Acta Universitatis Lodziensis. Folia Iuridica, 107, 2024
https://doi.org/10.18778/0208-6069.107.08

Dagmara Skupień*

https://orcid.org/0000-0003-3620-5377

Importance of International Law for the Regulation of Domestic Work in Poland

Abstract. This article presents the main acts of international law and the jurisprudence of European courts that aim to ensure decent working conditions for domestic workers. The author analyzes the legal status of this group of workers in Poland from the times before the Second World War until now. The publication argues that Polish legislation should be complemented by specific provisions concerning domestic workers. The introduction of such measures to the Polish legal system is necessary to align national law with the ILO legal acts. Moreover, the author proposes that state financial incentives for natural persons employing domestic workers should be available in certain cases to encourage the legalization of this type of work.

Keywords: domestic workers, decent working conditions, ILO conventions, migrant workers, informal economy

Znaczenie prawa międzynarodowego dla regulacji pracy domowej w Polsce

Streszczenie. W artykule przedstawiono najważniejsze akty prawa międzynarodowego oraz orzecznictwo sądów europejskich mające na celu zagwarantowanie pracownikom domowym godnych warunków pracy. Dokonana została analiza statusu prawnego tej grupy pracowników w Polsce od czasów przed drugą wojną światową do chwili obecnej. W publikacji wskazano na konieczność uzupełnienia polskiego ustawodawstwa o przepisy szczególne dotyczące pracowników domowych. Opracowanie wspomnianych przepisów jest niezbędne w celu dostosowania polskiego prawa do aktów prawnych MOP. Zaproponowano również wprowadzenie zachęt finansowych w szczególnych przypadkach dla osób fizycznych zatrudniających pracowników domowych celem doprowadzenia do legalizacji tego rodzaju pracy.

Słowa kluczowe: pracownicy domowi, godne warunki pracy, konwencje MOP, pracownicy migrujący, gospodarka nieformalna


1. INTRODUCTION

The work of domestic workers is a work “like any other” but at the same time work like no other (Blackett 2019, 19; ILO 2010, 13; Ludera-Ruszel 2018, 81–85). On the one hand, domestic workers do their job like other employed persons. They provide cleaning, gardening, driving, or care services (ILO 2021, 4–5). On the other hand, their work is done at home, in the most private place. As a result, their workplace is not usually subject to effective control by labour inspections, making them more vulnerable to exploitation at work.

Furthermore, individuals employing domestic workers do not carry out a business activity and they do not have any structures or resources that would facilitate the management of employment contracts. In many cases, they are interested in avoiding taxes and social security contributions and prefer not to declare employment with appropriate institutions. As a consequence, domestic work often belongs to the informal economy. In the worst cases, domestic workers are victims of human trafficking, forced labour, or sexual abuse. Live-in workers and those migrating from other countries are especially exposed to modern forms of slavery in households (Demaret 2007, 148–149).

The particular character of this type of work led the International Labour Organization (ILO) to adopt Domestic Workers Convention No. 189 (2011) and Domestic Workers Recommendation No. 201 (2011). The legal acts mentioned above aim to protect domestic workers from violations of labour rights and to guarantee them decent working conditions (Blackett 2019, 22–23; Ludera-Ruszel 2019, 81–85). Additionally, the 2015 ILO Transition from the Informal to the Formal Economy Recommendation (No. 204) should be perceived as a valuable set of guidelines on how to increase the legality of domestic work. The role of European courts in guaranteeing decent working conditions for domestic workers should not be underestimated.

This article discusses the most important aspects of international legislation and case law concerning domestic workers employed directly by individuals and analyses to what extent Polish legislation should be modified in order to guarantee domestic workers decent working conditions, at the same taking into consideration justified interests of the other party.

2. DEFINITION OF “DOMESTIC WORK” AND SCOPE OF ITS USE

According to Article 1 of ILO Convention No. 189, domestic work should be understood as work performed in or for a household or households. Therefore, the term “domestic worker” means any person engaged in domestic work within an employment relationship. The personal scope of the above-mentioned Convention does not cover a person who performs domestic work only occasionally or sporadically and not on an occupational basis. As a result, persons who perform “au pair” work do not fall under the definition of “domestic worker”, although abuse or exploitation cases concerning this group of atypical workers are known and require international legal action (ILO 2010, 34).

The concept of domestic worker has one common denominator: covers persons working in or for the household (ILO 2021, 17). However, the term “domestic worker” includes individuals in a variety of factual situations. It covers persons employed by employment agencies or through digital platform companies[1] but also employed directly by families; living outside a particular household or living together with a family (live out-live in); both citizens of a given country and foreigners; persons residing legally in the given territory, but also undocumented migrants; both adult and juvenile workers (over 15 years of age); strangers to a family or family members. Both men and women do domestic work, but women constitute 76% of domestic workers in the world (ILO 2021, 20). 81.2% of domestic workers worldwide are employed in the informal economy (ILO 2021, 20).

3. APPLICATION OF GENERAL INTERNATIONAL STANDARDS TO DOMESTIC WORKERS

Domestic workers are as “any other” workers covered by the international labour standards of general application resulting from the conventions of the International Labour Organization, especially the eleven “fundamental” conventions (ILO 2024). The preamble to ILO Convention No. 189 recalls the legal acts of the United Nations concerning, among others, domestic workers, which are the most relevant in the context of combating exploitation, forced work, human trafficking, or discrimination.

In Europe, the European Court of Human Rights (ECoHR) plays an important role in combating modern forms of slavery. Two important judgments of this Court should be pointed out in this regard, namely, Siliadin v. France (2005, no. 73316/01) and C.N. and V. v. France (2012, no. 67724/09). In both cases, the ECoHR found that the French state was responsible for violations of Article 4 (Freedom from slavery and forced labour) of the European Convention of Human Rights (ECHR). An important role is also played by national courts. In this context, we should invoke the UK Supreme Court judgment of 6 July 2022 in the case Basfar v. Wong (2022 UKSC 20). In this case, the UKSC decided that exploiting the labour of a domestic worker for financial gain should be qualified as a commercial activity exercised by the diplomatic agent outside his official functions. Therefore, immunity from the jurisdiction of the United Kingdom shall not be enjoyed for the acts of exploitation of a young domestic worker, according to Article 31(1c) of the Vienna Convention on Diplomatic Relations (1961). This judgment is an important step in making diplomats involved in modern slavery accountable in the receiving country (Garciandia 2023, 451).

Within the scope of the European Union, domestic workers are not excluded from the application of labour and social rights enshrined in the Charter of Fundamental Rights of the European Union. In the judgment of 24 February 2022 C-389/20 CJ against Tesorería General de la Seguridad Social (ECLI:EU:C:2022:120), the Court of Justice of the European Union (ECJ) has decided that the exclusion of domestic workers in Spain from the right to unemployment benefits constitutes a manifestation of indirect discrimination on grounds of gender in the field of social security in the case where the proportion of women affected by this exclusion is significantly greater than the proportion of men. In particular, the ECJ stressed that there were no reasons for concluding that there existed disparities on the part of domestic workers compared to chauffeurs, gardeners, agricultural workers, or workers employed by cleaning companies who were not exempt from such benefits, despite contribution rates that were sometimes lower than those applicable to domestic workers (point 63 of the ECJ judgment in case CJ).

4. SPECIFIC INTERNATIONAL STANDARDS FOR DOMESTIC WORK

As early as 1948, the ILO adopted a resolution on the conditions of employment of domestic workers calling the Governing Body to present the question of the status and employment of domestic workers to the ILO Conference (Demaret 2007, 148–149). The adoption of ILO Convention No. 189 is a crucial point in the fight against the negative phenomena that take place in the sector of domestic work. The main provisions of Convention No. 189 focus on the elimination of child work and all forms of forced labour, eradication of discrimination, and establishing effective protection against abuse, harassment, and violence at work. Domestic workers, including migrant workers, are supposed to be properly informed about the conditions of their employment. They should be covered by provisions concerning minimum wage and equally treated as other workers when it comes to working time, annual leave, and overtime compensation.

According to ILO Convention No. 189, domestic workers should be remunerated at regular intervals, and their consent is required for any part of the remuneration in kind. Their health and safety should be protected at work and (gradually) they should be guaranteed the right to social security benefits, including maternity benefits. State institutions should supervise and combat any abuse on the part of temporary work agencies hiring domestic workers. State work inspections shall be entitled to carry out controls taking into account the specificity of the home. Domestic workers should have proper access to justice to defend their rights. Convention No. 189 of the ILO underlines the freedom of domestic workers to associate in trade unions and to bargain collectively. Unfortunately, until now (31/03/2024), only 37 countries ratified ILO Convention No. 189, and, within this group, only 9 EU Member States. Poland has not ratified it so far (ILO, Ratifications 2024a).

Recommendation No. 201 expands the fields regulated by Convention No. 189 to include such issues as especially appropriate standards of residence with the family, conditions of employment of young workers, working time standards, obligation of employers to inform in advance on wages, reduction of possible benefits in kind, protection of migrant workers’ rights, “reasonable notice period” (for reasons other than “serious misconduct”), complaint procedures, measures to facilitate payment of social security contributions for domestic workers, and a system of inspections and penalties. It also encourages the member states to adopt a policy and a code of conduct for the diplomatic corps to prevent breaches of the rights of domestic workers in the homes of diplomats.

Furthermore, ILO Recommendation No. 204 (2015) entitled “Transition from the Informal to the Formal Economy” draws attention to domestic workers as particularly vulnerable to the most serious deficits in decent work, in undeclared jobs (point II 7 i). Among the measures proposed to be applied by the member states, we may especially point out incentives that address tax evasion and avoidance of social contributions, labour laws, and regulations (point VI.22). The recommended measures that may be particularly useful include reducing compliance costs by introducing simplified tax and contribution assessment and payment regimes for employers, improving access to social security coverage, ensuring the effective provision of information, and assistance in complying with pertinent laws and regulations.

In light of ILO Recommendation No. 204, Member States should have an adequate and appropriate system of inspection, be ready to extend coverage of labour inspection to all workplaces in the informal economy in order to protect workers, and provide guidance for enforcement bodies, including on how to address working conditions in the informal economy.

The ILO indicates that various countries have adopted different types of incentives that include making employer contributions tax deductible. For instance, in France, a combination of tax benefits and direct subsidies for household employers, accompanied by exemptions from social contributions for domestic workers, contributed to a 30 percentage point decline in undeclared work between 1996 and 2015 (ILO 2016, 31–32). As it concerns the extension of labour inspection to households, it may be indicated that, for example, in Spain, such inspections are explicitly allowed (Article 13(1) of Law 23/2015, of 21 July 2015, regulating the Labour and Social Security Inspection System). However, according to Spanish law mentioned above, if the establishment subject to inspection coincides with the home of a natural person, the inspector must obtain their express consent or, failing this, the appropriate judicial authorisation.

5. DOMESTIC WORKERS IN POLAND

5.1. Historical background

The work of “domestic servants” was used on Polish territory on a large scale, mainly in noble and bourgeois houses, but also in peasant households until the end of the 19th century (Poniat 2014, 213–215). At the end of the 18th century, an estimated 1/5 of the total population of the country might have worked as domestic servants (Poniat 2014, 128). During the 19th century, a gradual feminization of this type of work was observed (Rościszewska 2012; Poniat 2014, 141). In the group of domestic workers, negative phenomena such as very long working hours with no days off, low remunerations, corporal punishment, and cases of sexual abuse occurred (Nowak 2016, 177–192; Krasińska 2017, 125; Leszczyński 2020, 365). In years 1918–1939, the number of households profiting from domestic work dropped, and it amounted to around 10%. This decrease resulted from the introduction of new institutions and inventions that facilitated the lives of families (Poniat 2014, 294) and the possibilities for low-qualified workers to get a job in factories. Domestic work also existed after 1945, during the communist era (Poniat 2014, 294), when it was used in the homes of governing party elites (Gruszczyński 2021). However, during the postwar period, its overall scope was rather small. After 1989, the growth of the need for domestic work came with the gradual emergence of wealthier classes and financial polarisation of the society due to economic and political transformation (Majak 2015; Kordasiewicz 2016, 48, 53).

Beginning in the 1990s, and in particular after Poland’s accession to the EU, many women found work as caregivers or domestic workers in households in western European countries; especially in Germany or Italy (Kordasiewicz 2016, 49–50; Matuszczyk 2019, 131–134). In numerous cases, domestic workers are posted to work abroad by temporary employment agencies (Kocher, Potocka-Sionek 2022). In turn, domestic work in Poland, especially as cleaners or caretakers, is often carried out by Ukrainian women (Kindler 2011; Kordasiewicz 2016, 57–58; Matuszczyk 2019, 139). In Poland, in 2018, domestic workers were estimated to be 0,2% of the total workforce, and the share of women among them was around 90% (ILO 2021, 274).

The first regulations concerning domestic work on Polish territories were introduced as early as the 16th century (Poniat 2014, 79). Rules concerning domestic servants existed in each of the countries occupying Poland during the times of partition in the nineteenth century (Poniat 2014, 90–112). The Prussian Act of 1810 had a quasi-feudal character, comprising especially the right of employers to corporal punishment (Święcicki 1960, 149; Poniat 2014, 98). Formally, the provisions established during the partition period were repealed as late as 1946 (Święcicki 1960, 148–150).

From the beginning of the 20th century, professional organisations of domestic servants were formed (Rościszewska 2012). Unfortunately, despite legislative proposals, no specific act concerning domestic workers was adopted during the independence of Poland in years 1918–1939 (Święcicki 1960, 148–149). Domestic workers in Poland were excluded explicitly from the scope of the Presidential Decree of 1928 of 16 March 1928 on the employment contract of physical workers (Article 2).[2] However, Title XI Section I (employment contract) of the Code of obligations of 1933[3] applied to domestic workers. Certain provisions of the Code of obligations reflected the specificity of domestic work (i.e., art. 461 § 2 – the duty to take health and morals into account if housing, accommodation, or food is provided, art. 462–463 – scope of employer’s obligations in case of worker’s illness, art. 464 – duty to grant a domestic worker adequate time for rest and religious practice). The Code established the guarantee of remuneration in cash, paid in regular intervals (art. 450–451), and the right of a worker to terminate the employment contract with notice (art. 468), as well as without notice in the case of important reasons (art. 470). Unfortunately, working time was not regulated in the Code of obligations. The annual leave was very short, that is, one week after one year of work (art. 465). The new regulations did not significantly improve the factual situation of domestic workers. In practice, domestic workers – in their great majority single women – were still very dependent on their employers due to their personal situation and lack of professional qualifications (Święcicki 1960, 150). After the Second World War, the Polish Labour Code in its initial version of 26 June 1974[4] has allowed for certain derogations from the general labour provisions for domestic workers. Special provisions concerning, in particular, working time and the termination of employment relationships were introduced by a decree of the Council of Ministers of 20 November 1974 on employment relationships where the employer is a natural person,[5] and were in force until 1996.

5.2. Status of domestic workers in Poland

Currently, domestic workers in Poland are fully covered by the provisions of the Labour Code. Their work should be treated as “any other” and they should benefit from labour rights and social protection as other workers (Ludera-Ruszel 2018, 9). Furthermore, the provisions concerning the employment of foreign nationals as well as sanctions in the case of the employment of undeclared migrants fully apply to the employment of domestic workers (Skupień 2023, 221–234).

In the 21st century, there have been two legislative proposals concerning the introduction of particular provisions concerning domestic workers into the Polish Labour Code. These proposals were founded on the conviction that to reduce the “grey zone” of domestic work, the respective provisions should be simplified and the rigours regarding social security for domestic workers should be diminished (Komisja Kodyfikacyjna Prawa Pracy 2008a). Chapter six of the proposal for the reform of the Labour Code (Komisja kodyfikacyjna prawa pracy 2008) regulated the work of domestic workers as “any other” with some particularities. The differences in regulation concerned especially shorter notice periods and the right of the employing natural person to terminate the employment contract with the immediate effect in case of loss of confidence. In addition, in the case of unjustified dismissal, a domestic worker could only claim compensation and not reinstatement at work. There were also particular provisions proposed concerning working time and especially the option of applying a task-based working time. The proposal also provided for the possibility to pay, with the employee’s consent, 50% of the salary in kind (Komisja kodyfikacyjna prawa pracy 2008; Ludera-Ruszel 2018, 88–91) which should be critically assessed. The provisions of the second proposal to reform the Labour Code (Komisja kodyfikacyjna prawa pracy 2018), as it concerns domestic work, were strongly influenced by the regulation of the previous one.

5.3. Domestic work in Poland and the informal economy

According to data for 2018, 50,2% of domestic workers working in Poland belonged to the informal economy (ILO Topic portal on Domestic Workers 2023). This percentage is very high compared to the share of informal workers among other workers or employees, which is 14,7% (ILO 2023a).

As a result, many domestic workers are not covered by labour law and social security protection. Furthermore, the ratio of average monthly wages of undeclared domestic workers was much lower compared to other persons who were legally employed (ILO 2023a). The legalization of employment is one of the postulates formulated by the domestic worker trade union established by Ukrainian workers in this sector (Komisja Pracownic i Pracowników Domowych 2023) in Poland.

An interesting example of legislation encouraging households to legalize the domestic work they use refers to rules on the services of “nannies”. According to Chapter 6 of the Law of 4 February 2011 on the protection of children under 3 years of age (Articles 50–53 – “nanny”), parents or a single parent can conclude, in a written form, an “activation contract” with a nanny taking care of a child older than 20 weeks and younger than 3 years. Such a contract should at least include elements such as the indication of parties, the purpose and subject of it, the time and place of care services, the number of children assigned to a “nanny”, their duties, the amount of remuneration and the method and date of its payment, the duration of the contract, the conditions and manner of its modification, and of termination.

If the remuneration of a nanny is less than or equal to the minimum wage, the contributions to pension, disability, and accident insurance, as well as health insurance, are paid from the state budget. In case the remuneration of a “nanny” exceeds the minimum wage, a national social insurance institution (Zakład Ubezpieczeń Społecznych) pays contributions to the aforementioned insurance from a base that amounts to no more than 50% of the amount of the minimum wage established according to the provisions concerning the minimum wage. A parent pays insurance contributions for the nanny from the base, which constitutes the amount of the excess over the amount of 50% of the minimum wage. For a nanny who has voluntarily joined the sickness insurance at her/his request, contributions to this insurance are paid by the parent according to the rules set for contractors in the regulations on the social insurance system. The participation of the State in financing the social insurance of a person taking care of children is available in cases where parents or a single parent are employed, provide services on the basis of a civil law contract constituting a title to social insurance, or are engaged in agricultural or non-agricultural activities.

It is advisable that the scope of public support for individuals employing domestic workers for care-taking services be further extended. One may think about a certain state share in paying social insurance contributions for domestic workers caring for disabled persons or terminally ill persons residing at home. Families that decide to use domestic work in such cases contribute to the decrease of burdens which belong to the state system of social services.

6. CONCLUSIONS

The role of domestic workers in Poland will certainly increase due to the ageing of society and the insufficiency of public care services, especially long-term services for elderly and disabled persons. The “theoretical” coverage of domestic workers by the provisions of the Labour Code in Poland is not sufficient to guarantee them decent conditions of employment. In this group of workers, the number of persons working in the informal economy is much larger compared to other workers. The result is a huge number of persons working long hours, without social security protection, and with a significant part of the remuneration in kind, such as accommodation.

There exists an undeniable need for a separate set of provisions concerning the employment of domestic workers, taking into account the specific character of domestic work. New rules should be in conformity with ILO Convention No. 189 and should take into consideration the main guidelines of the ILO Recommendation No. 201. The enforcement of rules concerning employment contracts should be accompanied by the institutional support for individuals employing domestic workers in certain cases and the simplification of the rules for the payment of social security contributions.

Due to the fact that, very often, domestic workers in Poland take care of the most vulnerable persons such as disabled persons, small children, or elderly persons, the interests of the second party should also be taken into consideration. Therefore, the individuals who employ them should be entitled to terminate an employment contract without notice in the event of a loss of confidence in the domestic worker. Shorter notice periods in case of termination of a contract with notice should be applied. Due to the specificity of the work in the household, it would be justified to introduce a specific provision, that in case of an unjustified dismissal of a domestic worker, compensation only and not reinstatement may be requested by them in the judicial proceedings.


* Dagmara Skupień University of Lodz, dskupien@wpia.uni.lodz.pl



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Footnotes

  1. The number of digital labour platforms in the domestic work sector globally has risen eightfold, from 28 platforms in 2010 to 224 platforms in 2020 (ILO 2021, 48).
  2. Decree of the President of the Republic of Poland on the employment contract of blue-collar workers, Journal of Laws of 1928, No. 35, item 324 as amended [Rozporządzenie Prezydenta Rzeczypospolitej z dnia 16 marca 1928 r. o umowie o pracę robotników tj. Dz. U. z 1928 r. nr 35 poz. 324 z późn. zm.].
  3. Decree of the President of the Republic of Poland of 27 October 1933, Code of obligations, Journal of Laws of 1933, No. 82, item 598 as amended [Rozporządzenie Prezydenta Rzeczypospolitej z dnia 27 października 1933 r. Kodeks zobowiązań tj. Dz. U. z 1933 r. nr 82 poz. 598 z późn. zm.].
  4. Polish Labour Code, Journal of Laws of 2023, item 425 [Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy tj. Dz. U. z 2023 poz. 425].
  5. Council of Ministers Decree of 20 November 1974 on employment relationships where the employer is a natural person, Journal of laws 1974, No. 45 item 272 [Rozporządzenie Rady Ministrów z dnia 20 listopada 1974 r. w sprawie stosunków pracy, w których pracodawcą jest osoba fizyczna. tj. Dz. U. 1974 r. nr 45 poz. 272].

COPE

© by the author, licensee University of Lodz – Lodz University Press, Lodz, Poland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license CC-BY-NC-ND 4.0 (https://creativecommons.org/licenses/by-nc-nd/4.0/)
Received: 10.10.2023. Verified: 16.10.2023. Revised: 3.11.2023. Accepted: 19.01.2024.