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Home , Domestic worker, Migrant domestic workers, Migrant worker

RESEARCH SERIES MDWs (especially if they are “live-in workers”) employer. the of those or who live and work in the for MDWs with irregular undocumented or migration these workers. The situation is critical particularly are common cases, worst violations suffered by labour and trafficking for labour exploitation in the doms, degrading treatment and , forced violations of human dignity and fundamental free retentions, substitutions, contract hours, passport working long retention or , of Non-payment race, ethnicity, national origin and . , due to inequalities determined by gender, domestic workers are vulnerable to human (MDWs) tion of existing laws. from particularly monitoring poor and implementa sectors under national labour laws and it suffers Domestic work remains one of the least protected high. regulations. Non-compliance is decreasing but still performed outside of labour and social protection unpaid work. domestic Most work remains informal, tasks performed, it is often associated with women’s in the employer’s house and to the nature of the Due to the fact that domestic work is carried out work. for to another country manyers, millions have migrated from their homes cent are women. Among the world’s domestic work age of 15 are domestic workers. those, per Of 83 Worldwide, an estimated 67 million people over the Summary are even protected less by the law. Migrant Based onareportelaboratedbyElisaMenegatti The international legal framework at aglance Protecting : 1

Migrant domestic workers workers domestic Migrant AND THEIR FAMILIES THEIR AND WORKERS DOMESTIC MIGRANT ON PROGRAMME ACTION GLOBAL - - - restricted in their freedom of movement. Internet to communicate with their families, and are to communication devices, like mobile phones or service providers, they often have limited access They tend to isolated be from other employees and cultural characteristics of the country of destination. informationaccess on the legislation and socio- can face specific language and cultural barriers to operating outside of legal and regulatory frameworks. agencies and informal intermediaries of identity documents, perpetrated by unscrupulous charging unauthorized tofees workers, and retention include: deception regarding conditions of work, of migrant domestic workers. Abusive practices led to increasing of exploitation reports and abuses Lack of appropriate regulation and supervision has has significantlyprocess grown in the past decade. Private recruitment agencies’ role in the migration domestic workers. workers are women, compared to of 80% national migrant in 2013. About 74% of all migrant domestic in the world was an international workers worldwide. In other words, almost fifth every of all domestic workers and 7.7% of all migrant workers globally at 11.5 million, representing 17.2% ILO estimates put the number of migrant domestic Figures and Facts workers. works with regard to domestic workers and migrant evenor divergent interests and regulatory frame sovereigntwo countries, which often have different Migrant domestic workers are at the crossroads of 3

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- The share of migrants among domestic workers Who is a domestic worker? has significant regional variations. Nearly 80% of migrant domestic workers tend to be concentrated in Under ILO Convention No. 189, a domestic worker high-income countries. Those countries accounted is “any person engaged in domestic work within an for 9.1 million out of the estimated 11.5 million employment relationship” (Art. 1(b)). A domestic migrant domestic workers globally (See Fig.1).4 worker may work on a full-time or part-time basis; may be employed by a single household or by mul- tiple employers; may be residing in the household of Figure 1. Distribution of migrant domestic workers, the employer (live-in worker) or may be living in his by sex and broad sub region, 2013 (percentages) or her own residence (live-out). A domestic worker may be working in a country of which she/he is not a national. Female Who is a ?

Migrant workers are people who leave home to find work outside of their hometown or home country. Persons who move for work in their own country are “internal” migrant workers. Persons who move for work to another country are commonly called “for- Male eign” or “international” migrant workers.

Labour migration is considered as “regular” and migrant workers are considered as being “in a regu- lar situation” if they are authorized to enter, stay and work pursuant to the law of the destination country and international agreements to which it is a party. When they do not comply with those conditions, they are considered as “undocumented” or “in an irregu- lar situation”. Migrant workers in irregular situations are very likely to find themselves vulnerable to and exploitation of all types.

Migrant workers in irregular status are entitled to their , including labour rights. From its very inception, the ILO resolved to protect “the interests of workers employed in countries other than their own” regardless of their status.5 In principle, unless otherwise stated, all international labour standards cover all workers irrespective of their or immigration status. What is domestic work?

ILO Convention No. 189 defines domestic work as Peculiarities of this sector “work performed in or for a household or house- holds” (Art. 1(a)). This work may include tasks such The private character of the workplace is a particu- as cleaning the house, cooking, washing, grocery larity of this sector. It implies a coincidence between shopping and clothes, taking care of chil- the public sphere normally related to employment dren, the elderly and/or the sick, gardening, guarding relationships and the private nature of family and the house, driving, even pet sitting. Domestic work household dynamics.6 The other distinctive ele- remains a highly gender-specific niche of the labour ment is the juridical status of the employer, who is market. normally a private employer who would otherwise

2 The ILO provides technical assistance if necessary. application of Conventions and Recommendations. mechanism of the ILO is in charge of monitoring the application at regular intervals. The supervisory law and practice and reporting to the ILO on its themselves to applying the Convention in national the date of ratification. Ratifying countries commit ally into comes force for that country one year after consideration for ratification. If it ratified,is it gener competent authority (normally the Parliament) for under the ILO Constitution to submit them to their Protocolor is adopted, Member states are required national Labour Conference. Once aConvention and/ workers and are adopted at the ILO’s annual Inter up by representatives of governments, employers and ventions, Protocols and Recommendations are drawn dations, which asnon-binding serve guidelines. Con implementor previous frameworks, and Recommen are supplementary instruments often used to amend may ratified be by memberstates, Protocols, that which are legally binding international treaties that International labour standards can be: Conventions, mote decent work for workers of all . International labour standards are designed to pro guidance on means and procedures to employed. be and workers, establish policy objectives provide or ciples, articulate rights and duties of employers International labour standards lay out basic prin Recommendations and Protocols Conventions, MDWs to Relevant are Actions ILO How is not seen asrequiring specific skills. tic work is perceived as“women’s work” and assuch sector. Another important peculiarity is that domes level of protection guaranteed to the workers of this of the employment relation and the widespread low Both factors are keys to determining the peculiarity receive pecuniary gains from the employee’s work.

------Constitution). Constitution). by ratifying countries 23 and (Arts. 24 of the ILO proceduresstart on the violation of the Convention cation of the Convention by aratifying country and provide to the ILO their own comments on the appli Workers’ and employers’ organizations may also • • • organizations can use the Convention to: to ensure that the Convention is respected. These concerned stakeholders may play an important role tions and employers’ organizations aswell asother law and practice. At this stage, workers’ organiza government has the obligation to implement it in ing for the country under international law, and the Once ratified, Conventionthe becomes legally bind organizations roleThe workers’ of employers’ and insurance and maternity leave. maternity and insurance and the right to enjoy social security, including social tions, the right to form trade unions and join them, enjoyment of equal and satisfactory working condi 7-10:Art. recognizes the right of everyone to the 1966 Rights, Cultural Social and Economic, on International Covenant tion. 22:Art. establishes the right to freedom of associa an lawfully in the territory of acountry. 13:Art. establishes adue for expulsion process of forms aswell asforced labour. 8: prohibitsArt. and slave trade in all their 1966 Civil on Political and International Rights, Covenant 2). (Art. applicable to everyone, and everywhere always riding principles of equality and non- This non-binding instrument establishes the over Universal Declaration of Human Rights, 1948 Provisions Relevant to MDWs Legal Key International the application of the Convention; Provide guidance and counseling to workers on standards; legislation in conformity with international labour Pressure authorities in order to adopt national abuse exploitation or in national courts; Defend the rights of workers who have suffered 7

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3 PROTECTING MIGRANT DOMESTIC WORKERS: THE INTERNATIONAL LEGAL FRAMEWORK AT A GLANCE UN Convention on the Elimination of All Forms of Key ILO instruments Discrimination against Women, 1979 Art. 11: establishes the obligation of all the State The Declaration on Fundamental Principles and Parties to work for the elimination of discrimination Rights at Work, 1998 commits Member States to against women in the field of employment. respect and promote universal principles and rights at work: freedom of association and the effective General Recommendation No. 17: recommends tak- recognition of the right to collective bargaining, the ing into account the unremunerated domestic activi- elimination of forced or compulsory labour, the abo- ties of women as a contribution to the gross national lition of and the elimination of discrimi- product.8 nation in respect of employment and occupation.

General recommendation No. 26: considers that The Migration for Employment Convention (revised), countries of destination should ensure that migrant 1949 (No. 97) protects regular migrant workers from women workers enjoy the same rights as national discrimination and exploitation, ensuring equality women workers.9 of treatment between regular migrant workers and national workers with respect to hours of work, rest UN Convention on the Elimination of All Forms of period and holidays. Racial Discrimination, 1990 General Recommendation No. 30: recommends The Migrant Workers (Supplementary Provisions) removing any obstacle preventing “the enjoyment of Convention, 1975 (No. 143) entitles migrant work- economic, social and cultural rights by non-citizens”, ers in irregular status to equality of treatment in notably in the area of employment among others, working conditions and in respect of rights arising and any discrimination “in relation to working condi- out of their past employment. tions and work requirements”.10 It provides both equality of treatment and equality UN Convention on the Rights of the Child, 1989 of opportunities for migrant workers in regular status Art. 32: recognizes the right of the child to be pro- and members of their families. This equality also tected from economic exploitation and from per- applies to social security, and cultural forming any work. rights.

UN Convention for the Protection of the Rights of The Equality of Treatment (Social Security) Conven- all Migrant Workers and members of their families, tion, 1962 (No. 118) and the Maintenance of Social 1990 Security Rights Convention, 1982 (No. 157) aims at Committee on the Protection of the Rights of all equal treatment of migrant workers as compared to Migrant Workers and Members of their Families, national workers with regard to all nine branches of General Comment No. 1 on migrant domestic social security. workers notes that MDWs are at increased risk of certain forms of exploitation and abuse, largely The Private Employment Agencies Convention, due to isolation and dependence characteristic of 1997 (No.181) encourages States to enter into bilat- domestic work, and that female MDWs face addi- eral agreements to prevent abuses and fraudulent tional risks due to their gender, including gender- practices. It prohibits the denial of workers’ rights to based violence. The Committee calls on member freedom of association and collective bargaining; the States to address the rights of migrant domestic practice of discrimination against workers; and the workers within the larger framework of decent work charging of fees to workers. for domestic workers.11

UN Convention against Transnational Organized Crime, 2000 and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smug- gling of Migrants by Land, Sea and Air are important instruments in the fight against the trafficking and smuggling of persons.

4 employment. 6: Art. conditions andDecent no working discrimination possession. to keep their identity and travel documents in their periods of daily and weekly leave; or rest c) freedom remain in the household with or its members during in the household; b) free decision on whether to ment with employers on or whether not or to reside 9: Art. privacy. decent living conditions that respect the workers’ 6:Art. workers Live-in with the consent of the worker concerned. order other or lawful means of payment, monetary bank transfer, bank cheque, postal cheque, money collective agreements, payment may made be by Unless provided for by national laws, regulations or in cash at regular intervals at least once amonth. 12:Article ofModalities Payment onbased sex. remuneration is established without discrimination age, where such coverage exists, and that that domestic workers enjoy minimum cover Art. 11: Art. Remuneration triation at the end of their employment. under which domestic workers are entitled to repa 8(4):Art. requires States to specify the conditions country of employment). workers who are already within the territory of the of employment (does not apply to migrant domestic a written job offer, prior to traveling to the country tract enforceable in the country of employment, or migrant domestic workers receive awritten con 8(1):Art. requires members to establish that workers domestic Migrant gender equality. Relevant Articles concern: workers and it constitutes an important step towards nationals and non-nationals employed as domestic distinguishConvention not No. 189 does between 2011 (No.189) Workers Convention, Domestic The ensures that domestic workers enjoy fair terms of establishes: a) freedom to reach agree each Member shall take measures to ensure requires States to take measures to ensure Domestic workers shall paid be directly - - - - hours of work, periods of daily and weekly etc.). rest as: usual workplace, the remuneration, the normal of their terms and conditions of employment (such 7: Art. Information against all forms of abuse, harassment and violence. that domestic workers enjoy effective protection 5: Art. Protection from abuse, harassment and violence and “with due regard to the specific “in accordance with national laws and regulations” maternity benefits.measures These are be takento to social security protection, including asregards than those applicable to workers generally in respect workers enjoy conditions that are favourable not less 14: Art. laws, regulations and practice”). working environment (“in accordance with national 13: Art. protection Health and security social iii. at regular intervals but at least once amonth. ii. in cash; third party; i. directly to the domestic worker, as opposed to a 12Art. (1): regulates modalities of payment: protection). without discrimination on based (minimum sex wage Art. 11: Art. hours. weekly period rest is at minimum 24 consecutive of daily and weekly rest, and annual paid leave. The mal hours of work, overtime compensation, periods tic workers and workers generally, in relation to nor 10(1): Art. requires Members to take measures to ensure requires that domestic workers are informed • • • • • • • • Eight ILO fundamental Conventions requires Members to ensure that domestic establishes the right to a safe and healthy ensures that remuneration is established Convention, 1958 1958 Convention, Occupation) and 111:No. (Employment Discrimination 1951 Convention, Remuneration Equal 100: No. 1999 Convention, Labour Child of Forms 182: Worst No. 1973 Convention, Age Minimum 138: No. 1957 Convention, Labour Forced of 105: Abolition No. 2014) Protocol, its (and 1930 Convention, Labour Forced 29: No. 1949 Convention, Bargaining Collective and to Organise Right 98: No. 1948 Convention, to Organise Right the of Protection and Association of 87:No. Freedom ensures equal treatment between domes - -

5 PROTECTING MIGRANT DOMESTIC WORKERS: THE INTERNATIONAL LEGAL FRAMEWORK AT A GLANCE Freedom of association on the basis of their real or perceived HIV status” Art. 3(3): protects the right of freedom of associa- (paragraph 28), while its paragraph 47 calls for the tion and the effective recognition of the right to col- countries of origin, transit and destination to take lective bargaining. measures to ensure access to HIV prevention, treat- ment, care and support services for migrant workers. Private employment agencies Art. 15: ensures adequate machinery for the inves- The Domestic Workers Recommendation, 2011 tigation of complaints by domestic workers; adopts (No.201) measures to adequately protect domestic work- This recommendation contains valuable guidance ers and prevent abuses, including laws or regula- on a range of measures that may be taken to pro- tions specifying the respective responsibilities of tect migrant domestic workers – such as hotlines, Box 5. Normative foundations for gender-sensitive the agency and the household and providing for interpretation services, emergency housing, consular BLAs/MOUs penalties; considers concluding bilateral, regional assistance, provision of information in their lan- or multilateral agreements to prevent abuses and guages, and measures to ensure migrant workers’ fraudulent practices; ensures that fees charged by ability to pursue criminal and civil remedies and to Conformity with international norms relating to the agencies are not deducted from the remuneration of use legal and (Para. 21). human and labour rights of migrant workers helps to domestic workers. uphold equality of treatment and non-discrimination. The Multilateral Framework on Labour Migration, Where there is specific reference in a BLA/MOU to the Compliance and enforcement 2006 treatment of migrant workers no less favourable than Art. 16: guarantees that domestic workers have This non-binding tool guides in the development, that, which applies to nationals of the destination coun- effective access to the court, tribunals or other dis- strengthening, implementation and evaluation of try with respect to employment and working and living pute settlement mechanisms. national, regional and international labour migration conditions, both male and female MDWs can benefit: Art. 17(2): calls on Members to develop and imple- policies and practices for improving the governance, • Convention on the Elimination of All Forms of ment measures for labour inspection, enforcement promotion and protection of migrant rights. Discrimination Against Women (CEDAW) 1979; and penalties, in accordance with national laws and regulations. It includes the following principles: • International Convention on the Elimination of All Principle 9.8 – “adopting measures to ensure that Forms of Racial Discrimination (ICERD)1966; national labour legislation and social laws and regu- • International Convention on the Protection of the Other ILO Instruments lations cover all male and female migrant workers Rights of All Migrant Workers and Members of their including domestic workers and other vulnerable Families 1990; The ILO Recommendation concerning HIV and AIDS groups…”. • ILO Migration for Employment Convention, 1949 and the World of Work, 2010 (No. 200) recognizes (No.97); that migrant workers often encounter high levels Principle 11.2 – “intensifying measures aimed at of stigma and discrimination that, especially when detecting and identifying abusive practices against • ILO Migrant Workers Convention, 1975 (No.143); coupled with risk factors in the migration process migrant workers... particularly in those sectors… • ILO Domestic Workers Convention, 2011 (No.189); itself, may make migrants particularly vulnerable such as domestic work”. • ILO Private Employment Agencies Convention, 1997 to HIV. For this reason, Recommendation No. 200 (No.181); provides explicitly that there should be no stigma or • ILO Core Conventions on Fundamental Principles discrimination against workers due to the fact that The regular monitoring and Rights at Work; “they belong to regions of the world or segments of of ILO Conventions the population deemed to be at greater risk or more • Universal human rights instruments and their vulnerable to HIV infection” (para. 3c). Once a country has ratified an ILO convention, it is protocols; obliged to report regularly to the ILO on measures it • ILO Multilateral Framework on Labour Migration: Recommendation No. 200 also provides that HIV has taken to implement it. Every two years govern- non-binding principles and guidelines for a rights- testing or other forms of screening for HIV should not ments must submit reports detailing the steps they based approach to labour migration. be required of migrant workers (paragraph 25), and have taken in law and practice to apply any of the that workers should not be required by countries of eight fundamental and four priority conventions they origin, transit or destination to disclose HIV-related may have ratified; governments are required to sub- information about themselves or others (paragraph mit copies of their reports to employers’ and workers’ 27). The Recommendation stipulates that “migrant organizations. These organizations may comment on workers, or those seeking to migrate for employ- the governments’ reports; they may also send com- ment, should not be excluded from migration by ments on the application of conventions directly to the countries of origin, of transit or of destination the ILO.

6 delegates. It examines the of the report Committee is made up of government, employer, and worker Committee the Conference Conference, Labour A standing committee of the ILO International application of international labour standards. an impartial and technical evaluation of the state of three-year terms. The Committee’s role is to provide eminent jurists appointed by the Governing Body for on ratified conventions. Today it is composed of 20 examine the growing number of government reports The Committee was set up in of Experts 1926 to Figure 2.  2. Figure Ratifications of C189 & ILO action across the world the across action of C189 ILO & Ratifications report. by the Conference Committee are published in its sions and conclusions of the situations examined ILO missions technical or assistance. The discus take specificsteps to remedy aproblemor to invite up conclusions recommending that governments In many the cases Conference Committee draws to provide information on the situation in question. to respond before the Conference Committee and ernments referred to in these comments are invited a number of observations for discussion. The gov in atripartiteof Experts setting and selects from it - -

7 PROTECTING MIGRANT DOMESTIC WORKERS: THE INTERNATIONAL LEGAL FRAMEWORK AT A GLANCE End Notes

1 ILO, Domestic workers across the world 2013 report - http:// 8 UN Convention on the Elimination of All Forms of Discrimi- www.ilo.org/travail/Whatsnew/WCMS_173363/lang--en/index. nation against Women, 1979, General Recommendation No. 17: htm. tenth session, 1991, Measurement and quantification of the 2 ILO, Nov 2015: Making decent work a reality for migrant unremunerated domestic activities of women and their recogni- domestic workers, p. 6. tion in the GNP. 3 Ibid, p. 5. 9 Rights of Migrant Domestic Workers In , UN OHCHR, Europe Regional Office. 4 ILO Global Estimates on Migrant Workers 2015 report - http://www.ilo.org/global/topics/labour-migration/publications/ 10 UN Convention on the Elimination of All Forms of Racial Dis- WCMS_436343/lang--en/index.htm. crimination, 1990, General Recommendation No. 30: Discrimi- nation against non-citizens: 01/10/200. 5 ILO Constitution, 1919, Preamble, recital 2. 11 Committee on the Protection of the Rights of all Migrant 6 Gallotti, Maria. 2009. The gender dimension of domestic Workers and Members of their Families, General C o m m e n t work in Western Europe. International Migration Papers No. 96, No. 1, paragraph 37. http://www2.ohchr.org/english/bodies/cmw/ Geneva: ILO, 1. cmw_migrant_domestic_workers.htm. 7 Achieving decent work for domestic workers. An organizer’s manual to promote ILO convention no. 189 and build domestic workers’ power, ILO 2012.

Project partners The project is implemented by the ILO in collaboration with the following partners and associates:

www.unwomen.org www.ohchr.org www.ksbsi.org www.ituc.org www.idwf.org

Labour Migration Branch (MIGRANT) Conditions of Work and Equality Department International Labour Office Route des Morillons 4 Tel: +41 22 799 6667 1211 Geneva 22 www.ilo.org/migrant This project is funded by Switzerland Email: [email protected] The

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