Domestic Workers Convention, 2011 (No. 189) - Belgium (RATIFICATION: 2015)

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The Committee notes the joint observations submitted by the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB) on 1 September 2022. The Committee requests the Government to send its comments in this regard.

Article 1 of the Convention. Definitions. In reply to the Committee’s previous question on how national legislation defines “domestic work”, the Government indicates that Belgian legislation does not define this concept, but only the concept of “domestic worker” (section 5 of the Act of 3 July 1978 on employment contracts). The Government points out that, according to Belgian case law and legal theory, domestic work is manual housework. Thus, “domestic staff” (tutors, gardeners, nursing staff) who do not perform this type of work are not considered to be domestic workers and are not covered by Belgian regulations for this sector. Moreover, workers in the domestic help sector paid by means of “service vouchers” are not considered to domestic workers but workers hired by a company and made available to households by the latter. The Government notes that the definitions in Belgian law of domestic work and domestic worker are thus narrower than those provided for in Article 1 of the Convention. In this respect, the Committee understands that the reasons for this more restrictive definition of the term “domestic worker” compared to the one given by the Convention is due to the fact that the national legislation considers any person who works in a household to perform work other than manual labour to be a person employed by an approved employer and made available to households when remuneration is by means of service vouchers. Service voucher employment contracts are governed by the Act of 3 July 1978 on employment contracts, except for certain specific aspects which are governed specifically by, or pursuant to, the Act of 20 July 2001 on local employment and services. Insofar as these workers are also covered by the Convention and were not excluded from the scope of the Convention in the Government’s first report, the Committee requests the Government to indicate in its next report how each of the provisions of the Convention is applied in law and practice.

Article 7. Information regarding terms and conditions of employment. In reply to the Committee’s previous question on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment, the Government indicated that, generally, the conclusion of an employment contract implies that the parties have agreed, prior to hiring, on the essential terms and conditions of the contract and that, as a general rule, the parties provide evidence of this in writing. The Government adds that a written contract is mandatory for fixed-term contracts (Act of 3 July 1978, sections 9 and 11 bis) and contracts concluded with workers paid by means of service vouchers (Act of 20 July 2001, section 7 quater). The Government also indicates that workers must be provided with work regulations containing information on hours of work, paid annual leave, rest periods, terms and conditions for the termination of employment and periods of notice (Act of 8 April 1965, sections 4 and 15). The Government further indicates that the value of any payments in kind, such as food and accommodation, must be assessed, established in writing and brought to the worker’s attention no later than at the time of hiring (Act of 12 April 1965). The Government points out that a bill to transpose Directive (EU) 2019/1152 on transparent and predictable working conditions should enter into force in 2022, which will require employers to provide all employees with essential information on the employment relationship in writing, no later than the first day of work. In this respect, the Committee notes that on 7 October 2022, a law partially transposing Directive (EU) 2019/1152 was adopted in Belgium. With regard specifically to domestic workers employed by heads of diplomatic missions or consular posts, the Committee notes with interest that a standard employment contract exists, which provides, inter alia, that the employer undertakes to comply with the conditions of employment under Belgian labour law. The Committee also notes that foreign domestic workers employed by heads of diplomatic missions or consular posts are obliged to report to the Protocol Directorate of the Belgian Foreign Affairs Service to collect an identity card and, at that time, receive information on their working conditions in accordance with Belgian law. In view of the foregoing, the Committee requests the Government to indicate how the law transposing Directive (EU) 2019/1152 impacts the regulation of the information provided to domestic workers regarding their terms and conditions of employment. The Committee also requests the Government to envisage promoting the use of a standard contract in relations between domestic workers and employers other than heads of diplomatic missions and consular posts. The Committee further requests the Government to provide information on the measures taken or envisaged to help domestic workers understand their terms and conditions of employment, for example, through the publication of information available in several languages, online and in public spaces, and through awareness-raising.

Article 8(2) and (3). Migrant domestic workers. The Committee notes that there is no agreement on the freedom of movement of domestic workers for the purpose of employment, in reply to its previous question in this regard (Article 8(2) of the Convention). The Committee notes with regret, however, that the Government does not provide information on the measures taken in cooperation with other ILO Member States to ensure the effective application of the provisions of the Convention for migrant domestic workers and therefore reiterates its request to the Government in this regard (Article 8(3) of the Convention).

Article 9. Accommodation and keeping of travel and identity documents. Noting that the Legal Studies Division and the Division for the Regulation of Individual Relations at Work are going to examine and determine how to improve the application of Article 9 of the Convention in Belgium, the Committee requests the Government to provide up-to-date information in this regard.

Article 12(2). Payment in kind. The Committee notes the information provided by the Government on the provisions of the Act of 12 April 1965 on the protection of workers’ remuneration, in reply to its previous questions on the measures taken to ensure that payments in kind in the context of domestic work: (i) are not less favourable than those generally applied, (ii) are freely accepted by the worker and (iii) are attributed a fair and reasonable monetary value.

Article 13. Occupational safety and health. The Government states that a draft Royal Decree laying down measures relating to the welfare of domestic workers has been submitted to the social partners in the High Council for Prevention and Protection at Work (CSPPT) for their opinion. The Government states that the entry into force of the draft Royal Decree will have the effect of extending to domestic workers the application of: (i) the Act of 4 August 1996 on the welfare of workers and (ii) the Code on Welfare at Work. The Government also states that, with the agreement of the social partners in the PTT, it has adapted an online workplace risk assessment tool, the Online Interactive Risk Assessment (OiRA), to the domestic work sector. The Committee requests the Government to provide up-to-date information on the adoption of the draft Royal Decree on the welfare of domestic workers and, where appropriate, on its impact on the protection of the health and safety of domestic workers. The Committee also requests the Government to provide information on the use of the OiRA and its impact on the implementation of actions for the safety and health of domestic workers.

Article 15(2). Consultations with the social partners concerned on the recruitment and placement of migrant domestic workers by private employment agencies. In its previous report, the Government indicated that the regulation of private employment agencies fell under the competence of the federated entities. With regard to the consultation of the social partners at this level, the Government simply indicates in its report that it is common practice in Belgium to consult the social partners and provides general information on the consultation bodies in the federated entities. The Government does not provide information on the holding of specific consultations on this matter, as provided for in Article 15(2) of the Convention. Moreover, the Government indicates that the organizations representative of the domestic work sector are not consulted. The Committee recalls that Article 15(2) of the Convention provides that Member States shall consult, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, in order to give effect to each of the provisions of Article 15 of the Convention. In view of the foregoing, the Committee requests the Government to provide information on the purpose and outcome of the consultations held in accordance with Article 15(2) of the Convention. It also requests the Government to report on the measures taken to ensure that, where they exist, organizations representative of domestic workers and those representative of employers of domestic workers are involved in such consultations.

Article 17. Complaint mechanisms. Labour inspection.Access to household premises. The Committee notes with interest the measures put in place to detect and combat cases of trafficking in persons for the purpose of domestic servitude in diplomatic households, such as: the holding of annual interviews when foreign domestic workers are required to renew their identity cards; the existence of specialized reception centres for domestic workers who are victims of human trafficking; and the possibility for Belgian judges, in the absence of criminal proceedings due to diplomatic immunity, to issue an opinion on the existence of a situation of exploitation, thus enabling the domestic worker to be issued a permanent residence permit on humanitarian grounds. The Committee also notes the measures taken to set up complaint mechanisms accessible to all domestic workers (not only those placed in embassies and consular posts), particularly the establishment of a portal enabling domestic workers to report offences online. The Committee notes, however, that the Government has not replied to its previous question concerning the measures taken by government services to ensure that information on complaint mechanisms and legal assistance are available in several languages to all domestic workers, including migrant domestic workers. The Committee also notes that the FGTB, the CSC and the CGSLB consider that home visits should be increased. In view of the foregoing, the Committee requests the Government to provide detailed information, including statistics, on the visits made by labour inspectors to the homes of employers of domestic workers. The Committee also requests the Government to provide detailed information on the measures taken or envisaged to make information on complaint mechanisms and legal assistance available in several languages to all domestic workers, including migrant domestic workers.

Article 18. Consultations.The Committee notes that there has been no consultation of the social partners via the National Labour Council (CNT) regarding the implementation of the Convention for the period 2018–22 and requests the Government to provide up-to-date information in this regard.

Court decisions. Part IV of the report form. The Committee notes the judicial decisions in several cases of human trafficking. The Committee requests the Government to continue to provide information on any decisions handed down by courts or other dispute settlement mechanisms concerning questions of principle relating to the application of the Convention.

Application of the convention. Part V of the report form. The Committee notes the statistical data provided by the Government on: (i) the number of domestic workers and “domestic servants” declared to the National Social Security Office (ONSS) and (ii) the number of workers paid by means of “service vouchers” for the period 2018–21. The Committee requests the Government to provide information on the manner in which the Convention is applied in Belgium, by supplying extracts from inspection reports and information on the number and nature of infringements recorded and on any penalties imposed on employers of domestic workers.

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The Committee welcomes the Government’s initial report, and the report received on 13 August 2018.

Article 1 of the Convention. Definitions. The Government indicates that the Act on labour contracts of 3 July 1978 defines, in section 5, the term “domestic worker” as “a person who is committed to undertaking, in return for payment and under the authority of an employer, primarily manual household work for the needs of the employer’s or his or her family’s household”. The Government also indicates that part V of the Act addresses more particularly domestic work contracts but does not provide a definition of the term “domestic work”. The Committee invites the Government to specify the term “domestic work” and to indicate whether it appears in national legislation, collective agreements or court decisions and, if so, to provide the relevant texts.

Article 7. Information regarding employment conditions. The Committee notes that the Government applies the Act of 30 April 1999 on employment of foreign workers, as well as the royal decree of 9 June 1999 implementing the Act of 30 April 1999 on employment of foreign workers, applying it to foreign domestic workers. Section 12 of the royal decree of 1999 stipulates that “the granting of authorization for employment is subject to the signing by the employer and the worker of a labour contract that includes the mentions and provisions indicated in annex 1 of this decree”. The Government adds that a contract model for foreign domestic workers is annexed to the decree and includes all the elements provided for under Article 7 of the Convention. The Committee draws the Government’s attention to the fact that Article 7 of the Convention applies to all domestic workers and not only to migrant domestic workers. It therefore invites the Government to provide detailed and up-to-date information concerning the measures taken or envisaged to ensure that domestic workers, including migrant domestic workers, are duly informed of their conditions of employment as laid down in the Convention.

Article 8(2) and (3). Migrant domestic workers. The Government does not provide information on the application of Article 8(2) and (3), of the Convention. The Committee therefore requests the Government to provide information on any bilateral, regional or multilateral agreements, or agreements within the framework of regional economic integration areas under which workers can exercise freedom of movement in order to take up a job. The Committee also requests the Government to describe any measures taken in cooperation with other ILO member States to ensure the effective application of the provisions of the Convention for migrant domestic workers.

Article 9. The Government indicates that sections 433quater and 433quinquies of the Criminal Code give effect to this Article of the Convention. However, the Committee notes that these sections of the Criminal Code refer to the exploitation of begging and trafficking in persons respectively. The Committee requests the Government to indicate the measures taken to give effect to this Article.

Article 12(2). Payments in kind. With respect to forms of payments in kind, the Government refers to section 6 of the Act of 12 April 1965 on protection of workers’ remuneration. Under this section, the proportion of remuneration that can be paid in kind is limited to a maximum of 20 per cent of the worker’s total gross remuneration. However, in the event that a house or an apartment is made available to the worker, this maximum proportion increases to 40 per cent or 50 per cent of the remuneration of domestic workers, concierges, apprentices or interns, provided that they are given full board and lodging by the employer. The Committee requests the Government to indicate the measures taken to ensure that the form of payments in kind is not less favourable than that generally applied to other categories of workers. It further requests the Government to indicate the measures taken to ensure that these payments in kind are freely accepted by the worker, and meet his or her use and personal interests, and that the monetary value attributed to them is fair and reasonable.

Article 15. Private employment agencies. The Committee notes that the Government has ratified the Private Employment Agencies Convention, 1997 (No. 181). The Government highlights that legislation in this area falls under the competence of different regions in the country (Flemish, Walloon and Brussels regions) and the German-speaking community. The Committee notes, in particular, the detailed information provided by the Government on the measures taken to give effect to the provisions of this section in the Flemish region. However, it requests the Government to provide clarifications on any consultations held in this regard with the most representative employers’ and workers’ organizations and, where they exist, with the organizations representing domestic workers and employers of domestic workers in the different regions of the country.

Article 17. Complaint mechanisms. Labour inspection. Access to household premises. The Committee notes the Government’s indication that the social legislation inspection unit is competent to inform, inspect and sanction the failure to comply with labour law provisions. The Government indicates that in 2013 it established a Good Offices Commission for the personnel of embassies and diplomatic missions, whose mission is to settle disputes between workers and their employers. The Government’s report provides detailed information on embassy staff and their employers, specifying the measures taken to establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers. Since the establishment of the Commission, its members have made several specific proposals, including to extend the scope of application of the Act of 5 December 1968 on collective agreements and joint commissions to include diplomatic missions and consular posts. Following many discussions, the Act of 5 December 1968 on collective labour agreements and joint commissions was amended under the Act of 15 January 2018 which provides that the staff of diplomatic missions and consular posts fall under the responsibility of a joint commission. For workers under domestic work contracts, the competent joint commission is the Commission for building management, estate agents and domestic workers No. 323. With regard to access to household premises, the Government indicates that section 24, paragraph 1, of the Social Criminal Code provides for cases in which social inspectors may freely enter residential places, without prior authorization of the investigating judge and also states that the same power is granted to social inspectors if they have a search warrant issued by the investigating judge. The Committee requests the Government to provide information on the number of complaints filed by domestic workers engaged in embassies and consular posts, the result of such complaints, and on the number of cases in which inspectors have entered resident places to investigate conditions resulting from such entrances. The Committee requests the Government to provide updated information on measures taken or envisaged to establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of all domestic workers, not only those engaged in embassies and consular posts. The Committee requests the Government to provide information on measures taken or envisaged in the area of labour inspection and sanctions, taking duly into account the particular characteristics of domestic work, including legal assistance and information on accessible procedures and mechanisms in a form and a language that are understandable by migrant domestic workers.

Article 18. Consultations. The Committee requests the Government to indicate the manner in which effect is given to the provisions of the Convention and to provide the applicable text(s), where relevant. Furthermore, it requests the Government to indicate the consultations held with the most representative workers’ and employers’ organizations, as set out in this Article of the Convention.

Court decisions. Part IV of the report form. The Committee requests the Government to indicate whether courts of law or other tribunals, such as the Conciliation, Mediation and Arbitration Commission, have issued decisions on questions of principle relating to the application of the Convention and, if so, to provide copies of those texts.

Application of the Convention. Part V of the report form. The Committee notes that 18 files were registered with the Good Offices Commission between 1 June and 31 December 2017 and that six files were registered in 2018. The Committee notes the statistical data provided by the Government on the number of workers categorized as domestic workers from 2014 to 2017. The Committee requests the Government to provide general indications on the manner in which the Convention is applied in Belgium, by forwarding, for example, extracts from inspection reports, as well as data disaggregated by sex and age on the number of workers covered by the measures giving effect to the Convention, and on the number and nature of infringements reported and the penalties imposed.