Domestic Workers in India: Laws and Loopholes

December 21, 2016

This article is an excerpt from a book review by the long-time rights activist Subhendu Dasgupta, extracted from  “Adhikar Bhabnay Shramik” published by APDR. It is combined with some perspectives from G. Sampath on the same topic.

 

The Rights of Domestic Workers: A Book Review

Subhendu Dasgupta

The Rights of Domestic Workers“, published by Manobi Charcha Kendra, Jadavpur University, 2015 is an important booklet for us in the rights movement. Domestic workers are not even regarded as workers in the usual sense, and the question of their “rights” as laborers is often overlooked. The booklet under consideration has made this question relevant, and made us think of domestic work as “work”, and the rights of domestic workers in the broader light of workers rights. That is its crucial contribution.

The International Labour Organization, or ILO estimates that a large number of people are engaged in the profession of “domestic work”, with a significant fraction of them being women. Most are from the oppressed and marginal communities, those who have been forced to occupy the most oppressed rungs of the caste and class hierarchy. Much of the work occurs indoors, and is looked down upon as “womens’ work”. Work conditions are terrible, with a lot of exploitation and danger. There is forced labour, trafficking, and child labour.

In 2011, India became a signatory to the International Labour Organisation’s (ILO) Convention 189, which mandates decent working conditions for domestic workers. India has not ratified it, however, thereby evading a formal commitment to implement the measures or report periodically.

ILO Convention: Some Details

The ILO Convention defines domestic labour as work that is done for a family, or several families, like cooking, cleaning, washing clothes, caring for children, the sick, and the elderly, working in the garden or around the house, or driving a car. “Domestic workers” denotes people who enter into a professional relationship with one or more families to carry out domestic work.

These workers come from the locality or from far away, and may be daily or weekly workers. They may live with the families they work for, or in separate quarters. Domestic labour is work, professional work.

According to ILO, domestic labour must be recognized as respectable work and the rights of domestic workers have to be recognized and protected. The ILO has formulated a list of rights for domestic workers, such as the right to organize, organized bargaining with the employer, right for collective bargaining, right to education and technical knowledge, to get justice in the case of maltreatment.

It has also specified certain conditions for domestic labour. For example, the ban of all forms of bonded child labour, a minimum age for entering the domestic labour workforce, weekly holidays, fixed working hours, adequate compensation for overtime, etc.

There are no rules for fixing wages of domestic workers. The wages depend on the location of the available work, the socio-economic condition of the employer as well as the worker, the type of work and the technical expertise needed, the number of people in the employer’s family and the number of times work is performed every day, as well as various other factors.

The conditions delieneated by the ILO are not met in reality. Most workers – those who cohabit with their employers and those who commute – face extractive and oppressive conditions. Low wages, lack of opportunities and security at the workplace, lack of dignity and sexual harassment plague the occupation. Commuters face the prospect of traveling daily in packed trains and returning home after a long day’s work to take care of their own families.

Whatever the government has done has mostly been decorative, translating into little meaningful intervention. Since domestic work is perceived as the work of servants, of women, of maids – people who make the laws of the land do not take their rights into consideration. This is why there is a need to build a movement of domestic workers, to draft and enforce respectable work conditions.

Existing Laws in India and Their Loopholes

Domestic workers must organize to force the government to acknowledge its responsibility. The State must ensure the rights of domestic workers, protect such rights, and change the existing laws to make new ones.

Domestic labour is excluded from the central list of scheduled employments under the Minimum Wages Act, 1948. Neither is it covered under the Payment of Wages Act, 1936; the Workmen Compensation Act, 1923; or the Contact Labour (Regulation and Abolition) Act of 1970.

It is also not covered under the Maternity Benefit Act, 1961.

In some states – Andhra Pradesh, Bihar, Karnataka, Kerala, Rajasthan, Jharkhand, and Odisha – domestic labour is counted within the Minimum Wages Act, 1948. However, this inclusion is essentially irrelevant. Rising demand in the metros, where the majority of domestic labour happens, has led to market rates for workers that are much higher than the stipulated minimum wages, although the wages still remain below a living wage. Moreover, minimum wages for domestic work have been fixed lower than that for other kinds of work, such as construction.

In addition, several other problems remain. Wages have not been determined in the way they have been for other occupations. Experts have not been consulted, representatives of domestic labourers have not been brought into the process. There has been no mention of the method of determining the wages.

The laws have not been able to capture the complicated nature of domestic work, and the difference between various categories of such labour. Moreover, the law does not spell out the responsibilities of the employer. Furthermore, the law looks down on domestic work as “womens’ work”, which is unproductive and inferior. It is devalued in this conservative mindset. The Government’s role in invigilating and enforcing conditions has not been done.

Domestic work has been brought under the Womens Workplace Harassment Act of 2013. But the process of lodging complaints and obtaining justice is long and complicated. For almost illiterate women to take advantage of this Law and ensure punishment for the guilty is very difficult. Similarly, domestic workers are included in the Unorganised Sector Worker’s Social Security Act, 2008. However, without inspection and implementation, this too has made no difference.

Child Labour (Prohibition and Regulation) Act, 1986 prohibits the employment of children below 14 years of age. Since 2006, the Law was amended to prohibit child workers in domestic labour.

Domestic labour is covered under the Rashtriya Swasthya Bima Yojana for BPL families, launched by the government for the unorganized sector in 2007. The Scheme provides for smart card based cashless health insurance coverage of Rs. 30,000/- per family (of five) per annum on a family floater basis. The Government assumes responsibility for the cost of the smart card. However, there is a catch:

A domestic worker cannot register for this scheme unless her employment is verified by two out of four authorized agencies—of which three, given the disparities linked to power, gender, class and caste, are frequently in an adversarial or prejudicial relation with her—the police, the employer, the employers’ resident welfare associations, and unions. As social scientist N. Neetha observes in her essay, ‘Paid Domestic Work: Making Sense of the Jigsaw Puzzle’, “No other worker in the country is at the mercy of so many diverse interests groups in order to claim their eligible entitlement.”

Several problems arise when the State level Kalyan Parishad tries to help domestic workers. First, a very small fraction of domestic workers can register themselves. Second, the amount and source of money is not fixed. Thus, it is not as beneficial as it should be.

The booklet also makes it clear that the West Bengal government has done essentially nothing for domestic workers in the state.

 

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The following is an excerpt from “Who will help India’s domestic helps?” by G. Sampath

In any case, if the above legislations are any indication, it doesn’t seem like new laws alone are the answer. They will not make an impact unless efforts are made to understand, and then address, the broader social, cultural and economic factors that foster the exploitative dynamics at work. A thorough exploration of these is beyond the scope of this piece. But we can take a quick look at the four factors that I believe have everything to do with the easy vulnerability of domestic workers to abuse and exploitation.

The first is distress migration. It is no coincidence that so many of the domestic workers in Delhi are from the most backward regions and communities, and often tribals, from Jharkhand. It is one thing to migrate to a city seeking glamour, an exciting life, and better opportunities. It is something else to be forced out of your village by economic hardship. Distress migration puts the migrant, who is often illiterate, and has no support system in the city, at the mercy of human traffickers, assorted middle men/ agents and, at the end of the food chain, the employers. In the absence of any regulation, the young girls are vulnerable to exploitation every step of the way.

The second is the cultural and economic devaluation of domestic work. This finds expression even in what little legislation for domestic workers as exists. To take just one example, all of the seven states that have notified minimum wages for domestic work have fixed them lower than that for other unskilled labour, such as construction work, and also lower for the same work done in a conventional workplace outside a household. In other words, a woman carrying cement at a construction site for eight hours stands to earn more than a maid working as a care giver in a private home for eight hours. Similarly, a woman employed as a cleaner by the government or a private employer outside the household would earn more than someone who does cleaning inside a home. Why this discrimination and devaluation? As Neetha points out, “Nothing but the difficulty in accepting housework as ‘productive work’ underlies this devaluation.”

The third factor is what sociologist Peter Custers terms “the sectoral sexual division of labour”. According to National Sample Survey Office (NSSO) data, the number of women employed as domestic workers increased fourfold from 1999-2000 to 2009-2010. There is no disputing that the majority of domestic workers in India are women. Here’s the million dollar question: Why aren’t more men represented in this workforce? Why do employers discriminate against men who might, presumably, want to come in and do your dishes, mop the floor and wash your clothes? Or do they?

We know the answer: house work is still seen as the domain of the woman. In our culture, it is taken as a matter of common sense that a female domestic worker would anyway have done/be doing the house work in her own home and therefore be familiar/skilled with the tasks involved. Besides, the home is still seen as the “preserve” of the woman while men’s work belongs to the world outside.

So, in a typical urban middle class or upper middle class household where both partners go to work, it may have been expected, once upon a time, that the husband and wife together would share the housework between them and thus the domestic chores would get done. But in reality, in what must count as a slap on the face of the women’s liberation movement, even as the middle class woman joined the workforce and attained financial independence, more often than not she was able to liberate herself from housework only by transferring it to women less fortunate (economically) than herself.

In theory—market theory, that is—this ought to be a good thing, for isn’t housework now finally getting due recognition as an economic activity that is to be paid for? Well, not really, and this brings us to the all important fourth factor: a refusal to regard the home as a workplace even when it is one.

Your bed room might be a part of your home, a zone of privacy and intimacy, and beyond the purview of state regulation. But for the domestic worker sweeping the floor of your bedroom, it is her workplace. To be able to secure her human and labour rights, it would be necessary to regard your bedroom—insofar as you are willing to compromise your privacy to the extent of paying a stranger to clean up after you—as the equivalent of any other workplace, say, a factory or the office of a private employer. For instance, labour inspectors can visit any private employer, ask to see the wage register, and check working conditions. But none of the minimum wage notifications allow for labour inspections of homes. Nor does any law in this country require employers—even in states where minimum wage stipulations exist—to maintain wage registers.

The Indian state is clearly not ready to consider the home seriously as a workplace worth regulation or monitoring. So long as there’s a mindset that the home is a private space even when it’s a workplace, and domestic work is just house work and not ‘proper’ work, the apathy of the state towards the plight of domestic workers will continue. And so long as their labour rights remain ill-defined and unprotected, their human rights will continue to be violated.

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