Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

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

The Committee notes the observations of the Confederation of Workers of Argentina (CTA Workers) and the General Confederation of Labour of the Argentine Republic (CGT RA), received on 31 August 2018. The Committee also notes the observations of the Confederation of Workers of Argentina (CTA Autonomous), received on 1 September 2018. The Committee requests the Government to send its reply in this regard.

Article 2 of the Convention. Scope of application. Exclusions. In its previous comments, the Committee noted that section 3 of Act No. 26844 excludes seven categories of workers from its scope of application. The Committee requested the Government to specify the reasons for these exclusions, to indicate the protection provided to such workers and to provide information on any prior consultations held on this matter with the most representative organizations of domestic workers and employers. The Committee notes that, regarding the exclusion of persons recruited by legal entities for the performance of domestic services (section 3(a) of Act No. 26844), the Government indicates that Act No. 26844 provides for, among other measures, the establishment of simplified procedures for the registration of domestic workers by private persons (family households) who require their services, as such persons do not have the organizational structure that most employers (legal entities) do. The Government adds that access to these simplified procedures is unnecessary in the case of legal entities that recruit domestic workers, as they possess the organizational structure of an enterprise. The Government indicates that these workers receive protection under the general regulations on labour contracts established in Act No. 20744. The Committee also notes the Government’s indication that the exclusion, envisaged in subparagraph (b) of Act No. 26844, of persons related to the head of household (such as parents, children, siblings or grandchildren) or persons who have a non-employment-based relationship with the employer through some degree of kinship or through cohabitation, is based on the fact that there is no employment relationship in those cases. The Government indicates that the other exclusions envisaged in section 3 of Act No. 26844 are based on the fact that there are already regulations and collective agreements that cover those cases. However, the Committee notes that the Government has not indicated which regulations and collective agreements apply in such cases. Lastly, the Committee notes that the Government has not indicated whether prior consultations were held with the social partners on these exclusions. The Committee requests the Government to indicate the regulations and collective agreements covering workers who come within the scope of the exclusions set out in section 3(c), (d), (e), (f) and (g) of Act No. 26844. The Committee once again requests the Government to provide information on any prior consultations on these exclusions held with the most representative organizations of domestic workers and employers.

Articles 3(2)(a) and (3). Freedom of association. The Committee recalls that the specific characteristics of domestic work, which often include a high degree of dependence on the employer (particularly in the case of migrant domestic workers) and the frequent isolation of domestic workers in their places of work, make it particularly difficult for domestic workers to form and join trade unions. Therefore, the protection of the freedom of association is particularly important in this sector. Taking into consideration the specific characteristics of domestic work, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to raise awareness among domestic workers of their rights and to guarantee in practice the right of domestic workers to freedom of association, and on the impact of these measures.

Articles 3(2)(a) and (d) and 11. Right to collective bargaining. Discrimination on the basis of sex. Minimum wage. With regard to the measures adopted to give effect to the principle of equal remuneration for men and women workers for work of equal value in the domestic sector, the Government indicates that a gender equity bill (INLEG 2018 10434057 APN PTE) was submitted to Congress in March 2018 and is under consideration. The Committee notes the approval on 10 August 2018 of the Resolution of the National Commission on Private Household Labour (CNTCP), which defines hourly and monthly wages for workers in the domestic sector with no gender distinction. Section 1 of the Resolution provides for the implementation between 1 June 2018 and 31 May 2019 of an increase in the minimum wage established for the various categories of domestic workers. However, the Committee notes the claim of CTA Autonomous that workers in private households are not covered by the adjustable minimum living wage (SMVM). It adds that, because the SMVM does not apply to domestic workers, the pay scales established for them are lower than the SMVM applicable to workers in the private sector. The Committee also notes that the CNTCP is composed of government representatives and representatives of the social partners. Under section 62 of Act No. 26844, where there is a vote taken by the CNTCP, the vote cast by the Chair, who is one of the representatives from the Ministry of Labour, will count twice and so is determinative. In this regard, CTA Autonomous claims that this provision is contrary to the principle of the equality of the parties, as the chair, a Ministry of Labour representative, has the power to resolve differences between employers and workers. CTA Autonomous also refers to section 67 of Act No. 26844, which assigns a wide range of competencies to the CNTCP, including functions of collective bargaining. CTA Autonomous maintains that the right of workers in private households to collective bargaining is therefore restricted. The Committee requests the Government to provide information on the measures adopted or envisaged to guarantee and promote the right of these workers to collective bargaining. The Committee also requests the Government to provide updated statistical information, disaggregated by sex, on the impact of the wage increases introduced by the National Commission on Private Household Labour (CNTCP) on the average wage received by domestic workers in practice.

Article 4. Minimum age. In reply to its previous comments, the Committee notes that the Government refers to Act No. 26941 on the general scheme of penalties for labour violations, which provides that employers who fail to comply with the prohibition of child labour must pay a fine of between 50 and 2,000 per cent of the monthly value of the worker’s SMVM. It also notes the awareness raising and information campaigns based on the theme “No to domestic child labour” and conducted under the MERCOSUR Regional Plan for the Prevention and Elimination of Child Labour. The Government indicates that this regional plan provides for the implementation of a communication strategy to raise awareness of and disseminate information on the consequences of work on children’s and young people’s lives, and on the impact of regional integration efforts in the area of preventing and eliminating child labour. However, the Committee notes the claim of the CGT RA that it is necessary to adopt a regulation governing supervisory mechanisms to ensure compliance with section 12 of Act No. 26844, which prohibits the recruitment for domestic work of school-age minors who have not completed their compulsory education. The Committee requests the Government to continue providing detailed and updated information on the measures adopted or envisaged to eliminate child domestic labour, and on their impact. The Committee once again requests the Government to provide information on the measures adopted or envisaged to give effect in practice to section 12 of Act No. 26844, including the establishment of effective mechanisms to monitor compliance with its provisions.

Article 5. Abuse, harassment and violence. In reply to the Committee’s previous comments, the Government refers once again to Act No. 26485 on comprehensive protection for women, which includes workplace violence against women as a category. The Government also refers to the development of the “Guide for women workers in private households”, which includes information on the hotlines available for reporting cases of gender-based violence, and on prevention measures. The Committee also notes the launch of the 144 free national hotline, which provides information, guidance and counselling to women in situations of violence throughout the country, 24 hours a day, 365 days a year. However, the CGT RA maintains that it is necessary to establish protection bodies and specific complaint mechanisms to deal with cases of workplace violence in the domestic sector and to develop relocation and rehabilitation programmes for domestic workers who have been victims of abuse, harassment and violence that include temporary housing and health care services. It indicates that it is also necessary to implement educational programmes on violence in the domestic sector, particularly in the context of the Training Institute for Domestic Service Personnel. The Committee requests the Government to provide updated information on the specific measures that have been taken to ensure that men and women domestic workers benefit from effective protection against all forms of abuse, harassment and violence and to indicate their impact. The Committee also requests the Government to provide statistical information on the number of complaints of harassment, abuse and violence received in the context of domestic work and submitted to the various competent bodies, and on their outcome, the penalties imposed on the perpetrators and the remedies provided.

Article 6. Fair terms of employment and decent working and living conditions. The Committee notes the Government’s indication, in reply to its previous comments, that section 47 of Act No. 26844, which establishes the obligation of live-in employees to leave the premises within five days if their work contract is terminated, should be interpreted in accordance with sections 42 and 45 of the Act. These sections set forth the obligation of the employer to grant a notice period of ten to 30 days, in accordance with the worker’s length of service, in the event of dismissal without justification. The Government indicates that, in cases of dismissal without justification, the five-day period for leaving the premises should therefore be calculated starting from the end of the notice period. The Government adds that those employers that do not give a notice period must grant financial compensation in addition to severance pay. However, the Committee notes that the Government has not indicated whether any mechanism has been put in place beyond the additional financial compensation to ensure that, in the event of dismissal for reasons other than serious misconduct, live-in domestic workers are not required to leave the premises before the end of the notice period. The Committee therefore asks the Government to provide information on the measures adopted or envisaged to guarantee in practice that, in the event of dismissal for reasons other than serious misconduct, live-in domestic workers have the right to remain in the household during the 15-day notice period.

Article 7. Information on terms and conditions of employment. In reply to the Committee’s previous comments, the Government indicates that the “Guide for women workers in private households” was published in 2017 to inform women domestic workers of their employment rights and obligations, and to inform employers of the administrative process for the registration of workers. Stakeholders that participated in the preparation of the guide included the Union of Private Household Auxiliary Employees (UPACP), the Housekeepers’ Union of the Argentine Republic (SACRA), the ILO and the Training Institute for Domestic Service Personnel. The guide includes information on topics such as the trial period, notice period, severance pay, wages and bonuses, the minimum working day and overtime, weekly rest period, leave and holidays, and retirement. The Government also refers once again to section 6 of Act No. 26844, which provides that the employment relationship is assumed to be of indefinite length without the need for proof from the worker unless otherwise established by a written contract or the registration of the worker with the Federal Public Revenue Administration (AFIP). However, the Committee notes that the Government has not provided information on the mechanisms put in place to ensure that domestic workers who have not concluded a written contract can benefit from the trial period provided for in section 7 of Act No. 26844. Lastly, the Committee notes that, according to information available on the web site of the Department of Communication of the Government of Entre Rios province, employment books are issued for free at the various branches of the Ministry of Labour and the departmental offices as proof of the employment contract. However, the Committee notes that the Government has not provided a copy of this employment book and indicates that it has not yet been regulated by law. The Committee requests the Government to continue sending updated information on the measures adopted or envisaged to ensure that domestic workers are duly informed of their terms and conditions of employment in an appropriate and accessible manner. It once again requests the Government to provide information on the mechanisms put in place to ensure that domestic workers who have not concluded a written contract can benefit from the trial period provided for in section 7 of Act No. 26844. The Committee once again requests the Government to provide a copy of the employment book and to adopt the measures necessary for its regulation.

Article 8(1), (2) and (4). Migrant domestic workers. Job offer or employment contract prior to crossing national borders. Right to repatriation. In reply to the Committee’s previous comments, the Government indicates that no recruitment of foreign domestic workers for employment in Argentina has been recorded. The Government also indicates that, in collaboration with the ILO, the “Migrant passport for domestic service” has been developed, which provides information on the documents migrants should have and on the rights established by national law to workers in this sector. The “Guide for private household workers” also includes information on topics such as the applicable migration legislation, the rights of migrant workers, the employer’s obligations under labour legislation, the procedure for requesting temporary residence in Argentina and the special migration regulations applying to nationals of MERCOSUR member countries and associated countries. Regarding the terms of repatriation of migrant domestic workers on the expiry or termination of their employment contract, the Government indicates that the national legislation on the subject does not regulate these conditions. Lastly, the Committee notes that the Government has not provided information on the manner in which it is ensured that migrant domestic workers receive a written job offer or employment contract, in accordance with Article 8(1) of the Convention. The Committee requests the Government to continue providing information on the measures adopted or envisaged to ensure that migrant domestic workers are aware of their rights under the national legislation. The Committee once again requests the Government to provide information on the manner in which it is ensured that migrant workers receive a written job offer or employment contract specifying the conditions of employment prior to crossing national borders.

Article 9. Freedom to reach agreement with the employer on whether to reside in the household. Right to keep possession of travel and identity documents. In reply to the Committee’s previous comments, the Government indicates that Act No. 26844 addresses the case of both live-in and live-out domestic workers. The parties can freely agree the arrangements under which the domestic worker will be recruited. The Government refers to section 15 of Act No. 26844, which regulates the terms of employment of live-in domestic workers. The Committee observes that paragraph (a) of this section provides that live-in domestic workers shall be provided with “clean, furnished accommodation provided solely for the use of employees, in accordance with the terms defined by the implementing authority or the National Commission on Private Household Labour.” In this regard, the Committee recalls that Paragraph 17 of Domestic Workers Recommendation, 2011 (No. 201), provides that “[w]hen provided, accommodation and food should include, taking into account national conditions, the following: (a) 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; (b) access to suitable sanitary facilities, shared or private; and (c) adequate lighting and, as appropriate, heating and air conditioning in keeping with prevailing conditions within the household (…)”. Regarding the right of domestic workers to keep possession of their travel and identity documents, the Government indicates that employers who withhold workers’ travel and/or identity documents are liable to the penalties imposed for the crimes that such behaviour could constitute, such as improper withholding, theft and identity crimes. The Committee requests the Government to provide information on the measures adopted or envisaged to guarantee in practice that domestic workers are free to reach agreement on whether or not to reside at their place of work. It also requests the Government to indicate whether measures have been adopted by the National Commission on Private Household Labour to establish the terms of accommodation of live-in domestic workers specified in section 15(a) of Act No. 26844. The Committee also requests the Government to provide detailed information on how the right of domestic workers to keep possession of their travel and identity documents is guaranteed in practice, including on the provisions of the legal system under which employers who withhold these documents are penalized.

Article 10(3). Periods during which domestic workers are not free to dispose of their time as they please. The Committee observes that the Government’s report does not include information on this provision of the Convention. The Committee once again requests the Government to provide information on how 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 paid hours of work.

Article 12. Methods of payment. Payment in kind. The Committee notes the copy provided by the Government of compulsory payment receipt form F.102/B of the Federal Public Revenue Administration (AFIP), whereby wage payments to private household workers are recorded. The Committee also notes that, in reply to its previous request, the Government indicates that the wages of domestic workers must be paid in legal tender and that neither national legislation nor collective agreements provide for the possibility to pay a proportion of wages in the form of payments in kind.

Article 13. Right to a safe and healthy working environment. The Committee notes that, in accordance with section 75 of Act No. 26844, domestic workers come under the scope of Act No. 24557, on occupational risks, and Act No. 26773, governing remedies for harm resulting from occupational accidents and illnesses. The Government refers to section 74(a) of Decree 467/2014 implementing Act No. 26844, which sets out the employer’s obligation to insure the domestic worker through an occupational risk insurer (ART) authorized to provide coverage in the jurisdiction of the employer’s home. However, this section provides that the obligation to insure the domestic worker shall not enter into force until the bodies responsible for regulating occupational risk (the SRT) and insurance (the SSN) and the AFIP enact the provisions necessary to adapt the existing system to the characteristics of domestic work. Section 74(c) provides that occupational risk coverage payments shall be made in advance and shall be reported and recorded by the employer in the month in which benefits are extended. Section 74(e) provides for the implementation of activities by the SRT and ARTs to encourage the prevention of risks arising from the work of private household employees, and requires these bodies to make available on their web sites informative material on domestic accident prevention. Lastly, the Government refers to the approval of SRT Resolution No. 46/2018 on the provision of digital occupational risk insurance policies, which contains special provisions on occupational risk insurance contracts held by employers of workers in private homes. The Committee requests the Government to adopt the relevant measures to enact the provisions necessary to adapt the system of insurance and remedy for harm resulting from occupational accidents and illnesses to the characteristics of the special arrangements for workers in private homes, and to provide detailed information in this regard. The Committee also requests the Government to send information on the measures adopted to promote the coverage of domestic workers through occupational risk insurers (ARTs). The Committee also requests the Government to provide statistical information, disaggregated by sex and age, on the number of domestic workers covered by ARTs.

Article 14. Social security. In reply to the Committee’s previous comments, the Government indicates that there are approximately 517,000 registered domestic workers. The Committee notes the adoption of measures by the AFIP to promote the registration of domestic workers. In particular, the Government indicates that, in May 2018, operations were carried out in various private neighbourhoods of the Autonomous City of Buenos Aires by officials of the AFIP General Directorate of Social Security Resources, in which employers were urged to regularize the situation of the domestic workers employed in their households. During these operations, information and visual materials were disseminated to domestic workers on their rights and obligations and they were provided with individual counselling, including the registration of the claims of those workers who reported that they were not registered. The AFIP identified 1,051 domestic workers, of whom 40 per cent were not registered. Between May and July 2018, the AFIP contacted some 65,000 high-income taxpayers and requested them to regularize the situation of the domestic workers employed by them. The Committee notes the Government’s indication that, owing to this measure, the employment of 36,000 workers in private homes was formalized in July 2018, which represented a 7.5 per cent increase in the number of registered domestic workers, of whom 98 per cent were women. However, the workers’ organizations CTA Autonomous and CTA Workers report that, despite the measures adopted by the AFIP, the number of non-registered domestic workers remains high. In particular, CTA Autonomous states that 57 per cent of workers in private households were not registered in 2018. Regarding the universal child and pregnancy allowances, the Government indicates that informal domestic workers are not excluded from receiving these allowances, as both unregistered workers and domestic workers are eligible to receive both benefits. For its part, the CGT RA emphasizes that there are no mechanisms to monitor compliance in practice with this Article of the Convention, nor are there statistics on the number of registered domestic workers. The Committee requests the Government to continue providing updated statistical information, disaggregated by sex, on the rate of unregistered employment in the domestic sector. The Committee once again requests the Government to provide statistical information, disaggregated by sex, on the percentage of domestic workers who have secured a job with social security contributions and coverage since the entry into force of Act No. 26844. The Committee also requests the Government to continue providing updated information on the measures adopted or envisaged to encourage the registration of domestic workers.

Article 15. Private employment agencies. In reply to the Committee’s previous comments, the Government indicates that the legal system prohibits the operation of private employment agencies, except for authorized temporary employment agencies. The Committee also notes that, in accordance with section 29 of the Employment Contracts Act, should an unauthorized situation arise in practice which is comparable to the operation of a private employment agency, the employment relationship shall be considered to be concluded with whomever the work is provided to, and the contracting third party shall be jointly responsible with the direct employer for the obligations arising from the employment relationship. The Committee also notes that workers recruited by temporary employment agencies shall be considered to be in a continuous or intermittent ongoing relationship of dependence with such agencies (section 26 of the Employment Contracts Act). However, the Committee observes that the Government has not provided statistics on the number of domestic workers recruited through these authorized temporary recruitment agencies, nor has it indicated how it gives effect to Article 15(1) of the Convention. The Committee once again requests the Government to provide statistics on the number of domestic workers, particularly migrant workers, who are recruited through temporary recruitment agencies authorized by the competent authority, and on how it gives effect to Article 15(1) of the Convention.

Article 16. Access to the justice system. The Committee notes the detailed information provided by the Government on the procedures of the Labour Court for Private Household Employees of the Autonomous City of Buenos Aires, and on its functions and competencies. Act No. 26844 establishes the obligation of the parties to attend a conciliation hearing before submitting a claim. Section 2 of Decree No. 467 of 2014 provides for the establishment of a Compulsory Labour Conciliation Service for Private Household Employees (SECOPECP). However, the Decree was never implemented, and therefore prior conciliation is not mandatory in practice. The Government also indicates that, from the adoption of Act No. 26844 to August 2018, the above-mentioned Labour Court processed 23,437 files, of which 14,457 were spontaneously submitted agreements and 8,990 were lawsuits. In its observations, CTA Autonomous reports that, under section 51 and related provisions of Act No. 26844, domestic workers in the Autonomous City of Buenos Aires are excluded from the jurisdiction of the labour courts and are required to settle their disputes through the above-mentioned court, which has an administrative function. CTA Autonomous also reports that legal representation is optional for domestic workers, while under the general regulations for all other workers it is mandatory. Regarding domestic workers whose legal disputes have been filed outside of the Autonomous City of Buenos Aires, the Government indicates that such domestic workers must settle their disputes through the ordinary labour courts. The Government adds that, although the provinces can comply with the justice administration system provided for in Act No. 26844, to date none of them has done so. The Committee once again requests the Government to provide detailed, updated information on the measures taken to guarantee in practice domestic workers’ effective access to the justice system, including measures to provide free legal assistance to domestic workers. The Committee also requests the Government to continue sending updated statistical information, disaggregated by sex and region, on the number of claims submitted by domestic workers to the various competent courts, the penalties imposed on the perpetrators and the remedies provided. It also requests the Government to indicate the legal procedure that must be observed by domestic workers to resolve their labour disputes through the provincial labour courts.

Article 17(2) and (3). Labour inspection. Access to household premises. The Government indicates that, in practice, the principle of the inviolability of the home (barring express order from the competent judge) enshrined in article 18 of the Constitution coexists with the legislation authorizing inspectors to enter workplaces. The Government indicates that there are still no specific regulations governing the access of labour inspectors to household premises on which domestic workers are employed. The CGT RA indicates that, in practice, labour inspections are not conducted in private households, as it is claimed that this would be a violation of private life. The Committee recalls that Article 17(3) of the Convention provides that “[i]n so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy.” The Committee therefore requests the Government to adopt the measures necessary to establish the conditions under which access by labour inspectors to household premises may be granted, having due respect for privacy. The Committee also requests the Government to provide updated information on the number of inspections conducted in the sector, the number of infringements detected and the penalties imposed.

Application of the Convention in practice. The Committee requests the Government to continue providing extracts of court decisions on matters related to the application of the Convention.