Domestic Child Labor – Part Two

January 25, 2010 | Armand Pereira

Civil society and the media have also played a critical role in mobilizing action and in tracking government obligations to the ratified UN Convention on the Children’s Rights (1990) and the ILO Conventions 138 and 182 respectively on Minimum Working Age (1973) and the Worst Forms of Child Labor (1999). For example, Article 3 of ILO Convention 182 called for national tripartite consultations to define hazardous work (the forth category of worst forms of child labor) and, for that purpose, enact the necessary changes in the regulatory framework to facilitate “immediate and effective action”. The Federal Constitution (Art. 7, in particular) [English text] and nine ordinary laws include elements applicable to domestic workers. However, this framework had been insufficient due to conceptual ambiguities and legal loopholes.

Finally, in June 2008, in follow up to ILO Convention 182 (Article 3), the Government passed Decree 6481 defining a revised list of work activities that are prohibited to persons under 18 years, i.e., “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”. This new list now includes domestic child labor, unlike the earlier list published in September 2001 by MTE’s Portaria 20 with more limited legal implications than the 2008 Decree. The new norm resulted from two years of discussions in the framework of the National Commission for Child Labor Eradication (CONAETI), comprised of 33 entities from the Federal Government, employers’ and workers’ organizations and other entities of civil society. Since September 2008, that Decree enables a clear definition of illegality and facilitates concerted actions by the Ministry of Labor and Employment (MTE)’s Inspection Bureau and the Labor Prosecutions Office (Ministerio Publico do Trabalho-MPT) and other institutions empowered to act in defense of children’s rights.

In this context, another positive effort has been the MTE’s Normative Instruction 77 of June 3 2009. It provides clearer guidance to the roles, obligations, and limitations of labor inspectors regarding procedures in follow up to complaints concerning child domestic work and the steps they can objectively take in collaboration with the MPT with supplementary powers under the Constitution to review cases of alleged non-compliance with the law and prosecute employers. In a recent case in a suburb of Salvador, Bahia, the MPT filed a Public Civil Action against a family for using child domestic labor in conditions analogous to slavery, after an anonymous complaint addressed to the Special Bureau for Policies on Women’s Equality and then forwarded to the MPT for further review. As a result, Gabriela de Jesus Silva was rescued on June 10 2008. She was then 25 and had been working for that family since 10 years old, “without receiving wages, suffering torture, threats, violations and no right to leave.” The police investigation is still ongoing, and its conclusion will be interesting enough to watch over coming months (or years). In another case in the State of Goiás, in April 2008 the MPT filed a public civil action in the Labor Court with an order requiring a family to pay compensation of at least R$ 1 million (about half million US dollars) for using domestic child labor in conditions analogous to slavery, as well compensations for individual and collective moral damages. The MPT justified the action by extreme violence, abuse, forced labor, torture and threats. The family’s assets had been blocked while the court process continued.
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A snapshot of domestic child work in Belém, PA, North Brazil

As part of a multi-agency project cited above, a 2003 survey carried out by Centro de Defesa da Criança e do Adolescente (Cedeca-Emaús) in the city of Belem, covered 255 domestic child workers, 90 mothers and 35 employers. The child workers included 192 students and 63 non-students; 95.3% were girls; 10.6% were in the 5-11 age group, 47.8% were 12-15, and 41.6% were 16-17. 76% were “non-white” distributed in sub-categories of different shades of mostly Afro-Brazilian origin (i.e., “negras, pardas, morenas, amarelas”). Over 41% started domestic work between 6 and 11 years old and 50% between 12 and 15. Nearly 83% first worked in third party households against 15% in their own households. Only 52% had an employment relationship that was explicitly acknowledged; even less than 1% had a formal employment card required by law to ensure minimum labor protection, occupational accident coverage and social security contributions. 51% worked on a monthly salary basis, not regularly living in the working household, compared with 44.4% also on a monthly salary basis, but residing mainly in the working household, whereas 3% worked on a daily regime not living on the working residence. 96.2% received their earnings themselves, 2.3% had their salaries paid to their mothers and 1.5% paid to their bank accounts. 56.3% claimed they worked to be support themselves, whereas 34.5% said they worked to support their families. But 54.1% said they used the money mainly for themselves and 45.9% said they used it to help the family. 47.4% had decided themselves to take up domestic work, compared with 31.8% who were compelled to do so by their mothers. Among those who slept at work, 54.5% shared a bedroom with others, compared with 26.7% with their own bedroom and 15.7% who slept in the kitchen, hall, living room or other common area. 80.4% earned up to R$ 100 a month [i.e. about half of a monthly minimum wage in 2003] and 6% earned between R$150 a 200; 45.5% enjoyed paid vacation and 52.9% did not. 41.7% had Sundays off, 16.6% had the week-end off, 36.3% had some hours off throughout the week. 22.7% had work accidents. 43.1% of the work accidents involved burns and 29.3% knife cuts. Psychological violence was reported by 71.6%, physical violence by 24.3% and sexual violence by 4.1%.
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Major challenges
In spite of the recognized advances, the decline in child labor has dramatically slowed down since 2004 as table 1 shows. In fact the 2005 figures for the 5-15 age group increased 5.6% from 2004 and then decreased again, and more significantly from 2007 to 2008. Yet, the absolute numbers remain very high for Brazil’s level of national income and growing importance in the global economy and international politics, even though in relative terms Brazil’s child labor incidence (e.g. about 5% in the 5-14 age group) is already lower than that of several countries with similar per capita income. Nearly 60% of domestic child workers are of African descent (dropping slightly from 2001-2003); the share of girls in the total remains about the same (93-94% from 2001 to 2008), and about 50 per cent are from families with a household income of less than half of Brazilian’s minimum monthly wage (i.e., half of about US$ 100 in early 2003 compared with US$ 290 in Jan 2010). A detailed technical note based on the national household surveys from 2001 to 2008, points out that: among the 10% most vulnerable group of the population, the number of working children is about four times the national average; 71% are black (negros) compared to 58% in the total of working children; 69% live in rural areas compared to 18% in the total; 68% live in the Northeast region compared with 33% in the total; the level of poverty is twice that of the total. What has definitely changed for better, to the credit of both the Brazilian Government and the global economic trends is the fact that absolute poverty in Brazil has declined and this should, in the least, make it easier to pull neglected children out of intolerable work and misery.
The 2007 national household survey which included a partial emphasis on child labor suggested that the increased income assistance efforts seem to have helped increase school attendance, but had apparently had a lower than expected impact on child labor, thus leading to a number of open questions on what may be going right and wrong in the division of roles of concerned institutions, the possible gaps in the mix of policies and adjustments – which will be addressed in a future article.
Specifically concerning domestic child work (i.e. for third party households), the Brazilian Federal Constitution, while opening the door to the most essential protection to domestic workers, also closes the door of households to labor inspections of domestic work employment. As a result, the future success or failure of law enforcement efforts under Decree 6481 of June 2008 may depend on the extent of objective complaints that can trigger inquiries by inspectors, in turn, leading to MPT’s further scrutiny leading to law suits against employers using children under 18 for domestic work which should increase the costs of violating the law.
In September 2008, the “administrative fine” was R$ 401 (about US$ 200) per person under 18 although it may be higher depending on the number of workers, previous violations, etc. Even so, it may be too low to deter non-compliance. However, the MPT and the courts can easily prop up that cost to employers on the basis of the penal and civil codes, as in the above mentioned case in Goiás and several cases involving debt-related forced labor in remote rural areas in recent years. For law enforcement to improve, local vigilance may be further required to: a) promote increased monitoring, b) facilitate children’s complaints and their effective follow up, c) pressure concerned authorities to tighten their controls and d) improve alternatives to the affected children in terms of access to education, social integration and legal opportunities for income generation.
The state-level actions by labor inspection units in terms of inquiries and number of children under 18 released from (now illegal) domestic work have been quite limited since September 2008 when the Decree became effective. The screening that is possible in the public database for domestic work (code 76) suggests that actions were taken in three states, releasing a total of 14 children from domestic work: 7 in Paraiba, 6 in Mato Grosso do Sul and 1 in Tocantins. However, between 2006 and 2008, over 190 children had been released by actions presumably initiated or supplemented by MTE’s inspectors.
The limited information (at least accessible to the public) does seem to suggest that the Decree may be in fact relaxing rather than increasing operations, although the information available to the public may not be up to date yet, or it may be just too early to tell.
However, other ministries also active in child labor eradication efforts may be taking – or could be taking – further actions facilitated by Decree 6481, in particular the Ministry of Social Development, the Special Bureau on Human Rights, the Special Bureau on Policies for Women, the Tutelary Councils, CONAETI, CONANDA, the national and state forums on eradication of child labor, etc. These institutions along with trade unions and socially responsible employers’ organizations and the media could certainly improve monitoring and complaints-receiving facilities with relatively low resources. The efforts of these institutions therefore deserve further analysis beyond this paper.
Improved law enforcement may be difficult and limited due to the semi-invisible nature of child domestic work and the restrictions on labor inspections in households. But Brazil has now the instruments required to make a big difference. There will certainly be fewer excuses not to crackdown on so-called “informal” work, since illegality is now quite clear. For each case of child domestic work that is cramped by law enforcement, many others will be directly prevented and further discouraged. And if Brazil can make progress in this area, many other countries that have taken a back seat in eradication efforts will increasingly run out of excuses as well.

Concluding Remarks: Regulation of domestic work, in general, is essential for curbing child domestic work
A broader emphasis on decent work for domestic workers will be on the agenda of the 99th Session (2010) International Labour Conference – a decision of the ILO’s Governing Body recommending that governments of ILO Member States and their employers’ and workers’ representatives develop a new instrument that addresses the conditions in which domestic work is carried out, and strengthens protections for domestic workers. Human Rights Watch and Anti-Slavery International immediately applauded that decision, because a renewed international debate and, hopefully, a new normative instrument in the form of a Convention (treaty) or even a Recommendation could help advance the effectiveness of other UN and ILO instruments and ongoing efforts targeting children and other vulnerable groups of domestic workers worldwide.
Such an instrument concerning domestic workers is not as easy to approve as it would seem, however. The concerned institutions within and outside the ILO representative structure will need to mobilize efforts before June 2010. The ILO has a long history of debates and related studies and proposals for promoting minimum regulation for workers generally left outside the umbrella of national labor laws. The record from those efforts and debates, e.g., in 1985-1986 and in 2001-2003, do not lead to much optimism because the forces within the ILO structure tend to offset each other on questions of new regulatory instruments dealing with the so-called informal economy. But this time there is better chance to succeed, because of: the focus on one single category of highly neglected workers; the large number of children and migrants engaged in domestic work; excessive abuses in some countries; the role of online media, etc.
It is difficult to foresee what the ILC 2010 debate on domestic work regulation will be, much less what a needed international standard would include in 2011 if the June 2010 debate goes well. Nonetheless, it is clear that it should hopefully address at least the following points:

a) Legal employment protections applicable to other jobs in the formal economy, which – in addition to fundamental labor rights of freedom of association and right to collective bargaining, freedom from forced labor, from child labor and from discrimination – should cover, at least, minimum wages, hours of work, rest periods and annual leave and, hopefully, social security, including occupational safety and health coverage – which are normally specified in employment contracts or other documents to that effect under national law, so long as the duties and working conditions are clear to and agreed by the worker and the employer.

b) Regulation and monitoring of private employment procurement agencies and their practices to prevent exploitation through recruitment fees as well as smuggling and trafficking by independent intermediaries.

c) Setting minimum age for domestic work not below the nationally established minimum working age and, by Brazil’s example, hopefully defined as a “worst form of child labor”, thus 18 years old, due to the physical, psychological and emotional hazards of child domestic work, along with its potential exposure to abuses.

d) Explicit measures to protect all domestic workers from physical, psychological and sexual violence and harassment, as well as special measures particularly targeting migrant workers and children with regard to access to personal and social assistance in case of abuse.

e) Transitional programs that can at least provide domestic child workers in non-abusive working conditions, greater opportunities to education and income assistance and/or alternative employment for those above minimum working age with a view to child labor eradication targets and child-replacement employment information assistance for employers.

f) Special protections for migrant domestic workers concerning visas and choice of employment: Temporary employment-based visas for migrant domestic workers should in all circumstances be provided by competent central government authorities and such visas should not be employer-specific to prevent worker dependency on a specific employer, prevent potential abuse, and provide the concerned workers freedom to seek alternative jobs under the same visa specifications.

Armand Pereira is an international consultant, former Director of ILO for the United States and ILO Representative to the Multilateral agencies in Washington (2005-2009), former Director of ILO for Brazil (1998-2005), ILO economist in Geneva (1982-1997), etc. The author is grateful for collaboration offered from the Bureau of Labor Inspection (SIT) of the Ministry of Labor and Employment as well as the News Agency on Children’s Rights (ANDI), Cedeca Emaús.

For the entire article by Armand Pereira, including footnotes see the Document Library or click here.