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 ]
[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.
