Legislation for Domestic Care Worker

Introduction

Law is to govern all the sectors include the non-economic sector i.e. the Domestic care work which occupies a significant position in the market but unfortunately there is no uniform regulatory framework to govern the Domestic care work sector in a Welfare state….

India has various labour welfare legislations to govern the labour Industry, but unfortunately, India failed to recognise the large proportion of workers who belongs to the domestic care sector. There is no exact data regarding the number of domestic care workers, but the number ranges from 4.75 million to over 90 million as reported by various sources.[i] Though there is vagueness regarding the exact number of domestic care workers, yet it is crystal clear that there are millions of domestic care workers. The alarming issue in this sector is that there is no umbrella regulatory as well as a facilitative framework to govern the domestic care work.

The lack of regulations is the main cause that the domestic care workers especially women have to suffer sexual abuse, trafficking and exploitation. There is a social stigma that domestic care workers are non -productive. Numerous attempts have been made to regulate the domestic care sector, but they have failed. There are Unorganised Workers Social Security Act 2008 which provides for the registration of the Domestic workers to regulate their wages etc, but it has been observed that various state governments have failed to do so. [ii] Even the International labour organisation (ILO) has intervened in defining domestic work through convention (C189), which has not been ratified by India.[iii] It is pertinent to note that the National Commission for Women proposed the draft of the Domestic Workers (Registration Social Security and welfare) Act in 2008 but it has not been notified by the central government. It stipulates that the idea of the national regulatory framework for domestic care workers is still at the drafting stage.

Concept of Domestic Care Work

International Labour Organization’s (ILO) Convention concerning decent work for domestic workers defines domestic workers as those workers who work in or for household or households. Conceptually, domestic care workers are those who are employed to perform household tasks. Broadly, such workers are known as domestic care workers because they provide care in various forms such as, cooking food, cleaning the homes, taking care of children and an elder person and even driving the family car.[iv]

Generally, care can be anything which is for health, well-being, maintenance, and protection of someone or something. They also get in return, the remuneration as other workers get, but there is ambiguity regarding the nature of work, the conditions and terms of work, or even like employment relations because of lack of uniform regulatory framework. Originally, there are part-time as well as live-in domestic care workers but there is no regulatory framework to govern the said classification.

The scope of domestic care work is very wide as it includes all the tasks undertaken in the home. It is relevant to mention that though the domestic care works are seen as unskilled or trivial work; it is not so, such work requires various skills and abilities and managerial abilities as well. The domestic care workers are not other formal and professional employers which require different work ethics but it does not mean that they are inferior to that of formal employers. The concept of domestic care workers are straightforward but there are various issues in this sector which have not addressed so far such as working conditions, wage standards, wages for overtime work, retirement and health care benefits, workers’ compensation, and other such issues.[v]

The important factor in domestic care work with respect to working time is flexibility which lies in this sector, there is no standard working time for the domestic care worker. It varies in accordance with the nature of work. It is important here to re-conceptualise the nature of work to get a fair and clear idea about the domestic care work sector. Further, there is a need of a legislative framework to standardise the concept of Domestic care workers.

Existing Legislative framework of Domestic Care Worker

ILO’s Domestic Workers Convention, 2011 has not been ratified by India which requires all the members to provide decent working conditions to domestic workers. Further, it emphasises on the rights to domestic care workers and other entitlement related to wages. India has a various existing legislative framework which does not explicitly provides for the protection of rights of domestic care workers, but their application can be extended to include domestic care workers under the definition of workers. It is pertinent to note that the ILO Convention on Decent Work for Domestic Workers requires the members to take measures to ensure the effective promotion and protection of the human rights of all domestic workers.[vi] In according to that, India had addressed the trafficking issue in its Constitution. Article 23 of the constitution prohibits trafficking in human beings and all forms of forced labour. Further, There are Directive Principles of State Policy which ensures that the health and strength of workers.[vii]  

Following are the existing labour legislation applicable to the organised sector and there is a need to extend the application of it

Minimum Wages Act, 1948

The Minimum Wages Act, 1948 deals with the requirement of minimum wages to be paid to workers. The state governments can amend this legislation, under that various state governments amended the Act and extended the application to include domestic workers under the definition of workers. The issue arises is that the nature of domestic work has not been distinguished and defined which opens the door of ambiguity. Further, the working hours of such workers have not been decided by the governments which make it difficult to determine the minimum rate of wages. The approach adopted by state governments to merely add domestic care worker in worker definition is not sufficient to recognise the domestic care workers. Thereby, it is important to recognise domestic care Industry by taking into account all the factors exist and affect the rights of such workers.[viii]

  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is comprehensive legislation so enacted in furtherance of Supreme Court guidelines which provide for the taking of preventive measures by the employed against the sexual harassment at workplace. This legislation has wide applicability as it seeks to protect domestic care workers as well. This legislation provides for the establishment of complaint committees to redress the grievances of women employees. For domestic care workers, this legislation establishes a Local complaint committee. There are various issues regarding the domestic care work such as Most of the domestic care workers are living in workers, thereby they hesitate while complaining about the sexual harassment committed in the home itself and sometimes domestic care workers develop a bond with the members of the home in which they are working which stops them from taking legal action. In furtherance of the above factors, this legislation also remained insufficient to protect the human rights of domestic care workers. [ix]

The Unorganized Workers’ Social Security Act, 2008

 The object of Unorganised Workers’ Social Security Act, 2008 is to provide for the welfare and social security of the unorganised workers. This legislation includes within its ambit the domestic care workers. This legislation requires the establishment of National as well as state social security Board to recommend the social security schemes ensures various healths, service and retirement benefits to workers. Such board allows the representation of government, employer and unorganised workers. As far as domestic care workers are concerned, their nature of work has been overlapping with that of other unorganised workers.

Even, the Honourable Supreme Court observed the implementation of the said Act and showed disappointment as the state boards had not been established by all the state governments. Further, the Apex court noted that all the state governments have to register all the domestic care workers under this legislation for the purpose of benefits and if the state government has failed to do so, then the centre shall not disburse any grants to those states as directed by the court. [x]

Proposed Regulatory Framework for Domestic Care Workers

Various attempts have been made to legislate for the domestic care work sector, but all the attempts have been failed. The earlier attempt was The Domestic Workers (Conditions of Employment) Bill, 1959 which was never enacted into law because of lack of supports from state governments at that time in the matter regarding the implementation. Further, In 2004 Housemaids and Domestic Workers (Conditions of Service and Welfare Bill), 2004 was passed in Rajya Sabha which requires the registration of all the domestic care workers by the state governments and to provide them employment opportunities. Again, this bill was not enacted into law because of ambiguity regarding implementation. [xi]

Recently in 2008, the National Commission for Women introduced the Domestic Workers (Registration, Social Security and Welfare) Bill, 2008. It was not notified by the government which aimed to regulate payment and working conditions and check exploitation and trafficking of women and other young household workers. That bill prohibited the employment of children as a domestic worker. Further, that bill had provisions regarding the working hours, minimum wages and payment of wages. It also provided for the offences and penalties.[xii]

In that direction, the Domestic Workers Welfare Bill, 2016 was introduced in the Lok Sabha which proposed the regulatory framework for the domestic care workers. This legislation seeks to provide for the working conditions and terms of employment. Also requires the registration of such workers to avail the benefits. Unfortunately, this bill has not been passed.

Other than the legislative frameworks, various attempts have been made with the help of national policy for domestic workers by the Ministry of Labour & Employment in the year 2010 and in 2011. In most recently, The Ministry of Labour & Employment formulated a National Policy on Domestic Workers, 2019 which is in the draft stage. Following are the salient features of the National Policy on Domestic Workers–

  • Amendment of the existing labour legislations to include domestic workers.
  • Right of Domestic workers to get registered as unorganised workers.
  • Right to form associations/unions of their own choice.
  • Right to get minimum wages, access to social security.

Right to have access to courts, tribunals for grievance redressal.

Need of the Legislative Framework for Domestic Care Worker

It is clear that there exists no legislation in India to regulate domestic care workers. Though various have been made by central as well as state governments, yet no attempt made it possible to have a legislative framework for the domestic care workers. There is always a need for active steps which must be taken by the government to take care of domestic care workers. As the domestic care workers work in a home, so there is a need for separate legislation to deal with all the aspects of conditions of employment.

The first factor which must be recognised is the definition of the worker which must be flexible enough to recognise domestic care worker than workers. The domestic care is different from other works, so it requires standards to recognise its peculiarity. There must be measures to prevent all discrimination against domestic care workers. The conditions of employment must be definite by the regulatory framework as there is no formal code of conduct to govern the domestic work sector.

Further, there are various labour welfare and social security laws and schemes for workers of organised sectors and the domestic care workers have always been ignored for granting of social security benefits. Such benefits include maternity benefits, Health security, compensation to injured workmen and other such benefits. For domestic care workers, such benefits are important and must be given.

There is a need for a legislative framework for domestic care workers in India along with an effective Enforcement model without which the legislation cannot achieve its goal. For the successful implementation of labour legislation, trade unions always play a vital role. It is pertinent to note that collective bargaining is an effective mechanism to have an agreement with the employer as two conditions of employment. Further, the dispute redress mechanism is also important for the regulation of domestic workspace in India.

Conclusion

It can be concluded that India is a welfare state and has various labour legislations govern the organised workers. It has been observed that there are millions of workers who are engaged in the domestic work sector. There is no regulatory framework for domestic care workers, which is important to secure the rights of such workers. The domestic care industry requires a different set of regulations because of a peculiarity of this Industry. Various attempts have been made by the government to regulate the domestic care Industry, but all attempts have failed. The national policies have been framed to address all the issues regarding the working condition of domestic care workers. There is a need to amend the existing legislation to enlarge the applicability of such legislation to include the domestic care workers within it. Further, the effective enforcement model can ensure the regulation of domestic care workspace.

Questions

  1. What is a conceptual framework of domestic care work Industry?

Answer- International Labour Organization’s (ILO) Convention concerning decent work for domestic workers defines domestic workers as those workers who work in or for household or households. Conceptually, domestic care workers are those who are employed to perform household tasks. Broadly, such workers are known as domestic care workers because they provide care in various forms such as, cooking food, cleaning the homes, taking care of children and an elder person and even driving the family car. Generally, care can be anything which is for health, well-being, maintenance, and protection of someone or something. Whether there is any special legislation for the regulation of Domestic care workers?

  • Whether the existing labour legislation deals with the domestic care work Industry?

Answer- The Minimum Wages Act, 1948 deals with the requirement of minimum wages to be paid to workers. The state governments can amend this legislation, under that various state governments amended the Act and extended the application to include domestic workers under the definition of workers. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is comprehensive legislation so enacted in furtherance of Supreme Court guidelines which provide for the taking of preventive measures by the employed against the sexual harassment at workplace. This legislation has wide applicability as it seeks to protect domestic care workers as well. The Unorganised Workers’ Social Security Act, 2008 includes within its ambit the domestic care workers. This legislation requires the establishment of National as well as state social security Board to recommend the social security schemes ensures various healths, service and retirement benefits to workers.

  • Discuss all the attempts have been made so far by the government to regulate the domestic care work Industry?

Answer- The earlier attempt was The Domestic Workers (Conditions of Employment) Bill, 1959 which was never enacted into law because of lack of supports from state governments at that time in the matter regarding the implementation. Further, In 2004 Housemaids and Domestic Workers (Conditions of Service and Welfare Bill), 2004 was passed in Rajya Sabha which requires the registration of all the domestic care workers by the state governments and to provide them employment opportunities. Recently in 2008, National Commission for Women introduced the Domestic Workers (Registration, Social Security and Welfare) Bill, 2008. It was not notified by the government. The Ministry of Labour & Employment formulated a National Policy on Domestic Workers, 2019.

  • What is the need of regulation for the domestic care work Industry?

Answer- It is clear that there exists no legislation in India to regulate the domestic care workers. There is always a need for active steps which must be taken by the government to take care of domestic care workers. The first factor which must be recognised is the definition of the worker which must be flexible enough to recognise domestic care worker than workers. Further, there are various labour welfare and social security laws and schemes for workers of organised sectors and the domestic care workers have always been ignored for granting of social security benefits. There is a need for a legislative framework for domestic care workers in India along with an effective Enforcement model without which the legislation cannot achieve its goal.

References

[i] Self-Employed Women’s Association (‘SEWA’), Domestic Workers’ Laws and Legal Issues in India, November 12, 2014, available at  http://www.wiego.org/sites/default/files/resources/files/Domestic-WorkersLaws-and-Legal-Issues-India.pdf.

[ii] Business Line, 52.6 m domestic workers worldwide, highest in Asia: ILO, January 10, 2013, available at http://www.thehindubusinessline.com/economy/526-m-domestic-workers-worldwide-highest-in-asiailo/article4294195.ece

[iii] International Labour Organization Convention concerning decent work for domestic workers (No.189), 2013,

[iv] LISA RODGERS, LABOUR LAW, VULNERABILITY AND THE REGULATION OF PRECARIOUS WORK 162 (2016)

[v] Aditya Srivastava, A maid-in-India problem, Governance Now, June 19, 2012, available at http://www.governancenow.com/views/columns/maid-india-problem

[vi] International Labour Organisation, C189 – Domestic Workers Convention, 2011 (No. 189), available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11310:0::NO:11310:P11310_INSTRUMENT_ID:255 1460:NO

[vii]  Nujs law review, Legislating For Domestic ‘Care’ Workers In India – An Alternative Understanding, Available at: http://nujslawreview.org/wp-content/uploads/2019/08/12-1-Mihika-Alex.pdf

[viii] Labour Bureau Chandigarh, Ministry of Labour and Employment, Government of India, Report on the Working of the Minimum Wages Act, 1948 for the Year 2013, available at http://labourbureau.nic.in/MW_2013_final_revised_web.pdf.

[ix] Salon, Domestic workers face rampant harassment on the job with little protection, November 30, 2017, available at https://www.salon.com/2017/11/30/domestic-workers-face-rampant-harassment-on-the-job-withlittle-protection_partner/

[x] Live Law, Supreme Court Directs Delhi Govt. To Register Domestic Workers Under The Unorganised Workers Social Security Act, August 12, 2017, available at http://www.livelaw.in/sc-directs-delhi-govt-registerdomestic-workers-unorganised-workers-social-security-act/

[xi] Housemaids and Domestic Workers (Conditions of Service and Welfare Bill), 2004 (This Bill was never enacted).

[xii] Available at https://paycheck.in/labour-law-india/domestic-work-in-india

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