of complaints was established and is available to all workers. The Government indicates that the complaints submitted are dealt with by the inspection mechanisms and other procedures deemed relevant. CONUSI indicates that this measure does not take into consideration domestic workers who cannot access the website owing to technical limitations or lack of knowledge. In this context, the Committee also notes the Government’s indication that, according to the General Directorate of the Decision and Conciliation Boards of MITRADEL, between 2019 and 2020, 129 complaints from domestic workers were received. However, the Government does not indicate the bodies with which these complaints were filed, nor does it provide information on the nature of those complaints, the penalties imposed or the reparation granted. The Committee requests the Government to provide detailed information on the measures taken with a view to ensuring access for all domestic workers, including those who do not have internet access, to complaints mechanisms, and accessible and effective means of ensuring compliance with the legislation relating to domestic labour. It also requests the Government to provide detailed and updated information on the number and nature of the complaints submitted by domestic workers with the different competent bodies, the penalties imposed on the perpetrators and the reparations granted.

Article 17(2). Labour inspection. In its previous comment, the Committee noted the Government’s indication that labour inspection had not been carried out with regard to domestic labour because of the difficulties in entering the workplace. The Committee noted the request for technical assistance from the Office in relation to the application of this Article of the Convention. The Committee notes the Government’s indication that 8,500 inspections have been conducted at the national level and that training was provided by IOM on migrant workers’ labour rights targeted at labour inspectors. The Government does not provide specific information, however, on labour inspection in relation to domestic workers. The Committee trusts that the technical assistance requested in relation to labour inspection in the domestic work sector will be provided without delay and requests the Government to keep it informed of any developments in this respect. It also requests the Government to provide updated and specific information on the number and type of inspections in the domestic labour sector (those initiated further to complaints and those conducted systematically), the number of violations detected, and the penalties imposed.