Advancing legal rights for domestic workers in Latin America

by Lydia Alpizar-Duran | | Association for Women's Rights in Development
Monday, 15 July 2013 15:49 GMT

* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Latin America and the Caribbean (LAC) is a region with one of the highest numbers of domestic workers in the world – an estimated at 19.6 million - 18 million of which are women. Recently, Brazil and Argentina have enacted new laws which expand labour rights for domestic workers – particularly for those who share a home with their employers and are vulnerable to slavery-like conditions.

The International Labour Organization (ILO), in their recently launched study “Domestic Workers across the World” [1], says 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, 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. This is despite the adoption of the Convention 189 on Decent Work for Domestic Workers (C189) and Recommendation 201 by the ILO in 2011, which aim to guarantee 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.

Domestic workers who share a home with employers are at risk the most. Sharing a home creates a situation of complete servitude, as domestic workers must be available whenever they are needed. Migrant workers may lack knowledge of local languages and laws and are often unable to defend themselves from abusive and slavery-like practices. There are many cases of sexual and/or physical and emotional violence, salaries are often fixed and ignore the actual number of hours worked, and some employers even fail to pay salaries.

In recent months, however, Brazil and Argentina (without having ratified C189) have started to address the legal rights of domestic workers by enacting laws that reflect many of the objectives of C189, recognizing basic rights and trying to make work in private homes more just. Mexico too, is watching what happens in Brazil and Argentina and may follow in their legislative footsteps.

This is good news for domestic workers. 

Brazil: “The second abolition of slavery”

In Brazil, as in other countries across the region, the intersection of class and race has influenced the lack of regulation for domestic work. Until recently, domestic workers in Brazil were considered by its Constitution a special category of workers, almost as slaves. But on March 26, 2013 the Senate unanimously passed a law- The Constitutional Amendment Bill (PEC in Portuguese) 478/10 - expanding their labour rights.

The law was passed as a result of pressure from union representatives and domestic workers’ federations. In addition - just 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 of Afro-descendant domestic workers in Brazil before the Inter-American Commission on Human Rights (IACHR).

The PEC now gives domestic workers similar rights to other Brazilian workers. It guarantees those working in private homes – including, among others, cooks, gardeners, chauffeurs and carers of children and the elderly - unemployment benefits; 50% overtime pay for night time work; a maximum working day of eight hours and a 44 hour working week, among other rights.

Eliana Menezes, the President of Sindoméstica (Sindicato das Empregadas e Trabalhadores Domésticos - Domestic Employees Union), says 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.

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 the sector. However, Creuza Oliveira, president of the Federación Nacional de Empleadas Domésticas (National Domestic Employees Federation), says “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.”

Argentina: Updating a law from 1956

According to the National Labour Ministry, there are approximately 1.2 million domestic workers in Argentina, mostly women, with 80% in precarious working conditions. The situation is similar to Brazil and other countries where servitude and slavery have been documented. More than 80% of domestic workers are unregistered 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.

In March 2013, however, the Deputies Chamber voted unanimously on a law to regulate working relationships for private home workers. This new law modifies decree Nº 326/56, passed in 1956.

The new law updates and expands domestic workers’ labour rights, including regulating maternity leave, which was formerly unrecognized. The law 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.

Mexico: Watching and waiting.

In June 2011, Mexico was one of the countries that voted in favour of C189 during the International Labour Conference. Marcelina Bautista, director of Centro de Apoyo y Capacitación para Empleadas del Hogar (Support and Training Centre for Private Homes’ Workers), however, points out the lack of political will by Senators and the federal government to legislate domestic workers rights. Bautista says 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.

According to a La Jornada analysis, Mexico is now 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.

For more than a year different working women’s associations and unions have been demanding that, together with C189, ILO Conventions 156 on equal opportunities and treatment for male and female workers with family responsibilities, and 183 on maternity protection also be ratified. In early April 2013, domestic workers protested before the Mexican Senate to demand ratification of ILO C189 and its recommendation as a way to respect their labour rights. Mexico is expected to ratify C189 and Recommendation 201 shortly.

What do these laws mean for C189?

While the new laws regulating domestic work and recognizing labour rights are a significant step forward, it does not guarantee implementation. However, there is no doubt that educating domestic workers about their rights enables them to expose and defend themselves from injustices that, in the absence of a legal framework, would have gone unpunished.

In Peru in 2011 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 C189. Ivan Gonzales, ITUC’s Policy Coordinator points 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 should include joint actions to advance ratification of C189 in the region and have it effectively enforced once States adopt it.


Research assistance by Gabriela De Cicco

Further reading: Domestic Workers Sow a New Global Movement

[1]This study excludes child domestic workers younger than 15, estimated by ILO to be about 7.4 million in 2008.