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

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Bolivia (Estado Plurinacional de) (Ratificación : 2013)

The Committee notes the Government’s first report. The Committee also notes the observations of the National Federation of Salaried Domestic Workers of Bolivia (FENATRAHOB), received on 17 September 2015. The Committee requests the Government to provide its comments in this regard.

Article 2 of the Convention. Scope of application. Exclusions. The Government indicates that the Convention applies to all domestic workers and reports that, within the context of the tripartite social dialogue process between the Ministry of Labour, Employment and Social Welfare, FENATRAHOB and the Housewives’ League, no categories of domestic workers were identified who had been excluded from the legislation. However, the Committee notes that section 1, third indent, of Act No. 2450 of 9 April 2003 regulating salaried household work (hereinafter, Act No. 2450 of 2003), provides that “work performed in services or commercial premises, even if it is carried out in private houses, shall not be considered salaried domestic work”. The Committee also notes that the provision establishes that domestic workers shall be considered to be those who provide household services “continuously”. In this respect, the Committee recalls that Article 1(c) of the Convention only excludes from the definition of domestic worker a person who performs domestic work only sporadically and not on an occupational basis. The Committee requests the Government to indicate the manner in which effect is given in practice to section 1, third indent, of Act No. 2450 of 2003, and to provide examples. The Committee also requests the Government to take the necessary measures to ensure that workers who perform domestic work occasionally or sporadically on an occupational basis are included in the definition of salaried domestic workers, and are therefore covered by the Convention.

Article 3(2)(b). Elimination of all forms of forced or compulsory labour. The Committee notes that article 46(III) of the Constitution prohibits forced labour and that section 281bis of the Penal Code establishes sentences of imprisonment for those responsible for subjecting or inducing a person to labour exploitation, forced labour or any form of servitude. The Committee also notes Comprehensive Act No. 263 of 31 July 2012 to combat the trafficking and smuggling of persons (hereinafter, Act No. 263 of 2012), and the approval of the Plurinational Plan to Combat the Trafficking and Smuggling of Persons 2015–19, the objective of which is to combat the trafficking and smuggling of persons and related crimes, and to guarantee the fundamental rights of victims. The Committee however notes that, in its concluding observations of July 2015, the Committee on the Elimination of Discrimination against Women (CEDAW) noted with concern the high and growing number of cases of trafficking in human beings, in particular women and children in border areas (CEDAW/C/BOL/5-6, paragraph 20(a) and (e)). The Committee observes that the Plurinational Plan indicates that, according to studies by the Organization of American States (OAS), many victims are Bolivian women who are taken to other countries as domestic workers and sometimes become victims of labour exploitation. The Committee requests the Government to provide information on the effect given in practice in relation to domestic workers of the Comprehensive Act to combat the trafficking and smuggling of persons, including statistical data on the number and nature of the violations reported, investigations, prosecutions and convictions.

Articles 3(2)(c) and 4. Child labour. Minimum age. The Committee notes that, with regard to young persons engaged in domestic work, section 5 of Act No. 2450 of 2003 refers to the provisions contained in the national legislation respecting young workers. In this regard, the Committee observes that, under the terms of section 129(II) of the Code of Children and Young Persons of 17 July 2014, Offices for the Defence of Children and Young Persons may authorize own-account work by girls, boys or young persons between the ages of 10 and 14 years, and work for third parties by young persons between 12 and 14 years of age. In this regard, the Committee refers to its 2016 comments on the application of the Minimum Age Convention, 1973 (No. 138). The Committee notes that the FENATRAHOB also expresses concern in this regard. The Committee refers to its previous comments on the application of Convention No. 138, and particularly its request to the Government to take the necessary measures to ensure the amendment of section 129 of the Code of Children and Young Persons to bring the minimum age for admission to employment or work into conformity with the age specified in Convention No. 138, that is 14 years, as a minimum. In this regard, the Committee requests the Government to provide specific information on the measures adopted or envisaged for the abolition of child domestic labour.

Article 5. Effective protection against abuse, harassment and violence. The Government indicates that domestic workers benefit from the same protection against abuse, harassment and violence as that afforded to all workers by the Constitution and Act No. 348 of 9 March 2013 to guarantee women a life free from violence (hereinafter, Act No. 348 of 2013). In this regard, the Government adds that domestic workers are able to lodge complaints or requests relating to abuse, physical aggression or sexual or other types of harassment with the Brigade for the Protection of Women and Families, the police, the Office of the Public Prosecutor and other competent authorities. However, the Committee notes that the CEDAW expressed concern at the prevalence of various forms of violence against women, and the lack of a strategy to prevent them (CEDAW/C/BOL/CO/5-6, paragraph 18). The Committee also notes the view expressed by the FENATRAHOB that there is no relation between Act No. 348 of 2013 and Act No. 2450 of 2003 with regard to the resolution of problems of gender violence and harassment at work suffered by women domestic workers. The Committee requests the Government to provide information on the application in practice of the provisions of Act No. 348 of 2013 and Act No. 2450 of 2003 in relation to the protection of domestic workers against any form of abuse, harassment or violence. In particular, the Committee requests the Government to provide statistical data on the number of complaints received of harassment, abuse and violence by the various competent bodies, the outcome of these complaints, the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9. Domestic workers who reside in the household in which they work. The Committee notes that section 21(b) and (c) of Act No. 2450 of 2003 establishes the requirement for the employer to provide workers who reside in the household where they work with: an adequate and clean room, with access to a toilet and shower for personal hygiene; the same food as the employer; and respect for the cultural identity of the men or women workers. The Committee observes that these provisions do not contain measures on respect for the privacy of domestic workers, and draws the Government’s attention to Paragraph 17 of the Domestic Workers Recommendation, 2011 (No. 201), which indicates that, when provided, accommodation should include “a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock, the key to which should be provided to the domestic worker”. The Committee also notes that section 16 of Act No. 2450 of 2003 prohibits employers from retaining the personal effects of domestic workers. Finally, the Committee observes that the legislation does not contain provisions establishing that domestic workers are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave, in accordance with Article 9 of the Convention. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure that domestic workers: (a) are free to reach agreement with their employer or potential employer on whether to reside in the household where they work; (b) are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and (c) are entitled to keep in their possession their travel and identity documents. The Committee also requests the Government to provide information on the measures envisaged or adopted to ensure in practice that domestic workers who reside in the household where they work enjoy decent living conditions that respect their privacy.

Article 7. Written contract of employment. The Committee notes that section 3 of Act No. 2450 of 2003 provides that “the work contract may be oral or written; it shall be in writing when it exceeds one year; in the absence of such a contract, it shall be presumed to be indefinite …”. The Committee also notes that Ministerial Resolution No. 218/14 of 28 March 2014 issued and approved the individual employment contract (CIT) as a model contract in the domestic work sector, and that it can be obtained free of charge in departmental and regional labour directorates or downloaded from the website of the Ministry of Labour. However, the Committee observes that the model contract does not include clauses respecting the trial period or the terms of repatriation, as envisaged in Article 7 of the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that domestic workers are informed of their terms and conditions of employment, particularly those set out in the Convention, including the trial period and terms of repatriation, if applicable, in an appropriate, verifiable and easily understandable manner, particularly in the case of domestic workers, including those belonging to indigenous and from underprivileged, tribal communities. The Committee thus requests the Government to indicate the means through which this information is provided, whether through audiovisual or printed material or other accessible formats or languages.

Article 8(1) and (4). Migrant domestic workers. The Committee notes that, in accordance with section 12 of Act No. 370 of 8 May 2013 on migration, migrant workers enjoy the rights set out in national legislation under equal conditions with nationals. The Committee also notes that section 25(III) of Act No. 263 of 2012 provides that all private entities which contract the services of persons of foreign nationality shall register the employment contracts with the Ministry of Labour, Employment and Social Welfare. Nevertheless, the Government does not indicate whether such employment contracts must include the terms and conditions of employment referred to in Article 7, and whether migrant domestic workers must receive a copy of their employment contract prior to crossing the national border for the purpose of taking up the domestic work to which the offer or contract applies. Finally, the Committee also notes that the Government has not provided information on the entitlement to repatriation on the expiry or termination of the employment contract for which migrant workers were recruited. The Committee requests the Government to provide detailed information on the measures that have been adopted or are envisaged to ensure that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, including the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies. The Committee also requests the Government to provide information on the entitlement to repatriation of migrant domestic workers upon the expiry or termination of the employment contract for which they were recruited.

Article 10(1) and (3). Equality of treatment in relation to hours of work. Periods during which domestic workers are not free to dispose of their time. The Committee notes that section 11 of Act No. 2450 of 2003 provides for a working day of eight hours for domestic workers who do not reside where they work, while providing for a working day of ten hours for domestic workers who reside in the household where they work. The Committee also observes that the Act does not set out the requirement to keep a record of the overtime hours worked by domestic workers and that the Government does not indicate whether 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 work. In this respect, the Committee recalls that Paragraph 8(1) of Recommendation No. 201 indicates that “Hours of work, including overtime and periods of standby … should be accurately recorded”. The Committee suggests that the Government might consider the possibility of establishing a working day of a maximum of eight hours for all domestic workers, also including those domestic workers who reside in the household where they work. The Committee requests the Government to provide information on the measures adopted or envisaged to ensure the recording of hours of work, including overtime and periods of standby carried out by domestic workers. The Committee also requests the Government to indicate whether the periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work.

Article 11. Minimum wage. The Government indicates that section 14 of Act No. 2450 of 2003 provides that salaried domestic work shall be remunerated at a rate that is not lower than the national minimum wage for a full working day. The Government adds that Ministerial Resolution No. 218/14 requires the keeping of a wage and occupational safety and health book as an official document recording the payment of wages. The Committee requests the Government to provide information on cases detected of violations of the obligation to pay at least the minimum wage to men and women domestic workers. The Committee also requests the Government to provide a copy of the wage and occupational safety and health book.

Article 13. Effective measures to ensure occupational safety and health. The Government indicates that the general system established for all workers in relation to occupational safety and health applies to domestic workers. The Government adds that section 21(d) of Act No. 2450 of 2003 lays down the obligation of the employer, in the event of illness, accident or maternity, to provide first aid and immediately convey the worker to the health centre at the expense of the employer. In the event that the worker is not covered by the National Health Fund, the employer shall cover the costs of medical care. The Committee requests the Government to provide information on any measure that has been adopted or is envisaged to ensure the occupational safety and health of this category of workers, with due regard for the specific characteristics of domestic work.

Article 14(1). Social security. The Government indicates that section 8 of Act No. 2450 of 2003 recognizes the right of domestic workers to coverage by the National Health Fund, and that section 9 refers to the provisions of the Social Security Code respecting the registration and contributions of domestic workers to the National Health Fund. Section 24 of the Act provides that registration with the National Health Fund is subject to further regulation by Presidential Decree. In this respect, the Government indicates that draft regulations are under preparation to enable domestic workers, in the same way as any other worker, to benefit from short-term social security (health, occupational risks, maternity), although the regulations have not yet been approved. The Committee requests the Government to take the necessary measures for the approval of the necessary regulations to guarantee the access of domestic workers to the National Health Fund, and to provide a copy of the regulations once they have been adopted.

Article 15. Private employment agencies. The Government reports that section 25(I) of Act No. 263 of 2012 provides that the Ministry of Labour, Employment and Social Welfare shall, by means of specific regulations, determine the operational requirements, rights, duties, inspections, prohibitions and penalties for the purposes of preventing the trafficking and smuggling of persons and related crimes. The Committee refers to its 2016 comments on the application of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), in which it noted the Government’s indications in relation to the demands by the Bolivian Workers’ Confederation (COB) and FENATRAHOB for the closure of private employment agencies. The Committee notes that FENATRAHOB again emphasizes the need to eliminate private employment agencies, as on many occasions they resort to practices such as the signature of employment contracts for less than three months and the non-payment of the national minimum wage, while emphasizing that these agencies are directly related to the trafficking and smuggling of persons. The Committee requests the Government to indicate whether the regulations on the operation and requirements of employment agencies have been adopted, and whether they were adopted in consultation with the most representative organizations of employers and workers, and with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 16. Effective access to courts, tribunals or other dispute resolution mechanisms. The Government indicates in its report that domestic workers have access, on an equal footing with other workers, to the administrative conciliation machinery of the Ministry of Labour, Employment and Social Welfare and to the courts to resolve disputes arising in their employment relationship. However, the Committee notes the view of FENATRAHOB that lack of knowledge of the provisions respecting salaried domestic workers and the excessive number of cases prevents them from being resolved rapidly. The Committee requests the Government to provide information on the number of complaints made by domestic workers to the various competent bodies, the penalties imposed on those responsible and the compensation granted.

Article 17(1). Complaint mechanisms. The Committee notes that the Government has not provided information on the existence of complaint mechanisms to ensure compliance with national laws and regulations on the protection of domestic workers and that Act No. 2450 of 2003 only refers to the existence of complaint mechanisms in cases of abuse and sexual harassment. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure that effect is given in practice to this Article of the Convention, including legal advice and information on accessible procedures and mechanisms in a format or language that is understandable by migrant domestic workers.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. The Committee notes the indication by the FENATRAHOB that, despite the training provided by the Government for public officials on provisions favouring domestic workers, labour officials continue to lack knowledge of these provisions. The Committee also notes that the Government has not provided information on the access of labour inspectors to household premises. The Committee requests the Government to provide detailed information on the measures adopted or envisaged in relation to labour inspection, enforcement and penalties, with due regard for the special characteristics of domestic work. The Committee also requests the Government to specify, in so far as compatible with national laws and regulations, the conditions under which access to household premises may be authorized, having due respect for privacy.