By: Timothy Son
Volume IX – Issue II – Spring 2024
Background
Convention No. 189 and Recommendation No. 201, or ‘Decent Work for Domestic Workers Convention of 2011,’ [1] was adopted by the International Labor Organization (ILO) to establish an international labor standard for human dignity, social justice, and decent working conditions for domestic workers. In the past, the attention that the ILO and international organizations allocated to domestic workers has been “sparse,” at best. The most recent ILO resolution regarding domestic workers, prior to the 2011 Convention, was the Resolution Concerning the Conditions of Employment of Domestic Workers adopted in 1965. [2] Thirteen years have passed since the Domestic Workers Convention of 2011, and a lingering question now lies on whether this international instrument has successfully led to compliance with its provisions—either through ratification or through a norm-making process.
This paper briefly reviews the progress of compliance with the Domestic Workers Convention of 2011, providing an international comparison of the status of legislative and policy initiatives for domestic workers. Section I provides basic provisions of the Domestic Workers Convention 2011, highlighting clauses that embody salient values to the domestic workers. Section II will discuss the effectiveness of the ILO Domestic Workers Convention and international law, the legal scholarship surrounding the meaning of ratification, why states ratify the ILO conventions, and how international law can spur legislative changes on the national level. Section III reviews the international progress of compliance with the ILO Domestic Workers Convention 2011 in ratified and non-ratified countries. The selection of countries discussed in this section is not exhaustive and is intended to provide an introductory understanding of the effectiveness of the ILO Domestic Workers Convention in countries that possess a history of global compliance and countries where international law has made an impact in broader social movements. This paper will conclude with Section IV, discussing the future implications for the Domestic Workers Convention and further considerations for each country’s domestic policies and legislation.
I. Provisions of the Domestic Workers Convention (2011)
The Convention No. 189 is a set of international labor standards that becomes legally binding once a country ratifies it. Accompanying this convention is Recommendation No. 201, which provides non-binding policy suggestions concerning the pragmatic implementation of the convention.
Article 1 (a) and (b) of Convention No. 189 defines “domestic work” as “work performed in or for a household or households,” and “domestic worker” as “any person engaged in domestic work within an employment relationship.” [3] The definitions in Article 1 encapsulate the ILO’s efforts to broadly include domestic workers, while deliberately excluding mentions of national laws and legal status, which is intended to protect migrant domestic workers who may not possess legal status. [4] However, there still exists a potential that the “employment relationship” could be interpreted to exclude non-documented workers from the protection of the convention. [5] Article 7 lays that the domestic workers shall be informed of the numerous terms and conditions of employment in accordance with the national laws. [6] Particularly, this clause notes the inclusion of the type of work being performed, remuneration, normal hours of work, paid annual leave, and other necessary employment terms, which should be established through written contracts wherever possible. Article 11 specifies that domestic workers be covered under the national minimum wage laws “without discrimination based on sex.” [7] Articles 7 and 11 are examples of describing domestic work as “work like any other work,” implying that domestic workers are entitled to basic employment protections in formalized employment relationships as any other workers do in the state. [8] Article 15 establishes the necessary protections that domestic workers in private employment agencies must be afforded. In 15(b), the convention calls for policies ensuring “the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies,” while 15(d) encourages international cooperation to address the abuse of migrant workers through “bilateral, regional, or multilateral agreements.” [9] Article 13 of Recommendation No. 201 establishes that the time spent by domestic workers accompanying the household members on holiday should not be part of their paid annual leave. [10] This recommendation challenges the prevalent norm where many domestic workers were expected to accompany the household without any payments during the holidays. [11]
II. The Role of ILO Conventions as International Law
Why do countries ratify the legally binding international standards? Legal scholars discuss the reasoning behind this decision from both the perspectives of rationalist and sociological institutionalism. [12] The rationalist approach states that countries ratify the international conventions to mitigate the strategic interdependence problem arising from the international competitive labor market. The lack of labor regulations attracts foreign investments that aim to take advantage of the low labor regulations. Before the labor regulations fall into the “race to the bottom,” governments compromise through the international conventions to determine the unified standard on labor regulations. [13] In contrast to this economical, and yet pragmatic, view of international law, the sociological institutionalists argue that the ratification arises from the adherence to a greater social process and norm-making. [14] Despite the difficulty of quantifying the influence of this sociological movement aspect of international laws, it is even more difficult to overlook its tangible impact. In 2014, Baccini and Koenig-Archibugi evaluated two hypotheses based on rationalist and sociological institutionalism motivating the justification of ratifying the ILO conventions: H1 (A state is more likely to ratify an ILO convention when its economic competitors have ratified it) and H2 (A state is more likely to ratify an ILO convention when its social peers have ratified it). Quantitative analysis of ratification history data of 187 countries over 62 years suggests a positive correlation in both hypotheses, revealing that the ratification of the core ILO conventions relies heavily on interdependence with other countries—whether it be economically or socially. [15] Therefore, ratification of an ILO convention by one country is likely to increase the probability that its economic and social peer nation will reciprocate the ratification behaviors.
The ratification of the ILO convention influences governmental policies in varied approaches. Similar to many other international laws, the ratification of the ILO conventions results in its provisions becoming legally binding in the domestic jurisdiction in an “incorporation” process. [16] To promote the enforcement of the ILO convention, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) produces annual reports assessing the compliance status of each ratified state—any notable incompliances are discussed with the government representatives in the International Labour Conference. Further, the enactment of the ILO convention, regardless of the ratification status, can generally spur a social movement, enabling labor organizations to use the ILO convention as a legitimacy device for reform efforts. In the case of the United Kingdom’s ratification of the Equal Remuneration Convention, the increasing trend of ratifying the convention in the EU bolstered the activism for the Equal Pay Act, and finally the ratification of the convention. [17] In relation to domestic workers, this type of norm-making on an international scale may trickle down to the national, and correspondingly to a household level, which one may argue is the overarching goal of international law in its premise.
III. Reviewing the Progress of Compliance
As of 2024, a total of thirty-six countries ratified the Domestic Workers Convention 2011. [18] Prominent countries that have not ratified the convention include the United States, China, the UK, and Japan. However, the adoption of the convention has spurred a trickle-down effect of increased awareness of domestic workers’ rights. Select nations enacted legislation expanding the rights of domestic workers, regardless of its ratification status. Moreover, as revealed by the UK and Germany cases, a given country may decide not to ratify the ILO convention only until the country has determined that it satisfactorily complies with the ILO convention. [19] For ratified states, this section will review the general status of compliance, focusing on Germany. For non-ratified states, this section will view the influence of the ILO Domestic Workers Convention in this broader definition and include notable progress made in the country vis-a-vis the ILO Domestic Workers Convention, with a specific focus on South Korea.
i. Ratified States
Among the thirty-six ratified states, Germany is an exceptional example of compliance with the Domestic Workers Convention. Unlike other equally economically-developed countries, Germany has had broader social movements that motivated this ratification. The German government invited the prominent employer’s organization (BDA) and the peak trade union (DGB) in consultation before the parliament. [20] In addition, the International Union of Food Workers in Germany formalized the International Domestic Workers Network. There existed a view, however, that German domestic workers already have been protected under the same labor law as any other workers in the country, thereby creating minimal need for legislative changes to comply with the Domestic Workers Convention. For instance, German domestic workers have applied the same constitutional protections of collective bargaining as other sectoral workers. [21] Germany, nonetheless, faced challenges in implementing the Domestic Workers Convention, and Germany’s case can be exemplified to understand how compliance may pose a similar challenge to other ratified states. After all, the overwhelming majority of countries fall much below the economic and human rights prosperity enjoyed by Germany. One of the most important compliance challenges is the gap between de jure and de facto status of domestic workers. Under the “mini-job” regime in Germany, a domestic worker earning minimum wage can legally work around fifty-one hours per month, which equates to about twelve hours per week. [22] The application of minimum wage and maximum working hour law has, however, led domestic workers to perform care labor outside of formal working hours—due to the increasing demand for care work in Germany. [23] Furthermore, the Act on Working Time which limits the number of working hours explicitly excludes workers who live together with the care recipient. It is a general consensus that although most domestic workers are covered under the legislation, live-in domestic workers are not. The CEACR directly questioned this exclusion of live-in domestic workers from the Act on Working Time, noting that it potentially is not compliant with Article 1 of the Domestic Workers Convention, and requested a formal governmental explanation. Additionally, Article 10 (2) of the Domestic Workers Convention establishes that there shall be a weekly rest of at least twenty-four consecutive hours. [24] The exclusion of the live-in domestic workers however alludes that the working hours will be determined by the arrangements with the employer, which cannot be construed as adequately complying with Article 10 (2). The German constitution requires an “automatic incorporation” of international treaties, meaning that the ratification of the ILO Convention immediately makes the document a part of the domestic legal system. [25] However, the Domestic Workers Convention reveals subtle legislative deficiencies in Germany’s compliance with the provisions of the convention.
i. Non-Ratified States
South Korea is an example of a non-ratified state where legislative efforts for domestic workers' rights have progressed relatively recently. South Korean labor standards have persistently excluded domestic workers from its legal protections, creating precarious and vulnerable conditions for its domestic worker population. Although the Korean government never ratified the Domestic Workers Convention, it increased national awareness of the salience of domestic workers. In 2016, following the adoption of the convention, the National Human Rights Commission of Korea produced a governmental recommendation for the protection of domestic workers. [26] These two documents have contributed to the recent enactment of the Domestic Workers Act of 2021, which legally formalizes domestic workers under the Korean labor standards. [27] The new legislation contains key provisions that aim to broaden the protection of labor law to domestic workers, without crossing the unique expectation that domestic work occurs in a private space, mainly, the household. Articles 11 and 14 of the legislation require the employment agencies to provide employment contracts specifying the working conditions, including types of service, wage, work time, paid annual leave, and payment methods, [28] which complies with Article 7 of the ILO Domestic Workers Convention Article. [29] Generally, this legislation complies with the provisions of the Domestic Workers Convention. The legislation attempts to create a legal employment relationship through the private employment agencies, newly developed by this legislation. The legal liabilities and enforcement responsibilities are to be held by this entity. However, the status of enforcement and the coverage of this new institution is an ongoing debate in South Korea. First, the legislation has been sparsely advertised, even after considering that the legislation is a relatively recent implementation. [30] Second, this problem is complicated when another problem of this legislation is added—the new legislation relies on private employment agencies to voluntarily register with the government before the legislation can be enforced. The ILO Domestic Convention does not define the domestic workers’ employment relationship with the private employment agencies, instead, Article 23 of Recommendation No. 201 guides governments to promote “good practices by private employment agencies” referencing the principles of the 1997 Private Employment Agencies Convention. [31] On one hand, this definition is broad enough that it allows the provisions of the Domestic Workers Convention to be applied to domestic workers in private employment agencies. [32] Contrastingly, this ambiguity indicates that the enforcement of the ILO conventions against private employment agencies is left as a sole responsibility to the individual governments. Thus, although the Korean legislation would generally comply with the provisions of the Domestic Workers Convention, the enforcement of the legislation is heavily jeopardized as it provides flexibility for private employment agencies to voluntarily register themselves to the government. Agencies may still operate without the registration while facing no legal consequences. [33] The scope of this legislation and its coverage is heavily limited as agencies may simply decide against registering and putting themselves under higher labor regulations.
IV. Conclusion and Future Implications
The general trend of ratifying the ILO convention seems to follow one of three patterns:
Country is able to ratify the ILO convention upfront, due to already existing legal infrastructure
Country ratifies the ILO convention due to the influence of the peer nations, and proceeds with compliance procedures
Country does not ratify the ILO convention upfront, but does so when its legal infrastructure is sufficient and is deemed to be compliant with the ILO convention
In any of the three patterns, the ILO convention can successfully pressure the government to take action. After the ratification, the next question is whether the provisions of the convention will be successfully implemented. Case examples discussed in the prior sections, Germany and South Korea, only reflect the best scenarios. The challenges of complying with the ILO convention may look entirely different depending on the country’s social, economic, and legal landscape. For instance, of the thirteen Latin American countries that ratified the Domestic Workers Convention, only Argentina, Chile, and Paraguay have been deemed to have made substantive progress on reforms. [34] Even between the three countries, compliance took a wide range of forms. For instance, on the issue of non-working time rights, as outlined by Article 10 of the Convention, the three countries possessed widely different expectations for the working times of domestic workers. Paraguay domestic workers spent an average of forty-five hours each week, twenty percent and twice higher than Chile and Argentina respectively. [35]
Such differing social and labor market contexts influenced the compliance with the Domestic Workers Convention, as Argentina simply proceeded with reinforcing its original legislation on maximum working hours, while the Chilean and Paraguayan governments questioned the adaptability of the maximum working hour provisions. [36] Nonetheless, the current number of ratified states for the Domestic Workers Convention, when compared to the past ILO convention, can be deemed as relatively successful. [37] If the purpose of the Domestic Workers Convention is to frame the labor rights of domestic workers in a human rights argument, [38] it can be argued that it is moving in the correct direction. Nonetheless, the Domestic Workers Convention still does not have force in the major developed countries, including the United States, as the current state of domestic workers’ rights in the US at the federal level could not be said to be complying with the Domestic Workers Convention. In any case, it is clear that the ratification of the Domestic Workers Convention must precede the question of whether compliance or implementation can realistically occur.
Endnotes
[1] Convention No. 189 and Recommendation No. 201 Concerning Decent Work for Domestic Workers, July 16, 2011. [hererinafter Convention No. 189 and Recommendation No. 201].
[2] Adelle Blackett, "The Decent Work for Domestic Workers Convention and Recommendation, 2011," American Journal of International Law 106, no. 4 (October 2012): 778-779.
[3] Convention No. 189, supra Note 1.
[4] Adelle Blackett, "Domestic Workers Convention," supra Note 2, at 787.
[5] Adelle Blackett, 787.
[6] Convention No. 189.
[7] Convention No. 189.
[8] Adelle Blackett, "Domestic Workers Convention," 784-785.
[9] Convention No. 189.
[10] Recommendation No. 201, supra Note 1.
[11] Adelle Blackett, "Domestic Workers Convention," 785
[12] Leonardo Baccini; Mathias Koenig-Archibugi, "Why do States Commit to International Labor Standards: Interdependent Ratification of Core ILO Conventions, 1948-2009," World Politics 66, no. 3 (July 2014): 452.
[13] Baccini and Koenig-Archibugi, "Why do States Commit to International Labor Standards,” supra Note 12, at 452-453.
[14] Baccini and Koenig-Archibugi, 454.
[15] Baccini and Koenig-Archibugi, 463.
[16] Thomas, Oelz, and Beaudonnet. 2004. "The Use of International Labour Law in Domestic Courts: Theory, Recent Jurisprudence, and Practical Implication." In Jean-Claude Javillier and Bernard Gernigon, eds., Les normes internationalsdu travail: un patrimoinepour l'avenir. Geneva, Switzerland: International Labor Organization: 257.
[17] Baccini and Koenig-Archibugi, 475
[18] “Ratifications of C189 - Domestic Workers Convention, 2011 (No. 189),” Ratifications of ILO conventions: Ratifications by Convention, accessed March 24, 2024, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB%3A11300%3A0%3A%3ANO%3A%3AP11300_INSTRUMENT_ID%3A2551460.
[19] Baccini and Koenig-Archibugi, 475.
[20] Anne Trebilcock, “Challenges in Germany’s Implementation of the ILO Decent Work for Domestic Workers Convention,” International Journal of Comparative Labour Law and Industrial Relations 34, no. Issue 2 (May 1, 2018): 151, https://doi.org/10.54648/ijcl2018007.
[21] Anne Trebilcock, “Challenges in Germany’s Implementation,” supra Note 20, at 165.
[22] Anne Trebilcock, “Challenges in Germany’s Implementation,” 159.
[23] Ibid.
[24] Convention, No. 189.
[25] Thomas, Oelz, and Beaudonnet, “The Use of International Labour Law,” 258.
[26] “가사근로자법이 성공하려면 [Necessary Steps for the Success of the Domestic Workers Act].” 매일노동뉴스 (Labor Today Korea), September 25, 2023. https://www.labortoday.co.kr/news/articleView.html
[27] Act on the Employment Improvement of Domestic Workers (No.18285, 15., Jun, 2021) (R.O. Korea).
[28] Ibid.
[29] Convention, No. 189.
[30] “가사근로자법이 성공하려면 [Necessary Steps for the Success of the Domestic Workers Act],” supra Note 25.
[31] Recommendation No. 201, supra Note 1.
[32] Adelle Blackett, "Domestic Workers Convention," 789.
[33] Kwon, Ohseong, and Park, Sohee. "A Study on the Protection of the Domestic Workers." Labor Law Forum no. 31 (2020): 155-156, 10.46329/LLF.2020.11.31.143
[34] Lorena Poblete, "The ILO Domestic Workers Convention and Regulatory Reforms in Argentina, Chile and Paraguay. A Comparative Study of Working Time and Remuneration Regulations," International Labour Review 157, no. 3 (September 2018): 436.
[35] Poblete, “Regulatory Reforms,” supra Note 31, at 446.
[36] Poblete, “Regulatory Reforms,” 448-449.
[37] Adelle Blackett, "Domestic Workers Convention," 789. Blackett characterizes Convention No. 181’s ratification record as “sobering,” as only twenty five countries ratified it in the period of fifteen years. Contrastingly, Convention No. 189 was ratified by thirty six countries in the span of eleven years.
[38] Adelle Blackett, "Domestic Workers Convention," 783.