Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Home Work Convention, 1996 (No. 177) - Bulgaria (Ratification: 2009)

The Committee notes the observations of the Trade Union of Self-Employed and Informal Workers (UNITY), of 23 October 2014 and 31 August 2018, concerning the situation of industrial homeworkers who do not work under an employment contract and who are therefore not covered by the Labour Code. The Committee further notes the response of the Government, received on 1 November 2018. The Committee also notes the comments of the Confederation of Independent Trade Unions in Bulgaria (CITUB), received on 1 November 2018, together with the Government’s report.

Article 3 of the Convention. Declaration and implementation of a national policy on home work. The Government indicates that a meeting was held on 27 July 2018 at the Ministry of Labour and Social Policy (MLSP) with representatives of UNITY to discuss the situation of homeworkers, the self-employed and informal economy workers. The Committee welcomes the Government’s indication that a commitment was made to continue this dialogue and that the MLSP undertook to organize a meeting between representatives of the Executive Agency Labour Inspectorate (LI) and UNITY to explore possibilities for cooperation between them. In its 2018 observations, UNITY provides information regarding the implementation of the Convention. It also provides a copy of the National Agreement on the Regulation of Home Work in the Republic of Bulgaria, signed on 24 November 2010, relating to the regulation of home work within the meaning of ILO Convention No. 177. The UNITY further provides a copy of a research study concerning homeworkers’ terms and conditions of work, undertaken by Women in Informal Employment Globalizing and Organizing (WIEGO). The UNITY refers to its 2014 observations, in which it expressed concerns that: despite amendments to the Labour Code, there is no national policy on home work in Bulgaria, as required under Article 3 of the Convention; the Government has denied “consultation rights” to UNITY on the basis that it is an organization concerned with home work; the Government insists that homeworkers are independent contractors and fall outside the scope of both the Convention and the Labour Code; and piece rates paid to homeworkers fall well below the minimum wage. The UNITY maintains that the situation with respect to homeworkers has not changed. It observes that homeworkers are the most marginalized workers in the supply chain, whose terms and conditions of work are determined by their employers unilaterally, and without a written contract, despite working under the control of their employers. According to UNITY, most homeworkers in Bulgaria are in the footwear and garment industry and work only for one employer or factory. In its observations, CITUB refers to a National Conference it held on 25 September 2018 on the topic of the informal economy and undeclared work, with the participation of Government representatives as well as the President of UNITY and a number of homeworkers. The CITUB indicates that it was noted at the National Conference that the national legislation does not protect homeworkers, and that the participants concluded that it was necessary to create a national platform against undeclared labour which would highlight policies for resolving problems stemming from all forms of undeclared work, including home work. The Committee requests the Government to provide detailed information concerning the measures adopted or envisaged to improve the situation of homeworkers, and to identify the employers’ and workers’ organizations that have been consulted with regard to the development, implementation and review of such measures.

Articles 1 and 4(2)(a), (d), (e), (g) and (h). Definition of homeworker. Equality of treatment. In its observations, UNITY alleges that homeworkers are not covered by the Labour Code. The Committee notes the Government’s indication that homeworkers who work under an employment contract are entitled to the same rights as other workers under the Labour Code. The UNITY observes, however, that the Government does not require employers to enter into employment contracts with homeworkers and that therefore many homeworkers are working without the benefit of a written employment contract, despite being dependent on their employer and working under the employer’s control. In this regard, the Committee recalls that Article 1 of the Convention defines a homeworker as a worker who performs work in his or her home or in other premises of the worker’s choice, other than the premises of the employer, for remuneration, and which results in a product or service as specified by the employer, unless the worker has the degree of autonomy and economic independence necessary to be considered an independent worker under national laws, regulations or court decisions. The Committee notes therefore that the Convention may apply to wage earners who would not qualify as employees under national law but who are nevertheless in a relationship of economic dependence with another (a natural or legal person). The Committee further notes that Article 4(1) of the Convention indicates that one of the aims of the Convention is to promote, as far as possible, equality of treatment between homeworkers and other wage earners, taking into account the special characteristics of home work and, where appropriate, conditions applicable to the same or a similar type of work carried out in an enterprise. In its observations, CITUB maintains that the status of homeworkers is regulated only by section 107(b) of the Bulgarian Labour Code, which establishes that an employment contract may provide for the performance of work in return for remuneration at the employee’s home or other premises of the employee’s choice outside the employer’s work location. The CITUB points out, however, that the only difference under the Labour Code between an employee performing home work and an independent homeworker is the presence of an employment contract under section 107(b) of the Labour Code. If there is an employment contract, then the worker receives the rights guaranteed to workers under the Labour Code, such as rest time and leave entitlements. If, however, a worker performs work for another without an employment contract in place, the worker will be considered an independent contractor, even if she or he is economically dependent on that other. With regard to the Committee’s previous comments concerning the application of Article 4(2)(g) and (h) of the Convention, the Government indicates that the Labour Code provides for the conclusion of employment contracts for home work, adding that where there is an employment contract for home work, the worker is entitled to the same rights as other workers under the Labour Code, such as the right to maternity leave for pregnancy and childbirth, as well as childcare leave. With respect to application of the principle of equality of treatment, UNITY refers to Article 4(2)(a) of the Convention, which provides for homeworkers’ right to establish or join organizations of their own choosing, and commends the Bulgarian Government for recognizing such organizations. With regard to remuneration and social security (Article 4(2) (d) and (e)), UNITY indicates that the Labour Code has been amended to comply with the Convention, but alleges that it is not enforced. The UNITY also maintains that homeworkers are paid well below the minimum wage. It indicates that the minimum wage in Bulgaria is currently set at 510 Bulgarian Lev (BGN) (approximately €260 per month), but points out that many homeworkers in the garment and footwear sector earn as little as €89.09 per month. Moreover, if homeworkers are sick or take a day’s leave, they lose income. In addition, UNITY alleges that homeworkers’ payments are often delayed. In addition, UNITY maintains that many homeworkers do not have access to social security and cannot meet the insurance threshold of BGN510 (Article 4(2)(e)). The Committee requests the Government to provide detailed information on specific steps taken or envisaged to ensure equality of treatment between homeworkers and other workers, including by consulting the social partners concerned with a view to identifying homeworkers in an employment relationship, within the meaning of Article 1 of the Convention, who should be benefiting from the protections afforded by the Labour Code. Further recalling that paragraph 13 of the Home Work Recommendation, 1996 (No. 184), provides that minimum rates of wage should be fixed for home work in accordance with national law and practice, the Committee asks the Government to reply in detail to the observations raised by UNITY in relation to the low level of wages earned by home workers. Finally, noting that the Government does not indicate in reply to its previous request whether the provisions of the Labour Code pertaining to minimum age apply to homeworkers, the Committee once again requests the Government to provide clarification on this point.

Article 6, labour statistics. Article 9 and Part V of the report form. Enforcement measures. Application in practice. The Committee notes the Government’s indication that, since 1996, no statistics have been kept regarding the number of homeworkers. The CITUB considers that the failure to maintain statistics constitutes a breach of the Convention, highlighting the importance of having statistics on the number of home workers, in order to bring them out of the grey economy and combat informal employment. It also expresses concern regarding the low number of violations identified. The UNITY also calls for statistics to be kept in relation to home work. In response to the Committee’s previous comments requesting information concerning the practical application of the Convention, the Government indicates that the LI supervises compliance with the labour laws in relation to factory and office home workers. Under section 402(1), (2) of the Labour Code, the LI may visit premises in homes or private properties where work is being performed, to inspect working conditions. The Government adds that from 2013 to mid-2018 there were 17 violations of the provisions regulating home work detected. The Committee requests the Government to provide detailed updated information on the steps taken or envisaged to ensure that statistics are compiled and analysed, disaggregated by sex and age, on homeworkers. The Committee further requests that the Government provide updated information concerning the practical application of the Convention, including copies of judicial decisions relevant to the principles of the Convention, extracts of inspection reports, indicating the number of inspections conducted, and the outcome of such inspections.