What are the rights of undocumented migrants doing domestic work?

What are the rights of undocumented migrants doing domestic work?

By Jordan Dez | October 1, 2021

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. 

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