Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Bélgica (Ratificación : 2015)

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.