Towards a Care Right? Domestic Work Status, Migration & the Social Organisation of Care Abstract of the presentation by Amaia Orozco – UN-INSTRAW, at the Seminar “Strategies for Empowerment of (Immigrant) Domestic Workers” Geneva, 30th Nov-1st Dec 2009 The presentation provides information on the project “Building networks: Latin-American migrant women in global care chains”. It involves inter-regional migration (from Bolivia, Ecuador and Peru to Spain) and intra-regional (from Peru to Chile). First, preliminary results of the research phase developed in the five countries are summarized. This research was aimed at answering the following question: What is the meaning and impact of global care chains in terms of development? Secondly, it is explained how the research results fed the elaboration of a political incidence strategy in Spain, which was centred on the legal regulation of domestic work and migrants domestic workers’ rights. UN-INSTRAW’s work on global care chains draws on two preliminary insights: On the one hand, any question on the nexus between development and migration must pay attention to care (as a key part of the socioeconomic structure) and to migrants’ rights (as long as development is the process of enlarging people’s access to and exercise of rights). On the other, care is already globalized, thus a translational perspective and attention to migration processes are needed when understanding care schemes. These ideas underlie the work of UN-INSTRAW’s “gender, migration and development” team on global care chains (GCC), which are seen as a “strategic instantiation” of links between migration and development from a gender perspective. Through our projects we try to answer the following question: What is the meaning and impact of global care chains in terms of development? Bearing such a question in mind, the project Building Networks: Latin-American Migrant Women in Global Care Chains has been developed. Through its research component it sought to answer it and to identify key agents shaping GCC and their discourses. Through it’s the project involved migration from Bolivia, Peru and Ecuador to Spain, and from Peru to Chile. A similar project dealing with migration from Paraguay to Argentina and from Nicaragua to Costa Rica will start next February 2010. The preliminary findings of the research show that migration renders visible pre-existing problems in the social organization of care, related to the current existence of unjust care regime. Those unjust care regimes are characterized by: - The long-standing connection between care, social inequality and exclusion from citizenship, which is taking on new and serious global dimensions today: Sex, social class, ethnicity, immigration status shape care regimes; nowadays we are witnessing a refashioning of the sexual division of labor The access to decent care is a dimension that distinguishes privileged social groups from non-privileged ones that are tied to reality of precarious care. Care must be redistributed, i.e. must enter into redistributional policies - The inexistence of a social responsibility towards care: (women at) households are responsible for care. This implies the systemic (although diverse) violation of a multidimensional care rights. This care right includes: The right to receive needed care in different circumstances and at different points in one’s life. The right to choose whether or not one wants to provide care, combining a right to provide care in decent conditions with a right to not provide care. And the right to dignified working conditions in the care sector. We can state there are serious problems in the social provision of care that migration neither creates in the country of origin nor solves in the country of destination. Rather, in both cases, migration merely reveals existing problems. Put another way, the globalization of care, and particularly the formation of care chains, is making visible existing problems regarding the access and enjoyment of care rights that Seen in this light, the question becomes: is broader the globalization of care serving as a context: catalyst for the formation of a collective care voice to demand public accountability and regime social responses to these problems, which Criss- crossed are now more visible than ever? The by answer is disappointing. We are witnessing immigr a process that we can call the double ation A fair place privatization of social reproduction in for DW & its which the responsibility for guaranteeing workers social reproduction is considered a household responsibility, and where different resources combine – such as unpaid work, public services, and increasingly the purchase of services – resulting in commodification of care. The abovementioned are the general findings of the project. The following ones are the findings of the research for the Spanish case: In accordance to this, the political incidence phase was implemented through a series of threes seminars, which were aimed at: 1- Strengthening dialogue between Agents 1 in order to place domestic work (DW) demands for care policies in context & to link them with immigration issues (2 seminars). And 2- Making an impact on the agendas of Agents 2 (1 seminar). We decided to focus on the legal scheme regulating DW. Why so? First, because it a key labor niche for immigrant women (who account for 60% of workers). Secondly, because this scheme is discriminatory per se but moreover, it becomes a node of violations of care rights: it is often unfulfilled; it indirectly penalizes maternity; it imposes severe reconciliation difficulties to its workers; it harms the right to receive care as long as it does not recognize professional illness/accident, and implies problems with sick leave; it exposes workers to severe vulnerability to abuse and violence… And thirdly, because of the convenient political situation: there is a Governmental will to change DW scheme. The series of three seminars were entitled “Care rights? The status of domestic work from a transnational perspective.” Its main insight was that DW is not an isolated issue but a part of a complex gears. Thus a just place for DW and its workers cannot be achieved without dealing with the broader context of the whole care regime and without specifically dealing with the issue of migration. The dialogue between feminist organizations, (women) migrants’ associations, and (immigrant) domestic workers organizations resulted in the elaboration of a list of proposals (see annex). (It must be pinpointed the immigrant and autochthonous domestic workers were truly in tune). This list proposes measures to impact three related dimensions: - Situation of domestic work: Equating DW to other sectors as regards labor legislation and social protection Guaranteeing the fulfillment of legislation Ending the individualized & invisible character of the labor relationship - Situation of immigrant (domestic) workers: Ending vulnerability due to migration & DW regulations overlapping Rights expansion covering all workers (undocumented): reviewing immigrt. laws from a gender & care perspective Labor rights attending transnational families - Care regime: Coordination with the revision of “dependence law” Putting care at the core of a new sustainable (re)productive model: anti-crisis measures These results provide some insight for future work. On the one hand, and regarding the political impact in Spain: (1) DW scheme is going to change, but as much as needed? A bad agreement is better than nothing? Further monitoring of the process is needed. (2) A key question is raised: How do we fight for domestic workers’ rights without penalization immigrants? Further work to avoid it is needed. (3) Difficulties for inter-ministerial work & difficult relationships with trade-unions were detected. Can local incidence be a smart strategy to surmount them? On the other hand and regarding the transnational dimensions of the project, three main questions appear: (1) Specifying the focus of political incidence in the countries of origin is not so clear: should it be aimed at disarming an alarmist discourse of family/social breakdown? (2) Is there a smooth relationship between (immigrant) domestic workers in destination countries and in countries of origin? And (3) there is a need of transnational impact, but: what should it be aimed at and how should it be implemented? Is the ILO convention a convenient and potentially unifying process? Further information on the project, its findings and related products can be found at: www.un- instraw.org . Annex PROPOSALS DOCUMENT ELABORATED BY DOMESTIC WORKERS, IMMIGRANT ASSOCIATIONS, AND FEMINIST MOVEMENT ORGANIZATIONS COORDINATED BY UN-INSTRAW This document is the result of the debates held during conferences on September 26th, 23rd and 24th of October, 17TH November. These claims were presented to representatives of Trade Union Commision (CC.OO.), the General Union of Workers (UGT), Department of Equal Rights, Department of Health and Social Policy, and Department of Labour and Immigration Conferences: A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS COMMITMENT PROPOSALS A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS DIMENSIONS OF IMPACT DOMESTIC WORK THE SITUATION OF IMMIGRANT EL RÉGIMEN DE CUIDADOS REGIMEN ON DOMESTIC WORKERS Objective 3: Equalize labour rights to match other sectors DOMESTIC WORK Measures: Objectives 1 and 2: 4. Equalize Work Statute Objective 7: Effective guarantee of right to 5. Inclusion into the General Scheme receive care without breaking one’s labour End the vulnerability derived from Objective 4: Guarantee fair labour conditions rights and the right to not care-give the cross between the Special Measures: 14. Measures: Revision of the law 39/2006 Scheme for Domestic Workers and 6. Impact of intermediary mechanisms (law of dependence) that guarantees: Immigration Legislation 6.1. Actions taken by placement agencies under legal 14.1. Abolition of “familiar non- Guarantee the expansion of labour parameters professional care-giving” benefit rights effectively reach all domestic 6.2. Social labour services as intermediaries 14.2. Clarification of the different workers, no matter their migration 6.3. Incite unifying agreements of conditions roles of domestic work status. 7. Action taken by labour inspection 8. Effective protection for maternity Objective 8: Establish care at the core of a Measures: 9. Encouragement for denouncing violations of conditions new (re)productive sustainable model 1. Urgent passing to the General Scheme 2. Revision of the immigration legislation Objective 5: Domestic workers recognized as direct Measures: through a gender and domestic work negotiators 15. Revision of the anti-crisis measures perspective 10. Measures: establish channels for the participation of taken 2.1. Facilitate regulation for having domestic workers 15.1. Redirection of measures social y labour roots in Spain Objective 6: Break from work that is individual, invisible, and toward the creation of quality 2.2. Revise criteria for regrouping unvalued public care services families Measures: 15.2. Application of measures for 2.3. Protection from violence and 11. Assistance forming cooperatives the immigrant population harassment 12. Action to raise awareness 16. Care at the center of “sustainable 3. Attention to transnational families 13. Assistance with becoming affiliated economy” law with conciliation rights 17. Analysis on gender impact COMMITMENT PROPOSALS A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS JUNCTURES, RESPONSABILITIES AND WORK GROUPS Constitution of a multi-departmental work group to coordinate the passing of the Specific role of the trade unions Special Scheme of Domestic Work (REEH) to the General Scheme and the revision of Coordinate and assist domestic work related associations the Law 39/2006 Open up the affiliation and defense of rights for domestic - Participants: workers, including those of undocumented immigrants o Department of Labour and Immigration, Department of Health and Assistance and pressure towards achieving equal labour Social Policy, and the Department of Equal Rights conditions for domestic work and other sectors o State Platform of Domestic Work Associations o Individual experts on the interaction between the REEH and Immigration Specific role of the Department for Equal Rights: Law Take on a special role in achieving objectives 6 and 8 o Individual experts on the gender impact of the law 39/2006 Supervise the process for achieving a just place for domestic - Commitment: guarantee the coordination of both reform processes, especially: work and its workers in the three main areas o The specific role of the law 39/2006 for domestic work Guarantee the coordination of all participants in achieving o The professionalization of care-takers and domestic work, guaranteeing objectives 1 to 7 a bridge between the two Involve all other pertinent participants in the process Current situation: Specific role of the Department of Labour and Immigration: Spanish chairmanship of the EU: Guarantee the achievement of objectives 1, 2, 3, 4 and 5 by a. Introduce care-takers as a central axis of change in the productive applying all necessary measures model. Coordinate the achievement of objectives 6, 7 and 8 with all b. Specifically address the situation of the domestic workers when dealing necessary participants with immigration Involve other pertinent participants in the process An instrumental international debate on the protection of domestic work in Specific role of the Health and Social Policy: the OIT (International Organization for Work) Guarantee the achievement of objective 7 by applying all a. Active engagement and commitment by the government and trade necessary measures unions to dignify domestic work throughout the process Coordinate the achievement of the objectives with all necessary b. Opening up effective participatory mechanisms for domestic work participants related associations Involve other pertinent participants in the process COMMITMENT PROPOSALS A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS DIMENSION OF IMPACT: THE SITUATION OF IMMIGRANT DOMESTIC WORKERS Objective 1:End the vulnerability derived from the cross between the Special Scheme for Domestic Workers (REEH) and Immigration Legislation The intersection the exists between the Special Scheme for Domestic Workers (REEH) and current Immigration Legislation places immigrant domestic workers in an intensified situation of vulnerability. For example, the connection between the work availability and authorization in a context where the REEH makes it difficult to demonstrate that the job actually exists (oral contracts, no obligation to pay insurance for less than 72 hours a month of work, non-existent unemployment benefits, etc) exposes people to highly vulnerable situations when facing the possible loss of a work permit. The fear of a possible opening of an expulsion order is an anti- incentive for denouncing violated labour rights, especially when the Labour Inspection does not act independently. The possibility that someone may take up to 45% of one’s salary for housing and maintenance supposes that internal domestic workers/care-takers often can not reach the necessary levels of income demanded upon them for regrouping family members. Objective 2: Guarantee the expansion of labour rights effective reach all domestic workers, no matter their migration status The current REEH has brought about the proliferation of the informal market of work (by the end of 2007, the informal market has reached 53.7% for immigrants). This high percentage of the informal sector constitutes a labour opening that is fundamental for undocumented women. At the same time, the work in this sector allows few possibilities for changing ones’ administrative situation due to the informal nature of the work and the strict requisites for legalization through the social or labour roots process of legalization in Spain. In conjuncture with this, the informal work and the undocumented situation of these workers feed into one another because even though there may be a potential expansion of labour rights for this sector, it may not have a large impact of the undocumented immigrants working as domestic workers. Measures: 1. Urgent passing to the General Scheme The above is an additional motive for arguing that domestic work should be treated as all other sectors of work in order to prevent the intensified vulnerability that immigrant workers experience due to their dependence on obtaining and renovating work permits. 2. Revision of the immigration legislation through a gender and domestic work perspective In general, immigration law does not offer an answer to this differential situation and specific necessities of immigrant women nor does it offer a process for immigrant people who acknowledge their care-giving rights, meaning that the acknowledge their necessities and responsibilities to care take. 2.1. Facilitate regulation for having social and labour roots in Spain It is necessary to discuss the most pertinent measures and variables, which are situated in the following: - Reduction of the minimum income obligations for soliciting social or labour roots - Elimination of all minimum income obligations for the employers, in case it proves their dependant situation of the persona who receives care-takers - Possibility of soliciting legalization through the demonstration of work for various employees (people who hold multiple jobs) - Introduction of a specific clause for social or labour roots for domestic workers so that they can apply for it under a 3 month working relationship - Possibility of social or labour roots when denouncing employers who offer abusive labour conditions 2.2. Revise criteria for regrouping family members It is necessary to revise the current criteria under two conditions: - The regulations in the Organic Protection Law in the LO 4/2000 reform return make it difficult for immigrant women to assist family members as a conciliation strategy for labour and family life (strategy derived by “inexistent methods that would be adequate for conciliation of their personal, labour, and family life”, Strategic Citizen and Integration Plan 2007-2010) by impeding regrouping of family - The criteria currently required for regrouping family members are virtually unattainable for immigrant domestic workers (for example, the requirements for income and adequate housing is out of reach for immigrants who work as internal care-takers). 2.3. Protection from violence and harassment The unique and invisible labour relations in this sector, combined with the peculiar vulnerability of immigrant women, especially for those who are undocumented, implies a high vulnerability for sexual abuse and violence from employers. Measures need to be taken in order to guarantee a special protection and assistance for these workers. 3. Attention to transnational families with conciliation rights The labour rules focus on a new reality (regarding the guarantee of care-takers as an international labour market) with an old focus restricted to national territories. In the same sense, many transnational families are not acknowledged as individuals with labour rights, even though these rights exist. In order to plow down these deficiencies, medications such as the following can be introduced: Modify permits for care-takers (family sick leave, extended leave for absence, maternity leave, etc) Allow for the potential inclusion of visiting rights financed by additional insurance payments COMMITMENT PROPOSALS A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS DIMENSION OF IMPACT: DOMESTIC WORK Objective 3: Equalize labour rights to match other sectors The current REEH is a discriminatory scheme given the feminization of the sector (90.5% in the III trimester of 2009) that constitutes the case an indirect discrimination due to sex. Measures: It is necessary to include domestic work in the General Scheme, in order to establish as minimal labour conditions what as been offered in the Work Statute. This should occur without prejudice and should established mechanisms to improve the protection of rights, due to the specific nature of the sector. This peculiarity should never be a basis for sustaining legal discrimination in a labour sector, but as specific mechanisms in order to develop the protection of rights. In this respect, the recommendations offered by the State Platform of Associations of Domestic Workers should be attended to. 4. Equalize Work Statute The Work Statute should be revised in accordance with the following criteria: - Compulsory written contract - Working day: maximum of 40 hours per week both for live-in and non live-in care givers. Work time, where presence is required but is not accounted for within the regular working day should disappear except in very specific cases (such as over-night care-giving), in which it should be strictly regulated. In the case of over-night care- giving, the maximum working day should be between 9pm and 8am, 5 days a week - Wages: monetary wage should not be lower than the inter-professional wage. Every hour that the worker is at the disposal of the employer should be paid. Extra payments for 30 days. - Discounts due to accommodation and maintenance: forbidden in the case of live-ins. For workers who are non-live-ins, discounts should be agreed upon through written contracts and specified how much for each concept; discounts accounting for a percentage of wages should be forbidden. - Resting hours: One and a half day per week (36 hours back to back) and a minimum of 10 hours rest within working hours - Severance pay: equal to those of other sectors. Employers should not have the possibility of “giving up” employees 5. Inclusion in the General Scheme The following changes are needed for Social Security: - General Social Security Scheme payment from the first working hour - Social Security Payments continuously made by the employer and the employee - Work-related accident protection and specification of employers’ duties recognition with respect to labour health, including accommodation and maintenance conditions. - Temporary sick leave to be equal to that of the General Scheme - Unemployment benefits Objective 4: Guarantee fair labour conditions The current regulation is not only discriminatory but is not often followed. The informal nature in which more than half of domestic workers in the sector work and the poor use of the rights for the inalienability of one’s home that prevents labour inspections creates a proliferation of situations in which the minimal labour conditions are not completed with impunity. For this reason, it is essential to have services that act as intermediaries in order to determine the conditions in which the labour relationship is established. Measures: 6. Impact of intermediary mechanisms 6.1. Actions taken by placement agencies under legal parameters Placement agencies should function with the permission of the National Institute of Labour (INEM). Agencies that are for-profits are legally prohibited. Those that are situated along the margin of being legal (because they falsely run under selection agencies and no not hold permissions to do so, because they are receiving profits, because they negotiate labour conditions that do not comply with the rules…) should be pursued by the labour authorities, sanctioned, and in some cases, immediately closed. 6.2. Social labour services as intermediaries Domestic work should be offered by public placement services 6.3. Incite unifying agreements of conditions Successful experiences exist where several organizations who act as intermediaries for domestic work have unified criteria for establishing labour conditions that improve the current rules. These initiatives should be promoted. 7. Action taken by labour inspection Special labour inspections should respect the principal of inalienability of someone’s home but at the same time permit one to know what is occurring in someone’s place of work (by means of the worker, an external recognition outside of the home, neighbors, etc.) 8. Effective protection for maternity End legal anti-protection: The rights of pregnant domestic workers should be attended to when fired for this reason: personal and family intimacy and anti-discrimination due to sex. The historical prevalence has been annulled by the Supreme Court of Justice in Madrid on the 24th of November, 2008. So, all firing that takes place under these circumstances should be understood as a null and void dismissal with appropriate compensation. This will avoid having workers, although they have been fired illegally; continue to pay for their insurance benefits on their own in order to be paid for maternity leave. 9. Encouragement for denouncing violations of conditions Frequently, domestic workers work under conditions that do not comply with current legislation. It is necessary to encourage the denouncement of these situations, especially when immigrants are undocumented. Objective 5: Domestic workers recognized as direct negotiators Measures 10. Establish channels for the participation of domestic workers Objective 6: A Break from work that is individual, invisible, and devalued One essential problem for domestic workers is the individualized character in which the labour relationship is established: between a private residence and a worker, without the general collective mechanisms existing for negotiation, establishment of labour conditions, conflict resolution, etc. This relationship can be painful for both parties, but it especially vulnerable for the worker. In addition, domestic work is not considered as valuable work, does not require any qualifications, and does not offer salary differences for qualifications, even though there is generally a list of knowledge often required for a position. The invisibility of this work is intimately related to the domestic world in which it takes place. Measures: 11. Assistance forming cooperatives Forming micro-business, socially initiated cooperatives for domestic work could resolve multiple problems not only for the worker (leaving the REEH, grounds for negotiation, etc) but also for the employer (such as having a substitute for a sick worker) 12. Action to raise awareness Raise awareness aimed at: (1) Reevaluate the role of the domestic workers as a fundamental element of the socio-economic system, who collaborate with the daily sustainability of homes, in the conciliation of work and family life, and in the care of those who need it. And (2) informing both employers and employees on their respective rights and duties. 13. Assistance with becoming affiliated Assistance is needed with becoming affiliated with existing labour unions, the confirmation of their own labour union, and their own organizations. COMMITMENT PROPOSALS A JUST PLACE FOR DOMESTIC WORK AND ITS WORKERS DIMENSION OF IMPACT: THE CARE-TAKER SCHEME Domestic Work forms a part of the complex network of resources (domestic, public, commercial, communal) for those homes that are in need of care-giving. These networks also represent a transnational dimension. For this reason, one can not focus on only one piece of the puzzle. The overall impact on the domestic workers has to be considered and the current Care-taker Scheme which is known for being unjust and reproducing inequality (by sex, class, legal status, function diversity, etc.) needs to be redeveloped. Objective 6: Effective guarantee of right to receive care without breaking one’s labour rights and the right to not care-give: Law 39/2006 on Personal Autonomous Promotion and Attention for People in Dependant Situations recognizes the right to receive care in situations of dependency. The following development of the law and the System of Attention for Dependency (SND) collided the right to receive care with that of two other rights: the right to not care for someone in your family (la guarantee of a sufficient level of family breakdown) and the right to dignified labour conditions in the care-giving sector (professional and non-professional care-takers, domestic workers and personal assistants). The revision process should take advantage of this law by solving these serious problems. Measures:: 14. Revision of the law 39/2006 (Law of Dependence) that guarantees 14.1. Abolition of “familiar non-professional care-giving” benefit Article 18 established the right to receive economic benefits for non-professional, family care- takers. However, this only constitutes 51.4% of the benefits given, so that the family care- takers are converted into the fundamental pillars of the SND. These benefits are not a salary for workers (only a benefit for the person who is in need of a care-taker), nor is it enough money to live on (it does not give access to maternity leave, unemployment or guarantee insurance benefits). At the same time, there is a serious lack of data and information (separated by sex, affiliation to schemes, legal status, etc.). This benefit and the development of adequate public service benefits (home help, day and night centers, and residencies) should be guaranteed. For those who care-take within the family, they should have dignified salaries and guaranteed social protection and this role should establish bridges toward gaining professional experience. There needs to be a greater access to data. 14.2. Clarification of the different roles of domestic work If the White Book on Dependant Care contemplates domestic work, the law omits to determine their role that they play. Professionals and non-professionals are not included. Actually, the law acts as another pillar for dependent care. The way in which law 39/2006 operates, encourages informal contracts with care-takers. The role of the domestic worker needs to be clarified, their functions defined, and their qualification demanded. This should be harmonized with the professionalization of the diverse jobs of domestic workers and care- takers. Objective 7: Establish care at the core of a new (re)productive sustainable model The current crisis situation obliges us to find a new sustainable productive model. Delegating the responsibility to guarantee care-takers for women in the home is among the qualities that have defined the current non-sustainable model. The public must assume the responsibility of care-takers in the new sustainable model. Measures: 15. Revision of the anti-crisis measures taken The current measures taken should be revised according to the following: 15.1. Redirection of measures toward the creation of quality public care services of The public investments in plans such as the PlanE have been redirected toward the construction sector. By putting in action new public care-taker services (or by improving the existing ones) a new mechanism can be created for immediate employment tat can be sustained over time. Anti-crisis services should be geared towards public services that are of high quality and direct contact, such as assistance given to dependent individuals, child-care, and the maintenance and/or recuperation of university standards and the quality of education and sanitary services. 15.2. Application of measures for the immigrant population After the Law 30/2003 was approved, the rules elaborated by the government should be accompanied by a report on the impact it has had on gender, which has not been completed by the approval of other measures taken for the crisis. All anti-crisis measures should be accompanied by reports on gender impact. 16. Care at the center of “sustainable economy” law This law should revise the benefits in order to effectively guarantee the right to combine paid work and non-paid carework. Also, it should contemplate measures to reduce the work day without losing salary. All of this mentioned demands a revision of the system from a gender- equity lens and a care-taker priority. 17. Analysis on gender impact The adopted measures taken to sustain the salaries in a home, consumption, is not applicable to the immigrant population, since losing unemployment benefits also means the loss of residency and work. Immigrants should be guaranteed appropriate measures, such as a guarantee of adequate rights and living conditions.
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