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

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

Article 1(1)(a), (b) and (c) of the Convention. Definition of domestic work and domestic worker. The Committee welcomes the Government’s first report on the application of the Convention. In relation to the definition of domestic worker, the Government refers to the Code of Practice for protecting persons employed in other people’s homes, which was produced by the Labour Relations Commission, in collaboration with the social partners. The Code defines employee for its purposes as a person who is employed in the home of another person, in accordance with the provisions of the Code of Practice for determining employment or self-employment status of individuals. The latter establishes a set of criteria to determine whenever a worker should be considered as an employee or as self-employed. The Committee observes that there is no definition of domestic work established in Irish legislation. It notes that because of the particular characteristics of domestic work, specific attention should be given to providing a definition of domestic work in the national legislation. It further notes that the Government does not indicate whether a person who performs domestic work on an occupational basis, but does so only occasionally or sporadically is considered as a domestic worker. The Committee recalls that, regardless of the type of contract held by workers providing domestic services, the definition of domestic worker laid down in Article 1 of the Convention excludes only persons who perform domestic work occasionally or sporadically and not on an occupational basis. The Committee requests the Government to indicate any measures taken or envisaged to incorporate a definition of domestic work in national legislation or collective agreements that is compatible with the Convention. It also requests the Government to indicate in what manner it ensures that persons who perform domestic work occasionally or sporadically but do so on an occupational basis are covered by the guarantees established in the Convention.

Article 3(2)(a). Freedom of association and collective bargaining. The Government indicates that the rights to freedom of association and collective bargaining of all workers, including domestic workers, are protected under Irish legislation. In addition, the Committee notes that section 5.12 of the Code of Practice for determining employment or self-employment status of individuals provides that “in accordance with Irish law, the employer shall not restrict the employee’s right to trade union membership consistent with the employee’s Constitutional right to join a trade union”. Nevertheless, the Government does not supply information on how domestic workers’ freedom of association and collective bargaining rights are ensured in practice. In this respect, the Committee recalls that the specific characteristics of domestic work, often involving triangular employment relationships, a high degree of dependence on the employer (especially in the case of migrant domestic workers) and the frequent isolation of domestic workers in their workplaces, are all factors that make it particularly difficult for domestic workers to form and join unions. Thus, protection of domestic workers’ freedom of association and collective bargaining rights take on special importance in the domestic work sector. Taking into account the particular characteristics of domestic work, the Committee requests the Government to indicate the manner in which domestic workers’ freedom of association and collective bargaining rights are ensured in practice.

Article 3(2)(d). Elimination of discrimination in respect of access to employment. The Committee refers to its 2013 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that section 2 of the Irish Employment Equality Act excludes from the Act’s scope of application with regard to access to employment “persons employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of such persons”. On that occasion, the Committee pointed out that, in practice, the broad and non-exhaustive definition of personal services could appear to allow employers of domestic workers to make recruitment decisions on the basis of the discrimination grounds set out in section 6(2) of the Act. The Committee requests the Government to take the necessary measures to amend the relevant parts of section 2 of the Employment Equality Act, so as to ensure that there are no limitations on domestic workers’ right to be free from discrimination in employment and occupation.

Article 5. Abuse, harassment and violence. The Committee notes that the Government does not provide information on the specific measures taken or envisaged to ensure that domestic workers are effectively protected against all forms of abuse, harassment and violence. Recalling the specific characteristics of domestic work, especially in the case of migrant domestic workers and caregivers, who often work in isolated conditions and are highly vulnerable to abuse and exploitation, the Committee requests the Government to indicate the measures taken to give effect to this Article of the Convention. It also requests the Government to provide information, including statistical data disaggregated by sex, on the impact of such measures, as well as on the manner in which it is ensured that domestic workers are informed of the protections available to them under the national legislative framework.

Article 7. Information on terms of employment. The Government indicates that section 5.1 of the Code of Practice for protecting persons employed in other people’s homes establishes the obligation of the employer to supply to the employee a written statement of terms and conditions of employment, as required under the Terms of Employment (Information) Acts 1994–2011, that sets out: hours of work, rates of pay, duties, periods of annual leave, place or places of work, commencement date and details of rest breaks. In this regard, the Terms of Employment (Information) Act, 1994 sets out the minimum terms and conditions of employment that should be included in the statement, which should be given to the employee not later than two months after the commencement of the employment relationship. Moreover, section 5.3 of the Code of Practice provides that the employer may only require the employee to carry out those duties specified in the written statement of terms and conditions of employment. Additional duties may only be carried out where there is agreement between both parties. Section 5.4 of the Code of Practice establishes that “details regarding the place or places of work and travel to the place or places of work shall be included in the written statement of terms and conditions of employment”. However, the Committee notes that there are no provisions on food and accommodation, the period of probation or trial periods, nor on terms and conditions relating to repatriation. Furthermore, section 5.11 of the Code of Practice states that the “employer shall take all reasonable steps to ensure that the employee is aware of his or her statutory entitlements as an employee”. Finally, the Committee observes that the Government has produced an information booklet on the rights of domestic workers that is available publicly in multiple languages. The Committee requests the Government to indicate the measures taken or envisaged to ensure that domestic workers are informed of their terms and conditions of employment – especially the particulars listed in this Article, including the provision of food and accommodation, the period of probation and the conditions of repatriation, if applicable – in an appropriate, verifiable and easily understandable manner, particularly in respect of migrant domestic workers mediated from abroad to work in Ireland.

Article 8(1), (2) and (4). Migrant domestic workers. Requirements of a written job offer. Repatriation. The Government does not indicate whether there are provisions in the legislation that require migrant workers who are recruited in one country for domestic work in another, to receive a written job offer or employment contract stating the terms and conditions of employment, prior to crossing national borders, nor that establish the entitlement of migrant workers to repatriation on the expiry or termination of their employment contract. The Committee requests the Government to indicate the manner in which it is ensured that migrant domestic workers recruited in one country for domestic work in another receive a written job offer or contract of employment prior to crossing the border that is enforceable in the country in which the work is to be performed, as required under Article 8 of the Convention. It further requests the Government to indicate any measures taken in cooperation with other ILO Members to ensure the effective application of the Convention to migrant domestic workers. The Government is also requested to indicate the laws, regulations or other measures that specify the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of their employment contract, where these exist.

Article 12(2). Payment in kind. The Government refers to section 5.7 of the Code of Practice, which establishes maximum daily and weekly deductions from wages where the employee is provided with meals and/or lives in the place of employment in amounts specified in the National Minimum Wage Act, 2000. These deductions are currently set at the following amounts: full board and lodging (€54.13 per week or €7.73 per day), full board only (€32.14 per week or €4.60 per day), and lodgings only (€21.85 per week or €3.14 per day). Furthermore, section 5.6 of the Code of Practice provides that any deduction from the employee’s wages shall only be made in accordance with the Payment of Wages Act, 1991. The Committee recalls that paragraph 14, subparagraph (d) of the Domestic Workers Recommendation, 2011 (No. 201), provides that “when provision is made for the payment in kind of a limited proportion of remuneration, Members should consider … ensuring that, when a domestic worker is required to live in accommodation provided by the household, no deduction may be made from the remuneration with respect to that accommodation, unless otherwise agreed to by the worker”. The Committee encourages the Government to adopt the necessary measures to guarantee that when a domestic worker resides in accommodation provided by the household, no deduction is made from the worker’s remuneration with respect to the accommodation, unless otherwise agreed to by the domestic worker.

Article 13. Effective measures to ensure the safety and health of domestic workers. The Government states that domestic workers are afforded the same protections established for all workers under Irish law. The Committee notes that, according to section 8(1) of the Safety, Health and Welfare at Work Act, 2005, the general duties of the employer include: ensuring the safety, health and welfare at work of his or her employees; managing and conducting work activities in such a way as to ensure the safety, health and welfare at work of all employees; and managing and conducting work activities in such a way as to prevent any improper conduct or behaviour likely to endanger employees. The Committee requests the Government to provide detailed information on the measures taken to ensure the occupational safety and health of domestic workers, due regard being taken of the specific characteristics of domestic work, as well as on the impact of such measures. It also requests the Government to indicate the consultations held in this regard with organizations of employers and workers and with organizations representative of domestic workers and those representative of employers of domestic workers, where these exist.

Article 15. Private employment agencies. The Government refers to the Employment Agency Act, 1971, which regulates the licensing and operation of employment agencies in Ireland. Section 7 of the Act provides that private employment agencies cannot charge any fee solely for agreeing to seek employment for another person or solely for agreeing to seek persons who will give or accept employment. The Government adds that private employment agencies are subject to inspection by Workplace Relations Commission (WRC) labour inspectors. In addition, the Workplace Relations Commission Act, 2015, permits the WRC to enter into administrative cooperation agreements with foreign statutory bodies on law enforcement matters and exchange information and provide assistance to those bodies. The Committee requests the Government to provide practical information on the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers, including migrant domestic workers.

Article 16. Access to justice. The Government states that all legally employed workers, including domestic workers, have equal and effective access to redress and enforcement mechanisms. It adds that domestic workers may submit their complaints regarding unfair treatment in the first instance to an inspector or WRC adjudicator, and lodge an appeal before the Labour Court, as appropriate. It adds that workers who work without an employment permit may, under the Employment Permits (Amendment) Act, 2014, institute civil proceedings to seek compensation for the work performed or services rendered. Where the court is satisfied that the foreign national took all steps as were reasonably open to him or her to regularize the situation, it may make an order granting compensation. The Committee requests the Government to provide information on the functioning and impact of the redress and enforcement mechanisms available to domestic workers, including measures for inspection, enforcement and penalties, having due regard to the special characteristics of domestic work. It also requests the Government to provide information on decisions rendered by courts of law or other dispute resolution mechanisms involving questions of principle relating to the application of the Convention.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. The Committee notes the Government’s indication that investigations of complaints regarding domestic workers have been integrated into the regular inspection regime. During the period 2011–15, 191 inspections were conducted and over €9,000 in wages were recovered. Violations identified were primarily in relation to the lack of employment records (102 cases). The Government refers to article 40.5 of the Irish Constitution, which provides that “the dwelling of a citizen in Ireland is inviolable and shall not be entered forcibly except in accordance with the law”. It indicates that, under the employment and health and safety legislation, dwellings may be entered with the occupiers’ consent or with a warrant issued by the District Court. The Committee requests the Government to provide detailed information on the manner in which inspections are conducted in private premises where domestic workers undertake their work, including statistical information on the number of inspectors, the nature of violations detected, and the sanctions imposed.