Out of sight, out of mind? The ILO’s challenge of promoting decent work for domestic workers
By Winona Shaw
Tens of millions of women and girls are employed worldwide as domestic workers . They care for children and elderly family members and perform other essential household tasks such as cooking and cleaning. Despite their important role and the significant economic contributions their work makes at local, national and global levels, domestic workers are some of the most vulnerable workers in the world. Domestic workers find themselves in a position of ‘legislative precariousness’: exclusion from protective labour legislation in many countries combined with an already marginalised position leaves many domestic workers particularly susceptible to exploitation and abuse. Through recognition of these challenges the ILO developed a Convention to improve the rights of domestic workers and promote decent work. The Domestic Workers Convention (Convention 189) was adopted in 2011 and came into force in September 2013. However, to date, only 22 countries have ratified this convention. This piece will highlight some challenges that the ILO faces in promoting the rights of domestic workers.
Domestic work is defined as work performed in or for a household or households and a domestic worker is an individual engaged in this work within an employment relationship (C189, Article 1). Therefore individuals performing domestic or caring duties in an informal relationship or on a voluntary basis are not the focus of the convention. As aforementioned, the primary purpose of Convention 189 is to align domestic workers rights with other workers, specifically through the promotion of decent work. This includes an entitlement to daily and weekly rest hours, minimum wage and the freedom to choose the place where they live. Ratifying nations must ensure domestic workers are provided with a clear (preferably written) contractual arrangement with their employer, and in cases of migration, this should be communicated prior to migration (see Articles 3-13). Member states that ratify Convention 189 are under obligation to ensure these rights are upheld in their country.
The precariousness of workplace setting
By virtue of their employment, domestic workers represent a unique group because their workplaces (and often living quarters) are based within private households. It can be difficult for governments to identify incidences of domestic work, because the work is often hidden, undeclared or falsely portrayed as independent or self-employment. Article 17 of the Convention relates to a need for inspection of workplaces to ensure procedures of decent work are being undertaken. However, inspection of private households presents a challenge for many countries because of national and regional laws relating to privacy. For example Article 8 of the European Convention on Human Rights states ‘everyone has the right to respect for his private and family life, his home and his correspondence’ . In many countries consent of the homeowner must be gained before an inspection can take place. The ILO recognises that labour inspections in private homes would require an appropriate legal framework to ensure a respect for privacy rights. Therefore implementation of Article 17 is not straightforward for many member states. Furthermore, should an inspector gain access to a workplace, the differences between domestic and other employment settings means that specific training including recognition of forced or trafficked labour is needed for labour inspectors.
Moreover, there is a challenge in classifying private homes as workplaces and treating these households to the same labour standards as factories, offices and shops, etcetera. The UK Government abstained from the International Labour Conference vote on Convention 189 for reasons related to this. Its representative stated ‘we do not consider it appropriate, or practical, to extend criminal health and safety legislation, including inspections, to cover private households employing domestic workers. It would be difficult, for instance, to hold elderly individuals, who employ carers, to the same standards as large companies’ (see Albin and Mantouvalou, 2012). The ratification of Convention 189 could require the amendment of national law in many countries. Perhaps concerns of the ability to and practicality of implementing various features of the Convention such as workplace inspections could be a contributing factor for member states’ decision to not ratify the convention.
The blurred division between a formal and informal employment relationship
Article 7 outlines the need for clear contractual arrangements between domestic workers and their employer(s). However the relationship between employers/households and workers is not typical of an employee-employer relationship. Domestic work is typically undeclared and without written contracts. The location and responsibilities of domestic work means that the relationship is often characteristic by intimacy. Many domestic workers are seen as a family member rather than an employee and households do not see themselves as employers in the formal sense. In relation to Article 1 and the definition of a domestic worker, this familial relationship can blur the line between a formal and informal employment relationship. Historical tendencies relating to domestic workers in some countries may exacerbate this challenge. If the relationship is deemed informal then an individual worker may not be entitled to legislative protection under C189 and potentially be more susceptible to exploitation and abuse. There is however a huge power imbalance between workers and employees that should not be ignored. Nonetheless, enforcing formal contractual arrangements between two outwardly willing partners in a private setting may be a difficult at both a legislative and practical level.
A lack of representation
In line with the ILO’s fundamental principles, Article 3 outlines that domestic workers are entitled to join trade unions or workers associations. Article 13 highlights how in order to ensure domestic workers rights are attained, members states should consult with the ‘most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers’. However, the collective organisation of domestic workers and employers of such workers is weak across the world. There are few trade unions or workers associations which represent the rights of domestic workers directly. The lack of a formal employment relationship in a domestic worker employment setting can result in neither party being aware of labour laws and regulations, nor in having a notion or desire to join a representative organisation (ILO, 2012). Moreover, language barriers facing migrant workers and the control and coercion dominant in many worker-employer relationships may mean that domestic workers are not free to join a workers association should such a group exist .
Some ILO member states could struggle to argue that the rights of domestic workers (and their employers) are being truthfully represented through existing workers and employers associations and thus their position as advocates in relation to implementing measures relating to C189 is problematic. Domestic work is characteristically undervalued and invisible, and a lack of awareness and respect for domestic workers permeates societies all over the world. Domestic workers lack of trade union representation means that they are being kept marginalised in the labour market; remaining out of sight and thus out of mind when developing employment policies. Workers associations and trade unions must challenge the value judgement of domestic work within their own organisations and aim to include domestic workers in their discussion rather than advocate on their behalf . The ILO itself must ensure that there is a platform for the voices of domestic workers within the Governing Body too.
Rights like any other
Formalising the relationship between employee and employer could allow for domestic work to move from the informal to formal economy, leading to the recognition of the rights to decent work standards, better representation within trade unions and fundamentally give greater respect to domestic work. The setting, tasks and relationships of domestic work mean that it is work like no other, but domestic workers deserve access to decent working conditions, human rights and protective labour legislation like any other. The remit of the ILO is not only to implement conventions and regulations relating to work, but also to help and support member states to improve their national employment arrangements . Therefore the ILO and its field offices around the world must work closely with member states and their tripartite constituents to overcome some of the challenges discussed in this piece. Promisingly there are around 30 countries which are currently receiving ILO support in order to ratify Convention 189 in the future.
For the ILO to stand by all four of its fundamental principles of freedom of association; elimination of all forms of forced or compulsory labour; the abolition of child labour; and the elimination of discrimination in respect to employment and occupation then domestic workers must be given equal rights to other workers. Convention 189 has taken steps to ensure that millions of domestic workers are recognised. However, ratification must be encouraged in all member states to ensure that domestic workers no longer remain out of sight, out of mind or outside of labour legislation.
Winona Shaw is a Postgraduate student within the Sociological Studies department at the University of Sheffield. She has a keen interest in social protection, social policy and workers’ caring responsibilities.