# EUR-Lex - 52013PC0152 - EN

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# 52013PC0152

**Proposal for a COUNCIL DECISION authorising Member States to ratify, in the interests of the European Union, the Convention concerning decent work for domestic workers, 2011, of the International Labour Organisation (Convention No 189) /* COM/2013/0152 final - 2013/0085 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

This proposal will enable Member States to
legally ratify Convention No 189 concerning decent work for domestic workers,
2011, of the International Labour Organisation (ILO), hereinafter ‘the Domestic
Workers Convention No 189’ or ‘the Convention’.

The Domestic Workers Convention No 189
was adopted at the 100th Session of the International Labour Conference on 16
June 2011 and is due to enter into force in September 2013. It lays down global
minimum labour protection for domestic workers.

As of December 2012, the Domestic Workers
Convention No 189 has been ratified by three State parties to the ILO. It
is among the ILO Conventions that have been classified by the ILO as up to date
and are therefore actively promoted.

The European Union (EU) is committed to
promoting the decent work agenda, both internally and in its external
relations. Labour standards are a core element of the concept of decent work.
The ratification of ILO Conventions by Member States thus sends an important
signal as to the coherence of the Union’s policy in improving labour standards
worldwide.

In addition, as part of the EU’s Strategy towards
the eradication of Trafficking in Human Beings[1],
the Commission urged Member States to ratify all international instruments,
agreements and legal obligations which will contribute to addressing
trafficking in human beings in a more effective, coordinated and coherent
manner. These include the Domestic Workers Convention No 189.

It is therefore necessary that any legal
impediments to ratification by Member States be removed at the level of the EU
for the Domestic Workers Convention No 189, the substance of which does
not cause concern in the light of the existing Union acquis.

The provisions of the Domestic Workers
Convention No 189 are intended to help curb the abuse and exploitation of
domestic workers. Article 1 of the Convention defines a domestic worker as any
person engaged in domestic work (work
performed in or for a household or households) within an employment
relationship. The Convention requires ILO Member States
to take measures to prevent violence and child labour in the domestic
employment setting. Article 3 protects the fundamental labour-related rights of
domestic workers by requiring each State party to take the measures set out in
the Convention to respect, promote and realise the fundamental principles and
rights at work. Subsequent provisions notably require ILO Member States to:

·
establish a minimum age for domestic work and safeguards for
workers under age 18;

·
prevent abuse and violence;

·
ensure fair terms and decent conditions of employment;

·
make certain that workers are informed of the
terms and details of their employment;

·
regulate foreign recruitment and ensure freedom of movement;

·
mandate equal
treatment between domestic workers and other workers with
regard to compensation and benefits;

·
regulate and monitor private employment agencies; and

·
develop a specific complaints mechanism.

The Domestic Workers Convention No 189
addresses areas of Union law where the degree of regulation has already reached
an advanced stage.

The Convention mainly deals with aspects
relating to the social policy area, where Union law sets minimum requirements
on health and safety at work, protecting young people at work, maternity
protection, the written statement, working time, immigration and temporary
agency work[2].

The Convention deals with aspects relating
to the anti-discrimination area where Union law sets minimum requirements on
employment equality, gender equality and maternity protection[3].

The Convention also deals with aspects
relating to judicial cooperation in the criminal matters area and in the asylum
and immigration area, where Union law sets minimum requirements on
anti-trafficking and employers’ sanctions[4].

In addition, Article 8 of the Domestic
Workers Convention deals with the protection of migrant domestic workers, which
includes aspects relating to the freedom of movement for workers under Union
law[5].

2.           RESULTS OF CONSULTATIONS WITH THE INTERESTED
PARTIES AND IMPACT ASSESSMENTS

Not applicable.

3.           LEGAL ELEMENTS OF THE PROPOSAL

In accordance with the rules on external
competences that have been drawn up by the Court of Justice of the European
Union[6],
and more specifically as regards the conclusion and ratification of a
Convention of the International Labour Organisation[7], Member States are not in a
position to autonomously decide on the ratification of a Convention without the
Council’s prior authorisation, where parts of the Convention fall under Union
competence.

At the same time, the European Union as
such cannot ratify any ILO Convention, because only States can be parties to
such conventions.

Consequently, if the subject-matter of an
agreement or contract falls partly within the competence of the Union and partly within that of the Member States, the Union institutions and the Member
States must take all the necessary measures to best ensure cooperation in ratifying
the Convention and in implementing commitments resulting from that Convention[8].

As regards three ILO Conventions adopted
over the last decade, parts of which fell under the competence of the Union,
the Council has therefore authorised Member States to ratify, in the interests
of the Union, those parts falling under Union competence[9]. The Commission has also
adopted a proposal for such a Council decision as regards the Chemicals
Convention No 170[10].

Specifically with reference to the Domestic
Workers Convention No 189, the degree of regulation in the various aspects of
social policy and in the areas of antidiscrimination, judicial cooperation in
criminal matters and asylum and immigration covered by the Convention, has
reached an advanced stage, to the point where Member States are no longer able
to act sovereign in the external sphere in this regard[11]. Article 153 TFEU constitutes
the main legal basis for the related Union law, which is in most cases more
detailed than the general principles established in the Domestic Workers
Convention No 189. There is no contradiction between the general principles
established in the Convention and Union law, and there is no incompatibility between the provisions of
the Convention and the minimum requirements in these areas laid down in the Union
acquis.

It follows from Article 19(8) of the ILO
Constitution that the Convention contains minimum standards, which means that
national implementation can provide for higher standards than those under the
Convention.

There is no inconsistency of approach between
the rules on the protection and equal treatment of workers under the Convention
and the minimum requirements under the Union acquis in this area. This
means that Union measures can be more stringent than the ILO standards and vice
versa[12].

The Domestic Workers Convention No 189
contains one article to protect migrant domestic workers (Article 8) that could
potentially interfere with the freedom of movement for workers — an area which
falls under the Union’s exclusive competence[13].
However, the main aim of the Convention is not to regulate an issue falling
under the Union’s exclusive competence. In addition, Article 8(2) of the
Convention states that the requirement to receive a written offer prior to
crossing national borders does not apply to regional economic integration
areas. This safeguard clause prevents any potential incompatibility between the Convention and the Union acquis
on the freedom of movement for workers under Article 45 TFEU and
Regulation No 492/2011. Consequently, the provisions of the Convention in this area
are not incompatible with the Union acquis.

The aim of this proposal is therefore to
authorise Member States to ratify, in the interests of the Union, those parts
the Domestic Workers Convention No 189 that fall under Union competence.

The proposal is based on Article 218(6) of
the Treaty on the Functioning of the European Union (TFEU), applicable by
analogy, in conjunction with Article 153 TFEU, which provides the main legal
basis for Union legislation on the protection and improvement of workers’
working conditions.

2013/0085 (NLE)

Proposal for a

COUNCIL DECISION

authorising Member States to ratify, in
the interests of the European Union, the Convention concerning decent work for
domestic workers, 2011, of the International Labour Organisation (Convention No
189)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 153 in conjunction
with Article 218(6) (a) (v) and Article 218(8), first subparagraph thereof,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament[14],

Whereas:

(1)       The European Parliament,
the Council and the Commission are promoting the ratification of international
labour conventions that have been classified by the International Labour
Organisation as up-to-date, as a contribution to the European Union’s effort to
promote decent work for all both inside and outside the Union, of which the
protection and improvement of workers’ working conditions is an important
aspect.

(2)       Most of the rules under
Convention No 189 concerning decent work for domestic workers, 2011, of the
International Labour Organisation (ILO), hereinafter ‘the Convention’, are
covered to a large extent by Union acquis in the areas of social policy[15], anti-discrimination[16], judicial cooperation in
criminal matters[17]
and asylum and immigration[18].

(3)       The Convention’s
provisions on protecting migrant domestic workers potentially affect the
freedom of movement for workers — an area which falls under the Union’s exclusive competence[19].

(4)       As a consequence, parts of
the Convention fall within the competence of the Union, and Member States may not enter into commitments in relation to these parts outside the framework
of the Union’s institutions[20].

(5)       The European Union cannot
ratify the Convention, as only States can be parties thereto.

(6)       In this situation, Member States and the Union’s institutions must cooperate in regard to the ratification of the
Convention.

(7)       The Council shall
therefore authorise the Member States that are bound by Union law on minimum
requirements in the area of working conditions to ratify the Convention in the
interests of the European Union.

HAS ADOPTED THIS DECISION:

Article 1

Member States are hereby authorised to
ratify, for the parts falling under the competence conferred upon the Union by the Treaties, the Convention concerning decent work for domestic workers, 2011, of
the International Labour Organisation (Convention No 189).

Article 2

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

[1]               EU Strategy towards the Eradication of Trafficking in
Human Beings 2012-2016, COM(2012) 286 of 19.6.2012.

[2]               Directive 89/391/EEC, Directive 94/33/EEC, Directive
91/533/EEC, Directive 2003/88/EC, Directive 2011/98/EU, Directive 2008/104/EC.

[3]               Directive 2000/78/EC, Directive 2000/43/EC, Directive
2006/54/EC, Directive 92/85/EEC.

[4]               Directive 2011/36/EC, Directive 2009/52/EC.

[5]               Article 45 TFEU, Regulation No 492/2011.

[6]               AETR judgment of the ECJ, case 22/70 of 31 March 1971,
ECR, 1971, 263; see also Article 3(2) TFEU which codified these principles.

[7]               Opinion 2/91 of the ECJ of 19 March 1993 relating to
the Chemicals Convention No 170, ECR 1993-I, page 1061.

[8]               Opinion 2/91 of the ECJ (ibid), para. 36, 37 and 38.

[9]               Over the last decade, three Council decisions have
been adopted authorising Member States to ratify ILO Conventions: Council
Decision of 14 April 2005 authorising Member States to ratify, in the interests
of the European Community, the Seafarers’ Identity Documents Convention of the
International Labour Organisation (Convention no 185), OJ L 136/1 of 30.5.2005;
Council Decision of 7 June 2007 authorising Member States to ratify, in the
interests of the European Community, the Maritime Labour Convention, 2006, of the
International Labour Organisation (OJ L 161/63 of 22.6.2007); and Council
Decision of 7 June 2010 authorising Member States to ratify, in the interests
of the European Union, the Work in Fishing Convention, 2007, of the
International Labour Organisation (Convention No 188), OJ 145/12 of 11.6.2010.

[10]             COM(2012) 677 of 20 November 2012.

[11]             Opinion 2/91 of the ECJ, para 25 and 26.

[12]             Opinion 2/91 of the ECJ, para 18.

[13]             Article 45 TFEU, Regulation No 492/2011.

[14]             OJ C , , p. .

[15]             Including the health and safety framework Directive
89/391/EEC, the young people at work Directive 94/33/EC, the maternity
protection Directive 92/85/EEC, the written statement Directive 91/533/EEC, the
working time Directive 2003/88/EC, and the temporary agency work Directive
2008/104/EC.

[16]             Including the employment equality Directive 2000/78/EC,
the gender equality Directive 2006/54/EC and the maternity protection Directive
92/85/EEC.

[17]             Including Directive 2011/36/EU
on preventing and combating trafficking in human beings and protecting its
victims.

[18]             Including the employers’ sanctions Directive 2009/52/EC
and the single permit Directive 2011/98/EU.

[19]             Article 45 TFEU, Regulation No 492/2011.

[20]             Opinion 2/91 of the European Court of Justice of 19
March 1993, ECR 1993-I, page 1061, para.26.