Bringing Home the Law: Getting Domestic Workers within the Ambit of Labour Law

Also read our other article on Bringing Domestic Workers within the Ambit of Labour Law by Shashank Sahay

§  Introduction:-

 Domestic workers carry out a range of household services, from providing care for children and elderly dependents to cleaning and household maintenance. In India, It is one of the largest sectors of work in urban areas and an important source of employment for women. These workers are many times deprived even a single day off in the entire month. Some domestic workers are live-in and may be made to
do their work at any time of the day. (Image taken from here.)

But despite their large numbers, domestic workers in the United States, UK, India and several other countries have been excluded from the protection of well drafted labour laws. Domestic workers are not included in the scope of these laws because of the limitations in the definitions of ‘workmen’, ‘employee’ or ‘employer’. Since there are few rules that can be applied to their conditions they can be, and are, constantly exploited by employers.[1]

Domestic workers are considered ‘informal labourers’. They are deprived of the right of getting weekly or even monthly offs or even working in safe working conditions. The condition of these workers is even worse in lesser developed countries like Iran or India.

§  About Domestic Workers:-

The number of domestic workers in India is quite a mystery. According to some sources the number was 4.75 million[2] in 2004-2005, whereas other sources indicated to 6.4 million[3]in 2001. The latest surveys indicating numbers closer to 8.3 million[4]. Some experts have put the number to an astounding 90 million[5]. Seeing the nature of domestic work in India 90 million may actually be an understatement.

The domestic workers can be classified into broadly three categories[6]:

Ø  Live-in domestic workers: The workers who work full-time for a single employer and also stay in the employer’s premises.

Ø  Part-time domestic workers: The workers who work for one or more employers for only few hours with each. (i.e. Not the full-day)

Ø  Full-time (Live-out) domestic workers: The workers work for a full-day for a single employer and return to their own home after that.

§  Issues:-

The following issues need to be studied and settled by government legislations:

·         Definitions: ‘Domestic workers’ or ‘Domestic work’ has not been legally defined till date. The scope and ambit of labour laws for them rests entirely on these definitions.

·         Minimum Wages: Workers, out of desperation, take up the work even if the pay is low because they cannot find work anywhere else. To cite Peoples Union for Democratic rights & Ors. V. Union of India &Ors [7] “It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wager when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.”

·         Work time: The maximum hours a full time domestic worker can be made to work and the hours between which female workers can be made to work are some issues that must be settled immediately. 

·         Days-off: Most domestic workers are made to work seven days a week and get no time for personal errands or recreational activities. This can lead to stress, depression and several health issues.

·         Abuse, harassment and threats: Workers are abused not only verbally but physically as well. If one opens the news papers then they can see cases of sexual harassment on domestic workers regularly. Live-in female workers are many times trapped in their houses by way of threats. They are treated as slaves. Even if someone is caught inflicting violence on a domestic worker, the matter is settled with a small amount of money and the culprits go unpunished.

§  Challenges:-

Passing laws for protection of domestic workers is not enough. Implementing existing laws and changing the people’s mid-set are parts of a constant struggle to develop society. An estimated 20% of domestic workers are children below 14 years of age. Women are lured into human trafficking by agents who promise decent domestic work. An NGO study in India found that out of 70,000 sex workers, 15% had begun working as Domestic workers between the ages of 15 and 18[8]. There are already child labour laws[9] and anti-trafficking laws[10] against this. In fact, one of the primary reasons domestic work has not been under the scope of labour laws is because it has been considered as informal labour. Furthermore, people do not realize that it has to be performed in addition to the work that the female workers have to do at their own houses. These female workers form the majority of the sector. This gender dimension is another reason people have been demeaning the value of domestic work[11]. Keeping aside the general populations mindset, it is also surprising that the Government has not passed any legislation that can govern the age old occupation.

There have been some developments in the laws supporting domestic workers. But one community that is ignorant of these new laws. And that is the domestic workers themselves. Even the few who actually know about these laws are not optimistic about it. They know that if they start talking about their rights with employers, they will be replaced by someone who is ready to work on their conditions. There is no shortage of unemployed domestic workers.

§  Recommendations:-

A domestic worker may be defined as “a person who is employed for remuneration whether in cash or kind, in any household through any agency or directly, either on a temporary or permanent, part time or full time basis to do the household work such as but not limited to- cooking or cleaning or look after a person below 18 or anything of the sort, but does not include any member of the family of an employer”[12] This definition fulfills our purpose.

Domestic workers must be included under the Minimum Wages Act, 19848. Setting the minimum wage somewhere between 25 to 30 rupees per hour for part time workers and 90-110 rupees per day for full-time workers would be rather reasonable. There must also be provisions for an annual bonus of one month’s salary. Setting a minimum of a weekly ‘paid-day-off’ is also necessary.

A government agency should be set up that can hear the complaints of these women. The agency should have rules that require domestic workers to report monthly, failing which the agency will approach the worker at their houses or at their places of work to check on their status. In return the agency can collect a nominal monthly amount between Rs.5-10 from the workers during their time of reporting, in order to facilitate the agencies work and ensure that all the people applying are not doing so just for amusement.

If this agency also acts as a placement agency, then female migrant workers will feel secure approaching them rather then taking the risk of trusting agents who may lure them into the trafficking “business”. People looking for domestic workers can apply here by filling an application form and paying a nominal amount. In the form, the applicant must give the exact details of the work needed to be done, the number of people living in the house with their age and sex. The form can also have a criteria option where people may choose which gender they want their domestic worker to be from. Surprise check or mandatory check can/will be performed on these houses and in the event that it is observed that the applicants in any crucial details in the form are in reality false, severe action must be taken against them. However, if the employer and the household pass the checking stage, candidates can be sent there for interviews and the mutual consent of the employer and the candidate can be expressed to the agency by both separately. (Nevertheless, the agency cannot be held liable for any abuse, harassment or violence inflicted on the worker after she/he is employed.)

In 2003, Bahrain announced a national plan to assist abused foreign workers that includes temporary shelters and a help hotline[13]. A helpline can be started in India similar to the already existent ‘1098’ that is a child help line that is making lot of progress.

§  Conclusion:-

The movement for Domestic workers is making progress but at a slow pace. There are several organizations that support the domestic worker’s at the national as well as international level. These organizations prepare draft bills and legislations which the Government can refer to while drafting labour laws for domestic workers. The International Labour Organization (ILO) is one such international organization. It is due the efforts of such organizations that the Karnataka state government passed the Minimum Wage Act for Domestic workers on 1st April 2004. The Kerala government has even included Domestic Workers into the Schedule of employment.[14]

But organizations have not succeeded in developing a mass movement and spreading awareness of the subject. It is difficult to see any drastic changes taking place in labour laws for domestic workers or any improvement in their working conditions, without large numbers supporting the cause. Especially since domestic workers themselves fear raising their voices and choose to remain hidden in shadows. The Central government must take example of State governments like Kerala and Karnataka, which have already instituted considerable measures to prevent domestic workers' exploitation.

India has already begun formulating a National Policy for Domestic Workers, along with the National Advisory Council (NAC) making recommendations. The only question remains is when will the policy be enforced and whether it will be sufficient.

--------------------------

List of References

1.      Great Britain: Parliament: House of Lords: European Union Committee, Economic Migration to the EU: Report with Evidence; 14th Report of Session 2005-06, 6

2.      Employment and unemployment NSS 61st round, 2004-05

3.      Employment and unemployment NSS 66^th round, 2009-10

4.      Interview with Dr. Jeanne Devos, National Domestic Workers Movement, India

5.       ‘Final Report of the Task Force On Domestic Workers: Realizing Decent Work,’ 12^th September 2011

6.      Peoples Union for Democratic rights & Ors. V. Union of India &Ors., AIR 1982 SC 1473 b, 1982 (30) BLJR 401, 1982 (45) FLR 140; Cited also by Sanjit Roy vs State Of. Rajasthan, 1983 AIR 328, 1983 SCR (2) 271; Nasharam Parihar vs The State Of Madhya Pradesh on 2 December, 2011, Writ Petition No : 10000 of 2010, 8281 of 2011(S), 18526 of 2010(S)

7.      Bharat Jyoti ‘Report on Socio Economic Status Of The Women Domestic Workers- A Diagnostic Study In Five Major Townships: Cuttack, Bhubaneswar, Berhmpur, Sambalpur And Rourkela Of Orissa

8.      The Child Labour (Prohibition And Regualtion) Act, 1986 And Rules

9.      Jag Mohan Singh Verma, Gender justice in India, Spellbound Publications (1999)

10.  Definition taken from ‘Final Report of the Task Force On Domestic Workers: Realizing Decent Work,’ 12^th September 2011

11.  Narada Luckanachai and Matthias Rieger, Making Migration A Development Factor: The Case Of North And West Africa, Programme for the Study of Global Migration, Graduate Institute of International and Development Studies, Geneva

12.  http://en.domesticworkerrights.org/?q=node/15 (Last viewed 21st February 2012)

Keywords: Domestic Workers Law, Labour Law, Minimum Wages Act, 1948, Prohibition of traffic in human beings and forced labour, Ambit of Labour Law, child labour india, domestic workers labour india, domestic labour cases, ILO, labour laws act, minimum wage, sexually harrassed, underpaid, women labour, work abuse

---

[1] Great Britain: Parliament: House of Lords: European Union Committee, Economic Migration to the EU: Report with Evidence; 14th Report of Session 2005-06, 6

[2] Employment and unemployment NSS 61st round, 2004-05

[3] (Census 2001).

[4] Employment and unemployment NSS 66^th round, 2009-10

[5] Interview with Dr. Jeanne Devos, National Domestic Workers Movement, India

[6] ‘Final Report of the Task Force On Domestic Workers: Realizing Decent Work,’ 12^th September 2011

[7] Peoples Union for Democratic rights & Ors. V. Union of India &Ors., AIR 1982 SC 1473 b, 1982 (30) BLJR 401, 1982 (45) FLR 140; Cited also by Sanjit Roy vs State Of. Rajasthan, 1983 AIR 328, 1983 SCR (2) 271; Nasharam Parihar vs The State Of Madhya Pradesh on 2 December, 2011, Writ Petition No : 10000 of 2010, 8281 of 2011(S), 18526 of 2010(S)

[8] Bharat Jyoti ‘Report on Socio Economic Status Of The Women Domestic Workers- A Diagnostic Study In Five Major Townships: Cuttack, Bhubaneswar, Berhmpur, Sambalpur And Rourkela Of Orissa

[9] The Child Labour (Prohibition And Regualtion) Act, 1986 And Rules

[10] Indian Constitution, 1949, Article 23. Prohibition of traffic in human beings and forced labour:-

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

[11] Jag Mohan Singh Verma, Gender justice in India, Spellbound Publications (1999)

[12]  Definition taken from ‘Final Report of the Task Force On Domestic Workers: Realizing Decent Work,’ 12^th September 2011

[13] Narada Luckanachai and Matthias Rieger, Making Migration A Development Factor: The Case Of North And West Africa, Programme for the Study of Global Migration, Graduate Institute of International and Development Studies, Geneva

[14] http://en.domesticworkerrights.org/?q=node/15 (Last viewed 21st February 2012)