Some Advances in Legal Rights for Domestic Workers in Latin America
FRIDAY FILE - Long working hours, lack of rest time and poor treatment and compensation, in the absence of national legislation, often turns domestic work into a form of slavery in many countries. We reflect on some of the changes taking place in Latin America regarding decent work for domestic workers.
By Gabriela De Cicco
According to the study “Domestic Workers across the World”, launched in January 2013 by the International Labour Organization (ILO), there are approximately 52.6 million people – 83% of whom are women – who work as domestic workers around the world. About 29.9% of them are excluded from domestic labour laws and 45% have no right to paid weekly rest and/or annual holidays; and more than a third of women domestic workers have no right to maternity protection.
On June 16, 2011 the ILO adopted the Convention 189 on Decent Work for Domestic Workers (C189) and Recommendation 201 which are aimed at guaranteeing decent working conditions and pay for domestic workers around the world. To date the Convention has only been ratified by six countries - Philippines, Italy, Mauritius, Bolivia, Nicaragua and Uruguay.
Migrant workers and non-migrant workers who share a home with employers are the most vulnerable among domestic workers. Migrant workers may lack knowledge of local languages and laws and are often are unable to defend themselves from abusive and slavery-like practices, and there are many cases of sexual and/or physical and emotional violence. Salaries are often fixed amounts that ignore the actual number of hours worked, and some employers fail to pay salaries. Sharing a home creates a situation of complete servitude to the employer, as domestic workers must be available whenever they are needed.
The number of domestic workers in Latin America and the Caribbean (LAC) is estimated at 19.6 million, 18 million of which are women.making it the region with one of the highest numbers domestic workers. In recent months, Brazil and Argentina (without having yet ratified Convention 189) have started to address the legal rights of domestic workers, by enacting laws that reflect many of the objectives of the C. 189, recognizing basic rights and trying to make work in private homes more decent and for those who do it.
According to the ILO, seven million people are engaged in domestic work in Brazil, but only 27% of them are formally registered, and until recently domestic workers in Brazil were considered by its Constitution a special category of workers, almost as slaves. But on March 26, 2013, under pressure from union representatives and domestic workers’ federations, the Senate unanimously passed a law expanding their labour rights.
The Constitutional Amendment Bill (PEC in Portuguese) 478/10 guarantees those working in private homes – including among others cooks, gardeners, chauffeurs and carers of children and elderly people -unemployment benefits; 50% overtime pay for night time work; a working day of eight hours maximum and a 44 hour working week and 40% of FGTS(Guarantee Fund for Time of Service) in cases of unjustified dismissal, among other rights. The Constitutional Amendment gives domestic workers similar rights to other Brazilian workers.
According to Eliana Menezes, president of Sindoméstica (Sindicato das Empregadas e Trabalhadores Domésticos - Domestic Employees Union), the passing of the PEC constitutes “the second abolition of slavery” because in Brazil women domestic workers sometimes work 18 hour days and are subjected to the rules imposed by their employers in their homes.
The changes stipulated by the law, could see the cost of having a domestic worker in Brazil increase from between 18% to 40%, depending on their particular status as a worker. Some believe that with the recent economic downturn, this increase could result in greater unemployment for this sector. However, Creuza Oliveira, president of the Federación Nacional de Empleadas Domésticas (National Domestic Employees Federation), is more positive saying, “everybody said it [gaining domestic worker rights in the 1998 Constitution] would cause unemployment, but the number of employees just grew. They always try to scare you like that in the beginning, but then the dust settles down.” 
In Brazil, as in other countries across the region, the intersection of class and race has influenced the lack of regulation for domestic work. Only a few days prior to the PEC vote, human rights organizations and Asociaçao Cultural de Mulheres Negras (ACMUN, Black Women’s Cultural Association) exposed the sexist and racist treatment to which Afro-descendant domestic workers in Brazil before the Inter-American Commission on Human Rights (IACHR), saying that constitutes “aggravated discrimination”. Global Rights and ACMUN “regretted the structural racism in a country where Blacks have become the majority population in the last decade that becomes specially acute against a collective like that of domestic workers”.
On March 13, 2013, the Deputies Chamber voted unanimously on a law to regulate working relationships for private home workers. The new Law 26.844,modifies decree Nº 326/56 passed by dictator Pedro E. Aramburu, which has been in force since 1956 and was used to regulate all domestic work.
According to the national Labour Ministry, there are approximately 1.2 million domestic workers in Argentina, the vast majority of whom are women, and 80% are in precarious working conditions. The situation is similar to Brazil and other countries where situations of servitude and slavery have been documented. More than 80% of domestic workers are not registered on the social security system and they therefore lack access to basic health benefits, protection against dismissal or medical coverage in the event of workplace accidents. By comparison their monthly wages are half that of the average informal worker, and only a quarter of what registered workers earn.
The new law updates and expands domestic workers’ labour rights, including -regulating maternity leave (formerly unrecognized); recognizes paid holidays, a yearly bonus and compensation for dismissal; and restricts working hours to eight per day and 48 per week. For those sharing a home with their employers, night rest is fixed at eight uninterrupted hours; and a day rest of two hours between morning and evening duties is also stipulated. Special leave for marriage, death of a spouse, live-in partner, child or parent is also included.
According to a La Jornadaanalysis, Mexico is carefully watching what might happen in Brazil, and looks likely to make the necessary changes in its legislation that will affect more than 2.3 million domestic workers, most of them women between the ages of 12 and 70.
In June 2011, Mexico was one of the countries that voted in favour of Convention 189 during the International Labour Conference. For more than a year different working women’s associations and unions have been demanding that, together with Convention 189, ILO Conventions 156on equal opportunities and treatment for male and female workers with family responsibilities, and 183on maternity protection also be ratified. In early April 2013, domestic workers protested before the Mexican Senate to demand ratification of ILO Convention 189 and its recommendation as a way to respect their labour rights. Mexico is expected to ratify ILO Convention 189 and Recommendation 201 in June 2013.
Marcelina Bautista, director of Centro de Apoyo y Capacitación para Empleadas del Hogar (Support and Training Centre for Private Homes’ Workers) pointed out, when interviewed by the press, the lack of political will by Senators and the federal government to legislate domestic workers rights. Bautista recalled that the claims are fair working hours; recognition of holidays, non-working days, annual bonus, social security, and retirement; respect for mandatory rest days; compensation for unjustified dismissal; and respectful treatment. The previous labour reform only recognized the right to sleep for eight hours, with working days of 12 hours, making it impossible for domestic workers to aspire to better life conditions, like furthering their education.
But while passing laws to regulate domestic work and recognize their labour rights is a significant step forward, this will not necessarily guarantee implementation. There is no doubt that educating domestic workers about their rights and laws will enable them to expose and defend themselves from injustices that, in the absence of a legal framework, would have gone unpunished.
The Trade Union Confederation of the Americas (TUCA), Comité de Mujeres Trabajadoras de las Américas (CMTA, Americas Working Women Commitee) and the International Trade Union Confederation (ITUC) launched a regional campaign for the ratification of the Domestic Work Convention on August 18, 2011 in Lima, Peru. Ivan Gonzales, ITUC’s Policy Coordinatorpoints out that the Campaign is designed to put pressure on States to ratify the Convention through national laws; to sensitize all legislators and employers; and to integrate this issue in workers’ labour discussions and struggles. It is crucial that politicians understand the importance of the Convention and work towards its ratification. Strategies will include joint actions to advance ratification of Convention 189 in the region and have it effectively enforced once the States adopt it.
For further reading:
 This study excludes child domestic workers younger than 15, estimated by ILO to be about 7.4 million in 2008.
 According to the ILO the numbers in the rest of the world are as follows: Asia and the Pacific 21.4 million; Africa, 5.2 million; developed countries 3.6 million; and Middle East 2.1 million.
 The FGTS provides financial protection to workers in difficult situations, such as dismissal without just cause or occurrence of serious diseases.
 In spanish: Denuncian racismo y sexismo hacia las empleadas domésticas negras en Brasil: http://noticias.terra.com.co/internacional/denuncian-racismo-y-sexismo-h...
 Mexican newspaper: http://www.jornada.unam.mx/2013/04/03/opinion/023a1pol
 Lanzan campaña regional para la ratificación del Convenio sobre trabajo doméstico http://www.ilo.org/americas/sala-de-prensa/WCMS_LIM_2467_SP/lang--es/index.htm"