Solicitud directa (CEACR) - Adopción: 2017, Publicación: 107ª reunión CIT (2018)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Paraguay (Ratificación : 2013)

Otros comentarios sobre C189

Observación

2019

Solicitud directa

2019
2017

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Article 1 of the Convention. Definition. In its first report, the Government indicates that section 2 of Act No. 5407/15 on domestic work (Act No. 5407) defines domestic work as any “subordinate, regular, remunerated service in employment, whether or not resident in the household, consisting of cooking, cleaning and other tasks inherent to a household, residence or private dwelling”. The Committee notes that this definition seems to exclude those who work sporadically. In this respect, the Committee recalls that the definition of domestic worker set out in Article 1 of the Convention excludes occasional workers only when the domestic work is not performed on an occupational basis. In this regard, the Committee draws the Government’s attention to the preparatory work for the Convention, in which it is emphasized that this clarification was included to ensure that day labourers and similar precarious workers are included in the definition of domestic worker (see Report IV(1), ILC, 100th Session, 2011, page 5). The Committee requests the Government to indicate the manner in which it ensures that sporadic or occasional workers who perform domestic work on an occupational basis are protected by the safeguards provided for in the Convention.

Article 2. Exclusions. The Committee notes that section 4 of Act No. 5407 provides for the exclusion of three categories of workers from the application of the Convention. In particular, it notes that section 4(c) excludes from the application of the Convention domestic workers who perform their services “independently and using their own supplies”. The Committee requests the Government to indicate the reason for this exclusion and to specify the manner in which it ensures that the protection afforded to these workers is at least equivalent to that provided for in the Convention. The Committee also requests the Government to provide information on the consultations held previously with the most representative employers’ and workers’ organizations in this respect, as provided for in Article 2(2) of the Convention.

Articles 3(b) and (c) and 4. Forced labour. Elimination of child labour. Minimum age. The Government indicates that article 9 of the Constitution establishes that every person has the right to protection of their freedom and security and that article 10 of the Constitution prohibits slavery, personal servitude and human trafficking. The Committee also notes that the Government has made efforts in recent years to eradicate the practice of “criadazgo”. In particular, it notes that section 5 of Act No. 5407 establishes the minimum age to perform domestic work at 18 years and that section 26 of the same Act removes any reference to domestic work from the Childhood and Adolescence Code. The Committee requests the Government to provide information on the application in practice of Act No. 5407, particularly on the control mechanisms established to ensure that minors are not employed as domestic workers and the penalties imposed in case of violation.

Article 5. Protection against abuse, harassment and violence. The Government reports that section 153 of the Labour Code requires employers to treat domestic workers with due consideration, not subjecting them to verbal or physical abuse. Nevertheless, the Committee notes that this provision was repealed with the adoption of Act No. 5407 and was not replaced with an equivalent provision. The Committee also notes that Resolution No. 124 of 15 February 2010 established the Care Centre for Women Domestic Workers (CATD), which is responsible for responding to and assisting domestic workers; receiving complaints and mediating in the case of disputes with employers. The Committee requests the Government to provide more detailed information on the operation of the Care Centre for Women Domestic Workers, particularly on the complaint mechanisms for abuse, harassment and violence and to indicate whether there have been prosecutions of these cases. The Committee also requests the Government to indicate whether programmes exist for the relocation and rehabilitation of domestic workers who have been victims of abuse, harassment and violence. The Committee further requests the Government to provide statistics on the Centre’s activities, particularly on the number of complaints received, mediations conducted and cases referred to the courts.

Article 6. Fair terms of employment. Decent working and living conditions that respect their privacy. The Government reports that article 86 of the Constitution establishes the right of all residents of Paraguay to lawful work, freely chosen and performed in decent and fair conditions. The Government adds that section 15 of Act No. 5407 provides for the right of all workers to a dignified existence, fair working conditions and technical and vocational training to develop their skills, earn a better income and contribute effectively to the progress of the nation. The Committee notes that sections 12, 13 and 14 of Act No. 5407 set out the working conditions of domestic workers, according to the type of service agreed, namely whether or not they reside in the household. The Committee requests the Government to provide information on the type of supervision which has been or will be implemented by the Government to ensure that the working conditions of domestic workers, whether or not they reside in the household, are in conformity with national legislation.

Article 7. Information on terms and conditions of employment. The Government indicates that section 7 of Act No. 5407 repeals section 44(a) of the Labour Code, which provided that employment contracts could be concluded verbally if they were for domestic service, and provides that a domestic work employment contract shall be set out in writing and enumerates the elements which shall be included. The Committee notes that this provision provides for all the elements included in Article 7, with the exception of paid annual leave, daily and weekly rest periods and the terms of repatriation. Nevertheless, the Committee notes that the model contract provided by the Government contains all the elements set out in Article 7, apart from the terms of repatriation. The Committee requests the Government to indicate how it ensures that domestic workers are informed in an appropriate, verifiable and easily understandable manner of paid annual leave, daily and weekly rest periods and, where applicable, the terms of repatriation.

Article 9. Freedom to reach an agreement with the employer or potential employer on whether to reside in the household. Travel and identity documents. Section 6 of Act No. 5407 establishes that the work may be agreed with or without residence in the household, as agreed between the parties. The Committee also notes that section 14 of Act No. 5407 establishes the right of domestic workers, whether or not they reside in the household, to a break of one or two hours, respectively, and that section 15 of Act No. 5407 grants workers who do not reside in the household a weekly break of no less than 24 consecutive hours. The Committee also notes that section 213 of the Labour Code, which is general in scope, provides for the right of all workers to a period of uninterrupted rest of a minimum of ten hours at the end of their working day. Regarding travel and identity documents, the Committee notes the Government’s indication that no provisions exist in this respect. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that domestic workers who reside in the household are free to leave it during the periods of their leave. It also requests the Government to provide information on the measures taken or adopted to ensure that migrant domestic workers are entitled to keep in their possession their travel and identity documents.

Article 10. Equal treatment between domestic workers and workers generally in relation to normal hours of work. The Government indicates that section 13 of Act No. 5407 establishes that the normal working day for workers who reside in the household shall not exceed eight hours a day or 48 hours a week, when work is performed during the day, and six hours a day or 42 hours a week, when work is performed at night, which is in line with the provisions of section 194 of the Labour Code, applicable to all workers. Furthermore, section 15 of Act No. 5407 establishes that the weekly rest period for workers who do not reside in the household shall not be shorter than 24 hours, while section 213 of the Labour Code, applicable to all workers, establishes the right of all workers to one day of rest a week. The Committee notes that, while Act No. 5407 does not cover annual leave, section 218 of the Labour Code provides for the right to a period of paid leave for each year of continued service for the same employer. The Committee requests the Government to provide information on the manner in which it enforces the protection of normal working hours, as set out in Act No. 5407 and the Labour Code. The Committee also requests the Government to provide information on the manner in which it ensures the right of domestic workers to annual leave, as provided for in section 218 of the Labour Code, and that periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household, are regarded as hours of paid work.

Article 11. Minimum wage. The Government indicates that section 10 of Act No. 5407 provides that the statutory minimum wage for domestic work must not be lower than 60 per cent of the statutory minimum wage for miscellaneous unspecified activities, which amounts to a 20 per cent rise in comparison with the previous provision. The Committee recalls that, despite the amendment, the current legislation does not ensure the equality of domestic workers with other workers in relation to the statutory minimum wage, as provided for in Article 11. The Committee requests the Government to provide information on the manner in which it gives effect to Article 11, and particularly on the measures taken or envisaged to ensure wage equality for domestic workers with workers in other occupations. The Committee also requests the Government to provide copies of court decisions concerning the failure of the employer to pay a domestic worker the minimum wage.

Article 12. Payment in kind. The Committee notes section 12 of Act No. 5407, which provides that, unless otherwise established, it is assumed that the remuneration of domestic workers normally includes, in addition to cash wages, the provision of food, and for those who are resident in the household, the provision of accommodation. With respect to payment in kind, the Committee notes that section 231 of the Labour Code provides that workers shall be paid in legal tender, and prohibits payment with vouchers, promissory notes, coupons or in any other form alleged to represent legal tender. However, the Committee notes that section 231(2) provides for, in exceptional circumstances, up to 30 per cent of a wage to be paid in kind, if the supplies are suitable for the personal use of and benefit the workers and provided that the value attributed to them is fair and reasonable. This provision also establishes that, if the value of the payment in kind is not set out in the contract of employment, it shall be fixed by the competent authority. Taking these provisions into account, and considering that, apart from food and accommodation, payment in kind is not regulated by Act No. 5407, section 231 of the Labour Code would seem to be applicable. The Committee requests the Government to provide information on the applicability of section 231 of the Labour Code to domestic workers. It also requests the Government to specify the cases in which the presumption established in section 12 of Act No. 5407 may be revoked.

Article 13. The right to a safe and healthy working environment. The Committee notes that sections 272–282 of the Labour Code generally regulate occupational safety and health. However, the Committee notes that these provisions are general in nature and thus do not give full effect to Article 13, which provides that each Member shall take effective measures, with due regard for the specific characteristics of domestic work. The Committee reminds the Government that Paragraph 19 of the Domestic Workers Recommendation, 2011 (No. 201), encourages member States to take measures to protect domestic workers by eliminating or minimizing work-related hazards and risks, provide an adequate and appropriate system of inspection, establish procedures for collecting and publishing statistics on accidents and diseases, advise on occupational safety and health and develop training programmes. The Committee requests the Government to provide information on the measures taken or envisaged to ensure the occupational safety and health of domestic workers, due regard being taken of the specific characteristics of domestic work.

Article 14. Conditions not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity. The Government indicates that domestic workers have been gradually incorporated into the social security system and that, with the adoption of Act No. 5407, their inclusion in the social security system became mandatory. The Committee also notes that section 19 of Act No. 5407, in the case of workers with several employers, allows contributions to be pro rata in proportion to the hours worked, while section 20 establishes the financing method of mandatory social security. However, the Committee notes that social security coverage remains very limited in practice. The Committee requests the Government to provide up-to-date statistics on the number of domestic workers registered with the general social protection scheme, disaggregated by age and sex. It also requests the Government to provide information on the manner in which it promotes the registration of domestic workers with the social protection system.

Article 15. Private employment agencies. The Government refers to section 16 of the Labour Code, which requires the State to take responsibility for the vocational and technical training of workers, formulate an appropriate economic policy and provide suitable employment to unemployed or inactive workers. The Committee notes that section 25 of the Labour Code defines an intermediary as an association or person who recruits or participates in the recruitment of the services of workers to perform work for the benefit of the employer. Nevertheless, it observes that in practice there is no official register of private employment agencies. The Committee requests the Government to provide information of the measures adopted or envisaged to give full effect to Article 15 of the Convention. The Committee also encourages the Government to consider the possibility of accepting the obligations of the Employment Service Convention, 1948 (No. 88), and the Private Employment Agencies Convention, 1997 (No. 181).

Article 16. Access to justice. The Government reports that all residents in the country have the right to register a complaint with the competent judicial bodies. In this respect, the Government indicates that article 16 of the Constitution provides that the judicial defence of persons and their rights is inviolable and that all persons have the right to be tried by courts and judges. It also indicates that article 47 of the Constitution provides for guarantees of equality of access to justice and that the Code of Labour Procedures provides that all workers in the country have access to ordinary tribunals. The Committee notes that, through Resolution No. 124 of 15 February 2010, the Care Centre for Women Domestic Workers (CATD) was established, with the role of providing an alternative means of dispute resolution, responding to the concerns of workers, receiving complaints and conducting mediation. The Committee requests the Government to provide information on the existence of education programmes for domestic workers with a view to informing them of their labour rights in order that they can make informed decisions and are aware of the administrative and legal remedies at their disposal. It also requests the Government to indicate whether free legal assistance is available for domestic workers who wish to take legal action.

Article 17. Complaint mechanisms. The Government indicates that, under section 408 of the Labour Code, the enforcement and application of labour laws is supervised by the competent administrative authority, through an efficient service of inspection and monitoring. The Committee notes that, under section 16 of Act No. 5115/13, the General Directorate of Labour Inspection and Supervision is responsible for ensuring compliance with labour and social security legislation throughout the national territory. The Government adds that inspection and supervision in the domestic work sector is conducted by court order. As the Constitution guarantees the inviolability of private residences, it is necessary to obtain an inspection warrant from a competent court. The Committee notes that sections 385–390 of the Labour Code establish penalties for employers who are not in compliance with the provisions of the Labour Code, particularly those concerning compulsory statutory breaks, maternity leave, breaks for breastfeeding and the minimum wage. The Committee requests the Government to provide information on the measures taken or envisaged to establish complaint and monitoring mechanisms to ensure compliance with national legislation on the protection of domestic workers, and particularly the measures regarding labour inspection. The Committee reminds the Government of the need to strengthen labour inspection and impose dissuasive administrative and penal sanctions. The Committee also requests the Government to provide information on the number of labour inspections conducted since the entry into force of Act No. 5704, on the number and type of violations detected and the administrative or penal sanctions imposed.

Part IV of the report form. Court decisions. The Committee notes the court decisions provided by the Government in several cases alleging non payment of wages and unfair dismissal. The Committee requests the Government to continue providing court decisions relating to the application of the Convention.

Part VI of the report form. Observations by the social partners. The Committee requests the Government to provide information on the comments made by and the discussions held with the social partners regarding the implementation of the Convention.