new convention on the rights of domestic workers be enforced?
This paper is a treatise on the topic of the new Convention on Decent Work for Domestic Workers, established by the International Labour Organization (ILO) in Geneva, Switzerland on June 16, 2011 as ILO Convention 189. The convention may alternately be referred to in literature as the Domestic Workers Convention, 2011 (No. 189). The convention will hereafter be referred to in this document as C189. We will outline and discuss salient issues and challenges surrounding the acceptance and enforcement of C189, a landmark convention in the eyes of many. Although indisputably necessary and essential, C189 has nevertheless been controversial in its content and interpretation, and will continue to be so in upcoming years. C189 will require not only international cooperation for its success, but also the development and ratification of new and advanced provisions in international law. The challenges inherent in this convention include the creation of accepted cross-border reporting and enforcement measures, and also the demand for fundamental changes to certain cultures where long-held traditions and values may need to be overturned in order to conform to the agreement.
As a result of C189, all nations employing cross-border workers for domestic roles will hereafter be subjected to unprecedented worldwide visibility, media attention and judgment in both legal arenas and in the court of public opinion.
In a highly visible coincidence, the dire need for the C189 accord became evident simultaneously with the challenges in its enforcement, with the beheading of an Indonesian maid in Saudi Arabia. This horrific event occurred just two days following the June 2011 vote in favor of C189. The maid in question was believed to have killed her Saudi employer following abusive treatment. Her execution was accompanied by reports from other maids about physical abuse suffered at the hands of their Saudi employers, with reports of burnings, beatings and sexual assaults. A poignant example was made of an earlier case with an Indonesian maid named Keni Binti Carda in 2008, who suffered severe and permanent disfigurement at the hands of a Saudi employer who assaulted her with a hot ironing appliance. Attempts by the governments of Indonesia and the Philippines to protest the foreign mistreatment of their nationals were met with retaliation by Saudi employers, who proceeded to replace Indonesian and Filipino workers with workers from other countries considered to be less likely to protest abusive treatment. The recent and well publicized announcement of C189 failed to prevent these developments (popularly known in the media as the "Saudi Maid Wars"). In fact, it has been speculated that introduction of C189 may well have contributed to spurring retaliation from abusive Saudi employers, who had become accustomed to having their way without repercussion (DeParle, 2011).
In this treatise, we will first provide overviews of the ILO organization and the essential points contained in the C189 agreement. We will discuss several illustrative examples from countries whose workers will be impacted by the Convention, and then outline options and recommendations for how governments, policy makers, and potential new supervisory bodies should act to most effectively realize the intent and provisions of C189.
In order to bring C189 into official legal force and status, a minimum of two upcoming international ratifications are expected to be needed during the upcoming year. At the time of this writing, it is widely anticipated that both ratifications are likely to succeed. However, it is this writer's considered opinion that despite the impending ratification, controversy will continue to persist between governments, employers and the international enforcement bodies about the interpretation of acceptable conformance with the letter and spirit of the C189 convention.
It should be noted that an ancillary agreement, ILO Recommendation No. 201 (hereafter referred to as R201), was simultaneously adopted by the ILO along with C189. R201 may be considered a practical supplement which addresses how to implement the C189 convention's principles, whether through legal avenues and other options. Unlike C189, the R201supplement will not be subject to ratification processes for acceptance (ILO-1, 2011).
Some background about the history of the ILO and its operation may be helpful in clarifying the context of the C189 agreement. As at the time of this writing, the ILO consists of delegates from 183 member countries (or States) worldwide. The ILO membership includes both national and state levels of governments of countries around the world. Its delegates represent worker interests and employer interests from the 183 States, and may include bodies such as trade unions.
The ILO was initially created in 1945 following the end of World War II and included a number of member states at the time of its initiation. Since that time, states that were members of the United Nations (U.N.) were permitted to join the ILO, and other states were permitted join the ILO through the mechanism of a two-thirds vote of all delegates in attendance at an ILO General Conference. The governance of the ILO is carried out by a Governing Body comprised of three types of representatives for governments, workers and employers respectively. The ILO Governing Body currently consists of 28 representatives for governments and 28 representatives for workers and employers. ILO representatives typically occupy their offices for terms of three years (ILO-3, 2011).
With a convention such as ILO C189, each participating country must individually ratify the agreement. When it does so, the government of that country has made a formal commitment to implement the provisions of the convention, and also to report periodically to the ILO about its related status and progress in a mutually agreed way. Implementing the convention is typically accomplished via adaptation or extension of a State's existing laws and regulatory structures, as well as by introducing new measures where necessary in cases where existing legal or policy frameworks do not accommodate specific provisions. It is a common and accepted practice for measures to be implemented progressively over time to achieve conformance with conventions. In the example of C189, many States will need to consider progressive adoption of the convention, depending on their particular starting points and challenges to be overcome in their unique social situations (ILO-1, 2011).
The C189 convention was created by the members of the ILO through an extended effort spanning three years. During this time, ILO members analyzed and documented the ways in which imported domestic workers in various nations were systematically denied benefits that could often be taken for granted by citizens and other classes of workers. The benefits involved include labor standards, human rights and other legal protections related to different forms of physical and psychological abuse, and personal safety. The following set of excerpts summarize the core of the domestic worker rights covered by C189, which will serve as a reference basis for our continuing discussion:
1. Each Member shall take measures to ensure the effective promotion and protection of the human rights of all domestic workers, as set out in this Convention.
2. Each Member shall, in relation to domestic workers, take the measures set out in this Convention to respect, promote and realize the fundamental principles and rights at work, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.
3. In taking measures to ensure that domestic workers and employers of domestic workers enjoy freedom of association and the effective recognition of the right to collective bargaining, Members shall protect the right of domestic workers and employers of domestic workers to establish and, subject to the rules of the organization concerned, to join organizations, federations and confederations of their own choosing.
1. Each Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), and not lower than that established by national laws and regulations for workers generally.
2. Each Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to participate in further education or vocational training.
Each Member shall take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence.
Each Member shall take measures to ensure that domestic workers, like workers generally, enjoy fair terms of employment as well as decent working conditions and, if they reside in the household, decent living conditions that respect their privacy." (Morel, 2011)
Kapatamoyo (2011) summarized that the C189 convention "establishes the first global standards for the estimated 50 to 100 million domestic workers worldwide, the vast majority of whom are women and girls." Morel (2011) of the International Law Observer provides a qualified corroboration that while…