Company chastised for suing Malaysia rights lawyer (AP)

Associated Press

Company chastised for suing Malaysia rights lawyer

By SEAN YOONG , 06.23.11, 05:33 AM EDT

KUALA LUMPUR, Malaysia -- A company's multimillion-dollar lawsuit against a rights lawyer who complained about how it treated migrant workers in Malaysia could scare activists across the country into silence, an international rights group warned Thursday.

The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding 10 million ringgit ($3.3 million) in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation.

Hearings are scheduled to begin June 28.

Human Rights Watch complained about the large sum the company is seeking, saying it could "intimidate labor and human rights defenders all over Malaysia."

"A company's right to protect its reputation should not become a way to cut off important discussions of matters of public concern," the New York-based group said in a statement.

Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case.

Activists have long voiced concerns about the living conditions of hundreds of thousands of migrant laborers who mainly have menial jobs in Malaysian factories, plantations, construction sites and restaurants. Most are from poorer countries in Asia such as Indonesia, the Philippines and Bangladesh.

"Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers," Human Rights Watch said.

Asahi Kosei did not appear to dispute Hector's claim of rights abuses involving the workers but asserted he was wrong about the company's relationship with the workers, Human Rights Watch said.

The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers.

The Malaysian Bar Council, which comprises thousands of lawyers, expressed support earlier this year for Hector, saying Asahi Kosei's lawsuit was "a deplorable and coercive act." - Forbes.com, 23/6/2011, Company chastised for suing Malaysia rights lawyer

Outsourcing Agents and their Practices: An ‘Illegality’ and Injustice That Must End

Outsourcing Agents and their Practices: An ‘Illegality’ and Injustice That Must End

-Employment Relationships Must Respects Worker Rights Guaranteed By Law -

A worker who works in a factory, under the supervision and control of the employer using the tools provided by the factory or workplace, just like every other worker in the factory, and is remunerated for the work he does at the factory, is alleged to be not employed by the owner of the factory or the workplace but by some third party.

In Malaysia, we have the outsourcing agent and/or outsourcing company (hereinafter referred to as ‘outsourcing agents’), and they supply workers to factories, plantation companies, construction companies and all sorts of different workplaces to people who own and control these workplaces (hereinafter referred to as ‘company’), and the workers supplied allegedly remain the workers of the outsourcing agents, and not become the workers of the company that they work at. This practice is odd, and differs from the practice employed by private employment agencies and/or ‘head hunters’.

For the work done, the factory pays this outsourcing agent party a sum of monies which is calculated based on the days/hours of work, overtime, work on rest day and/or public holidays and which shift the said individual worker worked. The outsourcing agent, after taking their share pays the worker their wages. As an example, for an 8 hour day the worker works, the company pays the outsourcing agent RM40, and he pays the worker the sum of RM20 only, whereby sometimes the outsourcing agent may be taking more than 50% of what the company pays for the work done by the worker. The more the worker works, the more the outsourcing agent gets.

In Malaysia, is that these practices that previously were used for migrant workers, is now also being used for local workers, including workers from Sarawak and Sabah. Many employers, rather that going for direct employment are starting to use workers supplied by these outsourcing agents, in order to avoid employment relationships with their workers, and thus also the duties and obligations imposed by law on employers, including ensuring that workers do enjoy minimum legally guaranteed rights as provided for in Employment Act 1955 and other laws in Malaysia. Outsourcing agents have been marketing this practice saying that in this way companies need focus only on their business, without having to worry about their workers.

In this article, we would be considering, amongst others, (a) whether the outsourcing agent is legal , (b) whether what is being practiced by these outsourcing agents, companies and workers is legal, and (c) proposals about how to bring about more just situation especially for all workers in Malaysia.

Dawn of the ‘outsourcing’ concept

On 5/7/2005, the Cabinet Committee on Migrant Workers decided to allow the employment of migrant workers using the outsourcing concept[i] . It was not just about the supply of migrant workers to company, but also the outsourcing of the management of certain matters related to the employment of migrant workers including accommodation, transportation, paying wages, medical examination and also the obligations to get the necessary insurance coverage for these workers. It was primarily intended for smaller companies who may lack the necessary resources to manage migrant workers full time, and also for bigger companies who may have a sudden need for extra workers by reason of peak seasonal harvest. There was no indication about any usurping of the role of employer from the companies these workers were supplied to, but it was more about outsourcing some of the obligations an employer of migrant workers had.

But alas, the practices of these outsourcing agents seems to have gone far beyond what was envisioned, and they started giving the false impression that companies that used these workers did in fact avoid employment relationships, and would not be compelled to adhere to any of the duties and obligations of employers as per law, including ensuring that all these workers enjoyed the full rights provided for workers in Malaysian law.

The intention of the government seem to have been not to make these outsourcing agents employers, but mere suppliers of workers, who may also possibly assist employers with some of their obligations to their migrant workers. The employer’s responsibility would still be with the company, and these outsourcing agents would be just agents of the employers taking care of, amongst others, accommodation, transportation, medical check-ups, getting the necessary insurances for workers and payment of wages. Our Deputy Prime Minister, after chairing the cabinet committee on foreign labour and illegal foreign workers, was reported in May 2010 as saying "We feel that employers are the people who should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility."[ii]

The government of the day is also bound by existing law, and decisions that they do make that are contrary to existing law will still be null and void ab initio. Likewise, any actions that are done in reliance of such decisions are also null and void.

Legality of Outsourcing Agents

What outsourcing agents do is basically is find and supply workers to companies, who then work at the company, and that would make a outsourcing agent a ‘contractor for labour’. When we look at the Employment Act 1955, we find that there is no provision for ‘contractor for labour’, only ‘sub-contractors for labour’ which is defined as “… any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be”[iii] This does not assist in legalizing outsourcing agents as they supply workers to the company, the principal not a contractor or a sub-contractor.

The Malaysian government came to a realization that these outsourcing agents were illegal, and tried to introduce ‘contractors for labour’ into our employment laws, vide D.R.25/2010 Employment (Amendment) Bill 2010, that was tabled in Parliament in July 2010. But following protests from many quarters including the trade union movement [iv], the said Bill was withdrawn in October 2010[v]. In any event, even if that Bill had become law, it would not have had any retrospective effect and could not have legalized, what was now already admitted indirectly by the government as being illegal. Hence, outsourcing agents are still illegal today.

Another act of relevance would be the Private Employment Agencies Act 1981, and the definition section[vi] could have covered outsourcing agents. Migrant workers could also be covered as the definition of worker[vii] does not distinguish between local or foreign worker. What is good about this law is that the fees[viii] are fixed by law, and it is cannot be arbitrarily decided by Employment Agencies. Even if, these outsourcing agents came into being pursuant to this Act, then still what they are practicing in respect the monies that they are getting from workers and/or their employers would certainly be a breach of this law.

Legality of the Practices of Outsourcing Agents and Companies

With the advent of our Employment Act 1955, dawned a new era of a more just employment relationship and worker rights in Malaysia. Third parties and middle men involvement in employment relationships ended, and the only permitted relationship was a direct employer-worker employment relationship.

The Act also provided for a secure permanent employment relationship until retirement, which could be prematurely ended by very clear ways, being, the resignation of the worker, the closure of the company, the cessation or changes in the company’s operations that brought about redundancy and hence retrenchment and/or lay-offs, and by reason of a misconduct committed by the worker whereby termination would first require due process – a domestic inquiry. Even in cases of retrenchment not because of closure, there is an onus placed on the employer to find some other suitable alternative work in the company before ending the employment relationship. The law also provides for termination and lay-off benefits, whereby the quantum depends on the number of years of employment.

Employment Act 1955 also introduced minimum worker rights and employer obligations, and if an employment contract (contract of service) or an agreement provide for less favourable terms than what is provided by this law, then the more favourable terms in Employment Act prevails.[ix]

In the case of the practices employed by some outsourcing agents and companies, workers seem to be paid only for the day/hours that they work, but they do not get the other rights like paid one rest day per week, paid annual leave, paid public holidays, paid sick/hospitalization leave and maternity leave and benefits, and as such this is contrary to law.

These practices also often result in discrimination at the workplace, whereby workers supplied by these outsourcing agent are also treated differently and worse than other workers at the same company, and this, I believe, is also contrary to Article 8 of the Federal Constitution which guarantees equality to all persons.[x] This concern about non-discrimination at the workplace is something that Parliament felt important so much so to insert by amendment prohibition against discrimination on the basis of whether one is a local worker or migrant worker.[xi] Surely, this current discrimination against workers supplied by outsourcing agents, who are both local and migrant workers, is something that Malaysia will not be able to stomach.

As mentioned earlier, there can be no more middle-person in an employment relationship, and as such this also makes the practices of employment agents and companies also wrong in law.

Negative implication to workers and their unions

The practices employed by some outsourcing agents and companies is also detrimental to other workers and/or their unions, as this will certainly decrease the bargaining powers when it comes to disputes between employers and workers, and also when ironing out new collective agreements. For the company, outsourcing workers are taken as not being their workers, hence they would also most likely not be allowed to form and/or join unions, or participate in any negotiations and worker actions to get better terms and conditions for workers in the company.

Even when these workers supplied by outsourcing agents do complain and claim their rights, it so easy for the company to ‘terminate’ and get rid of them. No due process is needed, and all they need to do is get the outsourcing agent to take the worker away as the company no longer wants the said worker.

A strike and/or a protest also would also become less effective as more and more workers working at companies are getting supplied by outsourcing agents, and these workers are just too scared to stand up for rights for fear of losing their jobs at the company which can be done easily without any requirement of due process or domestic inquiries.

Attempts to evade employment relationship is not peculiar to Malaysia

The use of various arrangements and practices to evade or disguise employment relationship is something that is happening in many countries, and is a serious concern that has even led the International Labour Organisation (ILO) to respond by coming out with R198 Employment Relationship Recommendation, 2006.

ILO’s wants, amongst others, to “combat disguised employment relationships in the context of, for example, other relationships that may include the use of other forms of contractual arrangements that hide the true legal status, noting that a disguised employment relationship occurs when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as an employee, and that situations can arise where contractual arrangements have the effect of depriving workers of the protection they are due… Where there has been an attempt to disguise the employment relationship, there is a particular danger that workers will be deprived of the protections due to them.[xii]

ILO also has labored to provide guidelines that could be used counter or unmask attempts to evade employment relationships so that worker rights can continue to be recognized and protected.

Unmasking The Disguises – Examples from other jurisdictions

In United Kingdom, in the Dacas case[xiii], which involved a worker, an employment agency [Brook Street] that supplied the worker, and the end user [Wandsworth Borough Council (the Council)], the Court of Appeal had this to say:-

The totality of the triangular arrangements may lead to the necessary inference of a contract between such parties, when they have not actually entered into an express contract, either written or oral, with one another. Although there was no express contract between the applicant [worker] and the end-user [the Council] in this case, that absence does not preclude the implication of a contract between them…. There may be an implied contract, which may be characterised as a contract of service or as a contract for services…. That control was exercised by the Council, which supplied her clothing and materials and for whom she did the work. The fact that Brook Street agreed to do some things that an employer would normally do (payment) does not make it the employer…

The Court of Appeal in the Cable & Wireless PLC case[xiv] confirming earlier case law in favour of implying a contract of employment as a matter of necessity (Dacas v. Brook Street Bureau (UK) Ltd. [2004] IRLR 359), the Court of Appeal enforced a mutuality test having two elements for deciding who is an employee in situations where there is a chain of relationships and triangular relationships. The two elements are, on the one hand, an obligation to provide work and, on the other hand, an obligation to perform it coupled with control; it does not matter whether the arrangements for paying are made directly or indirectly (as in the facts of this case, through an intermediary firm that paid invoices submitted to it). An implied contract did exist between the worker and the end user, because the Cable & Wireless company was obliged to provide Mr. Muscat with work and Mr. Muscat was obliged attend the premises and do the work subject to the control of the company’s management.[xv]

In Canada, perhaps the most frequently cited “test” of who is an “employee” in Canadian employment jurisprudence was first articulated by Lord Wright in a Privy Council decision in Montreal v. Montreal Locomotive Works Ltd. et al., [1937] 1 D.L.R. 161 at p. 169 (P.C.), where he stated: “In earlier cases, a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive.... In many cases, the question can only be settled by examining the whole of the various elements which constitute the relationship between the parties.”[xvi]

The Japanese courts have judged that there exits an employment relationship when the actual work circumstance lends itself to an employment relationship regardless of the provisions of the contract (SAGA TV Case: Fukuoka High Court Judgment 7 July 1983, Hanrei Jiho No.1084, p.126; SEN-EI Case: Saga District Court Takeo Branch Judgment 28 March 1997, Rodo Hanrei No.719, p.38).[xvii]

Following these decisions, the courts in Malaysia, I believe, would most likely come to a similar conclusion that it is the company that is the employer, not the outsourcing agent.

When Immigration Department and official documents clouds the truth

In Malaysia, one other document that attempts to disguise employment relationship is the Multiple Entry Visa or Work Pass/Visa issued by the Immigration Department to the migrant worker which now states that the worker is employed as ‘Outsourced Worker’ in which sector with ‘[name of the outsourcing agent]’ at ‘[address of the outsourcing agent]’. It is also interesting that in the past, if migrant workers were found to be working at another company and address, they would most likely be arrested and action taken against them because they have violated the conditions of the work pass/visa.

Surely, this document issued by a Department under the Ministry of Home Affairs, not even the Human Resource Minister, can be relied on for the determination of who is the real employer of a particular worker.

‘Illegal’ Unjust Practices Must End

It is sad that this practice of outsourcing agents and companies, that have attempted to avoid employment relationships have been allowed to exist for so long without any legal challenge. This was most probably because earlier on most of these ‘outsourced workers’ had been migrant workers, and even if they tried to claim their rights, they would have most likely been terminated and sent back quickly to their home country. Sadly, there is still no clear provision in Malaysia’s Employment Act 1955, like the one found in the Industrial Relations Act 1967[xviii] , that prohibits employers from discriminating against and/or terminating workers that resort to claiming their rights, be it to the employer or by utilizing some other legal avenue of access to justice like the Labour Department. It is a good thing though that same Labour Departments, when they do receive complaints from even ‘outsourced workers’ do consider the company as employer, and the outsourcing agent as agent.

The lack of transparency in our government is also a problem, for even this decision to allow this ‘outsourcing’ concept by the Cabinet Committee in July 2005 comes to light in a report only in 2007. Malaysia should try emulating neighboring Thailand, where every Cabinet decisions are immediately published and made available to the public as Cabinet Resolutions.

Malaysian Trade Union Congress (MTUC)[xix], and other groups have been calling for an end to outsourcing agents and their practices for many years but to no avail. Workers and unions are losing out, as the Malaysian government becomes more pro-employer. The government do have meetings with employers and workers representatives, being the Malaysian Employers Federation (MEF) and MTUC[xx], but today whilst workers are still being represented by one organization, whilst employers are represented by many more organisations, and this certainly unjust to workers.

The outsourcing practices certainly benefits employers to the detriment of workers. Government’s statement about 10 months ago that employers should be fully responsible for their workers, not outsourcing agents have not been followed up with necessary actions and enforcement to end these continuing practices that attempt to avoid and/or disguise employment relationships.

The Way Forward

It is sad that there may be over 200 outsourcing agents in Malaysia, which as was pointed earlier are not only illegal in being, but also by reason of the practices they employ. Short of eliminating them completely, the only solution may be to bring them under the Private Employment Agencies Act, which would mean that their role is would be restricted to just supplying workers to companies, who would then enter into a transparent direct employment relationship with these workers.

Statements of intentions alone is insufficient. What we need is immediate action for the good of all workers in Malaysia, both local and migrant workers, to ensure that justice be done. As a caring nation that upholds the law, what is illegal and unjust must be reaped out and trashed.

Charles Hector

23 March 2011

---

[i] Contracts of Employment in Malaysia and the role of Trade Unions by Bruno Periera, citing as source the Report of the Round Table Conference on Migrant Workers in Malaysia 5/4/2007 ISMK-KSM. The reference of the Minutes of the Cabinet Committee on Migrant Workers was 33^rd (JKK-PA) Bil. 2/2005.

[ii] New Straits Times, 21/5/2010, Higher levies for foreign workers

[iii] Section 2(1) Employment Act 1955

[iv] Labour law amendments by Syed Shahir Syed Mohamud (ALIRAN Monthly) Syed Shahir Syed Mohamud is president of the Malaysian Trades Union Congress. (MTUC) delivered this speech at a public forum ‘Labour Law Amendments? – What does it mean to you?’, organized by the Bar Council in Kuala Lumpur on 21 August 2010..

[v] Star,13/10/2010, Employment Bill withdrawn

[vi] Section 3 Private Employment Agencies Act 1981 , private employment agency" means - (a) an employment agency conducted with a view to profit, that is to say, any person, company, institution, agency or other organisation which acts as intermediary for the purpose of procuring employment for a worker or supplying a worker for an employer with a view to deriving either directly or indirectly any pecuniary or other material advantage from either employer or worker; the expression does not include newspapers or other publications unless they are published wholly or mainly for the purpose of acting as intermediaries between employers and workers; (b) an employment agency not conducted with a view to profit, that is to say, the placing services of any company, institution, agency or other organisation which, though not conducted with a view to derive any pecuniary or other material advantage, levies from either employer or worker from the above service an entrance fee, a periodical contribution or any other charge;

[vii] Section 3 Private Employment Agencies Act 1981, "worker" means any person who works for hire or reward, whether as apprentice or not, and includes any person seeking such work.

[viii] Section 14(1) Employment Agencies Act 1981, “No private employment agency shall charge for any service rendered a fee other than or in excess of that prescribed in the Schedule and for every fee received a receipt shall be issued.” And currently, it is (iv)Placement Fees (i) Fee charged for local placement Not more than 20% of initial month's pay (ii) Fee charged for overseas placement Not more than 25% of initial month's pay; Provided where employers have already paid the agency for the services rendered, the worker shall not be charged on placement.

[ix] Section 7 and 7A Employment Act 1955

[x] Art 8(1) Federal Constitution - All persons are equal before the law and entitled to the equal protection of the law.

[xi] Section 60L Employment Act 1955

[xii] see also The Employment Relationship: An annotated guide to ILO Recommendation No. 198.

[xiii] Dacas v. Brook Street Bureau (UK) Ltd. [2004] IRLR 359 (Court of Appeal)

[xiv] Cable & Wireless PLC v. Muscat [2006] IRLR 355

[xv] Paragraph copied almost in toto from The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xvi] Paragraph copied almost in toto from The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xvii] The Employment Relationship: An annotated guide to ILO Recommendation No. 198

[xviii] Industrial Relations Act 1967, Section 5(1) “…No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall -… (c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union; (d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman - (i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or (ii) participates in the promotion, formation or activities of a trade union;..”

[xix] Malaysian Insider, 15/7/2008, MTUC wants licences of companies outsourcing foreign workers withdrawn, "MTUC has repeatedly called on the government to ban the foreign workers outsourcing system which has subjected workers brought into the country to extreme hardship.”

[xx] MTUC represents less than 8% of the total workforce, and only a few of the 1.9 million migrant workers are members of unions.

[An article from Malaysian Bar's Praxis April-June 2011 Issue]

ILO Convention No. 189 - Convention Concerning Decent Work For Domestic Workers

100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards

The government, worker and employer delegates at the 100th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide.

Press release | June 16, 2011

GENEVA, (ILO News) – The government, worker and employer delegates at the 100^th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide...

...Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919...(full text of press release below)

CONVENTION CONCERNING DECENT WORK FOR DOMESTIC WORKERS

The General Conference of the International Labour Organization,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 100th Session on 1 June 2011, and

Mindful of the commitment of the International Labour Organization to promote decent work for all through the achievement of the goals of the ILO Declaration on Fundamental Principles and Rights at Work and the ILO Declaration on Social Justice for a Fair Globalization, and

Recognizing the significant contribution of domestic workers to the global economy, which includes increasing paid job opportunities for women and men workers with family responsibilities, greater scope for caring for ageing populations, children and persons with a disability, and substantial income transfers within and between countries, and

Considering that domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights, and

Considering also that in developing countries with historically scarce opportunities for formal employment, domestic workers constitute a significant proportion of the national workforce and remain among the most marginalized, and

Recalling that international labour Conventions and Recommendations apply to all workers, including domestic workers, unless otherwise provided, and

Noting the particular relevance for domestic workers of the Migration for Employment Convention (Revised), 1949 (No. 97), the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Workers with Family Responsibilities Convention, 1981 (No. 156), the Private Employment Agencies Convention, 1997 (No. 181), and the Employment Relationship Recommendation, 2006 (No. 198), as well as of the ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration (2006), and

Recognizing the special conditions under which domestic work is carried out that make it desirable to supplement the general standards with standards specific to domestic workers so as to enable them to enjoy their rights fully, and

Recalling other relevant international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Convention against Transnational Organized Crime, and in particular its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and

Having decided upon the adoption of certain proposals concerning decent work for domestic workers, which is the fourth item on the agenda of the session, and

Having determined that these proposals shall take the form of an international Convention;

adopts this sixteenth day of June of the year two thousand and eleven the following Convention, which may be cited as the Domestic Workers Convention, 2011.

Article 1

For the purpose of this Convention:

(a) the term “domestic work” means work performed in or for a household or households;

(b) the term “domestic worker” means any person engaged in domestic work within an employment relationship;

(c) a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.

Article 2

1. The Convention applies to all domestic workers.

2. A Member which ratifies this Convention may, after consulting with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, exclude wholly or partly from its scope:

(a) categories of workers who are otherwise provided with at least equivalent protection;

(b) limited categories of workers in respect of which special problems of a substantial nature arise.

3. Each Member which avails itself of the possibility afforded in the preceding paragraph shall, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organisation, indicate any particular category of workers thus excluded and the reasons for such exclusion and, in subsequent reports, specify any measures that may have been taken with a view to extending the application of the Convention to the workers concerned.

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.

Article 7

Each Member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements, in particular:

(a) the name and address of the employer and of the worker;

(b) the address of the usual workplace or workplaces;

(c) the starting date and, where the contract is for a specified period of time, its duration;

(d) the type of work to be performed;

(e) the remuneration, method of calculation and periodicity of payments;

(f) the normal hours of work;

(g) paid annual leave, and daily and weekly rest periods;

(h) the provision of food and accommodation, if applicable;

(i) the period of probation or trial period, if applicable;

(j) the terms of repatriation, if applicable; and

(k) terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.

Article 8

1. National laws and regulations shall require that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer, or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies.

2. The preceding paragraph shall not apply to workers who enjoy freedom of movement for the purpose of employment under bilateral, regional or multilateral agreements, or within the framework of regional economic integration areas.

3. Members shall take measures to cooperate with each other to ensure the effective application of the provisions of this Convention to migrant domestic workers.

4. Each Member shall specify, by means of laws, regulations or other measures, the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited.

Article 9

Each Member shall take measures to ensure that domestic workers:

(a) are free to reach agreement with their employer or potential employer on whether to reside in the household;

(b) who reside in the household are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and

(c) are entitled to keep in their possession their travel and identity documents.

Article 10

1. Each Member shall take measures towards ensuring equal treatment between domestic workers and workers generally in relation to normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave in accordance with national laws, regulations or collective agreements, taking into account the special characteristics of domestic work.

2. Weekly rest shall be at least 24 consecutive hours.

3. Periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work to the extent determined by national laws, regulations or collective agreements, or any other means consistent with national practice.

Article 11

Each Member shall take measures to ensure that domestic workers enjoy minimum wage coverage, where such coverage exists, and that remuneration is established without discrimination based on sex.

Article 12

1. Domestic workers shall be paid directly in cash at regular intervals at least once a month. Unless provided for by national laws, regulations or collective agreements, payment may be made by bank transfer, bank cheque, postal cheque, money order or other lawful means of monetary payment, with the consent of the worker concerned.

2. National laws, regulations, collective agreements or arbitration awards may provide for the payment of a limited proportion of the remuneration of domestic workers in the form of payments in kind that are not less favourable than those generally applicable to other categories of workers, provided that measures are taken to ensure that such payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable.

Article 13

1. Every domestic worker has the right to a safe and healthy working environment. Each Member shall take, in accordance with national laws, regulations and practice, effective measures, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers.

2. The measures referred to in the preceding paragraph may be applied progressively, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 14

1. Each Member shall take appropriate measures, in accordance with national laws and regulations and with due regard for the specific characteristics of domestic work, to ensure that domestic workers enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection, including with respect to maternity.

2. The measures referred to in the preceding paragraph may be applied progressively, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 15

1. To effectively protect domestic workers, including migrant domestic workers, recruited or placed by private employment agencies, against abusive practices, each Member shall:

(a) determine the conditions governing the operation of private employment agencies recruiting or placing domestic workers, in accordance with national laws, regulations and practice;

(b) ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers;

(c) adopt all necessary and appropriate measures, within its jurisdiction and, where appropriate, in collaboration with other Members, to provide adequate protection for and prevent abuses of domestic workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations that specify the respective obligations of the private employment agency and the household towards the domestic worker and provide for penalties, including prohibition of those private employment agencies that engage in fraudulent practices and abuses;

(d) consider, where domestic workers are recruited in one country for work in another, concluding bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment; and

(e) take measures to ensure that fees charged by private employment agencies are not deducted from the remuneration of domestic workers.

2. In giving effect to each of the provisions of this Article, each Member shall consult with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers.

Article 16

Each Member shall take measures to ensure, in accordance with national laws, regulations and practice, that all domestic workers, either by themselves or through a representative, have effective access to courts, tribunals or other dispute resolution mechanisms under conditions that are not less favourable than those available to workers generally.

Article 17

1. Each Member shall establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers.

2. Each Member shall develop and implement measures for labour inspection, enforcement and penalties with due regard for the special characteristics of domestic work, in accordance with national laws and regulations.

3. In so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18

Each Member shall implement the provisions of this Convention, in consultation with the most representative employers’ and workers’ organizations, through laws and regulations, as well as through collective agreements or additional measures consistent with national practice, by extending or adapting existing measures to cover domestic workers or by developing specific measures for them, as appropriate.

Article 19

This Convention does not affect more favourable provisions applicable to domestic workers under other international labour Conventions.

Article 20

The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.

Article 21

1. This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered with the Director-General of the International Labour Office.

2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification is registered.

Article 22

1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention within the first year of each new period of ten years under the terms provided for in this Article.

Article 23

1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organization of the registration of all ratifications and denunciations that have been communicated by the Members of the Organization.

2. When notifying the Members of the Organization of the registration of the second ratification that has been communicated, the Director-General shall draw the attention of the Members of the Organization to the date upon which the Convention will come into force.

Article 24

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and denunciations that have been registered.

Article 25

At such times as it may consider necessary, the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 26

1. Should the Conference adopt a new Convention revising this Convention, then, unless the new Convention otherwise provides:

(a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention,notwithstanding the provisions of Article 22, if and when the new revising Convention shall have come into force;

(b) as from the date when the new revising Convention comes into force, this Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 27

The English and French versions of the text of this Convention are equally authoritative.

Source: ILO Website

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Press release | June 16, 2011

GENEVA, (ILO News) – The government, worker and employer delegates at the 100^th annual Conference of the International Labour Organization (ILO) on Thursday, 16 June adopted a historic set of international standards aimed at improving the working conditions of tens of millions of domestic workers worldwide.

“We are moving the standards system of the ILO into the informal economy for the first time, and this is a breakthrough of great significance,” said Juan Somavia, ILO Director-General. “History is being made.”

Conference delegates adopted the Convention on Domestic Workers (2011) by a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. The ILO is the only tripartite organization of the UN, and each of its 183 Member States is represented by two government delegates, and one employer and one worker delegate, with an independent vote.

The two standards will be the 189th Convention and the supplementing 201^st Recommendation adopted by the Labour Organization since its creation in 1919. The Convention is an international treaty that is binding on Member States that ratify it, while the Recommendation provides more detailed guidance on how to apply the Convention.

The new ILO standards set out that domestic workers around the world who care for families and households, must have the same basic labour rights as those available to other workers: reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, as well as respect for fundamental principles and rights at work including freedom of association and the right to collective bargaining.

Recent ILO estimates based on national surveys and/or censuses of 117 countries, place the number of domestic workers at around 53 million. However, experts say that due to the fact that this kind of work is often hidden and unregistered, the total number of domestic workers could be as high as 100 million. In developing countries, they make up at least 4 to 12 per cent of wage employment. Around 83 per cent of these workers are women or girls and many are migrant workers.

The Convention defines domestic work as work performed in or for a household or households. While the new instruments cover all domestic workers, they provide for special measures to protect those workers who, because of their young age or nationality or live-in status, may be exposed to additional risks relative to their peers, among others.

According to ILO proceedings, the new Convention will come into force after two countries have ratified it.

“Bringing the domestic workers into the fold of our values is a strong move, for them and for all workers who aspire to decent work, but it also has strong implications for migration and of course for gender equality,” Mr. Somavia said.

In its introductory text, the new Convention says that “domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and work, and to other abuses of human rights.”

Michelle Bachelet, Executive Director of UN Women, in her address to the Conference Committee, said that the deficit of decent work among domestic workers “can no longer be tolerated,” adding that UN Women would support the process of ratification and application of the new ILO instruments.

“We need effective and binding standards to provide decent work to our domestic workers, a clear framework to guide governments, employers and workers,” said Halimah Yacob, the Workers Vice-Chair from Singapore. She noted that the collective responsibility was to provide domestic workers with what they lacked most: recognition as workers; and respect and dignity as human beings.

Paul MacKay from New Zealand, the Employers Vice-Chair declared: “We all agree on the importance of bringing domestic work into the mainstream and responding to serious human rights concerns. All employers agree there are opportunities to do better by domestic workers and the households and families for whom they work”.

“Social dialogue has found its reflection in the results achieved here,” concluded the Chair of the Committee, Mr. H.L. Cacdac, Government delegate from the Philippines, when he closed the discussion.

“This is a truly major achievement,” said Manuela Tomei, Director of the ILO’s Conditions of Work and Employment Programme, calling the new standards “robust, yet flexible.” Ms. Tomei added that the new standards make clear that “domestic workers are neither servants nor ‘members of the family’, but workers. And after today they can no longer be considered second-class workers.”

The adoption of the new standards is the result of a decision taken in March 2008 by the ILO Governing Body to place the elaboration of an instrument on the agenda of the Conference. In 2010, the Conference held its first discussion and decided to proceed with the drafting of a Convention supplemented by a Recommendation adopted today. -ILO Press Release, 16/6/2011, 100th ILO annual Conference decides to bring an estimated 53 to 100 million domestic workers worldwide under the realm of labour standards