ENTRE AMORES DE UN MOCHUELO CANTOR Y UN CENTURIÓN DE LA NOCHE

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debate while preparing the bylaw. It will conclude by stating the facts behind establishing this bylaw and discussing whether this bylaw is going to be effective in meeting the KSA obligations of preventing the trafficking of domestic workers.

4.5.2 Discussion and Analysis of the Case Study

This section will discuss and analyse the main areas of the 23 Articles of the KSA domestic workers bylaw in detail, taking into consideration, some of the regional instruments and some of the international instruments on domestic workers and the discussion that surrounded the debates during its preparation.

Firstly, the case study will show the debates and the data on the issue of the definition of domestic workers, type of work and the contract elements in the KSA domestic workers bylaw. Secondly, this case study will go through the fundamental rights and principles at work that are giving by the ILO and whether those rights are being implemented in the KSA domestic workers bylaw or being ignored. The final section will focus on the rights of domestic workers to not be exposed to violence and the right to live in decent living conditions with decent working hours according to international standards.

The choosing of the above main areas of discussion in this case study was due to the fact the above areas are the first steps of the violated rights that leads to trafficking. Similarly, the fact is that those rights can be seen as the signed of exploitations that the domestic workers are facing which eventually would lead them to escape from the residence house and falls into the hands of traffickers.

4.5.2.1 Definition, Type of Work and Contract

Article one explains the terminologies that have been used in this bylaw, including the definition of domestic workers, employer, wage, household,

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domestic work and the committee.³⁸⁴ The important part in this article is the definition of the domestic worker as it states “everyone who does an act of domestic work, directly or indirectly, within a household... such as a servant, driver, landscaper or watch guard”.³⁸⁵

Compared to some regional instruments, this definition is very specific and would include all types of housework that are supposed to be performed by the domestic worker.³⁸⁶ For example, the Omani Domestic Worker bylaw defines the domestic worker in Article 1 as ‘anyone who does an act of domestic work inside a private house.’³⁸⁷ Specifying the type of domestic worker is one way to protect domestic workers, providing it complies with international standards.

For example, the ILO convention No. 189 defines domestic work as ‘work to be preformed in or for a household or households’ to protect the relationship

384 Article 1 of The Kingdom of Saudi Arabia Domestic Workers Bylaw

385 Article 1 of The Kingdom of Saudi Arabia Domestic Workers Bylaw. Another example can be found in the Austrian government, which used the domestic workers definition to emphasise the issue of the residence of domestic workers as shown in their Federal Act Governing Domestic Help and Domestic Employees, section 1(1), which reads: ‘The provisions of this Federal Act shall apply to the employment relationship of employees who provide domestic services for their employer or members of such employer’s household, regardless of whether or not they are residing in the employer’s household.’ In the same Federal Act, they added a provision to include all companies that provide any services of domestic work, thereby covering all the bases of domestic workers definitions. Section 1(3) states that “no difference shall be made whether the household is managed by a natural person or a legal person for its members or for a third party.’ See also, Article 1(3) of the Australian Federal Act Governing Domestic Help and Domestic Employees; Article 1(1) of the Australian Federal Act Governing Domestic Help and Domestic Employees

386 This regional instrument denotes the Sultanate of Oman’s Domestic Worker bylaw. Another example can be seen in the Belarus Labour Code of 1999, which deals with the specific conditions of employment of domestic workers. Chapter 26, Articles 308 to 314 of this Labour Law state that domestic workers are defined as persons who, under a contract of employment, work in a household of people, by providing services foreseen by law. More specifically, Article 308(2) shows that certain people who are taking care of persons with a disability, people over 80, children under 18 and people with HIV/AIDS are not domestic workers and they are covered by a separate regulation; Articles 308-314 of the Belarus Labour Code 1999;

Articles 308(2) of the Belarus Labour Code, 1999

387 Sultanate of Oman Domestic Workers bylaw

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between domestic workers and their employers.³⁸⁸ The ILO explains further the definition of the type of domestic workers through ensuring that any national legislation designed to protect domestic workers will cover different groups of work through different laws or policies and at the same time ensuring clarity as regards legal terminologies, definition of terms and the scope of the specific laws concerned.³⁸⁹

That being said, it is clear that the definition of domestic workers in the KSA bylaw almost copies international standards, with a small condition that this definition is to be implemented accurately. Additionally, this similarity comes with the ILO, and as explained above, the ILO is one of the UN agencies concerned with the rights of workers, including the migrant domestic workers.

Article two of the KSA bylaw states ‘the employer should not give any other type of work to the domestic worker other than the work in the contract.’³⁹⁰ Article three contains two main sections: section (a) states that ‘the relationship between domestic workers and the employer should be governed by a contract in the Arabic language’; and section (b) states that ‘the contract and its translation should have three copies, of which each party gets one copy and the third copy should be deposited with the recruitment agency.’³⁹¹

388 Article 1 of the ILO Decent Work Convention (No. 189). In this article, the words ‘in or for’ refer to the actual work services that are sometimes delivered outside the household. The terms ‘a household or households’ refer to the fact that domestic workers may work for multiple employers or be employed to perform a domestic work in more that one household as in ‘domestic workers employed by agencies.’

389 ILO, ‘Effective Protection for Domestic Workers: A Guide to Designing Labour Laws’ [2012] 11

390 Article 2 of The Kingdom of Saudi Arabia Domestic Workers Bylaw

391 Article 3 of The Kingdom of Saudi Arabia Domestic Workers Bylaw. Note that the Omani bylaw, for example, also states in Article 3 that the contract must be written in the Arabic language and signed by both parties. It also adds that if the contract is written in a language other than Arabic, then the Arabic version must be attached; Article 3 of the Sultanate of Oman Domestic Workers bylaw. Another example can be found in Article 310 of the Belarus Labour Code, which gives further details that the contract of employment for domestic services with close family members is to be prohibited; Article 310 of the Belarus Labour Code 1999

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That being said, it is necessary to keep in mind the ILO explanation on the contract, as they stated that the written contract is an important matter as it shows the existence of a relationship between the domestic worker and the employer and its agreed terms.³⁹² In other words, the contract is an essential element of the relationship between the domestic worker and the employer especially when a dispute over wages, types of work or any other issue arises.

Therefore, the contract should be in a language that the domestic worker can read or understand, as a matter of dispute could arise at any time. However, the KSA government chose to neglect this element in the final draft of the bylaw and more importantly, the changes to this article can be seen clearly as the main argument was to include the Arabic language in the contract without looking at the nationality of the domestic worker. The KSA domestic workers bylaw shows that they ignored the understanding of the contract language from the domestic workers.

Article four of the KSA bylaw indicates an emphasis on having the main elements that any contract should include, such as the type of work, the wage, the duties of both parties, any trial period, the contract length and the extension of the contract.³⁹³ Although this thesis has criticised article two and article three of the bylaw, the preparation of this article is to be complemented. Emphasising the need to include in the contract the rights and duties of both parties, the agreed wage, the trial period and all other terms, is one step forward towards the protection of domestic workers in KSA.

Protection should necessarily stem from the basics of a contract, as the ILO Convention on Decent Work confirms. In this regard, article 7 of the ILO

392 ILO, ‘Effective Protection for Domestic Workers: A Guide to Designing Labour Laws’ [2012] 16

393 Article 4 of The Kingdom of Saudi Arabia Domestic Workers Bylaw

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Convention on Decent Work states the need to include in the contract the job description, sick leave time, the rate of pay and the accommodation type.³⁹⁴ Article 5 of the KSA bylaw brings three main areas to attention. The first is that any trial period should not be more than ninety days; the second, the employer can terminate the contract during this ninety days without giving any reason to the domestic worker. The third states that, the trail period is to be enacted only once and the domestic worker may not accept another trail.³⁹⁵ The ILO Convention on Decent Work gives a clear statement on the trial period and that it can include any contract between the domestic workers and the employer.³⁹⁶ For example, Article 7 of the National Collective Agreement of Employees of Individual Employers of France shows that: “The agreement between the employer and the worker is laid down in a written contract,

394 Article 7 of the ILO Decent Work Convention (No. 189). Note that this Article states that ‘[e]ach member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements, in particular: a) the name and address of the employer and of the work; b) the address of the usual workplace or workplaces; c) the starting date and, where the contract is for a specific period of time, its duration; d) the type of work preformed; e) the remuneration, methods of calculation and periodicity of payments; f) the normal hours of work; g) paid annual leave, and daily and weekly rest periods; h) the provision of food and accommodation, if applicable; i) the period of probation or trial period, if applicable; j) the terms of repatriation, if applicable; k) the terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.’ An example can be found in the Omani Domestic Workers bylaw, which states that any contract must include the amount of monthly wages that should be paid to the domestic worker; the employer must indicate that room and board is available to the domestic worker; and finally the employer must inform the Omani government when the domestic worker leaves the place of work; Article 5 (1)(2)(3) of the Sultanate of Oman Domestic Workers bylaw

395 Article 5 of The Kingdom of Saudi Arabia Domestic Workers Bylaw

396 Article 7 of the ILO Decent Work Conventions (No. 189). Note that this Article states that ‘[e]ach member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment […] i) the period of probation or trial period, if applicable; j) the terms of repatriation, if applicable; […]’

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which is established either at the time of recruitment or at the end of the probation period at the latest.”³⁹⁷

The KSA domestic workers bylaw mentions the necessity of including the trial period in the contract, as the ILO requested and also as most other international governments have included in their laws. Yet, the fact is, it is a first to see that such a law can give one party the right to terminate the contract during the trial period without going to the other party.

This means, if the employer would not require the service of the domestic workers during the trail period, he can terminate the contract without having the approval of the domestic worker. The definition of this act can at minimum be seen as that the KSA government is opening the door to unknown interpretations and the exploitation of domestic workers through terminating their contract without valid reason, as well as the misuse of this bylaw by recruitment agencies and employers.