Domestic child labor: An overview in the light of Brazil’s recent experience Armand F. Pereira * Child domestic work received little attention until the late 1990s. It remains highly neglected because of the relatively invisible nature of such work, the difficulty in getting good data within and across countries, lack of interest among policy-makers and legislators, limited law enforcement, etc. In several countries, labor-related laws still do not address domestic work, much less that of children which is still perceived by many people as a “good” option for poor girls. This problem has as much to do with children’s rights and public attitudes as with deregulated labor markets and necessary changes thereof. Domestic work represents up to 10 percent of total employment in several countries, according to ILO’s labor statistics. Yet, it is generally undervalued, overworked, underpaid, unprotected and, therefore, open to abuse of children and adults as well. Indeed, a significant proportion of domestic workers are children in spite of international treaties and national laws prohibiting it. Yet, the first point to stress is this: Human rights violations get more sympathy when it comes to children, but we can more effectively crack down on domestic child labor through efforts to improve the regulatory framework covering domestic work at large - a critical point reemphasized at the end of this article. One in seven children is in child labor of some sort, according to ILO’s statistical efforts since the late 1980s. Over 6% of the working children are in community, social and personal services, including domestic work. Child domestic workers are estimated around 175,000 under 18 in Central America, nearly 325,000 between 10 and 17 in Brazil, over 53,000 under 15 in South Africa, some 38,000 between 5 and 7 in Guatemala, more than 688,000 in Indonesia, and probably much more in some other large Asian countries for which semi-reliable estimates are still missing. About 90% of domestic child workers are girls; boys may exceptionally share up to 50% (e.g. in Katmandu in the late-1990s); most are in the 12-17 age group, but some are as young as 5 or 6. They are often far from their families, controlled by their employer, invisible to public authorities, frequently deprived of basic rights and related social services, decent lodging and working conditions, deprived of protection from sexual
harassment and mental and physical abuse.1 As some evidence shows, they are often victims of child trafficking within between and within countries. 2 On the whole, the global situation concerning domestic child labor is way off targets of eradication of worst forms of child labor set for 2016. It is shameful, scandalous and unacceptable. Some progress has surely been made in the attitudes of policymakers, legislators and the public in general, but not even close to what needs to be done. Some reflections in the light of Brazil’s experience Brazil is one good case showing both advances and challenges in efforts to eradicate child labor and, among its “worst forms”, domestic child work. Since the early 1990s, positive initiatives have been put in place - with the Government’s leadership and/or blessings - to curb child labor, including domestic child work since the late 1990s. Among developing countries, Brazil had the most impressive drop in child labor between 1992 and 2004 in both absolute and percentage terms. The incidence of child labor in Brazil has dropped well below that of the majority of developing countries; in the Latin American and the Caribbean region (although not all countries have comparable data), Brazil was among the top 5 countries with the lowest incidence in the 5 to 14 year bracket. Brazil’s experience is therefore relevant enough for many other countries. Major advances Much of the 30% decline in the most critical 5-15 age group from 1992 to 1998 and, again, from 1998 to 2004 was due to a good mix of initiatives, particularly in education, labor inspection, and family income assistance, combined with efforts to develop child labor statistics, national- and state-level multi-entity forums and related action programs by local and state governments and NGOs partly assisted by international agencies. 1
* The author 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 to 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. These conditions are evident from studies by the ILO, UNICEF, Human Rights Watch, Anti-Slavery International, Save the Children, etc. See, for example, ILO: Still so far to go: Child workers in the world today (Geneva, ILO-IPEC, 1989). See also the following sites, among others : http://www.ilo.org/ipec/areas/Childdomesticlabour/lang--en/index.htm ; http://www.unicef.org/ http://www.savethechildren.org http://www.antislavery.org/homepage/resources/PDF/PDFbondedlabour.htm http://www.hrw.org/en/reports/2006/07/27/swept-under-rug 2
See, for example, IPEC: Combating trafficking in children for labour exploitation in West and Central Africa: Synthesis report based on studies of Benin, Burkina Faso, Cameroon, Côte d’Ivoire, Gabon, Ghana, Mali, Nigeria and Togo (Geneva, ILO, 2001)] . See also http://www.ilo.org/ipec/Campaignandadvocacy/WDACL/2004/lang--en/index.htm
Labor inspection played a key role in reducing child labor in the formal economy, whereas more schools and income assistance made inspection effects relatively sustainable. From 1998 to 2004, the 30% reduction also reflected the 1998 Constitutional Amendment No 20 which increased from 14 to 16 the minimum working age, except as an apprentice from 14.This partly compensated for the greater difficulty of removing the remaining working children from the so-called “informal” economy in rural areas, street vending in urban areas, hidden illegal activities, etc.
Brazil: Working children* and total children * 5-17 and 5-15 age groups (in millions) -------------------------------------------------------------------------------Working Working % change Total children children children from earlier Year 5 to 17 5 to 15 5 to 15 year shown -------------------------------------------------------------------------------1992 9.70 5.70 -1998 7.70 3.99 -30.02 2004 5.00 2.78 -30.36 37.91 2005 5.17 2.93 5.64 37.65 2006 4.86 2.72 -7.38 37.88 2007 4.84 2.50 -7.99 37.94 2008 4.45 2.15 -14.03 37.08 Source: Elaborated from IBGE’s national household surveys (PNAD).
Constructive pressure from civil society and the media in collaboration with governmental and international agencies have raised public awareness and helped to mobilize action-oriented efforts. One example of this has been the "Communications Action Plan to Cope with Domestic Child Labor” – a partnership of ILO, UNICEF, Fundação Abrinq for the Rights of Children and Adolescents, the News Agency on Children’s Rights (ANDI) and Save the Children UK. This same partnership was extended to an ILO regional project covering Brazil, Peru, Colombia, Paraguay and seven countries of Central America. In Brazil’s case, the Project also involved four government Ministries and several civil society organizations in different states. Initial action began with three pilot projects: in Belém by Cedeca-Emaús, in Belo Horizonte by Circo de Todo Mundo, and in Recife by Cendhec. This work included qualitative studies on domestic child labor followed by meetings and workshops with nationwide media coverage, publications, follow up training, etc.3 Box 1 provides a synthesis of findings from the Cedeca-Emaus study in Belém, PA. A brief testimony by Carla in a national
3
See OIT: O Trabalho infantil doméstico nas cidades de Belém, Belo Horizonte e Recife: Um diagnóstico rápido (Brasília, OIT), 2003.
meeting with child domestic workers held in Brasilia in 2003 is featured in ANDI’s website video – “ TID_Carla.avi ”. Carla says in this video: "I felt humiliated, discriminated, it was as if they wanted us children to do nothing but work and live a wretched life. I was the loser! But we can have a life, with childhood, with dignity. "
Another pioneer action project targeting child domestic work has been ongoing in Salvador by CEAFRO - Centro de Estudos Afro-Orientais (Ceao) of Bahia’s Federal University in cooperation with UNICEF, ILO, the Bahia Domestic Workers’ Union (Sindoméstico), European donor agencies, etc. The effectiveness of all these campaigns and initiatives on the real numbers of children in domestic work is unclear. Yet, these efforts did increase public awareness and undoubtedly paved the way for more effective policies, legislation and law enforcement. Although the estimates of domestic child workers are not very reliable, the numbers have fallen from nearly 500,000 between 5 and 17 in 2002-03 to 323,770 between 10 and 17 in 2008 (94.2% girls), according to the latest national household survey. Since, the number between 5 and 10 is known to be relatively small, the estimates therefore suggest a significant decrease nonetheless. 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 age 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) and nine ordinary laws include elements applicable to domestic workers. However, this framework had been insufficient due to conceptual ambiguities and legal loopholes.4 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,5 unlike the earlier list published in September 2001 by MTE’s Portaria 20, which also had more limited legal powers than Decree 2481. 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 4
See, for example, Oris Oliveira: Estudo Legal: O Trabalho infantil domestico em casa de terceiros no direito brasileiro (Lima, ILO), 2004. 5 The previous list which included 81 activities was defined on 13 Sep 2001 by MTE’s Portaria 20.
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 (Ministério Público do TrabalhoMPT) 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 2009.6 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.7 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 and then forwarded to the MPT for further review. As a result, of MPT’s action, 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.” By August 2009, the police investigation was still ongoing, but its sequence will be interesting enough to follow.8 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.9 ----------------------------------------------BOX 1: 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)10 in the city of Belem, covered 255 domestic child workers, 6
MTE/SIT: Instrução Normativa N. 77 de 3 de junho 2009 (Brasilia, MTE), 2009.
7
On the roles of the MPT, supplementary to those of the MTE’s Labor Inspection Bureau, see, for example, Maria Edlene Costa Lins: A atuação do Ministério Público do Trabalho no combate ao trabalho infantil doméstico (Brasília, MPT), 2005. See: http://www.prt13.mpt.gov.br/pubartigos/pubartmecl00012005.pdf. 8
MPT atua contra família por utilizar trabalho infantil doméstico, em condições análogas ao de escravo Procuradoria Regional do Trabalho da 5ª Região, 30 de Julho de 2009. See: http://www.jusbrasil.com.br/noticias/1609596/mpt-atua-contra-familia-por-utilizar-trabalho-infantildomestico-em-condicoes-analogas-ao-de-escravo 9
For details, see A Tarde online and Blog - Daniela Alves, April 29 2008, in: http://blogdanielaalves.wordpress.com/2008/04/29/familia-calabresi-e-alvo-de-acao-indenizatoria-de-r-1mi/ 10
Maria Luiza Nobre, Lamarão, Stela Maria Lima de Menezes, Wanderléa Bandeira Ferreira: O trabalho doméstico de meninas em Belém. 2ª edição. 61 pp. Movimento República de Emaús - CEDECA Emaús, UNICEF, Save The Children UK (com apoio da OIT), Belém, dezembro de 2003.
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”).11 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$150 a 200; 45.5% enjoyed paid vacation and 52.9% did not. 41.7% had Sundays off, 16.6% had the week-end off, 36.3% had some hours off throughout the week. 22.7% had work accidents. 43.1% of the work accidents involved burns and 29.3% knife cuts. Psychological violence was reported by 71.6%, physical violence by 24.3% and sexual violence by 4.1%.
-------------------------------------------------------- END OF BOX 1 ---------------Major challenges In spite of the recognized advances, the decline in child labor has dramatically slowed down since 2004 as table 1 shows. In fact, the 2005 figures for the 5-15 age group increased 5.6% from 2004 to 2005, before decreasing again, and more significantly, from 2007 to 2008. Yet, the absolute numbers remain very high for Brazil’s level of national income and growing importance in the global economy and international politics, even though in relative terms Brazil’s child labor incidence (e.g. about 5% in the 5-14 age group) is already lower than that of several countries with similar per capita income. Nearly 60% of domestic child workers are of African descent (dropping slightly from 2001-2003); the share of girls in the total remains about the same (93-94% from 2001 to 2008), and about 50 per cent are from families with a household income of less than half of Brazilian's minimum monthly wage (i.e., half of about US$ 100 in early 2003 compared with US$ 290 in Jan 2010). A detailed technical note based on the national household surveys from 2001 to 2008,12 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 11
The 2001 National household survey (PNAD) found that 93% of the child domestic workers in Brazil were girls, 61% were of Afro-Brazilian origin and 45% were less than 16 years old, which is the general minimum working age, except in classified apprenticeships for which 14 applies, as well as special cases where 18 is the minimum by law or Decree. 12
Paes de Barros & Rosane Mendonça: “Trabalho infantil: Rumo à erradicação”, IPEA: Mercado de Trabalho, 41, Nov 2009 (Rio, Brasília, IPEA).
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, enable easier efforts to pull neglected and vulnerable children out of intolerable work and misery. The 2007 national household survey13 which included a partial emphasis on child labor suggested that the increased income assistance efforts seem to have helped increase school attendance, but apparently had a lower than expected impact on child labor. This leads to a number of open questions on the challenges ahead, and 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 MTE’s inspectors, in turn, leading to MPT’s public civil actions 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.14 Even so, it seems 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 other cases involving debtrelated 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 13
IBGE: Pesquisa Nacional por Amostra de Domicílios (PNAD), 2007 (Rio de Janeiro) . These surveys cover 400,000 interviewees in 147,000 households and engage 2000 interviewers; 83.5% of the households are in urban areas. 14
Decreto proibe trabalho infantil doméstico, in Jornal o Dia:, Rio de Janeiro, Brasília, 20 Sep 2008.
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 that accessible to the public) does seem to suggest that the Decree may have initially relaxed, rather than increased rescuing operations, although it appears that the information available to the public may not be up to date yet, or it may be just too early to tell.15 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 (ILC) – 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 Recommendation or even a Convention (treaty) 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 15
See http://siti.mte.gov.br/focuses/list
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.16 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 nonabusive working conditions, greater opportunities to education and income 16
In Brazil’s case, all domestic workers are covered by national laws equally to any other formal worker except with regard to employer contributions for a special fund on length of employment, supplementary to regular social security contributions by both the employer and the worker. Many domestic workers do not know and/or do not exercise these rights under the law, often for fear of losing their jobs. Inspectors cannot visit households, but domestic workers can exercise their rights if they complain to the labor courts, as many in fact do, with or without formal employment contracts.
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.