Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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

Autre commentaire sur C189

Demande directe

2023
2018

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The Committee notes the joint observations submitted by the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB) on 1 September 2022. The Committee requests the Government to send its comments in this regard.

Article 1 of the Convention. Definitions. In reply to the Committee’s previous question on how national legislation defines “domestic work”, the Government indicates that Belgian legislation does not define this concept, but only the concept of “domestic worker” (section 5 of the Act of 3 July 1978 on employment contracts). The Government points out that, according to Belgian case law and legal theory, domestic work is manual housework. Thus, “domestic staff” (tutors, gardeners, nursing staff) who do not perform this type of work are not considered to be domestic workers and are not covered by Belgian regulations for this sector. Moreover, workers in the domestic help sector paid by means of “service vouchers” are not considered to domestic workers but workers hired by a company and made available to households by the latter. The Government notes that the definitions in Belgian law of domestic work and domestic worker are thus narrower than those provided for in Article 1 of the Convention. In this respect, the Committee understands that the reasons for this more restrictive definition of the term “domestic worker” compared to the one given by the Convention is due to the fact that the national legislation considers any person who works in a household to perform work other than manual labour to be a person employed by an approved employer and made available to households when remuneration is by means of service vouchers. Service voucher employment contracts are governed by the Act of 3 July 1978 on employment contracts, except for certain specific aspects which are governed specifically by, or pursuant to, the Act of 20 July 2001 on local employment and services. Insofar as these workers are also covered by the Convention and were not excluded from the scope of the Convention in the Government’s first report, the Committee requests the Government to indicate in its next report how each of the provisions of the Convention is applied in law and practice.

Article 7. Information regarding terms and conditions of employment. In reply to the Committee’s previous question on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment, the Government indicated that, generally, the conclusion of an employment contract implies that the parties have agreed, prior to hiring, on the essential terms and conditions of the contract and that, as a general rule, the parties provide evidence of this in writing. The Government adds that a written contract is mandatory for fixed-term contracts (Act of 3 July 1978, sections 9 and 11 bis) and contracts concluded with workers paid by means of service vouchers (Act of 20 July 2001, section 7 quater). The Government also indicates that workers must be provided with work regulations containing information on hours of work, paid annual leave, rest periods, terms and conditions for the termination of employment and periods of notice (Act of 8 April 1965, sections 4 and 15). The Government further indicates that the value of any payments in kind, such as food and accommodation, must be assessed, established in writing and brought to the worker’s attention no later than at the time of hiring (Act of 12 April 1965). The Government points out that a bill to transpose Directive (EU) 2019/1152 on transparent and predictable working conditions should enter into force in 2022, which will require employers to provide all employees with essential information on the employment relationship in writing, no later than the first day of work. In this respect, the Committee notes that on 7 October 2022, a law partially transposing Directive (EU) 2019/1152 was adopted in Belgium. With regard specifically to domestic workers employed by heads of diplomatic missions or consular posts, the Committee notes with interest that a standard employment contract exists, which provides, inter alia, that the employer undertakes to comply with the conditions of employment under Belgian labour law. The Committee also notes that foreign domestic workers employed by heads of diplomatic missions or consular posts are obliged to report to the Protocol Directorate of the Belgian Foreign Affairs Service to collect an identity card and, at that time, receive information on their working conditions in accordance with Belgian law. In view of the foregoing, the Committee requests the Government to indicate how the law transposing Directive (EU) 2019/1152 impacts the regulation of the information provided to domestic workers regarding their terms and conditions of employment. The Committee also requests the Government to envisage promoting the use of a standard contract in relations between domestic workers and employers other than heads of diplomatic missions and consular posts. The Committee further requests the Government to provide information on the measures taken or envisaged to help domestic workers understand their terms and conditions of employment, for example, through the publication of information available in several languages, online and in public spaces, and through awareness-raising.

Article 8(2) and (3). Migrant domestic workers. The Committee notes that there is no agreement on the freedom of movement of domestic workers for the purpose of employment, in reply to its previous question in this regard (Article 8(2) of the Convention). The Committee notes with regret, however, that the Government does not provide information on the measures taken in cooperation with other ILO Member States to ensure the effective application of the provisions of the Convention for migrant domestic workers and therefore reiterates its request to the Government in this regard (Article 8(3) of the Convention).

Article 9. Accommodation and keeping of travel and identity documents. Noting that the Legal Studies Division and the Division for the Regulation of Individual Relations at Work are going to examine and determine how to improve the application of Article 9 of the Convention in Belgium, the Committee requests the Government to provide up-to-date information in this regard.

Article 12(2). Payment in kind. The Committee notes the information provided by the Government on the provisions of the Act of 12 April 1965 on the protection of workers’ remuneration, in reply to its previous questions on the measures taken to ensure that payments in kind in the context of domestic work: (i) are not less favourable than those generally applied, (ii) are freely accepted by the worker and (iii) are attributed a fair and reasonable monetary value.

Article 13. Occupational safety and health. The Government states that a draft Royal Decree laying down measures relating to the welfare of domestic workers has been submitted to the social partners in the High Council for Prevention and Protection at Work (CSPPT) for their opinion. The Government states that the entry into force of the draft Royal Decree will have the effect of extending to domestic workers the application of: (i) the Act of 4 August 1996 on the welfare of workers and (ii) the Code on Welfare at Work. The Government also states that, with the agreement of the social partners in the PTT, it has adapted an online workplace risk assessment tool, the Online Interactive Risk Assessment (OiRA), to the domestic work sector. The Committee requests the Government to provide up-to-date information on the adoption of the draft Royal Decree on the welfare of domestic workers and, where appropriate, on its impact on the protection of the health and safety of domestic workers. The Committee also requests the Government to provide information on the use of the OiRA and its impact on the implementation of actions for the safety and health of domestic workers.

Article 15(2). Consultations with the social partners concerned on the recruitment and placement of migrant domestic workers by private employment agencies. In its previous report, the Government indicated that the regulation of private employment agencies fell under the competence of the federated entities. With regard to the consultation of the social partners at this level, the Government simply indicates in its report that it is common practice in Belgium to consult the social partners and provides general information on the consultation bodies in the federated entities. The Government does not provide information on the holding of specific consultations on this matter, as provided for in Article 15(2) of the Convention. Moreover, the Government indicates that the organizations representative of the domestic work sector are not consulted. The Committee recalls that Article 15(2) of the Convention provides that Member States shall consult, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, in order to give effect to each of the provisions of Article 15 of the Convention. In view of the foregoing, the Committee requests the Government to provide information on the purpose and outcome of the consultations held in accordance with Article 15(2) of the Convention. It also requests the Government to report on the measures taken to ensure that, where they exist, organizations representative of domestic workers and those representative of employers of domestic workers are involved in such consultations.

Article 17. Complaint mechanisms. Labour inspection.Access to household premises. The Committee notes with interest the measures put in place to detect and combat cases of trafficking in persons for the purpose of domestic servitude in diplomatic households, such as: the holding of annual interviews when foreign domestic workers are required to renew their identity cards; the existence of specialized reception centres for domestic workers who are victims of human trafficking; and the possibility for Belgian judges, in the absence of criminal proceedings due to diplomatic immunity, to issue an opinion on the existence of a situation of exploitation, thus enabling the domestic worker to be issued a permanent residence permit on humanitarian grounds. The Committee also notes the measures taken to set up complaint mechanisms accessible to all domestic workers (not only those placed in embassies and consular posts), particularly the establishment of a portal enabling domestic workers to report offences online. The Committee notes, however, that the Government has not replied to its previous question concerning the measures taken by government services to ensure that information on complaint mechanisms and legal assistance are available in several languages to all domestic workers, including migrant domestic workers. The Committee also notes that the FGTB, the CSC and the CGSLB consider that home visits should be increased. In view of the foregoing, the Committee requests the Government to provide detailed information, including statistics, on the visits made by labour inspectors to the homes of employers of domestic workers. The Committee also requests the Government to provide detailed information on the measures taken or envisaged to make information on complaint mechanisms and legal assistance available in several languages to all domestic workers, including migrant domestic workers.

Article 18. Consultations.The Committee notes that there has been no consultation of the social partners via the National Labour Council (CNT) regarding the implementation of the Convention for the period 2018–22 and requests the Government to provide up-to-date information in this regard.

Court decisions. Part IV of the report form. The Committee notes the judicial decisions in several cases of human trafficking. The Committee requests the Government to continue to provide information on any decisions handed down by courts or other dispute settlement mechanisms concerning questions of principle relating to the application of the Convention.

Application of the convention. Part V of the report form. The Committee notes the statistical data provided by the Government on: (i) the number of domestic workers and “domestic servants” declared to the National Social Security Office (ONSS) and (ii) the number of workers paid by means of “service vouchers” for the period 2018–21. The Committee requests the Government to provide information on the manner in which the Convention is applied in Belgium, by supplying extracts from inspection reports and information on the number and nature of infringements recorded and on any penalties imposed on employers of domestic workers.