Wrking Dcument February 2018 SHARED CONCERNS AND JOINT RECOMMENDATIONS ON MIGRANT DOMESTIC AND CARE WORK Pht Mercedes Miletti Cntributrs The fllwing wrking dcument gathers shared cncerns and jint recmmendatins, and may be updated and further develped as needed. The dcument has been develped 1 by the fllwing glbal and Eurpean level trade unins cnfederatins, Eurpean level NGOs and netwrks, natinal level trade unins and NGOs: Afrique Culture Marc (Mrcc) Age Platfrm Cmité Cntre l Esclavage Mderne (France) Eurcarers Eurpean Anti-Pverty Netwrk (EAPN) Eurpean Assciatin fr Service Prviders fr Persns with Disabilities (EASPD) Eurpean Federatin fr Family Emplyment (EFFE) Eurpean Federatin fr Fd, Agriculture and Trade (EFFAT) Eurpean Federatin fr Services t Individuals (EFSI) Eurpean Netwrk Against Racism (ENAR) Eurpean Netwrk f Migrant Wmen Eurpean Public Service Unin (EPSU) Eurpean Trade Unin Cnfederatin (ETUC) FairWrk (Netherlands) FEANTSA LEFÖ (Austria) Indnesian Migrant Wrkers Unin (Netherlands) Internatinal Trade Unin Cnfederatin (ITUC) Latin American Wmen s rights Service (United Kingdm) Migrants Rights Centre Ireland OPZZ (Pland) FairWrk Belgium (Belgium) Peple in Need (Czech Republic) PICUM Red Acge (Spain) RESPECT Netwrk Salvatin Army EU Affairs Office SIMI (Czech Republic) Scial Platfrm UNI Eurpa Cntents 1. Challenges arund lack f recgnitin and pr regulatin f dmestic and care wrk / ecnmy 2. Particular risks f explitatin and challenges t access justice fr migrant wrkers 3. Discriminatin, vilence and limited access t services and scial prtectin 4. A multi-stakehlder apprach: Recmmendatins t all actrs 1 The cmmn cncerns and recmmendatins were develped during 3 strategy meetings in December 2016, July 2017 and Octber 2017.
Definitin f key terms Migrant wrker: nn-eu migrant wrkers. EU mbile citizens wh are dmestic and care wrkers face sme similar challenges, and recmmendatins included seek t address the situatin f all wrkers in the sectr, regardless f status. Dmestic and care wrk: Wrk carried ut fr a husehld r husehlds, including mst frequently, cleaning, cking, irning, gardening and shpping as well as caring fr children, fr lder peple r ther peple with hme-based care needs, including due t disability, health r ther needs. This paper des nt address care services prvided utside the hme. It is referred t as a sectr while recgnising that sme stakehlders differentiate the care sectr frm ther persnal husehld services. Dmestic wrker: 2 any persn engaged in dmestic wrk within an emplyment relatinship. A persn wh perfrms dmestic wrk nly ccasinally r spradically and nt n an ccupatinal basis is nt a dmestic wrker. 1. Challenges arund lack f recgnitin and pr regulatin f dmestic and care wrk / ecnmy Lack f recgnitin and investment Plicies in the areas f dmestic wrk and lng-term care have nt yet taken stck f the demgraphic challenges faced by the Eurpean Unin, namely an ageing ppulatin and a lw recruitment f EU natinals fr the dmestic and care sectr. Lack f recgnitin f dmestic and care wrk as wrk, and as a decent and skilled jb/ ccupatin. Lack f recgnitin f the difficulties and needs attached t the dmestic and care wrk, as well as its value fr the sciety as a whle. Nn-applicatin f labur standards t dmestic and care wrk and t all wrkers, regardless f status (in line with human rights law, including ILO cnventins as well as CEDAW including General Recmmendatin n. 26, and the Migrant Wrkers Cnventin, including General Cmment n. 1); need t ratify & implement ILO Cnventins in particular C189 and Frced Labur Prtcl. Lack f investment in the dmestic and care sectr and quality service prvisin (as well as scial and wrklife balance plicies in general), and pressures n infrmal carers. Pr wrking cnditins whether prvided in the hme r thrugh ther channels. Need fr regulatin f the sectr, while ensuring the preservatin and imprvement f existing livelihds during the transitin, as well as supprt fr infrmal carers. Lack f recgnitin f infrmal learning, skills and qualificatins, including between cuntries (skills prtability). Need t highlight psitive cntributins f intra-eu and extra -EU migrants t dmestic and care sectr regardless f status, and pprtunities fr decent emplyment prvided by the sectr pssible win-win fr migrants, emplyers, the sectr (NB. with the right plicies in place t supprt this). 2 Definitins are based n thse in ILO C189 - Dmestic Wrkers Cnventin, 2011. 2
Need fr gvernment supprt and subsidisatin t prvide affrdable care t peple with care needs. Pr wrking cnditins Prevalence f explitative wrking cnditins fr all wrkers in the sectr (natinal, EU, nn-eu migrant): excessive wrking hurs and hurs when expected t be available ( n call ), limited and/r nly unpaid hlidays r sick leave, under payment. Limited access f labur inspectrs, trade unins and NGOs representing migrant wrkers t private husehlds as places f emplyment. Lack f career paths (training, skills develpment, pssibilities t change sectrs). Need t develp quality assurance systems. Benefits and pitfalls f vucher systems. Gender dimensins nt nly but largely migrant wmen Links t issues arund wmen s empwerment, gender steretypes and discriminatin, including perceptin f dmestic and care wrk as wmen s wrk (and lack f recgnitin f it as wrk and the perpetuatin f that perceptin due t cntinued gender imbalance/ high prprtin f female wrkers). Necessary t facilitate equal participatin in the labur market and wrk-life balance fr families. Changes in the care respnsibilities and pprtunities within migrant wrkers families bth within and acrss cuntries, and need t supprt transnatinal care and welfare systems. Risks f gender-based vilence and explitatin, dependence, precarity. Lack f regular channels and regularisatin Restricted labur migratin pssibilities i.e. usually nt pssible fr peple t migrate t wrk as dmestic wrker, except fr emplyees f diplmats (either because n permits are issued t third cuntry natinals fr this wrk, r because f labur market test requirements). Few cuntries allw migrant wrkers t get a permit fr this wrk, even if they are already residing in the cuntry. Dependent status f migrant wrkers if n right t change emplyer, risks f explitatin as a result. Misuse f au pair systems t meet demands fr migrant dmestic and care wrkers, explitatin f au pairs (type f duties, lng hurs, underpayment, etc.), and lack f labur rights prtectins fr peple currently wrking n au pair visas. Situatins where migrant dmestic and care wrkers t register as self-emplyed (and therefre wrk withut rights as emplyees), r treatment as if they are, regardless f status. Very few pssibilities t regularise thrugh emplyment, in particular thrugh emplyment in dmestic wrk. 3
Key recmmendatins t plicy makers 1. Invest in the dmestic and care wrk sectr in the prvisin f public services and subsidised and wellregulated private service prvisin. Ensure prper scial prtectin fr thse needing care and thse wrking in the sectr, by supprting individuals and families t access affrdable and qualitative dmestic and care services while meeting the real csts f the services. 2. Include dmestic and care wrk in the same emplyment regulatins framewrk as ther ccupatins, including anti-discriminatin legislatin, in recgnitin f the rle f the sectr in scial reprductin, 3 t imprve standards and perceptins, and address reprductin f scial, racial and gender inequalities. Include natinality as a prhibited grund fr discriminatin in natinal legislatin n access t scial prtectin, gds, services, training, emplyment and ccupatin. 3. Ensure labur standards, including a living wage, health and safety and scial prtectin, as well as the right t nn-discriminatin and equal treatment, and the right t rganise, t cllective bargaining, and t infrmatin and cnsultatin, apply t the dmestic and care sectr. 4. Facilitate recgnitin f skills acquired thrugh experience by migrant carers as well as infrmal carers, as well as the recgnitin f freign diplmas, and ensure training and career trajectries. 5. Develp and implement quality assurance systems fr the sectr, fr example thrugh certificates f prfessinal cmpetence (linked t recgnitin f skills). 6. Recgnise clear demand fr wrkers in key sectrs, including dmestic and care wrk, and hw it is met currently by undcumented migrant wrkers (imprve data cllectin and use, nting impact f undcumented wrkers meeting demand n the data) and/ r nt addressed in the way labur market tests, shrtage ccupatin lists and qutas are develped. 7. Open up mre/ extend existing admissin channels fr labur migratin fr different skills/ sectrs, in particular fr dmestic and care wrk. Regular channels must ensure: pssibilities t change emplyer, jb and sectr, wrk fr mre than ne emplyer, and allw time fr unemplyment/ jb search; equal treatment and labur rights, equal scial and family rights as natinals; pssibilities t renew, as well as apply fr anther type f permit, mve within the EU, and access permanent status after a number f years. 8. Implement clear, permanent, accessible mechanisms t regularise present undcumented wrkers, including thse wrking as dmestic and care wrkers, including thrugh allwing applicatins fr wrk permits frm within the territry, regardless f status, while respecting wrkers' fundamental rights and ensuring pprtunities fr incme security and livelihds. 3 Addressing hw dmestic wrk is essential t the reprductin f cmmunities, husehlds and families, including thrugh care; while at the same time recgnising that this reprduces scial relatins gender relatins, class and ecnmic relatins, cultural relatins including discriminatin. See Bridget Andersn, Ding the Dirty Wrk?: The Glbal Plitics f Dmestic Labur, 2000, Palgrave Macmillan: Lndn and New Yrk. 4
2. Particular risks f explitatin and challenges t access justice fr migrant wrkers Explitatin and deceptin in recruitment, recruitment fees need fr regulatin, ethical recruitment and n fees fr wrkers. Limitatins n liberty and mbility fr live-in wrkers in particular, and cnfiscatin f dcuments. Dmestic servitude in diplmatic husehlds and misuse f immunity t circumvent labur law. Cntradictry and verlapping cmpetences between migratin and labur laws and authrities priritisatin f migratin law enfrcement ver labur law enfrcement resulting in jint inspectins, and respnsibilities n labur inspectrs t check immigratin status and reprt undcumented wrkers t immigratin authrities and ineffective cmplaints and redress mechanisms; therefre risks f penalties fr irregular wrk, emplyer retaliatin, arrest, detentin and deprtatin as a result f engaging with labur authrities, and very limited chances f recuperating unpaid wages and cmpensatin. While sme advancements in prtectin and supprt t identified trafficked persns, still limited access t meaningful supprt and justice (including access t secure residence status and cmpensatin as relevant), high threshld fr recgnitin f trafficking and issues arund evidence, and lack f attentin t widespread ecnmic explitatin and cntinuum f explitatin and risks assciated with exclusin and discriminatin against undcumented migrants. Risks assciated with care wrkfrce being unsupprted, ver-wrked, underpaid, etc. Difficulties arund reaching, empwering and rganising dmestic wrkers and undcumented wrkers. Lack f capacity building e.g. financial empwerment and management fr families in, and if returning t, the cuntry f rigin, and csts f sending remittances. Key recmmendatins t plicy makers 1. Regulate recruitment agencies and au pair agencies; ensure registratin, mandatry minimum standards fr psitins ffered, that fees are nt charged t wrkers r au pairs, mnitring f implementatin and accuntability. 2. Cuntries f destinatin t check that cntracts include minimum labur and scial standards (including scial security), and are in a language the wrker can understand, including thrugh the use f mdel cntracts, befre issuing visas fr dmestic wrkers. Mnitring shuld be ensured by requiring a separate meeting with the wrker, after a given perid, including thrugh cperatin with NGOs. 3. Regarding dmestic wrkers emplyed by diplmats, bth the cuntry f destinatin and cuntry f rigin shuld: Ensure that wrkers are issued a wrk permit rather than as a family member/ dependent, and have equal rights as ther wrkers (all abve recmmendatins als equally apply, regarding cntracts, cnditins f emplyment, labur mbility, scial rights, etc.). Explre use f memrandums f understanding fr diplmats emplying dmestic wrkers, stating that they will cmply with labur regulatins, allw inspectins and participate in mediatin as needed. 5
4. Prevent a situatin where Eurpe meets its care needs thrugh explitatin f migrant wrkers ensure that emplyment in dmestic and care sectr is decent and dignified. Ensure human rights and labur standards apply t all wrkers, regardless f migratin/ residence r emplyment status, including fr peple n au pairs permits and wrkers that are self-emplyed but actually emplyed, r whse direct emplyer is an agent. This requires effective mechanisms fr all wrkers, regardless f migratin/ residence r emplyment status, t file a cmplaint and access remedies, withut risk f apprehensin r ther negative repercussins and with necessary supprt. This includes implementing a strict firewall between the duties f labur inspectrs and immigratin enfrcement (n rle t enfrce immigratin law, check r reprt immigratin status, n jint inspectins). Labur inspectrs must have access t private hmes as places f emplyment (withut a warrant, fr example, thrugh requiring emplyers t sign a waiver t allw unannunced labur inspectins when issuing the wrk permit, bth t check standards initially and mnitr during emplyment). Labur authrities shuld have the resurces and pwers necessary t mnitr, investigate, award cmpensatin and ensure it is actually received by wrkers. Ensure that all wrkers have their right t rganise, participate in cllective bargaining, t jin and frm trade unins and scial enterprises. Facilitate trade unins and NGOs supprting migrants t have access t wrkers. Supprt fr wrkers t ldge a cmplaint shuld als be prvided, including access t residence status, infrmatin and legal representatin. 5. Cuntries f rigin embassies in cuntries f destinatin shuld explre cnsular services that supprt legal and scial prtectin f migrant wrkers, regardless f status, and their families in the cuntries f rigin, and rganise infrmatin sessins fr their citizens n their rights in the cuntry and services available t them, regardless f status, in cperatin with civil sciety. 3. Discriminatin, vilence and limited access t services and scial prtectin Expsure t discriminatin including n basis f natinality and religin. Expsure t vilence (all frms f vilence, including psychlgical, physical, sexual, financial, etc.) Inadequate husing, lack f privacy. Risks f hmelessness, in particular fr live-in wrkers. Lack f access t health services including reprductive health services, services fr chrnic cnditins, etc. and in cases f wrkplace accidents. Lack f access t public scial services, including prtability and transfer f scial security acrss cuntries, including utside the EU. 6
Key recmmendatins t plicy makers 1. Ensure that all residents, including undcumented migrants, have equal access t services, including health, educatin, and shelter, as well as access t husing (including nn-criminalisatin f renting and prtectin f tenants rights), plice prtectin (as victims r witnesses f crime) and access t justice. 2. Ensure that a firewall exists between service prviders and immigratin authrities (a clear separatin in law and practice, in particular thrugh prhibiting enfrcement actins near r arund services, and sharing f persnal data fr immigratin enfrcement purpses/ withut cnsent). 3. Cuntries f rigin shuld seek bilateral agreements t ensure prtability f scial rights, including transfer f scial security, fr their citizens that return, as well as supprt capacity building fr returning migrants. 4. Imprve data cllectin and disaggregatin t mnitr intersecting/ multiple discriminatin and different experiences f explitatin. 4. A multi-stakehlder apprach: Recmmendatins t all actrs Build alliances between care users (peple in need f care and infrmal carers), emplyers and prviders f quality f care, and wrkers assciatins campaign tgether, where pssible and apprpriate. Supprt dmestic wrkers, including (undcumented) migrants t rganise. Rle f trade unins in particular t d utreach and facilitate membership and supprt, including thrugh cperatin with NGOs. Trade unin participatin f and advcacy fr all migrant dmestic and care wrkers, regardless f residence status, is crucial t empwer dmestic wrkers and imprve labur standards fr all wrkers in the sectr. Ensure dmestic wrkers arund the table n equal basis (genuine multi-stakehlder apprach). Campaign t change the way that the sectr is viewed with due attentin t bth the gender dimensins and the reliance and cntributin f migrants the sectr cannt be discussed withut cnsidering rights and empwerment f wmen and f migrants (and f wmen migrants). Emplyer, prvider and wrkers assciatins shuld wrk tgether facilitate enfrcement f scial and emplyment standards Lbby fr equal rights regarding pay, wrking hurs, hlidays, sick leave, freedm f mvement, health insurance, decent and private accmmdatin etc. Raise awareness f wrkers rights and bligatins n emplyers, including individuals and families, and supprt them t meet thse bligatins (fr example, with tls such as template cntracts, translatin supprt/ referrals, supprt t access subsidies and publicly prvided services, supprt t cmply with tax and scial security regulatins, etc.) Prvide mediatin services, t supprt tailred and quality service prvisin and wrking cnditins, as well as manage disputes. 7