Laws relating to Domestic Workers

Introduction

The domestic workers are those workers who work for ‘private households’ without clear terms and conditions of an employment which are unregistered in any book and excluded from the scope of labor legislations generally. Domestic workers comprise a significant part of workforce in India and most of them are women but being part of the unorganized sector employment, they are amongst the most vulnerable groups of workers.

The tasks performed by domestic workers are not recognized as ‘work’ in terms of legal definition. The hired domestic workers ease burden of individual households by undertaking household chores in return for ‘remuneration’. The tasks performed include the care of children and the elderly, cooking, driving, cleaning, grocery shopping, running errands and taking care of household pets, particularly in urban areas. Domestic workers in India continue to struggle for visibility and recognition.

Domestic workers are actually part of ‘care economy’ and are rendering services for part which was initially taken-care by women of the house. There is no dedicated law for domestic workers which define the term. However, this class of workers fall under the unorganised sector, so they are mainly governed by the Unorganised Sector Worker Social Security Act, 2008 provides the wage workers to include domestic workers. The definition of wage workers is as follows:

• A person employed in the domestic sector for remuneration in the unorganised sector[i]

• The person can be employed as domestic worker by the employer (one or more employer) or by the Contractor.

•  The remuneration is paid by the domestic worker either in cash or kind.

• The nature of employment of a domestic worker may be home based/temporary/casual worker/migrant workers/ workers employed in household/domestic workers

• The monthly wage of wage worker is notified from time to time by the Central Government or State Government

A.       Legislations for Domestic Workers

There remains an absence of comprehensive, uniformly applicable, national legislation that guarantees fair terms of employment and decent working conditions as extended to workforce in organised sector. Domestic workers should however be guaranteed the same terms of employment as enjoyed by other workers. Policymakers, legislative bodies and people need to recognize the existence of an employment relationship in domestic work as well. Such a view would see domestic workers as not just “helpers” who are “part of the family” but as employed workers entitled to the rights and dignity that every employment brings with it considering the fact that they are contributing significantly.

The several legislations for benefits of the domestic workers are:

(a)      Unorganized Sectors Workers Social Security Act, 2008

                        i.         The Act provides for giving benefits of various social security schemes to workers in unorganised sector including the domestic workers.

                      ii.         The Act provides for social security benefits to domestic  workers from time to time through schemes formulated by Central and State Governments

                     iii.         The Constitution of National Social Security Board/State Social Security Board for Unorganised Worker.

                    iv.         The Registration of Unorganised Worker including domestic worker if he is 14 years of age and is employed in unorganised sector for deriving benefits of social security.

(b)      Sexual Harassment against Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 and

The definition of ‘aggrieved women’ includes women in unorganised sector including domestic worker. The employer under this Act means one who benefits from that employment is an employer.

(c)       Minimum Wages Schedules notified in various states refer to domestic workers.

Since the State Government has power to fix/revise minimum wages for schedule employment. Since domestic workers fall under the purview of the State Government, Some of the State Government has included them under the category of scheduled employment.

B.        Problems in Enforcing Labour Law for Domestic Workers

Implementations of the labor laws such as minimum wages and regularized working hours, which are essential elements of any kind of work, also remain a challenge for domestic workers. The Unorganized Sector Workers Social Security Act, 2008 (“Act”) governing the domestic workers social security primarily provides that these workers are excluded from the benefit of following important legislations:

(a)      The Workmen Compensation Act, 1925: The aforesaid Act provides for payment of compensation for injury by class of employers. The Act however, excludes casual workers from the definition of workmen.

(b)      The Industrial Dispute Act, 1947: The Act provides for investigation and settlement of Industrial dispute and explicitly does not include any domestic services.

(c)       The Employees State Insurance Act, 1947: The Act provides for benefits during sickness, injury, maternity for factories which excludes the domestic workers from purview of any such benefits.

(d)      The Employees Provident Fund and Miscellaneous Provisions Act, 1952:  The umbrella legislations for future of the industrial workers after their retirement and for their dependents in case of death.

(e)      The Maternity Benefit Act, 1961: Extends benefit to factory, mines or plantations, shops and establishment with 10 or more workers to protect the rights of women while she is at home for child birth and care. The benefits are even extended to those who are not in regular employment.

(f)       The Payment of Gratuity Act, 1972: Payment of lump sum amount in return of the service rendered to the employer applicable to factories, mines, oil fields, plantations, ports, railways, shops and establishments employing more than 10 people.

C.        Important Changes to empower a Domestic Worker

a.   Providing fundamental principles and rights for collective bargaining and freedom of association: to enable the domestic workers reach an agreement to regulate their work conditions.

b.   Effective abolition of child labour in domestic work: The Child Labour (Prohibition and Regulation) Act, 1986 now prohibits employment of child labour in domestic work as also the conduct rules governing government employees. India is home to highest number of child labourers. Although the Constitution guarantees free and compulsory education under the Right to Education Act, 2009, to children between the age of 6 to 14 and prohibits employment of children younger than 14 in any hazardous environment, child labour is present in almost all sectors of the Indian economy. They work in several unorganized sectors like zari, hotel, dhabas and homes besides, factories like brass industry, fire factory, lock making etc Several thousands of children are engaged in child domestic labour which is an invisible form of child labour.  Children in domestic work are not only losing on their precious childhood but also on their right to education. Setting up of minimum age for domestic employment would further help in preventing child labour.

(c)  Education and Training of a Domestic Worker: The laws should be strengthened to encourage that their employment should ensure their further training and education.

(d) Safe and humane conditions of work: The law should ensure effective protection from all abuses and harassment of a domestic worker.

(e)  Written Contract: Terms and conditions of employment as far as possible should be governed by a written contract including-annual leave, name and address of the employer and worker, duration of contract, hours of work, probation period, termination period, weekly rest period etc.

(f)  Minimum wage coverages to domestic workers.

(g) Regulations of Placement Agencies:  Regulation of placement agencies and establishing their roles and responsibilities as well as defining their relationship with domestic workers to avoid harassment at their end of innocent domestic workers. Their role is important as most of the migrant workers depend upon them. Eg. Delhi provides for compulsory registration of placement agencies.

Conclusion

Nevertheless, particular laws in which the inclusion of domestic workers would be crucial are the Minimum Wages Act, Equal Remuneration Act, Shops and Establishment Act (for regulation of placement agencies), Contract Labour Act, Inter-state Migrant Act, and Employee Compensation Act, and the Abolition of Bonded Labour Act etc. and any other suitable legislation which exists or may be notified in future  So far, seven states in India have notified minimum wages to the domestic worker while some states have constituted welfare boards for domestic workers and some states are working for increasing access of welfare schemes to these workers. This needs to be extended to whole of India. Additionally, there is a need for a comprehensive legislations to protect the rights of domestic workers and to define their duties.

[This article is contributed by Adv. Jyoti Srivastava (Partner) Head Litigation, Legal Imperials ]

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[i] Unorganised Sector: means an enterprise owned by an individual or self- employed for production of goods, sale of goods and providing services and the number of workers is less than 10.