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

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

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 31 August 2018, in which they place emphasis on the measures adopted in recent years to protect and extend the rights of men and women domestic workers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), received on 1 September 2018, and the Government’s response, received on 19 November 2018. The Committee requests the Government to provide its comments on the observations of the ANDI and the IOE.

Article 6 of the Convention. Fair terms of employment and decent working conditions. In its previous comments, the Committee requested the Government to take the necessary measures to amend sections 77 and 103 of the Substantive Labour Code to ensure that domestic workers have the same trial period, the same period of notice for the termination of fixed-term contracts and the same guarantees as other workers. It also requested the Government to indicate the measures envisaged or adopted to ensure that domestic workers, like other workers generally, enjoy fair terms of employment and decent working conditions. The Committee notes that the Government indicates once again that the labour rights and guarantees recognized in national legislation apply equally to domestic workers, on the basis, among other provisions, of Article 13 of the Constitution, which sets out the principle of equality, and Article 53, which establishes the minimum labour rights recognized for all workers. The Committee notes with interest ruling No. C-028/19, of 30 January 2019, of the Constitutional Court of Colombia, which declares inapplicable section 77(2) of the Substantive Labour Code, which provided for the presumption of a trial period of 15 days in the contracts of domestic workers, while subsection 1 did not establish any such presumption for other workers, but provided that the trial period was to be set out in writing. Section 77(2) was declared inapplicable on the grounds that it was incompatible with Articles 13 and 53 of the Political Constitution. The Constitutional Court emphasized in particular that “the precept included differentiated treatment in respect of domestic work, which is undertaken mainly by women with few means and a social protection deficit”. It also found that “as it is established that the majority of their labour relations are agreed through verbal contracts, in which the presumption of the trial period applies, which is not the case of employees engaged in other types of work, in contravention of the principles set out in Article 53 of the Constitution respecting equality of opportunities and the performance of work under decent and just conditions.” With regard to section 103 of the Substantive Labour Code, which provides for a written notice period of 30 days for the termination of fixed-term contracts, except in the case of domestic workers, for whom there is a notice period of only seven days, the CUT, CTC and CGT indicate that no measures have been adopted to amend the section with a view to guaranteeing equality for domestic workers in relation other workers with regard to the period of notice required for the termination of contracts of employment. The Committee therefore reiterates its request to the Government to take the necessary measures to amend section 103 of the Substantive Labour Code with a view to ensuring that domestic workers benefit from the same period of notice for the termination of fixed-term contracts, as well as the same guarantees as other workers. The Committee also requests the Government to continue providing information on the measures adopted or envisaged to ensure in practice that domestic workers, like workers generally, enjoy fair terms of employment and decent working conditions, as envisaged in Article 6 of the Convention.

Articles 6, 9(a) and 10. Workers who reside in the household. Decent living conditions that respect their privacy. Equality in respect of other workers in relation to hours of work and overtime compensation. In response to its previous comments, the Government indicates that domestic work can take three forms: internal, that is those who reside in the household; external, that is those who do not reside in the household; and daily, that is domestic workers who do not reside in the household and only work certain days of the week, for one or more employers. The Government adds that the working hours of domestic workers therefore vary depending on the form of their work. In this regard, the Government reiterates that the ordinary maximum hours of work established by law for external or daily domestic workers are eight in the day and 48 in the week. All hours that are worked in addition to the maximum number of hours established are considered to be overtime and paid as such. With regard to domestic workers who reside in the household, the Government refers once again to ruling No. C-372 of 1998 of the Constitutional Court, under the terms of which such domestic workers may not work more than ten hours a day. According to the High Court, when the hours of work a domestic worker are over that limit, such hours must be paid as overtime, under the terms of the labour legislation. The Government adds that the domestic worker and the employer may agree fewer hours than the legal maximum, in which case the wages paid will be proportional to the hours worked. The CUT, CTC and CGT observe that measures have not been taken to eliminate the discrimination existing for domestic workers who reside in the household in relation to other workers with regard to maximum hours of work and overtime pay. The workers’ organizations reiterate that in practice such different treatment implies that, due to the exception to maximum working hours establishing a maximum of ten hours a day for live-in domestic workers, the additional two hours that they may work, are not included and therefore not paid as overtime, compared to the situation of other workers, for whom maximum daily hours of work are set at eight. In its reply, the Government reiterates that the limit of ten hours of work a day established by the case law of the Constitutional Court is applied to live-in domestic workers, while the normal maximum statutory working time of eight hours a day is applied to other domestic workers. The Government adds that, although the maximum weekly limit of 48 hours set out in section 161 of the Substantive Labour Code does not apply to live-in domestic workers, Sunday is the compulsory day of rest for all workers. In the event that work is performed on a Sunday, the appropriate supplement has to be paid, and if more than three Sundays are worked in a month, the employer is required to grant the worker the corresponding compensatory rest. Finally, the Committee notes that the Government has not provided information in its report on the existence of provisions regulating the quality of food, the nature of accommodation or the right to privacy that must be enjoyed by domestic workers who reside in the household. The Committee recalls that, under the terms of Article 9(a) of the Convention, each member shall take measures to ensure that domestic workers are free to reach agreement with their potential employer on whether to reside in the household. When workers reside in the household, legal provisions on their living conditions are an essential component of the promotion of decent work for them. The Committee considers that the legislation should set out the obligations of employers in this respect. The Committee once again requests the Government to take the necessary measures to guarantee equal conditions in terms of normal hours of work between domestic workers who do not reside in the household and those who do. The Committee also once again requests the Government to provide information on the measures adopted to ensure that domestic workers who reside in the household receive overtime compensation under equal conditions with other workers. It also requests the Government to provide detailed information on the manner in which the quality of food, the nature of their accommodation and the right to privacy of domestic workers who reside in the household are regulated.