INTERNATIONAL LEGAL FRAMEWORK
Last week, I had the opportunity to watch Nil Battey Sannata. For those who are generally skeptical of cinema, Nil Battey…is an endearing story of a domestic worker’s aspirations and her efforts to inspire her daughter to dream big. Without realizing, we find ourselves rooting for the underdog who might just shatter the assumption that the child of a domestic worker can do no better.
But this article is not about her or her likes who shatter the stereotype and manage to create a better life. It is about millions who don’t. It is also about legal provisions, or the lack of them, in India and abroad. It is about how we consider domestic assistance as an entitlement and not as a professional service. It is how we set double standards of respect, dignity and fairness for ourselves while at work but deny the same to the hired help. It is about how we are ‘in service’, but those engaged in domestic work are ‘servants’.
The movie brings visibility to a class that exists in the shadows of urban economies. Domestic workers fall in the vulnerable intersection of economic exploitation, classism, sexism and invisibility of work. Even today, they bear the burdens of a feudal legacy and are routinely discriminated against in terms of place to sit, utensils to eat in, using back entrances to the house and not using toilet facilities.
Problems Faced by Domestic Workers
In India around 4 million people are engaged in domestic work according to official estimates1. The number is likely to be much higher in reality, given the high incidence of undeclared domestic help and varying definitions of what constitutes as ‘domestic work’2. (See pages 11 to 21 for more details)
Despite the strength of the workforce and indispensability of their work to the urban economy, this class of work barely gets recognition as labour and those working rarely get the rights ordinarily available to other classes of workers. This is largely due to the fact that the sector is informal, unorganized and in private sphere. As such, it makes compliance and monitoring difficult. There is also a visible lack of parity in negotiating powers of the employers and the employees as the supply of this labour overwhelms the demand, especially in developing countries.
Latent classism and lack of education makes domestic workers prone to violence and abuse at the hands of the employers and placement agencies. Absence of proper documentation adds to their vulnerability, increasing the reliance on the employer to access social security benefits. As employment is largely through word of mouth, personal referrals or other informal media, employment contracts are rarely negotiated, leaving the terms of employment to the whims of the employee. Absence of written terms also leaves domestic workers vulnerable to arbitrary dismissal, wage deductions for accidental damage to property, evictions without notice, withholding of wages and other exploitative labour practices.
Domestic workers also lack the horizontal mobility to change place of work as well as vertical mobility in terms of progress in profile/ compensation due to lack of value addition to skill. We often see children being indiscriminately employed as nannies or child-minders. As there is no retirement age or pensionary benefits, domestic workers are discarded and left to fend for themselves if they disease or age makes them unsuitable or inefficient for household work.
Immigration, Domestic Workers and ILO
The otherwise private sphere of household labour ironically transcends international borders. Migration of labour towards opportunities across borders defines the very idea of globalization. When placed in context of domestic workers, it raises the complications of documentation, abuse, minimum wages and slavery like conditions for domestic workers.
Countries differ in their commitments towards the protection of domestic workers. This is largely a reflection of their socio-economic history, traditional connotations associated with domestic work, the general condition of economy and the availability of cheap labour.
USA and India: The Khobragade Episode
In 2013, India and the United States were embroiled in a diplomatic scuff when an Indian diplomat was arrested for the alleged mistreatment and underpayment of her maid, besides information fraud. The Prosecutor charged Devyani Khobragade for lying about the minimum wages agreed to be paid to her domestic help Sangeeta Richards for availing a visa. The visa. formalities required that minimum wages at the rate prevalent in the US be paid to the immigrant domestic worker. Despite the said clause, Richards alleged that she was being underpaid. The diplomatic fraternity came to Khobragade’s defence stating that the salaries of Indian diplomats in the United States were not sufficient to cover the prevalent minimum wages for domestic help. (The case has been discussed in more details on pages 4 to 10) Khobragade’s prosecution and the merits of the protocol of her arrest (or the lack thereof) aside, it was interesting to see an entire nation jump to the defence of their Diplomat, and in process, pushing the claims of a maid of the same nationality. The incident saw a nation and its government granting their tacit approval to a visa fraud instead of facilitating the payment of minimum wages in the host country.
In another such case in 2010, the domestic help was awarded damages to the tune of 1.5 million by a US Court to be paid by her diplomat employers. Delhi High Court however restrained Shanti Gurung from pursuing her case in the US, affirming once again that sovereign immunity superseded the rights of the domestic help4.
Need for International Standards to Settle this and Bring Parity-Instruments
International law comes into play as a means to universalize the claims from the employers and also break ground for challenging the inherent prejudices associated with domestic work.
Standards set internationally serve as a useful benchmark for countries which do not have adequate institutional and legislative protections for domestic workers.
The International Labour Organisation (“ILO”), which has been in the vanguard of the campaign for human rights of domestic workers, adopted the Domestic Workers Convention No. 189 and the accompanying Recommendation 201 were adopted in 2011. They constitute a milestone in the Domestic Workers Rights Movement and, if adhered to, bear the potential to alter the way the sector is perceived and engaged with.
Convention 189 and Recommendation 201 draw from ILO’s extensive experience in labour rights to advocate parity of domestic workers with those engaged in other sectors. The Convention underscores the undervaluation and invisibility of work in the sector and seeks, among others, the right of domestic workers to minimum wages, decent work hours and living conditions and a weekly days off, social security, and clear information on the terms and conditions of employment as available to other workers. The Convention also offers special protection to migrant domestic workers, putting the onus on the employers to sign a legal contract delineating the conditions and kind of work and the wages. The new standards put States under obligations to protect domestic workers from violence and abuse, to regulate private employment agencies that recruit and employ domestic workers, and to prevent child labor in domestic work5. The Convention however is silent on minimum wages and does not even describe them in terms of per centage of average household income.
Since its coming into force in 2013, the ILO Convention has been ratified by 22 countries and many have formulated domestic laws to strengthen protections for domestic workers in accordance with the standards set by the ILO Convention.
International Convention on the Protection of the Rights of All Migrant Workers and the Members of Their Families, 1990
General Comment No. 1 on migrant domestic workers adopted by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) in 2010 takes note of the vulnerability of domestic workers who migrate in search of employment opportunities. It highlights the absence of express references to domestic work or domestic workers from a broad range of international and domestic laws. The General Comment notes the intersection of labour, immigration, contract and social-security laws where the domestic migrant workers feature. In absence of adequate legal infrastructure, they are prone to abuse on all counts. Non-registration of domestic workers exposes them even more.
The Committee acknowledges that the exploitation of migrant workers may not commence and culminate within employment but may be a part of the entire migration cycle starting from the immigration process to arrival in the new country. Before departure, the migrant workers may have to deal with labour brokers, touts and administration for the necessary clearances. On arrival, they may be subjected to restrictions on freedom of movement, withholding of salary and identity documents by the employers, inadequate wages or living conditions, undefined or excessive work hours, lack of designated resting phases especially for fulltime house help, absence of social security benefits of pension and health as well as physical, psychological and sexual abuse. Women and children are especially vulnerable.
The Comment progressively calls for States to institute pre-departure procedures to facilitate legal migration of domestic workers and minimize the scope of their exploitation. Such procedures may include general information about the destination country, its laws and culture, their rights and obligations as well as
minimum financial literacy. The States have also been urged to activate their Consulates and Embassies as centres of emergency support and counselling for the domestic workers. In addition, the Committee recommends inter alia that emergency health care be provided by the host country irrespective of the regular or irregular immigration status6 of the domestic workers.
CEDAW General Recommendation No. 26 on Women Migrant Workers (2004)
The Convention for the Elimination of all forms of Discrimination against Women (CEDAW) Committee, in the General Recommendation on migrant workers, highlights how gender discrimination and prejudices placed women migrant workers at a greater disadvantage than their male counterparts. They emphasized the need to integrate a gender perspective in the rights discourse for migrant workers and study it from the perspective of gender inequality, traditional female roles, a gendered labour market, the universal prevalence of gender-based violence and the worldwide feminization of poverty and labour migration7.
The Committee urges the member States to formulate a comprehensive gender sensitive and rights based policy with participation of women migrant workers toward protection of their human rights. The Committee also calls for special focus on dismantling discriminatory restrictions on employment opportunities and increasing awareness among women for self-preservation in the migration cycle. Pre-departure medical tests are also to be administered with consent and dignity of the migrant worker. Host countries have been urged by the Committee to ensure that undocumented women are not subjected to administrative exploitation and harassment as they are even more vulnerable.
India, despite a legacy of exploitation of domestic workers as ‘servants’, has not ratified Convention 189. The Labour Ministry has time and again attempted to justify this decision by blaming it on the domestic laws which need to be at par with the ILO standards before the latter can be ratified8.
In India, in the absence of a special legislation, the rights of domestic workers have been sought for under the Child Labour (Prohibition and Regulation) Act 1986, banning the employment of children as domestic workers, the Unorganised Workers’ Social Security Act, 2008, which provides social security benefits to workers of the unorganised sector and the Contract Labour (Regulation and Abolition) Act, 1970 to regulate the terms of employment, to a certain extent. The Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 also offers limited protection of individuals who migrate to cities to work as domestic workers in government or private establishments. It however excludes from protection millions of domestic workers who migrate to different states to work in households. The Sexual Harassment of Women at the Workplace (Prevention and Prohibition) Act, 2013 brings women engaged in domestic work into the ambit of prosecution for sexual harassment. The Central Civil Services (Conduct) Rules, 1964 prohibit any government official/civil servants from employing children below the age of 14 years as domestic workers.
The Minimum Wages Act, 1947 is not applicable to domestic workers ipso facto but states have an option of extending its application. So far, domestic workers have been brought under the ambit of this act by Tamil Nadu, Kerala, Bihar, Jharkhand, Gujarat, Orissa, Karnataka and Rajasthan by an inclusion in Schedule 27. However, only a few of these states, like Rajasthan, Kerala and Gujarat have notified the minimum wages per month and the number of working hours.
Additionally, welfare boards have been constituted by state acts in Maharashtra and Tamil Nadu to oversee the welfare of domestic workers9.
In 2003, the National Domestic Workers Welfare Trust moved the Apex Court the Public Interest Litigation (PIL) of National Domestic Workers Welfare Trust Vs Union of India (PIL No.160/2003)-for a comprehensive legislation to protect the service conditions of domestic workers throughout the country, and a PIL of National Domestic Workers Welfare Trust Vs Government of Jharkhand (PIL No. 2810/2012) for the effective implementation of the Unorganized Workers Social Security Act 2008.
Many bills have come up and lapsed since The Domestic Workers (Conditions of Employment) Bill of 1959, including Delhi Private Placement Agencies (Regulation) Bill, 2012 requiring compulsory registration of all placement agencies of domestic workers, keeping of records of clients and employees and cancellation of licenses if non-compliance, the Domestic Worker (Registration and Social Security and Welfare) Bill 2008 and the Domestic Workers Welfare and Social Security Bill, 2010. The Draft National Policy on Domestic Workers proposing minimum wages of Rs.9000 per month was moved for approval of the Union Cabinet in August 2015 but has been gathering dust for over a year now.
The Government however in May 2012 extended the Rashtriya Swasthya Bima Yojana (RSBY), a national health insurance scheme to domestic workers to facilitate basic health care and hospitalization. Recently, efforts have been made towards creation of skill council for domestic workers by the Government run National Skill Development Corporation to train the existing and new domestic workers and impart skills that will make them eligible for placement outside the country. Placement is envisaged to be provided through government agencies in countries with understanding to ensure that they are paid adequate wages in a dignified work environment.
While these achievements are significant in themselves, we are still very far from a comprehensive framework for protection of their human rights.The abundant and rampant violation of the rights of domestic workers in the country is not the best kept secret. India’s reluctance to ratify the ILO convention and the labour ministry’s lethargy to push forth with the policy are indicators of the very feudal mindset the convention attempts to disrupt.
*Pallavi Sharma is a legal consultant with Common Cause and is pursuing Master’s in International Human Rights Law at University of Oxford