To the outside world, the Netherlands has the reputation of a “migrants-friendly country”. Does this reputation match reality? Neighboring countries are outdoing the Netherlands in opening their arms to migrants as they acknowledge the contributions that migrants make to society. Is the new Rutte government capable of enacting a more humane policy on migrants? Or will it continue to put up a Fortress Netherlands? During this event, we will have a panel discussion with experts, policymakers, and advocates in order to exchange possibilities to improve migrant rights and policies.
Ten years ago, the ILO Convention on Domestic Workers was drafted containing labor rights for domestic workers. The Netherlands has not ratified this convention. The residence blog explains the content of the treaty, discusses why the Netherlands has not ratified it, and explains why this is not only an issue of employment law but has consequences for migration law.
This year marks 10 years since the Convention on Decent Work for Domestic Workers (C-189) was adopted by the International Labor Organization (ILO), the UN agency that sets and implements labor standards and protects workers’ rights worldwide. The treaty aims to protect the labor rights of all domestic workers, who are excluded from national protection because of the informal market for domestic work. After all, much domestic work is performed without a formal employment relationship. The Netherlands signed the treaty in 2011, agreeing to the terms of the document, but refusing to ratify it. This means that the Netherlands has not yet extended the legal protection included in the treaty to domestic workers in the Netherlands.
Substantive Provisions of the Treaty
The main contribution of the Convention is that domestic work is recognized as work and thus as a formal sector of employment. In the Convention, ‘household work’ means all activities performed in or for a household in order to provide services to members of the household in an employment relationship (Article 1), such as taking care of, cleaning, ironing, and cooking.
As an informal sector, domestic workers do not enjoy regular employment protection. However, under the Convention, there is employment protection for workers, including fair working conditions (Art. 6, 7 & 8), protection of wages and working hours (Art. 10-12), decent working conditions (Art. 6), social security (Art. 14 ), protection against abuse, intimidation and violence (art. 5), the establishment of a system of inspections (art. 17), and the guarantee of freedom of association (art. 3).
Why has the Netherlands refused to ratify the Convention?
In 2014, after the Netherlands had signed the Treaty, the House of Representatives instructed the Kaalsbeek Committee to investigate the possibility of ratifying the Treaty. In its report, the Commission noted that ratification of the treaty would require the Home Services Scheme to be terminated.
This scheme allows private households to hire domestic workers for less than four days a week without considering such work as employment. This exempts private employers from administrative obligations, such as withholding taxes and social security contributions.
The aim of the scheme is to stimulate the market for household services through deregulation. The Commission concluded that regulation of the private domestic market would be difficult due to burdens for employers and costs for government. On balance, the Commission did not see a strong advantage for the legal position of the domestic workers involved compared to the costs of regulation.
Essential for the conclusion that the Convention would not improve the legal position of domestic workers is the Commission’s characterization of domestic work. After all, according to the Commission, domestic workers were mainly Dutch women who had this work as a side job. This means that for this employee there is another income stream and source of social security, namely the respective partner or main job. For example, the Commission makes it clear that its report “explicitly did not cover “undocumented migrant domestic workers”. However, the correctness of this characterization is disputed by the trade union FNV, scientists, and migrant domestic workers. It is currently unknown how many domestic workers in the Netherlands are non-Dutch citizens without a valid migration status; the so-called undocumented. In 2013, the ILO estimated that 54.6% of domestic workers in Northern, Southern & Western Europe were migrant workers, the majority of whom were undocumented. Scientists have noted that undocumented domestic workers are an important population group in the major cities in the Netherlands, especially Amsterdam.
As noted in a recent inquiry by the Ombudsman of Amsterdam, this group is also particularly prone to exploitation. Although the Kalsbeek Committee does not comment on it, the Preamble to the Convention states 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.’
Despite the Convention’s focus on migrant domestic workers, and the fact that migrants often perform domestic work in the Netherlands, this group was not included in the Commission’s considerations. Instead, the Commission emphasized that the Netherlands has signed the Convention to tackle problems of exploitation in other countries: ‘The Netherlands voted in favor of the adoption of this convention because it wishes to see the poor working conditions under which domestic workers in developing countries have to work. to counteract. The Committee notes that the treaty is primarily aimed at combating situations of abuse and exploitation.
The Committee’s investigation shows that there are hardly any such situations in the Netherlands.’ In weighing the costs and benefits of ratification, the Netherlands has determined that the administrative costs of ratification do not outweigh the benefits of legal protection, as exploitation of domestic workers is a problem in developing countries, not in the Netherlands. In drawing this conclusion, however, the Kalsbeek Commission did not take into account the legal position of migrant domestic workers, who explicitly run the risk of being exploited under the Treaty.
Why is the ratification of the Convention a migration law issue?
Within the community of migrant domestic workers, there are indications that the Convention could indeed have a positive effect on the protection of their rights. For example, the organization Fair Work reported an increase in the incidence of labor abuse and the vulnerability of migrant domestic workers during the pandemic. Since 2010, some of these ‘migrant domestic workers’ in the Netherlands have been united in the FNV trade union. This group actively organized during the drafting and signing of the Convention and is now lobbying, on the tenth anniversary of the adoption of the Convention, for ratification of the Convention but also for temporary work permits for migrant workers. This is the migration law dimension of the Treaty. If domestic work becomes formal work, undocumented migrant workers who do not have a work permit (TWV) could be banned from the sector or further marginalized. If ratification is not accompanied by a simultaneous regularization or similar initiative in the field of migration policy for migrant domestic workers, there is a risk involved.
The Commission noted that, as an unregulated sector, domestic work offers undocumented migrants a job opportunity and that formalizing the sector “will make it more difficult for this group to access”. This could cause problems for both domestic workers and Dutch society as a whole. Domestic workers in the Netherlands, including migrant domestic workers, provide important services that keep the Dutch economy going and the demand for domestic work exceeds the labor supply. The reality that effective legal protection is often linked to citizenship and migration status not only leads to the conclusion that the sector should remain deregulated – there are many policy alternatives that can be explored to meet the policy needs of legal protection and migration law.
Policy alternatives to the Home Services Regulation
According to the Kalsbeek Commission, the Netherlands meets the need for domestic workers through the Home Services Regulation, essentially deregulation of the sector (or as Tesseltje de Lange aptly called it in her recent inaugural address, ‘regulatory neglect’). But there are other policy options that are being pursued by other countries that would enable the Netherlands to meet its international obligations.
The Netherlands can draw on the policies developed over the past ten years in other European countries that have ratified the Convention, including Belgium, Germany, Finland, Ireland, Sweden, Switzerland, Portugal, Italy, and, more recently, Malta and Norway. For example, in the ‘Geneva model’, employers purchase vouchers for domestic work from a centralized administrative department which in turn manages tax and health care requirements for domestic workers. In terms of migration law and policy, the Geneva model is accompanied by a ‘tolerance policy’, whereby the irregular status of domestic workers is ‘tolerated’, meaning that they both gain access to the system and are not threatened with expulsion because they use the control system. The Commission has looked at a number of different programs that could be implemented by the government, such as the Belgian voucher model and the German mini-jobs.
However, the Commission again emphasized the potential costs for the government, while seeing relatively little improvement in the legal status of domestic workers (again characterized as Dutch women working on the side). The Commission nevertheless encouraged experiments with a voucher model at the municipal level.
Conclusion
Ratification of the Convention on Decent Work for Domestic Workers by the Netherlands is a migration law issue, because a regularization of the sector would not benefit migrant domestic workers without a corresponding (temporary) regularization or at least tolerance policy. The Netherlands must report to the ILO on the progress of ratification in June 2022. The coming year may provide an opportunity to explore different policy solutions that take into account the demographic realities of the composition of the domestic work sector, and/or experiments at the municipal level. Perhaps new policy research is needed that takes seriously the contribution of migrant workers to the sector, as well as their legal position.
Malu Villanueva of the Migrant Domestic Workers Union of the FNV welcomes everybody.
The MDW are touched by this broad representation of experts: researchers, academics, leaders of the women’s movement, unionists and of course the migrant domestic workers themselves.
The MDW have set 2 strategic goals: 1. the ratification of ILO C-189 (which recognizes domestic work as work); and 2. Regularization of the irregularly employed MDW via a work permit.
A pipe dream, a shot at the moon? Look at Italy, Belgium in 2004 and more recently, Ireland. Can this be done here?
Certainly the odds are tremendous: the Regeling Dienstverlening aan Huis, the Koppelingswet. But laws are made by men. The situation on the ground and changing needs of society dictate changes in law.
By bringing our best ideas and first recommendations together in 3 workshops we can make a start. We hope to meet again after summer to flesh out these plans. But before that, on behalf of the MDW, thanks to the Migration Law Section of the VU for providing this venue and to be reminded of the legacy of Sarah van Walsum under whose inspiration we conduct this meeting.
Malu gives word to Thomas Spijkerboer, professor of migration law at the VU.
Thomas Spijkerboer, VU Welcome to the Migration Law Section, it is special in this light. Sarah’s work has focused on family and the intimacy of relationships, and the interaction with migration law and the nation. This research led also to questions and thoughts about the position of migrant domestic workers. She was very involved in this. If we want to speak about a tradition then it should be that research and thinking about this cannot be done without the domestic workers themselves. It’s good to look further together. t seems like an excellent time to pay attention to this. It is very clear that there is a lot of demand for support in care work in the current situation.
After the speech of Thomas Spijkerboer, the participants broke up into three workshop groups: 1) from research to rights, 2) employers as allies? and 3) brainstorm session on building popular support through actions.
After the reports of the workshops, the conclusion was that this was far too short, but that there is commitment to continue on all sides.
The list of participants plus e-mail addresses are added to this report, so that everyone can find each other. It was agreed within the Research workshop that the participants would also form a WA group. But participants of various workshops also want to remain involved in other themes. Concrete ideas for follow-up steps have already been presented within the workshops. In the coming period, the best ways to share information throughout the group will be considered.
On June 16, 2021, the world will celebrate the 10th anniversary of the ILO Convention 189 on “Decent work for domestic workers.” But for domestic workers in the Netherlands, often women, there is little cause for celebration since the Dutch government has not ratified the convention nor changed the current law: “Wet Dienstverlening Aan Huis” which the ILO has declared to be in contradiction with the ILO Convention 189. But even if the Convention is ratified, or if the current law is repealed, and a new law is enacted, undocumented migrant domestic workers will still be excluded. How is the current situation now and how should the law change? What can we do to change the situation of undocumented domestic workers? During the program, we will reflect on these questions with legal experts, trade unions and campaigners.
Background event:
While undocumented domestic workers have often been at the forefront of the struggle for the recognition of domestic work, the undocumented workers are bound to remain excluded. Only Dutch citizens or migrants with legal status will benefit from changing laws. That is why it is necessary that undocumented migrants who have been working as domestic workers for at least five years should also be given a work permit or legal status. Their employers trust them enough as to entrust them with their house keys. These domestic workers, as their anthem song goes, deserve society’s respect and trust.
“Everyone in this country deserves protection, even without residence status”
FNV: Help the domestic workers
Due to the corona crisis, tens of thousands of domestic workers in our country have lost all their income overnight. Many of these people also have no residence status, which means that they cannot fall back on social security and in some cases even end up on the street. That is why the FNV has today asked the cabinet by letter to quickly make arrangements for this group.
Tuur Elzinga, vice-chairman of the FNV: “We call on Minister Koolmees as minister of Social Affairs and Employment to also help this very vulnerable group of people. Everyone in the Netherlands deserves protection against a crisis like this, including those without residence status. The people involved are an important part of our society and economy. The ILO convention 189, which regulates the position of these people, has still not been ratified by the Netherlands, if that happens, many of the problems can be solved immediately. “ Nothing arranged For many domestic workers, their income has disappeared now that many of their clients work from home and because of the risk of infection, they do not want to have anyone over the floor. In addition, the domestic workers usually work black and under the current rules the government can do little for them. These people often do not receive benefits in the event of illness or dismissal. Migrant Domestic Workers Especially the many domestic workers without valid papers now urgently need help. These are the so-called Migrant Domestic Workers from countries such as Chile and the Philippines. For their acute need, the communities and organizations of these undocumented domestic workers have recently launched a crowdfunding campaign. The FNV supports this action.
Domestic work is work. Domestic workers are, like other workers,
entitled to decent work.
On 16 June 2011, the International Labour Conference of the International Labour
Organization adopted the Convention concerning decent work for domestic workers,
which is also referred to as the Domestic Workers Convention, 2011 (No. 189).
What is Convention No. 189 ?
What is a Convention of the ILO?
A treaty adopted by the International
Labour Conference, which is made up
of government, worker and employer
delegates from the 183 member States
of the ILO.
What is the ILO Convention 189?
Convention No. 189 offers specifi c
protection to domestic workers. It
lays down basic rights and principles,
and requires States to take a series of
measures with a view to making decent
work a reality for domestic workers.
What does it mean to ratify
a Convention?
When a country ratifi es a Convention,
its government formally makes a
commitment to implement all the
obligations provided in the Convention,
and to report periodically to the ILO on
the measures taken in this regard.
Recommendation No. 201 – how is it
related to the Convention?
Domestic Workers Recommendation
No. 201, also adopted by the
International Labour Conference
of 2011, supplements Convention
No. 189. Unlike the Convention,
Recommendation No. 201 is not open
for ratifi cation. The Recommendation
provides practical guidance
concerning possible legal and other
measures to implement the rights and
principles stated in the Convention.
How is the Convention to be
implemented?
The Convention may be implemented
by extending or adapting existing laws
and regulations or other measures,
or by developing new and specifi c
measures for domestic workers.
Some of the measures required
under the Convention may be taken
progressively.
Who is covered by Convention No. 189 ?
What is domestic work?
Convention No. 189 defi nes domestic
work as “work performed in or for a
household or households”.
This work may include tasks such as
cleaning the house, cooking, washing
and ironing clothes, taking care of
children, or elderly or sick members of a
family, gardening, guarding the house,
driving for the family, even taking care
of household pets.
Who is a domestic worker?
Under the Convention, a domestic
worker is “any person engaged in
domestic work within an employment
relationship”.
A domestic worker may work on
full-time or part-time basis; may be
employed by a single household or by
multiple employers; may be residing in
the household of the employer (live-in
worker) or may be living in his or her own
residence (live-out). A domestic worker
may be working in a country of which
she/he is not a national.
All domestic workers are covered by
Convention No. 189, although countries
may decide to exclude some categories,
under very strict conditions.
Who is the employer of
a domestic worker?
The employer of a domestic worker may
be a member of the household for which
the work is performed, or an agency
or enterprise that employs domestic
workers and makes them available to
households.
In implementing the Convention, will
workers and employers be consulted?
The provisions of the Convention are to
be implemented in consultation with
the most representative workers’ and
employers’ organizations (Article 18).
In addition, the Convention requires
Governments to consult with the
most representative organizations of
employers and workers and, where
they exist, with organizations that
represent domestic workers and
organizations that represent employers
of domestic workers on four particular
matters: (i) identifying categories
of workers who would be excluded
from the scope of the Convention; (ii)
measures on occupational safety and
health; (iii) measures on social security;
and (iv) measures to protect workers
from abusive practices by private
employment agencies (Articles 2, 13 &
15).
What can domestic workers do to
enjoy the protections offered by
Convention No. 189?
Convention No. 189 affi rms the fundamental rights of domestic workers.
It sets minimum labour standards for
domestic workers.
Domestic workers can:
organize & mobilize support for the
ratifi cation and implementation
of the Convention by their
Governments;
use the provisions of the Convention
and the Recommendation to
infl uence changes in laws and
improve the working and living
conditions of domestic workers,
regardless of whether or not the
country in which they work has
ratifi ed Convention No. 189.
What are the minimum standards set by
Convention No. 189 for domestic workers?
Basic rights of domestic workers
Promotion and protection of the human rights of all domestic workers (Preamble; Article 3).
Respect and protection of fundamental principles and rights at work: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) elimination of all forms of forced or compulsory labour; (c) abolition of child labour; and (d) elimination of discrimination in respect of employment and occupation (Articles 3, 4, 11).
Effective protection against all forms of abuse, harassment and violence (Article 5).
Fair terms of employment and decent living conditions (Article 6).
Information on terms and conditions of employment
Domestic workers must be informed of their terms and conditions of employment in an easily understandable manner, preferably through a written contract (Article 7).
Hours of work
Measures aimed at ensuring equal treatment between domestic workers and workers generally with respect to normal hours of work, overtime compensation, periods of daily and weekly rest, and annual paid leave (Article 10).
Weekly rest period of at least 24 consecutive hours (Article 10).
Regulation of stand-by hours (periods during which domestic workers are not free to dispose of their time as they please and are required to remain at the disposal of the household in order to respond to possible calls) (Article 10).
Remuneration
Minimum wage if a minimum wage exists for other workers (Article 11).
Payment of wages must be paid in cash, directly to the worker, and at regular interval of no longer than one month. Payment by cheque or bank transfer – when allowed by law or collective agreements, or with worker’s consent (Article 12).
In-kind payment is allowed under 3 conditions: only a limited proportion of total remuneration; monetary value is fair and reasonable; the items or services given as in-kind payment are of personal use by and benefit to the workers. This means that uniforms or protective equipment are not to be regarded as payment in kind, but as tools that the employer must provide to the workers at no cost to them for the performance of their duties (Article 12).
Fees charged by private employment agencies are not to be deducted from the remuneration (Article 15).
Occupational safety and health
Right to safe and healthy working environment (Article 13).
Measures are put in place to ensure workers’ occupational safety and health (Article 13).
Social security
Social security protection, including maternity benefits (Article 14).
Conditions that are not less favourable than those applicable to workers generally (Article 14).
Standards concerning child domestic workers
Requirement to set a minimum age for entry into domestic work (Article 4).
Domestic workers aged 15 years old but less than 18 years old – their work should not deprive them of compulsory education, or interfere with their opportunities for further education or vocational training (Article 4).
Standards concerning live-in workers
Decent living conditions that respect the workers’ privacy (Article 6).
Freedom to reach agreement with their employers or potential employers on whether or not to reside in the household (Article 9).
No obligation to remain in the household or with its members during their periods of rest or leave (Article 9).
Right to keep their identity and travel documents in their possession (Article 9).
Regulation of stand-by hours (Article 10).
Standards concerning migrant domestic
workers
A written contract that is enforceable in the country of employment, or a written job offer, prior to traveling to the country of employment (Article 8).
Clear conditions under which domestic workers are entitled to repatriation at the end of their employment (Article 8).
Protection of domestic workers from abusive practices by private employment agencies (Article 15).
Cooperation among sending and receiving countries to ensure the effective application of the provisions of the Convention to migrant
domestic workers (Article 8).
Private employment agencies
Measures to be put in place (Article 15):
regulate of the operation of private employment agencies;
ensure adequate machinery for the investigation of complaints by domestic workers;
provide adequate protection of domestic workers and prevention of
abuses, in collaboration with other Members where appropriate;
consider concluding bilateral, regional or multilateral agreements to prevent abuses and fraudulent practices.
Dispute settlement, complaints,
enforcement
Effective access to the court, tribunals or other dispute settlement
mechanisms, including accessible complaint mechanisms (Article 17).
Measures to be put in place to ensure compliance with national laws for the protection of domestic workers, including labour inspection measures. In in regard, the Convention recognizes the need to balance domestic workers’ right to protection and the right to privacy of the households’ members (Article 17).
For more information, please contact us, or the nearest International Labour Offi ce in your country or region.
We, domestic workers from the different migrants communities in the Netherlands coming from the developing countries of Asia, Africa and Latin America, have joined together to form ourselves into a union to find our place within Dutch society and contribute to its over-all well being, as well as provide for ourselves and our families a life worthy of human beings.
In the current globalized and fast changing world, old ideas and regressive beliefs are giving way to new progressive ideas and beliefs that are more attuned to the times. More and more, views of dominance and inequality are being replaced by values such as respect and equality. Bigotry is being replaced by tolerance and mutual respect, xenophobia with international solidarity, male dominance with women’s equality. Decent society frowns upon any form of discrimination and injustice.
Moreover, these new ways of thinking and values have been incorporated in international treaties and conventions that are intended to guide governments in our pursuit to establish equitable and properly functioning societies. As for domestic work, there is the ILO Convention 189 that sets the standards that governments must follow in addressing this question.
We are therefore emboldened by these new developments in our modern world to put forward our agenda which we believe are in keeping with the new values we share in our common humanity.
It is time to recognize domestic work as real and essential work for the regular functioning of society. The practice of considering domestic work as unpaid labor borne primarily by the woman of the household that has existed for so long must be cast into the dustbin of history. Persons who perform the work should be compensated properly including all the social protection enjoyed by workers in other sectors.
As a measure for gender equality, the domestic worker enables the woman of the household the freedom to pursue a career and achieve a better work and life balance.
It is time for migrants who are engaged in this type of essential work to be given the recognition and protection enjoyed by workers in other sectors. They often work in the shadows invisible to official society and visible only to their employers. Many of them have no documents which subjects them to a life of insecurity and precarity.
We shall work with trade unions, women’s organizations, migrants organizations, human rights advocates, church groups, academics, politicians, employers and all people of goodwill in order to achieve our goals.
Long-term goals:
Our long-term goals are, firstly, for domestic work to be recognized as real work like any other with the concomitant obligation of granting the standard labour rights and social protection due to workers; and, secondly, for migrants to be given equal opportunities with their host-country counterparts to have access to employment in this sector with the accompanying measures based on an enlightened immigration policy.
To achieve these, we have to engage the policy makers with the help of influential organizations and personalities and the support of the general public.
Immediate goals:
We are fully aware that the achievement of our long-term goals will require a long, complicated and difficult struggle. Thus, we have set for ourselves the following immediate goals that may be feasible in the short term even as we are engaged in the struggle for our long-term goals. These immediate goals we hope will help us have at the minimum a more tolerable existence.
Access to a bank account: More and more, a bank account is needed to have access to goods and services just to be able to stay alive and move around. Undocumented migrants are barred from this basic need. But there is a European Union directive to member countries to make this accessible to all residents of Europe regardless of their immigration status to enable them to have a fuller participation in the life of society.
Access to medical and dental services: There are hospitals that provide medical care even to undocumented migrants as a form of social welfare. There are also doctors and dentists either as members of organizations or as individuals who offer medical and dental services pro-bono or at nominal cost. What is needed is to make the information known to undocumented migrants who are often not aware of this or else are hesitant to make use of these services for fear of adverse consequences.
A fair and mutually beneficial contract: In cooperation with sympathetic employers, we shall try to work out a fair and mutually beneficial contract that can be agreed upon between the employer and the domestic worker. We can propagate the best practices among employers who are willing to join us in this project.
A noodfonds: We shall try to set up a noodfonds for emergencies. Migrants domestic workers have to provide for their bare existence and what they can save up they often send to their families in their home countries. When emergencies strike, they are ill prepared to cope. Thus, the need for a noodfonds.
Identification card: Whether it be a city identification card or a trade union card, an ID card can come handy for police or immigration control, or as a requirement to establish identity to have access to some services. ###
FNV Migrant Domestic Workers Union 