How Could the New Covenant on the Rights of Domestic Workers Be Enforced?

¶ … 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:

"Article 3

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.

Article 4

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.

Article 5

Each Member shall take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence.

Article 6

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 current estimates indicate the number of international domestic workers to be approximately 53 million, caution is warranted due to the uncertainty involved in the estimating procedure and the quantity of unregistered parties. The actual number of affected workers could easily be closer to 100 million. This uncertainty may be exacerbated by the fact that over 80 per cent of the workers affected consist of young girls and women without official status, providing an added barrier to their being fully represented in data and estimates currently available.

C189 is a historic 2011 accord. It was accepted through overwhelming acceptance by 475 delegates representing international governments, employers, and employees. The June 16, 2011 voting results included 396 in favor of the convention, 16 in opposition, and 63 abstentions (Kapatamoyo, 2011). In terms of the positions of nations worldwide, strong advocates for the convention included South Africa, Brazil, the United States and Australia. All opponents to acceptance of the convention were from the nation of Swaziland. Countries abstaining from the vote included the Czech Republic, the United Kingdom, and several nations in Southeast Asia, Central America, and Africa. It is noteworthy that members of the nine-member Gulf Cooperation Council, which included Saudi Arabia, were initially opposed to C189 but later reversed their positions and indicated support of legally binding conventions, as a result of negotiations preceding the final vote (Human Rights Watch, 2011).

In view of the severe violations in Saudi Arabia such as the Carda case and others, the persuasive power of C189 resulting from international visibility and pressure is evident in the Saudi government's concession to accept the Convention in principle, despite the vehement opposition shown by some parties within that nation. Where the act will be truly tested is in the actual compliance observed at the working levels of employers and employees in years to come. The Indonesian Maid Wars in Saudi Arabia following the June 2011 vote favoring C189 serve to provide ample evidence of the deep-seated resistance and long-held cultural values that C189 seeks to unseat. Such a transformation is unlikely to occur instantaneously, despite the formal ratification by a nation's government. Should there be any doubt of this assertion, one need only look to the example of the continuing persistence of centuries-old caste discrimination in modern India, more than a half-century after that system was officially outlawed by the Indian constitution of 1949.

The fact that children comprise over 30 per cent of domestic workers worldwide helps to account for the emphasis accorded in C189 to address their plight. In addition to the general provisions for all domestic workers, Articles 3(2c), 4(1) and 4(2) of C189 address several specific areas of concern focused upon children and underage workers in general. Human Rights Watch (2011) reports that child domestic workers worldwide may work for over fifteen hours per day for seven days a week, beginning as young as six years of age. In some areas, less than 3 per cent of child domestic workers were found to receive the benefit of schooling. Supervision and monitoring to prevent and handle cases of physical abuse and sexual assault upon child workers is generally not in place in many nations.

We will now survey examples of responses to ILO C189 in the context of human rights law in several prominent employer nations, as well as several nations providing migrant domestic workers to those employers. C189 is needed to address migrant domestic worker mistreatment in most countries around the world, regardless of their economic or political stature. So-called first world countries such as the United States, Saudi Arabia and the United Kingdom have been no less immune to domestic worker abuse issues than other less prominent nations such as Malaysia, Lebanon and Jordan.

Zambia is an example of a country that provides many domestic workers internationally and also employs imported domestic workers. It has moved aggressively to educate its migrant domestic worker population about their rights related to decent work conditions, as well as the avenues available to them for recourse in the event they encounter mistreatment internally or in foreign lands. Zambia has introduced legislation ensuring the entitlement minimum wages for its domestic workers for the first time in its history, via The Minimum Wages and Conditions of Employment Act (Cap 276). Cap 276 provides a working definition of a Zambian domestic worker as "a person who takes care of a child, an aged person, a sick person, a frail person or a person with a disability within a household. Gardeners and those paid to do household chores are also classified as domestic workers." The Zambian legislation further specifies limitations upon hours of work and gives guidelines for separation payments and transportation allowances (Kapatamoyo, 2011). Supplementing the Zambian Cap 276 legislation are a number of easily accessible resources which can be accessed and used by the public, including both employers and domestic workers. An online survey checklist under the title of "Decent Work Check" enables quantification of how well an employer complies with the national legal work standard. The Zambian Decent Work Check survey and publicity program helps the civilian population understand the legally worded Conventions, to allow them to grasp what worker rights mean in actual practice, what protections are available, and what entitlements to recourse and recompense apply to specific situations they may encounter. A supplement to the survey urges workers to compare their own situations with the parameters set out by the international standard and the legal provisions specific to Zambia. It educates workers about the ILO Conventions (including C189 and its predecessors), and informs them about the ongoing talks and negotiations taking place on their behalf between ILO member governments, employers, labor lawyers, trade unions and other organizations. Zambian domestic workers are thus more informed about what the ILO Convention means to them, and what they may expect in terms of its authority and enforceability; an ILO Convention such as C189 is not in itself a law, but a commitment that is ratified by a national government, which then creates conforming laws that can be applied and enforced within its jurisdictions.

Prior to C189, the ILO embarked on several efforts of a similar nature which in retrospect lacked the strength and international commitment to achieve the desired effects. For example, in 1999 the ILO published a so-called Decent Work Agenda, which has since been widely accepted at a strategic level including incorporation into the goals of the United Nations. C189 serves to emphasize that employer nations can do more to improve their performance by ensuring they provide minimum protections that do not amount to less than the Convention specifies. The Convention establishes the minimum standard, and States are encouraged to do more, as appropriate to their respective situations and values.

The Philippines supplies a significant number of domestic workers internationally, the majority of which have historically been female. According to a 2010 study by the Philippine Overseas Employment Administration (POEA), approximately 100,000 Filipinos were employed overseas as domestic workers, of which less than two per cent were male. Top destinations for Filipino domestic workers have included Hong Kong and the Middle East including the countries of Kuwait, Qatar, Saudi Arabia, and the United Arab Emirates. Internally, the Bureau of Labor and Employment Statistics estimated that nearly two million households within Philippine borders also retained domestic workers in 2011. With such a vested interest in the welfare of domestic workers within and outside its borders, the Philippines has played a leading role in the promotion and development of C189. It has led the international field in ratification of C189, which it views as the provision of all household workers with standardized labor rights including normalized work hours, entitlement to periods of rest and periodic paid leave, decent working conditions and accommodations, social freedoms, and access to collective bargaining. At the same time, the Philippine government is realistic and well aware of the issues and challenges to implementation of C189. They have noted the arguments and protests expected internally from Philippine employers, as well as the significance of the high count of 63 abstentions by voting delegates for C189. The undersecretary of the Philippine Department of Labor and Employment noted that 30 per cent of the membership of Southeast Asian Nations (ASEAN) had abstained from the vote, including the countries of Singapore, Thailand and Malaysia. Another ILO representative, Amelia King-Dejardin, pointed out that over 40 per cent of the world's supply of domestic workers originate in Asia. She emphasized the importance of ASEAN member participation and support, acknowledging that as a major originator of the world's migrant domestic workers, Asia must not fail to push for the ratification of C189, lest it erode its position regarding their protection and rights. Dejardin aptly summarized that "Asia would have no moral ground over the matter if we cannot take care of our own" (Diquino, 2011).