- Introduction
Domestic work has been an intrinsic part of Dominican society since the birth of the Republic. This form of work is both a source of income for the worker, and assistance at home and in daily work for Dominican families.
Recently, domestic work in our country has been a topic of conversation and discussion, in view of the issuance of Resolution number 14-2022 by the Ministry of Labor on September 1, 2022, aimed at complying with Convention 189 adopted by the International Labor Organization, and approved by our National Congress through Resolution number 104-13. The ILO Convention requires members to implement the provisions of the ILO Convention through national legislation and collective agreements or other measures consistent with national practice.
In this article we aim to bring to light both the problems of some of the aspects regulated in the aforementioned resolution, as well as a brief legal, social and economic analysis of them. We wish to call for reflection from the viewpoint of Dominican reality, on whether these aspects will benefit domestic workers or if they will result in negative consequences and provide suggestions for improvement.
Conflict with the Normative Hierarchy
The Ministry of Labor recognizes these new rights for domestic workers through a resolution. Is it legally possible? If the resolutions of the Ministry of Labor were sufficient in themselves, why was the resolution on teleworking transcribed verbatim in a bill which was approved by the Dominican Senate on October 12?
For its part, Convention No. 189 is not directly applicable, but it repeatedly orders the “members” to regulate the situation of domestic workers through the channels provided for in the country’s legal system.
Article 421 of the Labor Code attempts to justify the validity of the decision. However, this article deals with the power of the Minister of Labor to implement the measures it deems appropriate in an effort to “better apply laws and regulations.” This Convention does not regulate domestic workers in this regard, but orders members to rule on their situation, therefore the aforementioned article does not grant the Minister of Labor the power to “legislate” as it has in fact done.
The main problem is that this resolution seeks to repeal the Labor Code, which, we must remember, is a law (16-92) and establishes in article 259 that the employment contract of domestic workers is governed exclusively by the provisions of Title IV of the Labor Code. This action of the Ministry of Labor is even contrary to the binding jurisprudence of our Constitutional Court, which establishes that the regulation (or resolution as equivalent)[1] cannot exceed the scope of the law nor contradict it[2].
About the working day
Some jurists put forward the theory that domestic workers should be paid overtime if they exceed 8 hours a day or 44 hours per week. However, this is not addressed by the resolution. Regardless, although this is a matter for the courts to decide, we believe that implementing this criterion is extremely dangerous, since it opens the possibility that other articles of the Labor Code will be implemented for the benefit of domestic workers, which are neither recognized in the resolution nor in the Labor Code.
The Problem with Introducing the unindexed Minimum Wage
Following the issuance of the aforementioned resolution, the National Wages Committee issued Resolution number CNS-11-2022 which establishes the sum of RD$ 10,000.00 as the national minimum wage for domestic workers. We must remember that there are currently many cases where domestic workers receive a monthly salary of less than RD$ 10,000.00.
And although it may seem like an insufficient amount, there are many families in our country that depend on those RD$ 7,000.00 or RD$ 8,000.00 per month to survive. And not only this, in several cases, these (primary) domestic workers who receive a salary of less than RD$ 10,000.00, in turn are employers of other (secondary) domestic workers on whom they depend, so they can go to work.
It is extremely important to analyze the situation from the right point of view, and the harsh reality is that by setting a minimum wage, these primary workers will not be granting the secondary workers a salary increase of RD$ 2,000.00 or RD$ 3,000.00 per month, but more likely it will translate into a loss of the RD$ 7,000.00 or RD$ 8,000.00 that they currently receive.
Even if a worker is lucky enough to find a family that can pay the minimum wage, it is very unlikely they can accept the offer, because they would still need the help of a domestic for their own home, and with the minimum wage set at RD$ 10,000.00 per month, they will not be able to hire such services, or failing that, they will do so “off the books”, which we understand is not the aim of the Ministry of Labor.
Having said that, we want to make it clear that we do not think it is a mistake to establish a minimum wage, but that it must take into account a large number of elements that probably merit establishing scales and a certain flexibility.
- Including Domestic Workers in the Social Security System
For its part, the National Social Security Council issued Resolution No. 551-08 approving the creation of a “Pilot Plan” for the Contributory-Subsidized Scheme, which allows domestic workers to be registered with Social Security. This “Pilot Plan” consists of: RD$ 571.50 being provided in a fixed manner by the employer; RD$28.50 at the worker’s expense; and RD$ 259.43 charged to the State, regardless of the salary received by the domestic worker. This means that if a family is currently paying less than RD$ 10,000.00 to a domestic worker and wishes to continue with the employment relationship, they must source an additional RD$ 571.50 to the funds they must allocate to meet the minimum wage requirement.
We believe all this translates into damages for the domestic worker and for the employing family, both in the economic field and in the field of opportunities, since fewer families can afford to have a domestic worker, which in turn makes it difficult for lower-middle class families to opt for a “conventional” job if they do not have that help at home. Likewise, it reduces income opportunities for domestic workers’ families by having less employment opportunities.
- Potential Lawsuits, Sentences and Seizures
In addition to the above, including domestic workers in the social security system opens the door to new lawsuits and possible orders against families to pay damages either for failing to register with Social Security or for late payments. What will happen once the family is ordered to pay RD$ 20,000.00 or RD$ 30,000.00 compensation for damages, in addition to legal fees and court costs? A sentence that is enforceable on the third day of its notification, unless a duplo* is registered.
There are many cases where it is not possible to make this deposit due to the backlog in the courts. This backlog would increase even more with the lawsuits filed by domestic workers. Nowadays, many companies are unable to deposit these funds on time and run the risk of having their assets confiscated or frozen. If we add to this the orders authorizing the twofold deposit in domestic worker cases, these companies’ legal proceedings will be further delayed, leading to an increase in the number of confiscations which in turn will be used as pressure for “negotiations” that more closely resemble blackmail.
However, apart from the obstacles mentioned above, we must also consider the fact that, for a family to be able to postpone the execution of the sentence, it must deposit twice the amount established by the court in a bank, which is never less than RD$ 20,000.00, so twofold would amount to RD$ 40,000.00.
Since many Dominican households will not be willing to take such economic risks, it will undoubtedly lead to the reduction of employment opportunities for these (secondary) workers, who will lose their sources of income. This, in turn, could mean that (primary) workers quit to be able to take care of their children and perform household chores.
- Problems with Executing Rulings and/or Determining the Employer
The Labor Code establishes that the employer is the individual or legal entity to whom the service is provided. Therefore, when it comes to filing a suit or executing a sentence who does a domestic worker sue? Who is the actual employer? The father? The mother? both? adult children? all of them? Questions arising from the regulation of the domestic employment relationship.
We must remember that the constituent elements of the employment contract are subordination, payment of wages and provision of service. Therefore, isn’t the domestic worker subordinate to all family members? Does he/she not provide the service even to people who reside in the home without necessarily being immediate relatives? Regarding salary, what happens in households where children already work and contribute financially to the household, and both parents also work? Who really pays the salary? All these aspects must be determined since when it comes to suing and, consequently, executing a ruling, it must be clear who the subject is.
However, the problem lies not only in the clear and precise identification of the employer, but can you imagine confiscations in Dominican homes? We must remember that labor law is unfortunately full of unethical practices. Remember that we had mafia-like cases in this country focused on seizing hotels and various companies, so what awaits the homes of Dominican families?
- Banning underage domestic workers
It would be most unfair to ignore the positive aspects contained in the resolution issued by the Ministry of Labor as it bans minors from performing domestic work, which is an advance in the protection of the rights of children and adolescents and must be acknowledged as such.
Final considerations
Having analyzed the controversial points dealt with by the resolution in question, we will take the liberty of briefly exposing what we believe would be the changes that should be introduced on the matters dealt with therein.
The first and most obvious observation is that this type of changes must come about through a law, beyond the aspect of the normative hierarchy, we understand that there are many facets to domestic work in the Dominican Republic and that each case is different, so there must be a law that deals in depth with the particularities of this type of employment relationship, and serves as a basis for future changes to domestic work.
On the other hand, regarding the working day, we believe domestic work is more similar to intermittent work than to regular work. In fact, looking at the first section of Resolution number 04/93, on workers who perform intermittent work, we see that it states: “… workers who perform intermittent work or whose mere presence is required in the workplace. , and may therefore have a working day of up to ten (10) hours per day (…)” . This description is more in line with the reality of domestic work in our country, since, in general, they are not workers who work non-stop for 8 hours a day.
On the other hand, although we agree with establishing the minimum wage, we understand that it should be graded, and not the same amount for all domestic workers. A priori, we came up with a table based on household income. This will allow those lower-middle class families in need of a domestic worker to hire such services, which in turn supports job opportunities for domestic workers. Similarly, Social Security should include a similar scale and establish the contribution to be made based on the worker’s minimum wage.
This gives rise to our next recommendation, which is related to the possible lawsuits arising from this type of labor relations. We understand that, by virtue of the fact that all these aspects must be regulated by a law, it must also contemplate a different procedure for the domestic workers’ lawsuits, in two particular aspects, namely: i) The obligation to provide evidence of household income, under penalty of a fine, if proven that the evidence was omitted or manipulated; and ii) The suspension of the execution of sentences should be similar to an appeal for reversal, i.e., the sentence is suspended as soon as the appeal is notified.
These two slight modifications are aimed at avoiding bad practices when demonstrating which scale of the minimum wage the worker belonged to, and to prevent Dominican households from being victims of malicious confiscations that are common in labor practice. Similarly, we avoid overloading the courts with requests for authorization of the twofold deposit, so that the deadlines of the other please would not be affected, and Dominican families would be saved the obligation of depositing double the amount awarded by the ruling.
Finally, with regard to the determining the employer, we understand that the Court should be given the power to determine which of the family members the sentence will be executed against, and the “rank” of execution, that is, in case the first member of the family does not possess sufficient assets, who the second person in rank will be to execute the remaining credit.
Although we would like to elaborate further, we must refrain, due to the complexity of some of the aspects that we believe are necessary to achieve a balance between acknowledging the rights of domestic workers, maintaining their job opportunities, preserving the stability of Dominican households, and avoiding overloading the Dominican labor courts.
[1] See Art. 292 of the Labor Code of the Dominican Republic.
[2] See Judgment TC/0032/12, issued by the Constitutional Court of the Dominican Republic, on August 15, 2012.
Source:
DMK Abogados
