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

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Colombia (Ratificación : 2014)

The Committee notes the first report provided by the Government. The Committee also notes the observations of the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 28 September 2016. The Committee requests the Government to provide its comments in this respect.

Articles 3(1), (2)(a) and (3), of the Convention. Freedom of association and collective bargaining. The Government indicates that freedom of association and collective bargaining rights are protected under article 39 of the Constitution and section 353(1) of the Substantive Labour Code, which also apply, without any restrictions, to domestic workers. The Government also refers to the existence of an organization of domestic workers, the Domestic Workers’ Association (UTRASD). The Committee nevertheless notes that the CTC, CUT and CGT emphasize that there is no effective recognition of domestic workers’ right to collective bargaining, as there appear to be only 500 unionized domestic workers and no collective bargaining has yet been conducted in the sector. They also point out that there are numerous obstacles to the unionization of domestic workers, such as the large number of domestic workers who work in the informal economy; gender discrimination in the sector, where most of the workers are women; the geographic dispersion of workers; limited rest time; widespread conditions of poverty and vulnerability; and the difficulties encountered in obtaining permission for absence from work. The Committee requests the Government to provide detailed information on the measures taken or envisaged to fulfil its obligations under the Convention to guarantee the effectiveness in practice of the right of domestic workers to freedom of association and collective bargaining.

Article 3(2)(b). Forced labour. The Government reports that article 17 of the Constitution prohibits all forms of slavery, servitude and trafficking in human beings and that article 25 recognizes the right of all persons to work in decent and fair conditions. The Government adds that, in accordance with Act No. 985 of 2005 and as part of the Comprehensive National Strategy to Combat Trafficking in Persons (2007–12), measures are being taken to combat trafficking in persons and to protect victims. In this respect, the Committee refers to its 2014 comments on the application of the Forced Labour Convention, 1930 (No. 29), in which it noted the observations of CUT and the CGT indicating that the Strategy referred to above continues to be tenuous, as there has been no decrease in the number of trafficking victims, most of whom are vulnerable workers (women, children and indigenous workers). The Committee also notes that the CGT, CTC and CUT refer to the existence of studies that have verified cases of forced labour in the domestic work sector, but that the low rate of unionization and labour inspections in the sector mean that there is no current assessment of the real conditions of domestic work. The Committee requests the Government to provide detailed information on the specific measures taken or envisaged to guarantee in law and practice the protection of domestic workers from all forms of forced or compulsory labour.

Articles 3(2)(c) and 4. Child labour. Minimum age. The Government indicates that section 2, subsection 10.2, of Resolution No. 1677 of 2008 prohibits the employment of children under the age of 18 years “in the households of third parties, domestic work and in cleaning, washing and ironing work”. The Committee nevertheless notes that the CTC, CUT and CGT underscore the lack of effective measures to guarantee the elimination of domestic work by children and young persons in practice. The Committee refers to its 2014 comments on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), in which it noted the establishment of an internal working group specializing in the elimination of child labour with a view to the protection of child domestic workers from hazardous work. The Committee requests the Government to provide detailed information on how the elimination of child labour is guaranteed in practice, in accordance with the provisions of the legislation in force.

Articles 3(2)(d) and 11. Discrimination based on sex and race. Minimum wage. The Government indicates that article 53 of the Constitution establishes the adjustable minimum living wage as a fundamental right for all workers. With regard to non-discrimination based on sex, section 143(1) of the Substantive Labour Code (as amended by section 7 of Act No. 1496 of 2011) provides that “equal wages shall be paid for equal work performed in the same post, with the same hours of work and conditions of efficiency…” and that subsection 143(2) prohibits differences in wages based on, inter alia, sex and race. In this respect, the Committee refers to its comments on the application of the Equal Remuneration Convention, 1951 (No. 100), in which it recalled that this definition is more restrictive than the principle of equal remuneration for men and women for work of equal value set forth in Convention No. 100, and asked the Government to take the necessary measures to ensure that this principle is adequately reflected in the legislation. The Committee notes that the CGT, the CTC and CUT indicate that, according to statistical data from the National Administrative Department of Statistics (DANE), in 2015 there were 725,000 registered domestic workers, 95 per cent of whom were women and most of whom were indigenous persons, Afro-Colombians and/or migrants. The workers’ organizations also refer to the study “Sweeping Away Invisibility” (Barriendo la invisibilidad) published in 2013, which investigated the situation of Afro-Colombian domestic workers in the city of Medellin. The study showed that in 2012, 61.9 per cent of the workers studied were paid a monthly wage of between 301,000 Colombian pesos (COP) and COP566,000, when the minimum wage in Colombia in 2002 was COP566,700; 21.4 per cent were paid between COP151,000 and COP300,000; and only 11.9 per cent were paid over COP566,000. The Committee refers to its previous comments on the application of Convention No. 100 and trusts that the Government will take the necessary measures to amend the relevant legislation with a view to ensuring equal remuneration for men and women domestic workers for work of equal value. Moreover, noting the statistical data provided by the “Sweeping Away Invisibility” study on the remuneration received by Afro-Colombian domestic workers, which is less than the national minimum wage, the Committee requests the Government to provide detailed information on the manner in which the application in practice of section 143(b) of the Substantive Labour Code is guaranteed in the domestic work sector, with a view to the elimination of differences in wages based on, inter alia, sex and race.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government indicates that domestic workers are protected on an equal footing with other workers pursuant to Act No. 1010 of 2006, under which measures are taken to prevent, correct and penalize work-related and other forms of harassment in the context of employment relationships. In this respect, the Committee refers to its 2016 comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that section 3 of the Act establishes as extenuating circumstances, inter alia, violent emotion, excusable passion or state of anger (which is not applicable in the case of sexual harassment), previous good conduct and discretionary compensation (including partial compensation) for the harm caused. The Committee also notes that the CGT, CTC and CUT emphasize the lack of action by the Government to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence. Recalling the special characteristics of domestic work, especially in the case of migrant domestic workers, who are particularly vulnerable to abuse, harassment and violence, the Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with this Article of the Convention. Moreover, noting that section 3 of Act No. 1010 of 2006 establishes very broad extenuating circumstances in relation to work-related harassment, the Committee requests the Government to indicate the manner in which the full protection of domestic workers is ensured in such circumstances.

Article 6. Fair terms of employment and decent working conditions. The Government, with reference to the principle of equality established in article 13 of the Constitution, indicates that all the rights recognized in the national legal system apply equally to domestic workers. It also refers to article 25, which provides that all persons shall be entitled to work in fair and decent conditions, and to article 53, which establishes the minimum labour rights recognized for all workers. The Committee nevertheless notes that the CGT, CTC and CUT point out that section 77(2) of the Substantive Labour Code provides, in relation to the general regime for workers, that the trial period must be stipulated in writing, while section 77(1) provides that in domestic workers’ employment contracts, the trial period is presumed to be the first 15 days of service. The workers’ organizations also emphasize that section 103 of the Substantive Labour Code provides that in order to terminate a fixed-term contract, written notice must be given 30 days in advance, except in the case of domestic workers, for whom such notice is required only seven days in advance. The Committee requests the Government to take the necessary measures to amend sections 77 and 103 of the Substantive Labour Code to ensure that domestic workers have the same trial period, the same period of notice for the termination of fixed-term contracts and the same guarantees as other workers. The Committee also requests the Government to indicate the measures envisaged or taken to ensure that domestic workers, like other workers in general, enjoy fair terms of employment and decent working conditions.

Article 7. Understandable information on conditions of employment. Written contract of employment. The Government states that section 37 of the Substantive Labour Code provides that contracts of employment may be oral or written and that sections 38 and 39 establish the mandatory clauses in oral and written contracts, respectively. The Government adds that the Ministry of Labour has taken measures to disseminate and promote domestic workers’ labour rights, for example, by publishing the “Domestic Service – Labour Guide” booklet and conducting campaigns to raise awareness of these rights and to encourage the registration of domestic workers in the general social security system. The Committee notes that, at the 18 August 2016 meeting of the Subcommittee on International Affairs of the Standing Committee for Dialogue on Wage and Labour Policies of the Ministry of Labour, the representative of the Ministry of Labour announced that the adoption of a model employment contract for domestic service was planned during the upcoming tripartite round table on the application of Convention No. 189. The Committee nevertheless notes that this model is not currently available on the website of the Ministry of Labour and that the Government does not indicate whether it has been adopted. The Committee further notes that the CGT, CTC and CUT indicate that due to the large number of domestic workers who work in the informal economy, contracts are usually oral and are not based on the minimum terms and conditions established in this Article of the Convention. The Committee requests the Government to provide information on the measures taken or envisaged to guarantee the application in practice of this Article of the Convention. The Committee hopes that the model contract for the sector includes the elements set out in this Article of the Convention and requests the Government to provide a copy of the model contract when it has been finalized and to indicate whether it was adopted in consultation with the organizations of employers and workers.

Articles 8(1) and 9(c). Migrant domestic workers. Written job offers. Right to keep in possession travel and identity documents. The Government reports that, in accordance with section 37 of Act No. 1636 of 2013, Resolution No. 1481 of 2014 establishes the criteria that agencies providing employment management and job placement services must meet in order to recruit workers, including domestic workers, abroad. The Committee nevertheless notes that these regulations do not contain provisions which require migrant domestic workers who are recruited in one country for domestic work in another to receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies. The Committee also notes that the Government does not indicate the provisions which guarantee that migrant workers may keep in their possession their travel and identity documents. The Committee requests the Government to provide detailed information in its next report on the measures taken or envisaged to ensure that effect is given to these provisions of the Convention.

Articles 6, 9(a) and 10. Workers who reside in the household. Decent living conditions that respect their privacy. Equality in respect of other workers in relation to hours of work and overtime compensation. The Committee notes that the Government does not provide information on the existence of provisions regulating the quality of food, the nature of accommodation or the right to privacy that domestic workers who reside in the household should enjoy. The Committee recalls that under Article 9(a) of the Convention, each Member shall take measures to ensure that domestic workers are free to reach agreement with their potential employer on whether to reside in the household. When workers reside in the household, the provisions governing their living conditions play an essential role in the promotion of decent work. It is important for legislation to establish the obligations of employers in this respect. With regard to hours of work, the Government indicates that the working day of domestic workers is the working day established in section 161 of the Substantive Labour Code for all workers, that is, a maximum of eight hours a day; however, for domestic workers who reside in the household, the working day is a maximum of ten hours a day, in accordance with Constitutional Court Judgment C–372 of 1998. The Government adds that section 159 of the Substantive Labour Code establishes that overtime is any hours that exceed ordinary hours of work, or at least hours that exceed the legal maximum. In this respect, the Committee notes that the CGT, CTC and CUT emphasize the discrimination suffered by domestic workers in relation to their ordinary hours of work and remuneration since the maximum hours of work for domestic workers who reside in the household are, generally, ten hours and therefore the two additional hours of work longer compared with those of other workers, whose maximum hours of work are eight hours, and which are not considered overtime and therefore not paid as such. They add that, according to the “Sweeping Away Invisibility” study, 91 per cent of the domestic workers who reside in the household worked between ten and 18 hours a day and 89 per cent of the domestic workers residing outside of the household worked between nine and ten hours, and that in 90.5 per cent of cases, domestic workers were not paid overtime. The Committee requests the Government to take the necessary measures to guarantee equal conditions in terms of normal hours of work between domestic workers who do not reside in the household and those who do. The Committee also requests the Government to provide information on the measures taken to ensure that domestic workers who reside in the household receive overtime compensation under equal conditions with other workers.

Article 10(3). Periods during which workers remain at the disposal of the household. The Government does not provide information on 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 are regarded as hours of work. The Committee requests the Government to provide detailed information on the manner in which effect is given to this provision of the Convention.

Article 13. Specific and effective measures to ensure safety and health in domestic work. The Government indicates that the protection afforded to all workers in relation to occupational risk prevention and the promotion of safety and health under Act No. 1562 of 2012 and Decree No. 1443 of 2014 applies to domestic workers. The Committee nevertheless notes that the CGT, CTC and CUT emphasize the lack of specific measures to guarantee domestic workers’ safety and health in practice and the widespread failure of employers to register domestic workers with the occupational risk scheme. The Committee requests the Government to provide information on any measures taken or 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. Social security. The Government indicates that domestic workers, like other workers, are entitled to be registered with the General Comprehensive Social Security System, in accordance with the provisions of Act No. 100 of 1993 (as amended by Act No. 797 of 2003). The Committee notes with interest the measures taken by the Government to ensure fair terms of access to social security for domestic workers in relation to other workers. The Government refers to, inter alia, the regulation of domestic workers’ registration with the family compensation scheme (Decree No. 721 of 2013), social security contributions for dependent workers who work for periods of less than one month (Decree No. 2616 of 2013) and the rules governing contributions on the service bonuses of domestic workers (Act No. 1788 of 7 July 2016). The Government indicates that, as a result of the adoption of Decree No. 721 of 2013, the number of domestic workers registered with the family compensation scheme increased from some 8,000 in April 2013 to 89,122 in December 2014. The Government adds that domestic workers have access to the general maternity protection scheme established by sections 236 to 244 of the Substantive Labour Code. The Committee requests the Government to provide statistical data, disaggregated by sex, on the number of domestic workers who contribute to the social security system and to indicate the form in which the contributions are paid.

Article 15(1)(a), (b) and (e) and (2). Private employment agencies. The Government refers to Act No. 50 of 1990 and Decree No. 3115 of 1997, which establish the requirements for the authorization of the operation of private employment agencies and their obligations, as well as penalties for non-compliance. The Committee nevertheless notes that the Government has not provided any information on whether adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices by private employment agencies in relation to domestic workers. The Committee requests the Government to provide detailed information on the measures taken or envisaged to give effect to this Article of the Convention. The Committee also requests the Government to provide detailed information on any consultations held in this regard with the most representative organizations of employers and workers, as well as with organizations representative of domestic workers and with those representative of employers of domestic workers.

Article 17(1). Complaint mechanisms. The Government indicates that domestic workers may file complaints with the regional offices of the Ministry of Labour to protect their labour rights. The Committee notes that the CGT, CTC and CUT indicate that the Ministry of Labour has established “Colabora” Citizen Support Centres, which received 4,790 complaints from domestic workers between 2014 and the first four months of 2015. The workers’ organizations nevertheless point out that these centres only provide information. They also refer to Judgment T-185/16, in which the Constitutional Court found that domestic workers are a vulnerable group that require special constitutional protection, and to the need to create specific support and complaint mechanisms for domestic workers and to adopt measures to facilitate their access to justice. The Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure the application in practice of this Article of the Convention, including legal advice mechanisms, information on procedures and mechanisms that are accessible and in a format or language that is understandable for migrant domestic workers, and other measures intended to inform domestic workers of their labour rights, such as awareness-raising campaigns.

Article 17(2) and (3). Labour inspection and penalties. The Committee notes that the CGT, CTC and CUT indicate that there is no labour inspection strategy for the domestic work sector that takes into account the special characteristics and conditions of this work. The workers’ organizations stress the importance of inspections in the domestic work sector, in particular taking into account that special constitutional protection has been granted to domestic workers in the light of their vulnerable conditions and pointing out that forced labour, child labour and violence frequently occur in the sector. The Committee requests the Government to provide information on the measures taken or envisaged for the development and implementation of a labour inspection strategy for the domestic work sector, as well as enforcement and penalties with due regard for the special characteristics of domestic work. The Committee also requests the Government to provide information on the number of inspections in the sector, the number of infringements detected and penalties imposed. The Committee further 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 granted, having due respect for privacy.

Article 18. Measures to implement the provisions of the Convention. The Government reports that, pursuant to section 3 of Act No. 1788 of 7 July 2016, a tripartite round table was set up to monitor the implementation of the Convention. The Government adds that under this provision, the Ministry of Labour shall present annual reports to the Congress of the Republic on the action taken and progress made in ensuring decent working conditions in the domestic work sector. The Committee requests the Government to provide information in its next report on the activities of the tripartite round table to monitor the implementation of the Convention, as well as copies of the annual reports presented by the Ministry of Labour to the Congress of the Republic on the action taken and progress made in ensuring decent working conditions in the domestic work sector.

Application of the Convention in practice. The Committee requests the Government to provide information on any judicial or administrative decisions relating to the application of the Convention.