Is the grass always greener on the other side? International governance of the private household

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NTERNATIONAL

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OUSEHOLD

Rochelle Swarts 10846948

Supervisor: Dr N.E. Ramos-Martín

Master Thesis

LLM European and International Labour Law University of Amsterdam

Master Thesis (12EC) 31 July 2015

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NTRODUCTION

1.1 Migrant domestic workers and labour rights: reality or illusion……….4

1.2 Purpose and Research question………...4

1.3 Methodology……….5

1.4 International intervention……… ……6

1.4.1 International Labour Organisation and migrant domestic workers………6

1.4.2 Fundamental concepts……….6

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NTERNATIONAL LABOUR STANDARDS FOR MIGRANT DOMESTIC WORKERS 2.1 The ILO and migrant domestic workers………..9

2.2 Conventions of the ILO………..9

2.2.1 Core labour standards……….9

2.2.2 Migration conventions of the ILO……….11

2.2.3 Convention Concerning Domestic Work 189 and Recommendation 201……….11

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FRICA 3.1 Contextualising migrant domestic work in South Africa……….12

3.1.1 Social and economic importance of migrant domestic work in South Africa………....12

3.1.2 Purpose of post-1994 labour law and policy……….….12

3.2 Protection as host state: equality, social protection and servitude……….…..13

3.2.1 “Employee” status………..13

3.2.2 Regulatory framework………...14

3.2.3 Labour rights of (illegal) migrants………....18

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HILIPPINES 4.1 Contextualising domestic work………..19

4.1.1 Social and economic importance of domestic work in the Philippines………..…19

4.1.2 Purpose of labour law and “employee” status………...19

4.2 Protection of domestic workers in the Philippines: equality, social protection and servitude………...20

4.3 Protection if Philippine domestic workers go abroad – three phase protection………..21

4.3.1 Regulatory framework………....21

4.3.2 Three phase protection………..23

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TANDARDS 5.1 Inclusion of migrant domestic workers within the ambit of formal regulation……….….24

5.2 Extension of equal treatment, social security protection and prohibition of servitude to migrant domestic workers in receiving countries………....25

5.2.1 Equal treatment………...25

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5.2.3 Domestic servitude………...28

5.3 Three phase protection – protection afforded by the sending state………...30

5.3.1 The potential of the DWC………30

5.3.2 The Philippines: employee status, equal treatment, social protection and servitude………31

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EVELOPMENTS 6.1 Human rights approach and immigration law………33

6.2 Improved collective worker mobilisation……….35

6.3 Privacy ………36

6.3.1 Labour inspectorate……….36

6.3.2 Individual empowerment ………....37

6.3.3 Trade union rights………....38

6.4 Social protection as a human right – reconceptualising social rights………....38

6.5 Mutual responsibility and cooperation………....39

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ONCLUSION

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IBLIOGRAPHY

“Speak up for those who cannot speak for themselves, for the rights

of all who are destitute.

Speak up and judge fairly; defend the rights of the

poor and needy.”

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NTRODUCTION

1.1 Migrant domestic workers and labour rights: reality or illusion

For centuries domestic workers have fallen beyond the scope of protection provided by national employment and labour legislation in most jurisdictions primarily. The reason for this exclusion is primarily based on the fact that these employment relationships are vastly different than that of what was traditionally understood and legally defined to be an employment relationship, in other words full-time indefinite employment in terms of an employment contract. However, the problem did not stop there. The already precarious position of domestic workers is further exacerbated where their employment is combined with migration.

The result of this reality is that these migrant workers’ enjoy no labour rights protection which inevitably affects their human rights. Moreover, they have no job security and social protection, servitude remains commonplace and the discrimination on the basis of sex and nationality still exists – rights which are all fundamental in the international community. Their position is further aggravated by the fact trade unions cannot come to their rescue because these workers cannot rely on labour participation rights and their fear of losing their employment if they choose to vindicate rights which they do have. They have less secure contractual arrangements, reduced income and limited employability.1 Thus, it is clear that this lack of protection has an immense adverse impact on the professional and personal lives of migrant domestic workers. Moreover, employment agencies find creative ways to circumvent labour regulation, where it exists, by given a different label to domestic workers. Against this background the “Convention concerning decent work for domestic workers” (no. 189) (hereinafter “DWC”) and its accompanying Recommendation (no. 201) was adopted in June 2011 to remedy this reality by recognising the labour rights of domestic workers and, more importantly, their value in the labour market.2

This research thesis, therefore, examines the current protection afforded to migrant domestic workers from an international perspective with respect to equality, social protection and servitude. A legal analysis of two countries (South Africa and the Philippines) is done to assess the scope of national legislation which stipulates the rights and obligations of migrant domestic workers. Against the national legislative backgrounds the necessity and effectivity of the particular international labour standards with regard to the capita selecta of rights is critically discussed.

1.2 Purpose and Research question

South Africa and the Philippines are examples of the import and export potential of domestic work and how each country addresses the protection of migrant domestic workers. South Africa is a prime country of destination and the Philippines one of the largest exporting countries of domestic work globally. Therefore, each country is assessed and also the DWC (in conjunction with the Migrant Workers Convention and other conventions and recommendations to the extent that it is necessary) with the purpose of indicating what problems the convention seeks to address and to assess whether it is the appropriate normative instrument to address these issues.

1 _{Considering that it is usually members of disadvantaged groups who become part of the domestic work sector.}

2 _{See for a general description: E Albin & V Mantouvalou, “The ILO Convention on Domestic Workers: From the Shadows to the Light” (2012) 41(1) ILJ} 67

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Formulation of research question:

Does Convention 189, in conjunction with the ILO Conventions concerning Migrant Workers, equal treatment in employment, social security and forced labour address the vulnerability of migrant domestic workers in respect to social security, equal treatment and servitude in the receiving state? Do these Conventions provide protection in all three phases of migration (i.e. pre-, during and post-migration) with respect to equality, social protection and servitude from the perspective of the sending state?

1.3 Methodology

The methodology invoked to answer these questions is an analysis of the two core conventions with regard to this subject namely the Convention on Migrant Workers and the DWC and its accompanying Recommendation. Selected rights (equal treatment, social security and servitude) will be used given the limited scope of this research.

In addition, a legal analysis is done by virtue of two country studies namely South Africa and the Philippines. The domestic legal framework of the protection provided to migrant domestic workers in South Africa is and the three phase protection in respect to migrant domestic Philippine workers is described and analysed.

Once the labour protection of migrant domestic workers (both from an import to export perspective) are elucidated the national frameworks will be evaluated in the light of the purposes and objectives of the Domestic Workers Convention as well as whether the Convention itself gives effect to its purposes and objectives (descriptive and comparative method).

Lastly, it is indicated whether the Domestic Worker Convention is in fact the appropriate way of reform to affect social justice in respect of migrant domestic workers. The convention is an international instrument that has to be implemented by those states that become signatories to the conventions. Even in the event that states do become signatories the mere ratification does not necessarily mean that the precarious situation is alleviated. On this basis possible solutions are suggested.

South Africa and the Philippines were selected because both are mixed jurisdictions with the consequence that there are common foundations to how the legal framework can be understood and how possible development could be affected. In both countries the hierarchy of sources are similar which means that the same level of importance can be attached to the constitution, case law and legislation.

Additionally, the countries were selected on the basis of ratification of the two key conventions for this thesis. The remarkable aspect lies in the fact that ratification of the DWC only really alleviates the situation of migrant domestic workers where the Migrant Workers Convention is also ratified. This conclusion lies solely in the key omission of the DWC – it is not a migrant work convention despite the inclusion of this category of domestic workers. Therefore, South Africa and the Philippines were chosen for the purpose of comparing the DWC with the national frameworks as it is easier to draw conclusions with regard to the effectiveness of the new Convention and to have value for possible interpretations of the new convention.

6 1.4 International intervention

1.4.1 International Labour Organisation and migrant domestic workers

Given the precarious nature of migrant domestic work international interference was required and in 2013 the DWC came into operation. The DWC codifies all the rights that are inherent to the precarious legal and social position of migrant domestic workers. It contains provisions on the protection of human rights, working conditions, health and safety and protection against abuse. With the adoption of the convention it is clear that the international community regards labour rights as basic human rights given the wording of, for example Article 33 and the call for achieving decent , thereby taking a human rights approach. The problem, however, is that there have only been seventeen (17) ratifications of which it has come into force in eleven (11) countries and this calls into question whether the Convention in fact adequately addresses the concerns of migrant domestic workers’ protection or whether an additional solution is required.

1.4.2 Fundamental concepts

a) Decent work

Decent work is not defined in the convention itself but Du Toit adequately describes it as a paradigm in which work has a direct effect on human development and democratic citizenship. “Decent work transcends a labour law concern with basic conditions of work and seeks to link the right to fair labour practices to a more holistic network of mutually reinforcing social, civil and political rights”.4 _{This is exactly the approach that the domestic} workers convention follows as will be discussed in further detail below – the International Labour Organisation (hereinafter “ILO”) tied a human rights approach to concrete legal principles5 _{consequently indicating the universal} nature of the bill of rights of (migrant) domestic workers.6

b) Domestic worker

Due to the heterogeneous nature of domestic work the definition incorporated into the convention is adjustable. The convention provides a very practical definition of the concept domestic work whilst simultaneously labelling it as formally recognised work implying that this work should be removed from the vacuum of non-regulation. Article 1 defines domestic work as any work performed in or for a household and if such a worker is a part of an employment relationship the said worker will be regarded as a domestic worker and does the convention apply. It is, thus, clear that the definition is based on an industry-based approach. In other words, the personal scope is defined by determining where the person works rather than the actual activities that the person performs. Furthermore, the convention applies to all domestic workers, including migrant domestic workers which is specifically provided for in Article 8 of the DWC. Moreover, it also covers part-time domestic workers and those

3 _{Article 3(1): “Each Member shall take measures to ensure the effective promotion and protection of the human rights of all domestic workers, as set out} in this Convention.”

4 _{W le Roux, Advancing domestic workers’ rights in a context of transformative constitutionalism in D du Toit (ed), Exploited, undervalued - and essential:} Domestic workers and the realisation of their rights (Pretoria University Press 2013) 61

5 _{Mantouvalou, V. 2012. Are Labour Rights Human Rights?. European Law Journal. 3(2), 151. 170}

6 _{See Smit, N & Fourie, E. 2010. Extending protection to atypical workers, including workers in the informal economy, in developing countries. International} Journal of Comparative Labour Law and Industrial Relations. 26(1), 43. 51; see, generally Albin & Mantouvalou supra note 2

7 with multiple employers.7 _{Therefore, the definition focuses on the common denominator of all domestic workers} – working the household.

This is clearly a statistical definition given that it now enables the appropriate measurement of domestic workers and the work that they are engaged in and monitoring compliance which is of paramount importance.8 Prior to the adoption of the DWC one of the biggest concerns was the difficulty in determining how many (migrant) domestic workers there are and for that reason an adjustable definition was formulated to overcome this challenge. However, there are a number of exclusions which are problematic to the human rights approach adopted by the DWC. First of all, those who do not provide domestic work on an occupational basis9 (Article 1(c)) are excluded. Secondly, at the choice of the member state, certain workers can be excluded from the operation of the convention if they are covered by equivalent protection measures or if special problems of a substantial nature arises if the workers are to be included in the convention. The difficult aspect of this definition relates to the latter.

The point of departure is that the DWC applies to all domestic workers and no specific characteristic can lead to the exclusion of such a person especially from a human rights perspective. In other words gender and immigration status should not affect someone’s human rights protection. However, the last exclusion in article 2(2)(b) leaves the door open to such a consequence and does the DWC not take the human rights approach to its full potential.10 One of the primary driving forces behind the DWC is the inclusion of migrant domestic workers and to address their global “legislative precariousness”.11 _{The DWC does not, however, specify what is meant by “special} problems of a substantial nature” thereby also impacting definitional coherence which is one of the main features of a meaningful international labour standard. Thus, the DWC, even though it has been hailed a milestone, is incompatible with its own purpose, its apparent universality and industry approach.

It also does not address domestic workers employed by diplomats who are protected by diplomatic immunity. This is a huge problem for migrant domestic workers given that they are often trafficked and victims of servitude with irregular migration statuses leading to their exclusion and perpetuates precariousness. This issue is only mentioned in the Recommendation but this is a non-binding instrument.

c) Migrant worker

Despite the DWC not being formulated as a migrant worker convention it recognises the high concentration of migrant workers engaged in domestic work.12 The universal nature of the DWC is of particular importance given that many migrant domestic workers are women (raising the issue of substantive equality) and the irregular migration statuses of the majority of the workers (nationality issues with regard to social protection and servitude

7 _{Johns Hopkins International Human Rights Clinic. 2013. The Protection of the Rights of Migrant Domestic Workers in a Country of Origin and a Country of} Destination: Case Studies of the Philippines and Kuwait.48; See, generally International Labour Organization (2009), “Decent Work for Domestic Workers”, Report IV(1), International Conference, 99th session, 2010; Chen, MA. 2011. Recognizing domestic workers, regulating domestic work: conceptual measurement, and regulatory challenges. Canadian Journal Women & Law. 23, 167. 176-178

8 _{Simonvsky Y & Luebker, M. 2011. Domestic work policy brief: Global and regional estimates on domestic workers. International Labour Organisation. 2;} Chen idem 176 & 182

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For example, the self-employed and family-members helping out 10

Albin & Mantouvalou supra note 2, 73

11 _{See, for example, Preamble paragraph 2 “Mindful of the commitment of the International Labour Organization to promote decent work for all through the} achievement of the goals of the ILO Declaration on Fundamental Principles and Rights at Work and the ILO Declaration on Social Justice for a Fair Globalization”.

12 _{Preamble, paragraph 4: “Considering that domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many} of whom are migrants…and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights

8 and equal treatment as the foundation of these issues). For these reasons they are explicitly recognised workers under the convention.

In its preamble the DWC makes reference to the migration conventions of both the International Labour Organisation (hereinafter “ILO”) and the UN and this is significant given that the DWC does not contain a definition of “migrant worker”. Migrant worker is, however, defined in Article 11 of the ILO Migration Convention as “a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment”. The UN Migrant Worker Convention defines migrant worker in Article 2 is as a person who is engaged in a remunerated activity in a state of which he is not a national. The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families also indicated that the UN Convention applies to migrant domestic workers.13

d) Employment relationship

From Article 1 of the DWC it is clear that the domestic workers be in an employment relationship but this concept is also not defined in the DWC. The ILO does, however, have an elaborate legal corpus on how to determine the existence of an employment relationship especially with respect to categories of workers formally excluded from national legislation, triangular employment relationships and disguised relationships which are all relevant in the domestic work sector. All of these issues are addressed by ILO Recommendation 198 given that in many jurisdictions eligibility to labour protection is directly linked to the existence of an employment relationship (also the DWC) which, therefore, requires some uniformity.

It is generally understood that the employment relationship refers to a relationship where one party offers to work (the employee) for another in return for remuneration (the employer) on a continuous basis and under the supervision of the employer, and this is also the understanding of the ILO.

Decent work requires the establishment of an equilibrium in the employment relationship and job creation. For this reason the ILO requests states to adopt a similar definitional understanding of this concept which protect vulnerable workers from unscrupulous employers who disguise the relationships or agencies by ensuring an efficient, effective and comprehensive definition so as to achieve maximum coverage and effective implementation of the DWC. In other words, it should be an inclusive rather than an exclusive definition which makes circumvention by placing different labels on workers difficult. However, the fact that self-employed domestic workers are implicitly excluded from the scope of the DWC does not solve this problem completely.

It is, thus, clear that the DWC marks migrant domestic work as a formal employment relationship despite the sanctity of the private sphere in which they operate given that these workers are not treated like equal family members. They are still subordinate and engaged in a remunerated activity in an unfair and dangerous environment. States, therefore, have an obligation to protect these workers, both local and migrant, and does it amount to a reasonable and objective justification for limitation of privacy. This deeming provision is, therefore, a very progressive step in governing the private household.

13 _{UN Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families, “General comment No. 1 on migrant domestic} workers” (2011)

9 The manner in which the two countries categorise formal employees will be discussed in the respective country studies in the following chapters.

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NTERNATIONAL LABOUR STANDARDS FOR MIGRANT DOMESTIC WORKERS

2.1 The ILO and migrant domestic workers

Migrant domestic workers face atrocious working conditions and this is caused by the fact that their work is not regarded as real work because it is perceived as unskilled work and it confined to the private household and hidden from the outside-world. This reality is further exacerbated by the domestic workers’ migration status which is in many cases illegal or connected to their employer. There is a high demand for domestic workers around the world because of the fact that that many women in developed countries entering into the labour market and in need of someone to take care of the household.14 This role of domestic workers is, therefore, classified as reproductive labour and this role is, because of the aforementioned reasons, often underestimated.

It, therefore, becomes necessary to determine what the ILO has done until now to address these issues in the context of migration for employment so as to bring these precarious workers out of the vacuum of non-regulation. The focus is on equality, especially with respect to social protection, and servitude so as to determine whether social justice is attainable for these workers who have a massive function to play in the economy because of globalisation.15

The ILO has a panoply of Conventions and Recommendations dealing with these rights in respect of migrant workers. However, these documents have not been sufficient to accommodate the specific needs and precarious situation of migrant domestic workers. Therefore, the ILO adopted the Domestic Workers Convention in 2011 to alleviate the reality and the fears of migrant domestic workers. This convention is further supplemented by Recommendation 201, putting an end to a debate which has been ongoing since 1951.

The impetus of the DWC was based on the fact that this is a sector mainly comprised of women and as a result giving effect to the ILO’s decent work agenda. The remarkable consequence is that, in conjunction with the previously indicated conventions, the ILO labour standards have been extended to this part of the informal economy which is composed of approximately 43 million women.

It is, therefore, important to map the purpose and the content of these conventions in order to determine to what extent they address the predicament of the migrant domestic workers in addressing the key reasons for and exclusion from the regulated labour market.

2.2 Conventions of the ILO

2.2.1 Core labour standards

The point of departure of this mapping exercise is an understanding of the ILO’s core labour standards and determining to what extent they may be relevant to the international governance of migrant domestic workers. This is necessitated by the characteristic feature of these standards that they apply to all contracting states

14 _{Simonovsky & Luebker supra note 8, 1} 15 _{Preamble paragraph 3}

10 regardless of whether the specific instrument dealing with these issues have been ratified or not.16 _{The core labour} standards which are relevant in this context is the prohibition of discrimination and forced labour. This is a particular importance where domestic workers migrate to countries where equal treatment and free labour is merely an ideal. The right to collective bargaining is also be relevant but this is discussed when assessing the future of the regulation of the private household in Chapter 6.

In the sphere of migrant domestic workers the prevalent abuse is based on discrimination on the basis of nationality, race and sex and as a consequence their work is not regarded as work in the traditional sense which alienates them even more. As a result they are not treated as equal before the law of the country of destination which leads to exclusion from the social protection system in many jurisdictions and perpetuated discrimination on the basis of sex.17 This situation leads to conditions of domestic servitude because of the non-regulation of this sector due to their status as a “worker” and as an “immigrant”.18

Convention 111 deals with discrimination in the context of employment. In terms of personal scope there is no delineation of categories of people to whom the convention applies which leads to the conclusion that it applies to all workers. This conclusion is confirmed by the use of “all human beings” in paragraph five of the Preamble and the reference to the Universal Declaration on Human Rights which applies to “everyone”. Thus, it also applies to migrant domestic workers. Recommendation 111 also makes it clear that this convention should be read in conjunction with the two conventions dealing with migration for employment.19

In terms of material scope discrimination is prohibited on the grounds of “race, sex,… and national extraction” (i.e. nationality) or any other distinction as determined by the law of the contracting state with respect to employment and occupation.20 The convention further defines “employment” and “occupation” very broadly by using the word “includes”. It includes equal access to vocational training, employment and occupation and terms and conditions of employment.21 _{It is worth noting that the definition in Article 1 does not refer to equal treatment with respect to} social security. The Recommendation does, however, have a more elaborate of aspects which require equal treatment and opportunity and it provides that there should be equal treatment with respect to social security and that national policies on equal treatment in employment should include this aspect.22

As indicated migrant domestic workers are subject to conditions of servitude in the receiving states because they are excluded from the scope of labour regulation23 _{and, therefore, cheaper to employ and are also trafficked. The} ILO, due to its tripartite structure, has made a lot of progress on the front of forced labour since 1919 especially with respect to getting the colonial countries on board. The conventions on forced labour24 aim to strike a balance between economic development and guaranteeing human rights of these diverse contracting states implying that they will be more easily convinced to implement this core labour standard in that situation.25 However, with respect

16 _{Item 2 of the 1998 Declaration on Fundamental Principles and Rights at Work} 17 _{The majority of migrant domestic workers are women.}

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Their immigration status is quite often illegal because of trafficking or undocumented entry. 19

Item 8 20

Article 1(1)(a) and (b) 21 _{Article 1(3)} 22 _{Item 2(b)(vi)}

23 _{http://www.ilo.org/global/topics/forced-labour/lang--en/index.htm (last accessed 30/07/2015)}

24 _{ILO Conventions 29 of 1930 and 105 of 1957, and Recommendation 203 on Supplementary Measures for the Effective Suppression of Forced Labour} (2014)

11 to trafficking of workers the conventions provide inadequate protection and this is concerning since few countries have ratified the trafficking convention. Moreover, to the extent that trafficking is regarded as a form of forced labour many countries are inclined to use the exceptions found in Article 2(2) especially the exception relating to states of emergency. On this basis the ILO adopted the Protocol to the Forced Labour Convention (1930) in 2014 which includes a direct link between forced and compulsory labour26 and human trafficking as well as the DWC.27 However, this Protocol is not yet operational given that only one country has ratified the it.

The personal scope of the forced labour convention is broad and encapsulates all workers thereby including migrant domestic workers. This is evident from item 4(g) of the new Recommendation (203) to the Forced Labour Convention and it is here that migration is in fact linked to forced labour. It should, however, be borne in mind that this is merely a recommendation which has no binding effect and, additionally, a new document which was adopted in June 2014.

2.2.2 Migration conventions of the ILO

The focus of this thesis falls on the position of migrant domestic workers which make them particularly vulnerable. Conventions 97 and 143 are the specific instruments of the ILO dealing with migration for employment. The personal scope is limited to migrant workers and the concept is defined in Article 11 as “a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment”. The material scope contains provisions, among others, on equality with regard to social security despite nationality and sex.28 However, it also allows for certain exclusions.29 _{The most important aspect of these conventions is that equality with respect to social security} entitlements is dependent on legal migration based on the interpretation of Article 11. The latter is an important consideration when one considers that the majority of migrant domestic workers are illegal due to restrictive immigration policies.

2.2.3 Convention Concerning Domestic Work 189 and Recommendation 201

The purpose of the convention is to extend labour protection to a large sector of the informal economy globally by making reference to all of the international human rights instruments and previously discussed international conventions.30 It aims to abolish all the harmful practices experienced by the domestic workers which is further exacerbated by their migration status by addressing the special needs of the domestic labour relationship.31 The convention acknowledges that the work that they provide is a legitimate economic activity which enable other women to leave their homes and take part in the labour market. They are confined to households and by virtue of this convention this hindrance to regulation has become permeable, consequently leading to increased protection of human and labour rights without discrimination. It is, thus, clear that the convention takes a human rights approach.32

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Preamble paragraph 8, and Article 1(3) 27 _{Preamble paragraph 11}

28 _{Article 6(b) of Convention 97} 29 _{Article 6(b)(i) and (ii)}

30 _{V Mantouvalou supra note 5, 169} 31 _{Ibid at 170}

12 In terms of personal scope the convention applies to all domestic workers as already described in Chapter 1. It also specifically includes migrant domestic workers in article 8 making it clear that this problem is real and needs urgent attention. It further also specifically refers to the various migration conventions. On the face of it the convention has a very broad material scope and, for the purpose of this thesis, it recognises equality, social protection and free labour which tie all of the relevant core standards and conventions discussed here together. Formulating the DWC in this manner creates a lot potential for the inclusion of all domestic workers. However, it may not be that unfettered after all. It is especially important to note that the vocational training provisions only apply to young domestic workers33 _{and certain domestic workers are excluded.}34

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3.1 Contextualising migrant domestic work in South Africa

3.1.1 Social and economic importance of migrant domestic work in South Africa

In South Africa domestic work accounts for approximately 7% of the country’s total workforce35 _{and this is a sector} of the economy that poses the greatest regulatory difficulties. The primary reasons for the regulatory difficulties is based on the fact that it is a highly individualised sector36 _{and the non-standard character of the employment} relationship. Given the fact that it is predominantly female workers engaging in domestic work their particular difficulties have been characterised as ‘triple exploitation’ because they face terrible working conditions because of their gender and social class, nationality and immigration status – characteristics which have a tremendous impact on their rights to equality, social protection and free labour (as opposed to servitude).

The initial exclusion of (migrant) domestic work from the South African legislative framework is based in the country’s history of racial oppression and that it is work mostly performed by unskilled black women which leads to the ‘triple exploitation’ phenomenon. Cheap black labour resulting in servitude was the inevitable consequence of their vulnerability. What exacerbates the situation of these women further is their migration status given the fact that the South African immigration policy has an exclusionary effect in respect of workers who are not citizens or residents of the Republic.37 This is a situation which has unfortunately persisted as is evident from the recent wave of xenophobic attacks in South Africa. persisted

Apart from the legislative restrictions in respect of migrant domestic work social attitudes have also been slow to adapt to the vision of democracy after 1994. Today the work of domestic workers is still not regarded as having any commercial value worthy of elaborate protection.

3.1.2 Purpose of post-1994 labour law and policy

Upon becoming a democracy in 1994 the complete labour regulatory regime changed and in principle it is based on the principles of freedom, equality and democracy. Moreover, it is a regime fundamentally driven by

33 _{Article 4(2)}

34 _{Article 1(c) and Article 2(2)}

35 _{Statistics South Africa Labour Force Survey 2nd Quarter, April-June 2012} 36 _{In other words, it is work confined to the private sphere of the employer’s home.}

37 _{See generally Olivier, M. 2011. Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements} within a multilateral framework (Part I). SADC Law Journal. 1, 121

13 transformative constitutionalism and all labour laws have to be interpreted and understood in this light.38 Transformative constitutionalism can be understood as changing society through the law and this is how labour law should be understood but this fundamental principle has certainly been called into question, especially in the context of migrant domestic workers.39 _{Therefore, in the context of respecting the rights of migrant domestic} workers new ground, new institutions and new paradigms are required to give effect to transformative constitutionalism which will result in better protection and scope to exercise workers’ rights40_.

A one-size-fits-all approach is no longer viable in the context of non-standard work because of the drastic changes and complexities that have occurred in the industrial and employment relations due to globalisation and the economic crisis. Therefore, in order to ensure the protection and promotion of labour rights the legal paradigm has to be readjusted and developed to give effect to the specific demands of non-standard workers. One way of achieving this is by virtue of substantive equality creating the scope for variability of labour regulations and this is especially plausible in South Africa given the fact that the law is modelled on a superstructure of transformative constitutionalism.41

There is a need for responsive legislation, in other words, decentralised regulation coupled with centralised legislation setting the boundaries of the parties’ autonomy because regulation in this manner is better equipped to deal with peculiarities of the sector. The inevitable question is, thus, whether the current framework for migrant domestic workers gives effect to transformative constitutionalism and what impact the Domestic Workers’ Convention has in this respect.

3.2 Protection as host state: equality, social protection and servitude

3.2.1 “Employee” status

A necessary requirement under South African labour law to benefit from the rights imposed by the legislation is “employee” status. The Basic Conditions of Employment Act 75 of 1997 (hereinafter the BCEA) stipulates a very broad personal scope. First of all, the BCEA defines “employee” as “(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer”.42 _{However, because of the disguising activities of employers the BCEA, secondly, contains a list of} seven factors which are regarded as presumptions of employee-status thereby facilitating the domestic worker to comply with her/his burden of proof to prove that she/he is in fact a legitimate worker under the BCEA.43 Moreover,

38 _{In other words, give effect to freedom, equality and democracy by taking a transformative constitutionalism approach (a transformative constitutional} superstructure)

39 _{See W le Roux in Du Toit (ed.) supra note 4, 31} 40

Ibid 32 41

D du Toit, Situating domestic work in a changing global labour market in Du Toit (ed.) supra note 4, 20 42

Section 1

43 _{Section 83A(1) provides that “a person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an} employee, regardless of the form of the contract, if any one or more of the following factors is present: (a) the manner in which the person works is subject to the control or direction of another person; (b) the person’s hours of work are subject to the control or direction of another person; (c) in the case of a person who works for an organisation, the person is a part of that organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependent on the other person for whom that person works or renders services; (f) the person is provided with tools of trade or work equipment by the other person, or (g) the person only works for or renders services to one person.

14 domestic work is specifically regarded as formal work in terms of the BCEA44 _{and the SD7}45 _{and is a domestic} worker an “employee” if the prerequisites are complied with.

However, in the context of migration, the worker additionally has to be a legal migrant worker before (s)he can be regarded as an employee. Legal migration is regulated by the Immigration Act 13 of 2002 (hereinafter “IA”) which imposes strict categories of legal South African citizens or residents and strict requirements to comply with prior to the issuance of a valid residence permit. In the context of employment the IA requires the employer to indicate that there is no other South African worker with similar skills that can perform the work required of the migrant.46 However, domestic work is mostly unskilled and it is, moreover, a sector in the South African economy which is “overpopulated” – there are many South Africans wanting to engage in domestic work especially since the start of the crisis and the increase in unemployment.

Therefore, from a legal perspective, it is nearly impossible to be granted a work visa on the basis of domestic work which aggravates the already precarious position of migrant domestic workers. As a consequence these workers are scared of their employer,47 scared to vindicate their rights, scared of social persecution, they cannot join trade unions and increased competition between the workers.48

This is already indicative of the unsatisfactory nature of the South African regulatory framework and this exclusionary effect is not justifiable in the light of the apparent transformative constitutionalism foundation and decent work. Therefore, there is need for a nuanced approach to ensure protection and achieve decent work for migrant domestic workers.

3.2.2 Regulatory framework

a) General

The necessary components of eradicating the precarious nature of migrant domestic work is the inclusion into the social protection system49 _{and equal treatment and opportunity which leads to a situation of a decrease in} domestic servitude and forced and abusive labour practices given that the workers can vindicate their rights. The relevant legislation in force for the past ten years are in South Africa is Constitution, Sectoral Determination 7, Labour Relations Act 75 of 1995, Basic Conditions of Employment Act, Employment Equity Act of 55 1998 (hereinafter “EEA”), Immigration Act and the Unemployment Insurance Act 63 of 2001 (hereinafter “IUA”). b) Equality

SD7 does not explicitly deal with equality but the EEA is the specialised instrument regulated equality in the workplace and takes a substantive approach. The EEA further incorporates a broad definition of employee50 and, therefore, migrant domestic workers are entitled to equal treatment because the EEA gives effect to section 9 of

44

Section 1 45

Part A determines that “[t]he determination covers the following employees: all domestic workers in South Africa; persons employed by employment services; independent contractors; a person doing gardening in a private home; persons who look after children, the aged, the sick, the frail or the disabled in a private household and a person employed to drive the car taking the children of the household to school”.

46 _{Section 18(3)(a)(i) of the Regulations and Notices (R413) of the Immigration Act 13 of 2002} 47 _{The threat of harassment, dismissal or reporting to the authorities.}

48 _{Employers also have a clear preference for these migrant domestic workers as opposed to South Africans which leads to extreme xenophobia.} 49 _{As opposed to their exclusion on the basis of their immigration status and nationality.}

15 the Constitution which applies to “everyone”51 _{thereby taking a substantive approach. Thus, protection of a migrant} domestic worker’s right to equality cannot be withdrawn on the basis of immigration status.52

c) Social Security

As expressed by the International Labour Organisation’s Decent Work Agenda social protection is necessary to give effect to decent work and constitutionalism with a specific focus on gender equality.53 _{For migrant domestic} workers social protection is even more important given the increased challenges they face in transitioning between work and unexpected interruptions in work.54

In terms of entitlement to protection section 27(1)(c) of the Constitution is the point of departure in terms of which “‘everyone has the right of access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance”. This implies that there should be no differentiation on the basis of nationality.55

Additionally, all of the legislation enumerated above contain provisions on social security protection and the UIA is significant given that it makes provision for both unemployment benefits and maternity leave which is particularly important for the gendered nature of domestic. SD756 also indicates in Part H thereof that the UIA has been extended to include domestic workers. Therefore, it is clear that migrant domestic workers are entitled, in principle, to social security and social assistance.

However, what complicates this situation is the conflict that exists between labour law and immigration law in terms of the legal context in which migrant domestic workers’ rights are to be defined. Most of these workers are illegal and the immigration status takes precedence over their rights entitlements aggravating their already legislative precariousness and social position.57

Where the social assistance of migrant domestic workers is concerned the Constitutional Court held in Khosa and

Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development58

that permanent residence entitles migrant workers to full access to both social assistance and to social security provided that the person is a legal migrant. This judgment, therefore, overruled the provisions that social assistance is only accessible to citizens of the Republic of South Africa.59 It is argued that this approach endorsed

51

Section 9 determines that “[e]veryone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms”.

52 _{See, for example, the Constitutional Court’s decision in Larbi -Odam & Others v Members of the Executive Council for Education & Another (North West} Province) (CCT2/97) [1997] ZACC 16

53 _{ILO Decent Work Agenda http://www.ilo.org/global/about-the-ilo/decent-work-agenda/social-protection/lang--en/index.htm (last accessed 30/07/2015)} 54 _{JN Fish, Rights across borders: policies, protections and practices for migrant domestic workers in South Africa in Du Toit (ed.) supra note 4, 245; They do}

not have special marketable skills. 55 _Ibid.

56 _{Applies if the person works for at least 24 hours and it applies to all legal domestic workers in South Africa.} 57 _{Olivier supra note 27, 127}

58 _{(CCT 13/03, CCT 12/03) [2004] ZACC 11}

59 _{Ibid para 76-77: “The exclusion of permanent residents in need of social-security programmes forces them into relationships of dependency upon families,} friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa. These families or dependants, who may be in need of social assistance themselves, are asked to shoulder burdens not asked of other citizens. The denial of the welfare benefits therefore impacts not only on permanent residents without other means of support, but also on the families, friends and communities with whom they have contact. Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants. As far as the applicants are concerned, the denial of the right is total and the consequences of the denial are grave. They are relegated to the margins of society and are deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying them their right under section 27(1) therefore affects them in a most fundamental way. In my view this denial is unfair”.

16 by the Constitutional Court is contrary to international law because it still requires legal migration60 _{but it should} be borne in mind that South Africa has not ratified any of the conventions dealing with social security and social assistance for the very reason of limiting entitlements to illegal migrant workers on the basis of socio-economic considerations.61 _{This position can also not be remedied by applying the DWC since it is completely silent on the} social security rights attached to illegal migrant domestic workers.

With respect to social insurance section 9 of the Constitution (read in conjunction with section 27) and article 14 of the DWC does, however, mandate equal treatment, which is both based on the principle of achieving substantive equality despite the fact that South Africa did not ratify any of the social protection conventions. Exclusion of illegal migrant domestic workers, thus, amounts to discrimination and in contravention of the Constitution and the DWC. Section 3(1)(d) of the UIA62 especially has an adverse impact with respect to entitlement to social insurance where the employee is only here on the basis of a fixed term contract. It is argued that this provision is based on the administrative burden with respect to portability of benefits and maintenance of acquired rights but this does not seem to be a sufficient reason to deny social protection rights of legal and illegal migrant domestic workers which are codified in the DWC.63

d) Southern African Development Community’s response to social security

Statistics show that migration for domestic work occurs mostly between the Southern African Development Community (hereinafter “SADC”) countries64 _{and, therefore, a regional response to social protection is necessary} despite the fact that there are provisions on social security in the SADC Code on Social Security.65 Coordination of this nature is also recommended by the DWC and the European Union’s response to social security coordination can be instructive despite the vast social, economic and political differences between the two regions.66

The SADC Code is insufficient given the fact that it only applies to legal migration. Moreover, it does not create a level playing field between the countries which creates risks of social dumping since not all countries are in the political and economic position to accommodate such an elaborate system of coordination. Even if this downfall is remedied then migrant domestic workers will still be excluded from the South African legislative framework which is still largely exclusionary where entitlement is concerned.67 Socio-economic considerations like cuts in public spending also determine South Africa’s willingness to extend social protection to migrant workers affecting equal treatment and opportunity.68

60 _{Fish in Du Toit (ed.) supra note 4, 247}

61 _{This feature is indicative of the inherent exclusionary nature of South African immigration policy.}

62 _{“This Act applies to all employers and employees, other than…persons who enter the Republic for the purpose of carrying out a contract of service…within} the Republic if upon the termination thereof the employer is required by law or by the contract of service…, as the case may be, or by any other agreement or undertaking, to repatriate that person, or that person is so required to leave the Republic, and their employers”.

63

Fish in Du Toit (ed.) supra note 4, 248

64 _{The SADC is a regional organisation consisting of 14 member countries: Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi,} Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

65 _{See generally, Olivier supra note 27. Fish in Du Toit (ed.) supra note 4, 250} 66 _{Fish in Du Toit (ed.) supra note 4, 249}

67 _{This will be the result because coordination does not require the creation of common standards across the SADC.} 68 _{Fish in Du Toit (ed.) supra note 4, 250-251}

17 d) Servitude

The employment relationship in the context of domestic work has also been equated to a relationship based on servitude. Servitude is prohibited in terms of section 13 of the Constitution. This is an interesting notion because this opens the door to a constitutional, human rights challenge under South African law as a basis for negating the vulnerability and ensuing exploitation of migrant domestic workers due to the Constitution’s inclusive nature69

and special remedies.70 To the extent that this is a feasible solution it will be in line with the DWC given that it takes a human rights approach.

Even though there is no definition of servitude in the Constitution or in the case law of South Africa, “servitude” can be understood as the dominion over another “underwritten by law, custom or agreement”.71 _{It is, thus, about} social status which is predominant in the context of migrant domestic work. Due to this dominion the migrant domestic workers are not at liberty to choose whether they want to remain employed because of their inability to find alternative employment, their fear to vindicate their rights and fear of persecution (for example, xenophobia) which are all based on the legal status as a domestic worker regardless of whether the person is a legal migrant. Thus, it can be said that this situation of servitude refers to dominion underwritten by the law72 _{and custom}73

because these inherent elements make it difficult and sometimes even impossible for the workers to exercise their fundamental freedoms.

The Constitutional Court made a serious attempt in the judgment of Coetzee v Government of the Republic of

South Africa74 _{to take an approach on the basis of transformative constitutionalism when it held that arrangements}

and effects directly based on social status of a person is not justiciable and is unconstitutional because such an arrangement perpetuates domination over another human being. Moreover, the concept of servitude has also been understood to refer to the “use or threatened use of legal coercion”.75 _{Based on these definitions it is,} therefore, clear that it holds true for many migrant domestic workers.

Despite the legislature’s attempt to formalise this sector of the economy the reality remains, however, that domestic workers are only theoretically free to change their actual working experience especially if they are illegal migrants – the factor which completely obliterates any real legal protection afforded in terms of labour law – indicating a situation perpetuating domination.

Additionally, this reality also indicates the difficulty with respect to implementation of the protective legislation and it is in this light that the government’s approach has to change and move beyond mere adoption of rules. The provisions have to be of such a nature so as to create regime of rights protection by simultaneously addressing the systemic disadvantages suffered by these workers. The focus should, therefore, fall on guaranteeing the right to work freely and free from servitude when developing and interpreting the law and policy. Such an approach

69 _{Based on the Constitutional Court’s jurisprudence the Court adopts a broad interpretation of the concept “everyone” and in principle it literally refers to} everyone, even migrants.

70

In terms of section 172(b) the Constitutional Court “may make any order that is just and equitable”. 71

Woolman, S & Bishop, M. 2007. Down on the farm and barefoot in the kitchen: farm labour and domestic labour as forms of servitude. Development Southern Africa. 24(4), 595. 596. This is a very broad definition in terms of the Supplementary Convention on the Abolition of Slavery. Even though South Africa is not a signatory to this Convention it is, nevertheless, a useful source of inspiration which is permitted by section 39(2)(b) which provides that the courts may take international law into consideration when interpreting the Bill of Rights.

72 _{In the case of illegal migrant workers.} 73 _{In the case of all migrant workers.} 74 _{(CCT19/94, CCT22/94) [1995] ZACC 7}

18 would inevitably result in protecting and promoting the rights of all migrant domestic workers in compliance with section 13 and 23 of the Constitution.76 _{Even though it is said that SD7 has had a positive impact on working}

conditions it is certainly far from having the desired effect with respect to migrant domestic workers because of the fact that it is not specific and comprehensive legislation and the continuous non-compliance. Instead, it is merely an extension of the existing regulatory framework to the domestic workers. The question that needs answering is, therefore, whether the government has done enough in the light of both the Constitution and the DWC.

3.2.3 Labour rights of (illegal) migrants

The overview of the regulatory framework indicates that there are rules in place to protect and promote the labour rights of migrant domestic workers but that the workers’ illegality may impede the said protection. This section, therefore, elaborates upon the rights-entitlements of illegal migrants in terms of South African law.

In the landmark judgment of Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration77

the Labour Court took an approach based on transformative constitutionalism despite the exclusionary legislative framework. The court held that there is still a valid employment relationship despite the fact that the workers are illegal and they are, nonetheless, regarded as “employees” and entitled to the protection of the Constitution (right to fair labour practices) and the LRA. The court held that labour rights flowing from the constitutional right to fair labour practices (section 23) are fundamental rights. The provisions of the IA does not limit this interpretation and it is imperative that the labour rights of illegal migrants are still protected. As the court noted in paragraphs 29 and 30 of the judgment:

“There is a sound policy reason for adopting this construction. If the [IA] were to render a contract of employment concluded with a foreign national who does not possess a work permit is void, it is not difficult to imagine that the inequitable consequences that might flow from a provision to the effect. An unscrupulous employer, prepared to risk criminal sanction under the [IA] might employ a foreign national and at the end of the payment period refuse to her the remuneration due, on the basis of the invalidity of the contract. In these circumstances the employee would be deprived of a remedy in contract and in terms of labour legislation. This is particularly so when persons without the required authorisation accept work in circumstances where their life choices nay be limited and where they are powerless (on account of their unauthorised engagement).”

It is, therefore, not difficult to imagine that the scenario of abuse sketched by the Labour Court is perfectly applicable to the situation of illegal migrant domestic workers.

Based on this judgment the Constitutional Court, consequently, held in the Larbi-Odam case78 _{held that all people}

are entitled to the right to equality despite their citizenship based on a very broad interpretation of “everyone” in section 23 of the Constitution (indicating transformative constitutionalism). In addition, Bosch argues that the right of illegal migrants to vindicate their labour rights is embedded in their right to dignity79 _{thereby making the} argument that illegal migrant workers should be afforded protection of fundamental rights and freedoms even more convincing.

76 _{Section 13 guarantees the freedom from slavery, servitude and forced labour whereas section 23 guarantees fair labour practices.} 77 _{(JR 2877/06) [2008] ZALC 24}

78 _{Larbi -Odam & Others v Members of the Executive Council for Education & Another (North West Province) (CCT2/97) [1997] ZACC 16} 79 _{Fish in Du Toit (ed.) supra note 4,243}

19 Despite these progressive strides made by the courts it does not automatically mean that these rights will be recognised in practice.80 The workers are still vulnerable to abuse and discrimination given the fact that the employment relationship is confined to the private household, lack of formal legal protection, undervalued work and the gendered nature of this work. In other words, societal attitudes must be changed and this requires a combination of hard and soft law so as to address the social stereotypes upon which these elements are based.

C

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HILIPPINES

4.1 Contextualising domestic work

4.1.1 Social and economic importance of domestic work in the Philippines

Since the 1970s the initial purpose of domestic work in the Philippines was based on the need to eradicate unemployment in the country thereby providing the legal framework for both domestic and international domestic work. With respect to the latter the country relied heavily upon international domestic employment to stimulate economic growth81 _{due to the fact that many of the migrant workers send remittances back to their families whom}

remained in the Philippines amounting to approximately $17 billion in 2009.82 Therefore, our focus will remain on migrant Filipino domestic workers due to the fact that migration to the Philippines for this purpose is less prominent. However, the domestic legislative framework is, nonetheless, briefly introduced so as to set the background against the elaborate exporting protection that the Philippines has developed.

4.1.2 Purpose of labour law and “employee” status

Domestic workers are now a part of the formal sector of the economy upon the ratification of the DWC. The Philippines was the second country to ratify the convention and, therefore, to indicate its “commitment to improving domestic workers’ rights on a global level” it adopted the Domestic Workers Act83 _{to complement the protection}

afforded in terms of the Migrant Workers and Overseas Filipinos Act.84,85

In the Philippines both local and migrant workers are regarded as formal employees but the question arises as to the criteria for characterising their relationship as an employment relationship. This is a problematic issue with regard to migration because of the principle of territoriality86 _{and the presence of agencies in the migration}

process.

Under Philippine labour law “employment relationship” refers to a situation where an employer exercises control over the employee and in cases of triangular relationships the workers are the employees of the agency and not the principal.87 The position with regard to triangular relationships was confirmed by the Philippine Supreme Court

80 _Ibid

81 _{Battistella, G & Asis, MMB. 2011. Protecting Filipino Transnational Domestic Workers: Government Regulations and Their Outcomes. Philippine Institute for} Development Studies. 4

82 _{Hall, A. 2012. Migrant Workers and Social Protection in ASEAN: Moving Towards a Regional Standard?. Journal of Population and Social Studies. 21(1), 12.} 25

83

Republic Act 10361 of 2013: The Act regulates domestic work within the Philippine border and covers labour rights relating to child labour, forced labour, equal treatment and trafficking and focusing on women and children in particular.

84 _{Republic Act 8042 of 1995}

85 _{“The Protection of the Rights of Migrant Domestic Workers” supra note 7, 101}

86 _{Ibid at 44. Each country has its own definition of “employment relationship” and in terms of international law perspective we only have Recommendation} 198 setting out the possible criteria for determining an employment relationship.

87 _{Macaraya, BM. 1999. The Philippines: Workers Protection in a new employment relationship. International Labour Organisation. 28}

20 in Philippine Bank of Communications v National Labour Relations Commission.88 _{This is also the legal position}

with regard to agencies in cases of migration for domestic work out of the Philippines but the effect that the DWC has is that the domestic workers must first secure an employment contract prior to deployment. In the Philippines the Philippine Overseas Employment Administration (hereinafter “POEA”) can, at least in principle, monitor compliance with this requirement given that they have to register the deployment of migrant workers when they are satisfied that all the legal requirements are complied with. Thus, the principal becomes the employer and the receiving state’s law applies.

However, from a migration perspective these requirements cannot completely be complied with without cooperation between the sending and receiving state thereby also indicating the importance of the fact that the DWC following a human rights approach. No status should hinder the enjoyment of fundamental rights. But, again, this approach can only be meaningful if both countries have ratified the DWC. A good illustration of this dilemma is the situation of migrant Philippine domestic workers in Kuwait. The fact that the Philippines has ratified the DWC makes no difference because the Kuwaitis have a particular social and political climate where such a progressive step towards empowering domestic workers from a human and labour rights perspective is unimaginable. The only useful remedy will, therefore, be through bilateral agreements.89

Moreover, in many countries domestic work is equated with women as the people responsible for taking care of the family and this is no different in the Philippines. With respect to the nuanced approach followed by the DWC it is clear that this approach has also been adopted in the Philippine legal framework given that the term

kasambahay is used which means cooperator rather than servant which “can indicate the cultural understanding

of domestic work in contemporary societies and economies”90 _{and thereby professionalising domestic work.} 4.2 Protection of domestic workers in the Philippines: equality, social protection and servitude

As mentioned the Philippines has ratified the DWC and in terms of Article 2(2)91 _{of the Philippine Constitution it}

became a part of the law upon ratification by the Congress in accordance with Article 7(21)92 _{of the Constitution.}

Moreover, it also ratified the Migrant Workers Convention in the same fashion.

Domestic work is further covered by the Domestic Worker Act which recognises that domestic workers are employees like any other employees thereby bringing them into the scope of formal legal labour protection. In terms of scope it covers all domestic workers employed and working in the Philippines thereby indicating the protection, in principle, of migrant domestic workers in the Philippines. This Act deals with the all the rights that are subject to discussion in this thesis.

Social protection, which is the most important aspect with respect to migrant domestic workers is regulated in terms of Section 30 of the Domestic Worker Act. Section 30 provides that “a domestic worker who has rendered at least one month of service shall be covered by the Social Security System (“SSS”), the Philippine Health Insurance Corporation and the Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the

88 _{G.R. No. L-66598 (1986). However, the principal and the agency does incur joint and several liability.} 89 _{“The Protection of the Rights of Migrant Domestic Workers” supra note 7, 68-69}

90 _{Battistella & Asis supra note 81, 6}

91 _{“The Philippines…adopts the generally accepted principles of international law as part of the law of the land”.}