The Domestic Workers Convention and its Implications for Refugees in Germany

Ashley Portillo wrote “The Domestic Workers Convention and its Implications for Refugees in Germany” as part of the 2016 Humanity in Action Diplomacy and Diversity Fellowship.

Domestic Work: Behind Closed Doors

Sometimes she hurts me physically. She slaps me and I (try to) escape from her. But sometimes I can’t escape. I want to go home already. It is a little tough now…but I need to manage. I am already cleaning three houses in a week and…they won’t allow me my annual leave.

Erjie confides in me when she needs to release her frustrations and sadness about work. At the end of her emails, she apologizes for venting because she fears I will worry. Erjie is a Filipina caregiver, housemaid, and housekeeper living and working in Cyprus. She is also a mother, a daughter, a sister, and an aunt. Her words describe to me the pain and desperation she feels as she struggles to remain optimistic about her abusive employer. She is grateful for the pay she receives, however infrequent that may be, because it helps put food on the table for her family back home. For her, it is better to endure so that her family can survive.

I met Erjie during my Peace Corps service a few years ago in the Philippines. As my host-sister, she helped me navigate life in a rural town and loved me as her own sister. While I lived with her, she remained unemployed as she raised her small child. As she desperately searched for a job in her rural hometown in Northern Samar, she became pessimistic about her options. The opportunities were scarce.

Although Erjie is not a refugee, she certainly did not want to leave her little boy back home in the Philippines to move to Cyprus. The dire economic situation that drove her away from home in order to provide for home is such that she felt forced to leave and face uncertainty abroad. There are days when Erjie fears for her safety and wellbeing but does not know whom to call for help. When asked to name a resource, a hotline, a lawyer, or an organization, that she thinks might help her in a dangerous situation with her employer, she says the phone numbers she has are useless because no one acts on the complaints that are phoned in. “It is a little tough now…but I can manage,” she says. “I need to. For my boy.”

This piece focuses on women and young girls who have fled the war-torn Middle East to seek refuge in Germany and who now work or are considering working as domestic laborers. Erjie is not a refugee and she has not fled war; yet, her story resembles that of domestic workers across the world. Germany is well-positioned to utilize the Domestic Workers Convention to ensure its accountability to female refugees it now houses. Germany must use this piece of legislation to ensure its refugee women who enter domestic work are equipped to lead dignified and productive working lives that, in turn, add value to the German economy and legitimize Germany’s efforts to protect the labor rights it has agreed to defend. Although the scope is limited to women and young girls, the discourse is not meant to minimize the importance of a separate conversation that should be taking place regarding refugees and gender identity, which includes compounding layers of discrimination for female, male, and transgender refugee domestic workers.

The Convention and Germany

Domestic workers lead especially vulnerable lives. International covenants and conventions exist to enshrine some neglected, yet important, human rights for these specifically vulnerable populations. The Domestic Workers Convention, 2011 is one such agreement that protects the labor rights of domestic workers, 73 percent of whom are migrant women and girls especially vulnerable to discrimination in the conditions of their employment (1).

Four years ago, Germany signed the Domestic Workers Convention, 2011, also known as the Convention. This is a significant measure that affects Germany’s policies concerning the migrants, refugees and asylum-seekers entering its border towns from Syria, Afghanistan, Iraq, and other nearby States. The surge of all types of migrants, who I will refer to as refugees because of the critical nature of the Syrian War, in Germany indicates a likely increase in contributions made to the German economy. Refugee women and young girls who are at risk of entering the informal job sector—specifically, domestic work—could pose a problem for Germany’s economy and human rights accountability as informal service jobs are performed outside the government’s tracking and reporting mechanisms. These women could potentially suffer abuse at the hands of their employers because of a lack of awareness and education about their rights as laborers. Furthermore, they might not trust the institutions meant to uphold their rights because they might not know of their existence or role in their lives. Germany, however, certainly has the capacity to counter this likely scenario and adhere to the Convention it signed and ratified in 2013.

The Convention is significant in that it recognizes the contribution of domestic workers to the global economy, including more paid job opportunities for women. Yet, it also sheds light on the invisibility and trivialization of work that is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities (2). To date, 23 countries have ratified the Convention and Germany maintains its position as the second of only five countries in the European Union (EU)—and all of Europe—to ratify it (3). With the influx of refugees, asylum-seekers, and migrants, the Convention could potentially gain more significance as it will have to protect a new type of domestic worker: refugees.

A Contentious Convention: What are the Consequences for Refugees, Asylum-Seekers, and Migrants?

The highly politicized terms ‘migrant,’ ‘refugee,’ and ‘asylum-seeker’ are often used interchangeably. Each status, however, carries different meanings in terms of the rights granted under the Domestic Workers Convention. Migrants are typically those who have chosen to leave their countries in search of better financial environments, work opportunities, or other reasons. The sense of urgency in a life-and-death situation that is granted to a refugee, does not necessarily apply to a migrant. Most migrants who have recently arrived in Germany apply for asylum and, thus, are eventually considered asylum-seekers.

Officially recognized refugees, those who receive asylum in Germany in accordance with the Geneva Convention, are seen as local workers – a status that affords significant benefits, but which is also significantly more difficult to obtain. Refugees are not required to wait until it is proven that German nationals are unavailable to fill a desired job opening, protocol that asylum-seekers must follow. However, it can take years to obtain official refugee status, and most of the people who have sought refuge in Germany over the past two years are still in some phase of the complicated asylum process and have yet to be granted refugee status. Additionally, there is little coordination between immigration authorities and the German Federal Employment Agency (BA) even when a person can in fact prove refugee status and especially in regards to the question of whether or not they are eligible to remain in the country. In July of 2016, the BA announced that around 30,000 refugees found jobs since March 2015 (4). However, another 130,000 people who were granted asylum in Germany are currently registered as unemployed because of the language barrier (5).

This lack of coordination indicates an increased likelihood that the migrants now residing in Germany, unable to live on the finite resources provided by the government, will see themselves forced to enter the informal sector to earn a living and provide for their families. One such entry will be into domestic work such as in-home caregiving, housekeeping, and babysitting. The Convention defines domestic work as “work performed in or for a household or households” and a domestic worker is someone engaged in domestic work within an employment relationship (6). This opportunity for refugee women increases the susceptibility for human rights abuses that may go unchecked by the government. Abuse might take the form of pay retention, verbal or physical abuse, or a denial of basic labor rights like time off from work by a German domestic employer. Because the Convention serves as an umbrella framework to protect all domestic workers, refugee or not, it is especially significant that Germany has signed and ratified, or implemented into its legal system, the rights granted therein.

Germany Ratified the Convention- Now What?

In September of 2013, Germany ratified the Convention. The praise for the ratification is noteworthy because it was at the time only the second European country, after Italy, to ratify it. The significance of ratification beyond just signing the Convention shows that Germany is committed to legally ensuring it protects its domestic workers through actual services and legal provisions and is not simply taking a passive role where it seeks to refrain from being involved in abuses. By ratifying the Convention, Germany has placed the onus on its government to protect all its domestic workers via international law that, through ratification, has now become national law.

This process was one of the speediest ratification processes in German history. This is because there was never any legal or policy hindrance to Germany’s ratification of the Convention, meaning that no laws would require amendments (7). Thus, with strong support from Chancellor Angela Merkel and the legal obstacles out of the way, this symbolic ratification really only reinforced the existing laws in Germany, a critical move nonetheless because Germany demonstrated its willingness to lead other European countries through a similar process and set a precedent for how international instruments should be incorporated into national law. Ratification can only take a country so far, though, and it is the implementation that has been lacking. The fact that Germany already had laws in place to protect domestic workers begs the question: does the Convention even matter in Germany?

Yes, the Convention matters; the only caveat being that it discriminates who will benefit from the rights included therein. The real question to pose, instead, is a slightly different one. For whom does this Convention matter? As Dr. Bianca Kuhl—the head of the labor unit at the German Trade Union Federation—explains, “95 percent of the country’s domestic workers are paid cash-in-hand” and, consequently, these workers do not receive sick pay, formal vacation days and pay, unemployment benefits, and employer pensions or social security (8). As of 2013, Germany estimated its domestic labor force at 700,000 (9). The number of migrant domestic workers is difficult to calculate since many go unnoticed, but it is estimated to be anywhere from 100,000 to 600,000 (10). In most cases, the women work sporadically; meager hours and low wages further compound their inability to earn a decent living wage. This is especially alarming for the new refugees in Germany who do not speak the language and may not have access to information regarding where to seek legal counsel or resources about their rights while residing and working in Germany.

The Convention applies only to those working in the formal sector who pay their taxes as such. Ratifying the Convention was done by excluding this informal sector that is paid ‘under the table’ as well as the 24-hour care workers assisting the elderly at home- a figure estimated to be more than 50,000 workers (11). This is where the intersection of refugees and domestic work really comes into play.

The EU and its Role Regarding the Domestic Workers Convention

In January of 2014, the Council of the EU authorized its member states to ratify the Convention (12). This decision was done in writing and meant to promote the ratification of the most updated international labor conventions as classified by the International Labor Organization (13). Unfortunately, while this move was seen by the EU as a way to promote decent work both inside and outside the Union, only five European countries have actually signed and ratified the Convention as of 2017. These countries are part of the EU and have ratified it because most of the rules under the Convention are already covered under the Union’s areas of immigration, asylum, social policy, anti-discrimination, and judicial cooperation in criminal matters (14).

The small amount of EU ratifications begs the question regarding the reasons why other EU countries have not yet followed suit. The United Kingdom (UK)’s decision not to ratify the Convention is alarming and coincides with its deteriorating policies concerning domestic workers, such as not granting them the ability to change employers or stay in the country for more than six months (15). This pushes domestic workers into a more vulnerable position in which they are excluded from labor law protections and legal assistance. Perhaps the UK is the model reason why other EU nations have chosen not to ratify the Convention. However, Germany is poised to lead the pack in not only advocating for the ratification and implementation of the Convention’s articles and rights, but also in championing for the overarching inclusion of the recent refugees from the Middle East region who are beginning to enter the domestic work sector.

How Germany can apply the Domestic Workers Convention to Help Refugees

The German government is understandably limited in the resources and stipends it can grant to its non-citizens. Even so, Germany has pledged to spend €94 billion (USD 100.6 billion) for incoming refugees over the next five years, which is roughly € 8.8 billion every year (16). Nonetheless, when compared to the €36.6 billion allocated for the German military in 2015 which some believe to be severely underfunded,  the funding for refugee programs and policy implementation appears even more underfunded, and it throws into question the methods used to allocate, calculate, and prioritize funds for the welfare of its citizens and residents (17) (18).

Despite these questionable allocations of funds, Germany can take significant strides in tracking refugee employment in domestic work. It can start by partnering with or funding NGOs that already work with domestic workers and which might be able to conduct outreach to refugees looking into that line of work. These organizations can provide refugees with sessions on their right to demand terms and conditions of employment (19). Additionally, and equally as important, NGOs and local non-profits can execute educational sessions for employers that will be negotiating those terms.

Through its own agency actions and partnerships, Germany will comply with its ratification of The Convention as it recognizes that domestic worker rights are positive rights that the State needs to actively enforce. Germany must ensure that refugee domestic workers and their employers are fully aware workers can exercise their right to choose where they live and where they take their rest and annual leave, a severe problem for employers who mandate their employees to both work and reside at the employer residence, which only helps further muddle the distinction between work hours and off-time. Through partnerships with civil society organizations, refugees who become domestic workers will be made aware of their right to collective bargaining and the fact that compulsory labor and work discrimination is illegal (20).

The German government has not instituted—or has not been transparent about—any mechanisms to ensure that all of these articles are effectively implemented in its society. While The Convention certainly calls for its signatories to implement effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers, Germany has not proven its compliance (21). An article in a treaty or a convention is only as meaningful as its execution in practice. Others may argue that human rights documents are significant even without implementation because, surely, they generate dialogue and change the course of established, discriminatory language and discourse. In Germany’s treatment of domestic workers, this does not seem to be the case because anti-immigrant rhetoric has given rise to hate speech and a resurfacing of the extreme right wing political parties.

Refugees in Germany: Entering the Labor Force

Whether legally or not, many women will seek employment in the services and domestic sectors. Lidia Farre of the blog Nada es Gratis analyzes research on the labor market effects of migration. She concludes that the refugees will find jobs in the services sector of Germany, and in particular in the caring of children and the elderly at home. The implications are that these new workers in the German market will push native workers toward occupations with less manual work and which involve higher skills. The increase in the labor supply from the migrant, refugee, and asylum-seeking women in the domestic service sector will “allow qualified native women to substitute unpaid domestic work hours for paid work hours, and thus progress in their professional career” while stimulating the economy and contributing to the expected rise of Germany’s GDP (22).

Yet, herein lies a problem. The extent to which refugees will contribute to the sustainability of the welfare state of Germany depends on many factors, including refugees’ ease of access into the labor market, as economics correspondent for Die Zeit, Mark Schieritz, explains (23). Here, the German government has a dual responsibility to ensure that the migrant or refugee workers who are specifically entering the realm of domestic work are accounted for and part of the formal sector. This will ensure that they will pay into the welfare state through taxes. More importantly, however, setting up mechanisms for refugees to more easily enter the labor market will allow for the State to comply with its duty to guarantee equal treatment between domestic workers and workers generally. Including refugees in these policies means they are able to have normal hours of work, overtime compensation, periods of daily and weekly rest, and paid annual leave, while of course considering the unique characteristics of domestic work (24). Given that a significant number of refugees are expected to enter the domestic work sector, it is imperative that the German government include refugees in its policy dialogue.

Action Items for the German Government

There are additional barriers to obtaining employment in Germany for refugees. Over a million refugees have arrived in Germany since 2015, and the challenge remains integrating them into the labor market. While the BA claims that refugees are seen as equals to locals in terms of applying for a job, they cannot actually be granted the right to work until six months after arriving in Germany. In practice, though, refugees are not being allowed to apply for jobs regardless of how much time has lapsed if there are potential German or European candidates for that post in the same region. Even so, once a job is obtained, a refugee is still required to obtain authorization from BA authorities granting them the right to sign an employment contract, a process that takes weeks.

The German government can do a better job to allow refugees to begin working legally, especially in the domestic sector. Economists agree that the service sector will be one area where employment will be dominated by the influx of refugees, and it would be wise for Germany to eliminate the six month rule, which in fact used to be three months until October 2015, that hinders refugees from finding work and contributing to the future of Germany’s economy and social welfare. The government must enlist the help of civil society and non-governmental organizations that can help monitor domestic work abuse and violations of the Domestic Workers Convention. Currently, there is little to no coverage on any sort of governmental and public-private partnerships that can help keep the German government accountable to its domestic workers who are increasingly refugees. It must become best practice, and eventually hard law, to provide all domestic workers employment protection through social security in addition to decent work conditions.

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References

1. International Labour Organization: Results and Methodology.‘ ILO Global Estimates on Migrant Workers’. ILO.org. http://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_436330.pdf. 2016.
2. Convention No.189 and Recommendation No. 201. Concerning decent work for domestic workers, 2011. International Labor Conference. Geneva, Switzerland.
3. Wiego. ‘Ratification by Countries of Domestic Workers’ Convention (C189)’. Women in Informal Employment: Globalizing and Organizing. Wiego.org. http://wiego.org/informal-economy/ratification-countries-domestic-workers-convention-c189. 2017.
4. Deutsche Welle. Interview with Dr. Wido Geis. Economist Geis: 33,000 jobs for refugees ‘a success’. http://www.dw.com/en/economist-geis-33000-jobs-for-refugees-a-success/a-19397020. 2016.
5. Deutsche Welle. Interview with Dr. Wido Geis. Economist Geis: 33,000 jobs for refugees ‘a success’. http://www.dw.com/en/economist-geis-33000-jobs-for-refugees-a-success/a-19397020. 2016.
6. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
7. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
8. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
9. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
10. Paral, J. “Migrant domestic workers in Germany” in http://migrationeducation.de/44.1.html?&rid=140&cHash=5f22dc61adf7e3d2c4e00437bb1b09d0. 2009.
11. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
12. The European Union. Council Decision 2014/51/EU. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0051&from=EN. 28 January 2014.
13. The European Union. Council Decision 2014/51/EU. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0051&from=EN. 28 January 2014.
14. The European Union. Council Decision 2014/51/EU. http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014D0051&from=EN. 28 January 2014.
15. The Guardian. ‘Domestic Workers Celebrate Rights Breakthrough’. TheGuardian.com. https://www.theguardian.com/global-development/2013/sep/05/domestic-workers-rights-labour. 5 September 2013.
16. https://www.rt.com/news/343016-germany-refugee-spending-2020/.
17. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
18. http://nationalinterest.org/feature/germanys-military-dying-13748
19. Convention No.189 and Recommendation No. 201. Article 7. Concerning decent work for domestic workers, 2011. International Labor Conference. Geneva, Switzerland.
20. Convention No.189 and Recommendation No. 201. Article 3. Concerning decent work for domestic workers, 2011. International Labor Conference. Geneva, Switzerland.
21. Convention No.189 and Recommendation No. 201. Article 17. Concerning decent work for domestic workers, 2011. International Labor Conference. Geneva, Switzerland.
22. Hüttl, Pia and Alvaro Leandro. Bruegel.org. http://bruegel.org/2015/10/how-will-refugees-affect-european-economies/. 19 October 2015.
23. Dr. Kuhl, Bianca and Sabine Alker. “What Now After Germany’s Ratification of C189?” Equaltimes.org. http://www.equaltimes.org/what-now-after-germanys-ratification-of-c189#.V98YmI-cHIV. 7 June 2013.
24. Convention No.189 and Recommendation No. 201. Article 10. Concerning decent work for domestic workers, 2011. International Labor Conference. Geneva, Switzerland.