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)
Date: 2013-03-21
Institutions: European Commission
Subjects: EU Member State, International Labour Organisation, international convention, ratification of an agreement, wages for housework, working conditions

EUROPEAN 
COMMISSION 

Brussels, 21.3.2013  
COM(2013) 152 final 

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) 

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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 
Beings1,  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: 

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establish  a  minimum  age  for  domestic  work  and  safeguards  for  workers  under  age 
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prevent abuse and violence; 

ensure fair terms and decent conditions of employment; 

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

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• 

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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 
work2. 

The Convention deals with aspects relating to the anti-discrimination area where Union law 
sets  minimum  requirements  on  employment  equality,  gender  equality  and  maternity 
protection3. 

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’ sanctions4. 

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 law5. 

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  Union6,  and  more  specifically  as  regards  the  conclusion  and 
ratification of a Convention of the International Labour Organisation7, Member States are not 

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Directive  89/391/EEC,  Directive  94/33/EEC,  Directive  91/533/EEC,  Directive  2003/88/EC,  Directive 
2011/98/EU, Directive 2008/104/EC. 
Directive 2000/78/EC, Directive 2000/43/EC, Directive 2006/54/EC, Directive 92/85/EEC. 
Directive 2011/36/EC, Directive 2009/52/EC. 
Article 45 TFEU, Regulation No 492/2011. 
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. 
Opinion 2/91 of the ECJ of 19 March 1993 relating to the Chemicals Convention No 170, ECR 1993-I, 
page 1061. 

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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 Convention8. 

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 competence9. The Commission has also 
adopted  a  proposal  for  such  a  Council  decision  as  regards  the  Chemicals  Convention  No 
17010. 

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 regard11. 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 versa12. 

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 

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Opinion 2/91 of the ECJ (ibid), para. 36, 37 and 38. 
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. 
COM(2012) 677 of 20 November 2012. 
Opinion 2/91 of the ECJ, para 25 and 26. 
Opinion 2/91 of the ECJ, para 18. 

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— an area which falls under the Union’s exclusive competence13. 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. 

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Article 45 TFEU, Regulation No 492/2011. 

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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 Parliament14, 

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 
policy15,  anti-discrimination16,  judicial  cooperation  in  criminal  matters17  and  asylum 
and immigration18. 

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OJ C , , p. . 
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. 
Including  the  employment  equality  Directive  2000/78/EC,  the  gender  equality  Directive  2006/54/EC 
and the maternity protection Directive 92/85/EEC. 
Including  Directive  2011/36/EU  on  preventing  and  combating  trafficking  in  human  beings  and 
protecting its victims. 
Including the employers’ sanctions Directive 2009/52/EC and the single permit Directive 2011/98/EU. 

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(3) 

(4) 

(5) 

(6) 

(7) 

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 competence19. 

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 institutions20. 

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

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

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 

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Article 45 TFEU, Regulation No 492/2011. 
Opinion 2/91 of the European Court of Justice of 19 March 1993, ECR 1993-I, page 1061, para.26. 

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