Employment of domestic workers and legislative mechanism

INTRODUCTION

The issue of exploitation of women and children as domestic workers is frequent and regularly reported. With no rights and rules to fall back on, the domestic helps, mostly migrants from eastern states, have become contemporary slaves. It is also a known fact that many women and children are trafficked and exploited by the placement agencies, which operate openly without any form of restrictions and regulations, also escaping the tax net, thus necessitating the need for regulation and control. The domestic workers fall outside the Labour legislations thus domestic workers are unable to access their rights. That non recognition of domestic work as legitimate work combined with hidden nature of the worksite results in exploitative living and working conditions and sometimes forced labour and trafficking. Reports of abuse are many with workers facing among other things , extremely long working hours , absence of rest and leave periods, deprivation of food, delayed or non-payment of wages and physical and sexual abuse, recruitment related fees, deceptive recruitment practices and discriminative policies further jeopardizes domestic workers right to just and favorable working conditions. Since home is not seen as a workplace, a typical domestic worker is not recognized as a worker, but as a servant who takes care of the household.

LAWS TO REGULATE DOMESTIC WORKERS AND PLACEMENT AGENCIES

There is no national law for domestic workers, and domestic workers have been excluded from various laws that provide social security benefits for workers in general. Domestic workers do not even enjoy the right to form unions. The government is building on a national policy for domestic workers. However, the main challenge to these laws, when formulated, will be their implementation. Till now, there is no single law specifically for domestic workers in India. There are two major hurdles to legislations:

i. Domestic work is not considered real work; it is just an extension of household services which are not even accounted in the GDP.

ii. Lack of availability of accurate data: Governments all over the world find it very difficult to estimate accurately the number of domestic workers. Some part-time domestic workers may not report domestic work as their main occupation, as they would take this work occasionally when work is not available in their villages.

“There are varying definitions of domestic work in national statistics. Sometimes, sample surveys conducted miss out on domestic workers intensive inhabitations, which remain concealed in slum.

STEPS TAKEN BY THE GOVERNMENT OF INDIA & STATE GOVERNMENTS

There have been many attempts to regulate the sector since independence. Most of these have failed due to governmental resistance-active or through neglect. The Domestic Workers (Conditions of Service) Bill 1959; All India Domestic Servants Bill 1959; Domestic Workers (Conditions of Service) Bill 1972 and 1977, and The House Workers (Conditions of Service) Bill 1989 are some of the major legislations during the period. However, the government ignored the recommendations of the Committee on the Status of Women in India 1974, and the recommendation of the National Commission on Self Employed Women and Women in the Informal Sector 19885. Following are the laws which have been enacted till date that offer protection to domestic workers:

Central Legislations:

1. The Child Labour (Prohibition and Regulation) Act 1986, amended in 2006 to ban the employment of children as domestic workers.

2. The Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 provides scope for protection of individuals who migrate to cities to work as domestic workers.

3. Domestic workers are included in the Unorganized Workers’ Social Security Act, 2008, which provides social security benefits to workers of the unorganized sector.

State level Legislations:

1. Tamil Nadu: Domestic workers were included in the Minimum Wages Act, 1948 in 2007. In 2007, Tamil Nadu constituted the Tamil Nadu Domestic Welfare Board by including domestic workers in the Tamil Nadu Manual Workers (Regulation of Employment and Conditions of Work)Act 1982.

2. Kerala: Notification for Minimum Wage Act for Domestic Workers passed on 23rd May 2005. Domestic workers are currently members of the Kerala Artisan and Skilled Workers' Welfare Fund. The Kerala Domestic Workers (Livelihood Rights, Regulation of Employment, Conditions of Service, Social Security and Welfare) Bill 2009 is distinctive because it is attempts to regulate the entire sector in a more comprehensive manner, not merely in terms of wages, social security or placement agencies.

3. Maharashtra: Maharashtra enacted the Maharashtra Domestic Workers Welfare Board Act 2008. The Act provides for the setting up of a District Domestic Labour Welfare Board with a wide range of functions. These include the registration of workers as beneficiaries; the distribution of benefits to registered workers in the event of an accident; education finances for children; medical assistance in case of ailments of the beneficiary or her dependants; maternity benefits restricted to two children and funeral expenses in case of death of a beneficiary.

4. Chhattisgarh: Chhattisgarh becomes the first state to launch solely Private Placement Agencies (Regulation) Act with formation of required rules against placement agents.

5. Others: The Governments of Bihar, Jharkhand and Orissa have also included domestic workers in their Minimum Wage Schedule.

SCENARIO AT DELHI

The Delhi Government regulates placement agencies under Delhi Shops and Establishments Act, 1954. “It also seeks to invoke Contract Labour (Regulation and Abolition) Act, 1970”. Further, there is an executive order passed by the LG which entails necessary but not enough regulations to control the Placement Agencies. In 2012, the Delhi Government has drafted “Delhi Private Placement Agencies (Regulation) Bill, 2012”, As such in Delhi, at present, the placement Agencies are being governed by a piece of regulations created by way of an executive order issued by the Lieutenant Governor of Delhi in compliance to the order dated 24-12-2010 and subsequent order dated 18-12-2013 of the Hon’ble High Court of Delhi in WP (Crl.) 82/2009 titled as Bachpan Bachao Andolan Vs. Union Of India & ors. However, an attempt was made to make a law to govern and regulate placement agencies at Delhi by introducing a bill “The Delhi Private Placement Agencies (Regulation) Bill 2012” (hereinafter referred to as “DPPARB-2012”) but both existing executive order and proposed Law DPPARB-2012 are ostensibly not effective to deal with menace of exploitation of domestic workers.

ANALYSIS OF PROPOSED DPPARB-2012

The Bill as well as an executive order in its present form is very detrimental to the safety of women and children in the “Source Areas”. This is because providing legal sanctity to placement agencies without monitoring mechanism in the source areas will lead to increase in trafficking and the traffickers will work with impunity in the source areas on the basis of legal sanctity in Delhi. The registration in Delhi without monitoring mechanism in source areas will lead to increased vulnerability to women and children in the region. The legislation for placement agencies should be undertaken as a central legislation on the lines of Inter State Migrant (Workmen) Act, which provides for registration of placement agency indulging in sending workmen across Borders. Even the initiative undertaken by the Delhi Government will create confusion for law enforcement agencies as these agencies will be out of the Monitoring mechanism in NCR Regions like Faridabad, Noida, Ghaziabad, Meerut, Gurgaon, Sonepat and Panipat. DPPARB-2012 provides regulation of placement agencies involved in Trafficking of women and children. It is very important that each and every section of this bill should be in consonance with the UN Protocol on Trafficking which India has ratified in May 2011. Primarily the need of such legislation was created due to the rampant and large scale trafficking of Women and Children from across Jharkhand, Chhattisgarh, West Bengal, Assam and Bihar for Domestic Labour and Forced Labour in Delhi.

MAJOR FLAWS IN DPPARB-2012:

Following prominent features are lacking in the proposed DPPARB-2012:

1. No provisions for no monitoring mechanism in procurement areas or source areas.

2. No provisions for welfare mechanism for the Domestic Workers and stipulation of their minimum wages.

3. The proposed Bill does not make it clear that whether the registration in Delhi will entitle the placement agency to recruit persons from the source states.

4. DPPARB-2012 has not clearly spelt out the rights of the Domestic workers. There is no mechanism set up in the Bill whereby domestic workers can lodge complaint of Sexual Harassment / Sexual Assault by placement agents. This is also important because as per the Draft Bill, the Placement agency will have complete control over the domestic worker and at every stage there will be exploitation which is already rampant.

5. The DPPARB-2012 tends to legalize the large scale trafficking of women and children from the source areas by providing legal sanctity to placement agencies who are involved in thousands of missing children across the country.

6. The clause that ‘Domestic Workers’ have to satisfy the agency about their character and antecedents , will be misused by placement agency as most of the Domestic workers who are brought from the source areas continue to remain in bonded and trafficked condition. The character certificate will be procured by the placement agencies and it will become a tool for exploitation.

7. The DPPARB-2012 did not incorporate the duties of the employer towards the Domestic Workers or the rights of the Domestic workers at the work place. 

8. No provision of legal aid / welfare mechanism/ social security benefits/schemes for Domestic Workers and no such liability has been entrusted upon placement agencies to ensure the implementation of the same.

9. A criminal act is discriminatory as Domestic workers will be harassed just for issue of Identity Cards by the Placement Agencies. It provides for stringent punishment of Domestic worker.

10. Many provisions of the proposed bill indirectly provides for penal action against the Domestic Worker.

POSSIBLE IMPROVEMENTS

A law on the line of the Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979 must be enacted at national level to regulate and organize the working conditions of the domestic workers and further to stop menace of placement agencies with following majors apart from majors suggested hereinabove:

i. All Domestic workers should be registered in Gram- Panchayat or Municipality or Corporation compulsory as the case may be at their resource state.

ii. All Domestic Workers shall be provided with the benefits of Public Distribution System (PDS) Cards to avoid buying food grains and kerosene at higher prices. Aadhar identity shall be made compulsory for such domestic workers.

iii. The remuneration to domestic workers shall be deposited in their bank accounts and not by cash by the contractors.

iv. Every state government shall mandatorily operate an internet portal indicating the registered principal employers, contractors, establishments and domestic workers details including Aadhar card data for general public information and verification.

The details of interstate workmen shall be uploaded by the principal employers and contractors promptly. Non compliance by the principal employers or contractors is treated as violation of the Act and liable for punishment.

v. No contractor shall deploy the workers outside the state without getting registered in that state. All the details of the domestic workers deployment outside the state shall be made available to the state authorities promptly.

vi. The state government authorities shall conduct mandatory yearly audit of all employers / contractors in a state regarding deployment of interstate workers and submit yearly compliance status or implementation report to the state assembly for their scrutiny.

CONCLUSION

Relying upon separate and weaker protections in a standard contract to protect domestic workers rather than extending equal protection of Labour laws to domestic workers constitute unjustifiable discrimination as prohibited under ICCPR, Convention on Elimination of all forms of Discrimination against Women and migrant workers convention prohibit discrimination on basis of sex, language, social origin,. Therefore international law guarantees equality before law and equal protection of law to domestic workers. Under Art 15 (3) of the Indian Constitution, special provisions for women and children may be made and further keeping in view Entry 24 and 23 of list II under schedule VII of the constitution state government can also enact laws to provide for welfare of labour including conditions of work, employers liability, social security and social insurance. This law should keep in view the rights guaranteed under article 23, 24, 14, 19, 39, 43. Thus it is imperative that a law be enacted to provide for safety and security of domestic maids and regulate the placement/employment agencies which cater to providing employment to any class/category of persons. The law needs to be broader and go beyond the scope of domestic workers as placement agencies not only cater to domestic but also other employment requirements.

We need to recognize the fact that domestic work is also a ‘service’, a care service which is multifaceted in nature, ranging from housecleaning services to taking care of children and elderly. Still domestic work is not accorded the value it ought to. There are many other care services that are professionalized, for example nursing in India. Earlier nursing was considered a menial occupation. But after the nursing service started getting professionalized, it raised both the bargaining power and respect of the nurses. Similar change can be expected in the domestic work sector if we do the same. Indeed, the time has come when the domestic workers should get the respect that they deserve. But the respect should not arise out of sympathy, but giving them opportunities for self-empowerment. Professionalization and formalization will be a major step towards empowerment.

BY-: ANURAG TIWARI,

Advocate, Member, Central Social Welfare Board (CSWB),

Ministry of Women & Child Development,

Government of India.

Panel Advocate, “All India Legal Aid

Cell on Child Rights” of DSLSA/BBA