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Addressing Paid Domestic Work: A Public Policy Concern

While domestic workers are covered by the legislative framework in many countries, in India they stand excluded from national legislations that deal with minimum wages, dispute settlement, conditions of work, social security and workplace injuries. This study draws upon the findings of a research project of the National Domestic Workers Movement that was conducted between February 2010 and February 2011. It sets out the definition of domestic work as a conceptual issue that is necessary for understanding domestic work and explores the constitutional and employment law framework and the challenges in legislating for this sector. It concludes with exploring ways of reducing the gap between law and practice.

REVIEW OF WOMEN S STUDIES

Addressing Paid Domestic Work: A Public Policy Concern

Nimushakavi Vasanthi

While domestic workers are covered by the legislative framework in many countries, in India they stand excluded from national legislations that deal with minimum wages, dispute settlement, conditions of work, social security and workplace injuries. This study draws upon the findings of a research project of the National Domestic Workers Movement that was conducted between February 2010 and February 2011. It sets out the definition of domestic work as a conceptual issue that is necessary for understanding domestic work and explores the constitutional and employment law framework and the challenges in legislating for this sector. It concludes with exploring ways of reducing the gap between law and practice.

I gratefully acknowledge the financial support from Indian Council of Social Science Research for this project. I would like to thank the National Domestic Workers Movement and Sister Lissy in particular, for their assistance during fieldwork, which was carried out between February 2010 and February 2011. I also would like to thank Kalpana Kannabiran and Padmini Swaminathan for their comments on drafts of this paper.

Nimushakavi Vasanthi (vasanthi_nkavi@yahoo.com) is with NALSAR University of Law, Hyderabad.

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T
he recently adopted International Labour Organisation (ILO) Convention on domestic work, 2011, draws attention to a long-standing demand for decent work in the unorganised sector and, in particular, one which is associated with and overwhelmingly performed by women. The convention calls for ratifying states to use principles and guidelines provided by the convention to formulate legislative responses to the issue of decent work for domestic workers. In this context, it becomes necessary to address paid domestic work as a public policy concern.

Paid domestic work is commonly associated with three “c”s, that stand for caring, cooking and cleaning as well as being associated with the three “d”s, the consequences of migration, being dirty, dangerous and dull. The association with low skills, low wages and often precarious employment has meant that domestic work is not associated with standard-setting as few norms operate in this sector. International conventions and domestic legislation often exclude these workers or they are excluded by implication.

The push factors for domestic workers are rooted in economic insecurity and growing insecure employment. The demand for domestic work is rooted in slavery, colonialism and other forms of servitude. The rising demand for domestic workers in recent years is located in the increase of participation of women in the labour force, the ageing of societies, intensification of work, lack of adequate public care policies and the absence of work-family reconciliation policies.1

Some pull factors for part-time domestic work are: easy availability, the ease of entry, given that no formal qualifications are prescribed, the nature of the work which is perceived to be less strenuous than manual labour; and most importantly, the opportunity it provides to balance work and home, including looking after small children.2

The ILO background paper locates the debate around domestic work in an older debate around status and contract, with domestic work often not being categorised as contract employment with fixed terms and conditions of employment. Payment in kind, employment as a continuance of a relationship of dependence and child labour reinforce the association with status rather than with a contract entered into by both parties. Domestic work, thus, remains as a vestige of an old form of employment associated with the status of the worker, where rights and entitlements are not matters of negotiation. Its association with slavery and other forms of servitude highlights the need to pay special attention to this sector.

The lack of public care policies in the areas such as childcare facilities, nursing facilities, care for the aged, or even adequate educational facilities has contributed to the growth in demand for domestic workers. The outsourcing of such responsibilities from the public sphere to the family/household has meant that, instead of concentrating on cooperative or collaborative public care facilities, there is a growth in demand, which is actively supported by the state, for cheap migrant domestic labour. The Factories Act, 1950, makes it mandatory to operate crèches, but such legislations are not enforced. Moreover, since it applies only to establishments with a minimum number of women employees, few establishments even within the formal sector are included in the provision of public care policies. The lack of neighbourhood schools and the delay in the implementation of the Right to Education is a reflection of the low priority accorded to public care systems by the state. The primary responsibility to provide for such care remains with the individual who would have to depend on cheap labour to adequately meet the need for such care.

The ratification of the convention on domestic work by India would require revisiting public policy choices that have been made and are continuing to be made in terms of the availability of quality care facilities and the need to protect the rights of those who are subsidising the state in providing such care. While domestic workers figure within the legislative framework in many countries, India does not explicitly or implicitly include domestic workers in a majority of its labour legislation. Domestic workers stand excluded from national legislations providing for minimum wages, dispute settlement, conditions of work, social security and workplace injuries.

Following international attention on domestic work, India has begun to address the issue by the inclusion of domestic workers in some of its legislation governing working conditions. The first is the Minimum Wages Act, 1948, which did not include domestic workers within the schedule. Four states (Karnataka, Kerala, Tamil Nadu and Andhra Pradesh) have made amendments to extend this protection to them. The new legislation providing social security protection to unorganised workers is the first to explicitly include domestic workers.

The unprecedented attention given to domestic work in the past few years provides an opportunity to look at public policy implications for domestic workers. Although there have been legislative initiatives regarding domestic work performed by children as hazardous work and fixing minimum wages for workers in some states, paid domestic work sector continues to be addressed inadequately. The implications of the new ILO instruments, the convention as well as the background paper, are being examined with a view to changes in public policy.

The essay draws upon the findings of a research project located in Hyderabad, which involved interviews with domestic workers through the National Domestic Workers Movement (NDWM), a group engaged in organising domestic workers in Hyderabad. The project included a survey of social conditions as well as access to the right to decent work by domestic workers in terms of legislative protections. The project, conducted from February 2010 to February 2011, apart from interviewing domestic workers also interviewed employers and labour department officials in the city of Hyderabad with the help of the Hyderabad chapter of the NDWM, which has its presence in various cities in India. Several categories of workers, both part-time and full-time, carrying out a variety of jobs were interviewed to gain an insight into the complexity of defining domestic work, the perception of the workers towards their work, the push and pull factors as well as the realisation of rights such as the right to a minimum wage. The workers were asked about their awareness of the notification issued in Hyderabad on minimum wages and its effect on their wages and other conditions.

The essay sets out the definition of domestic work as a conceptual issue necessary for the understanding of domestic work and then moves on to explore the constitutional and employment law framework and challenges in legislating for this sector. Finally, the paper concludes with exploring ways of reducing the gap between law and practice.

1 Frameworks Appropriate to Define Domestic Workers

This sector suffers from under-regulation for a variety of reasons, one of which is the lack of definition. Several frameworks are in place for defining domestic work, such as the distinction drawn between productive and unproductive work, or the dichotomy between public and private activities, or the distinction between care work and domestic work or the existence of forced labour and slavery within domestic work.

Traditionally, the classification of work as productive and reproductive labour has meant that domestic work, which does not produce any goods of durable value, is classified as nonproductive, reproductive and/or unproductive labour. The division of labour on the basis of sex also contributes to the understanding of domestic work as the work done at home rather than in terms of the range of jobs that are included within domestic work. This association with the private and domestic sphere has the effect of excluding women from consideration in matters of policy and, as its outcome, into legislation.

The exclusion of workers on the basis of the place of work, i e, the domestic sphere, although prevalent in all labour legislation, is most evident in the new Bill on Protection of Women from Sexual Harassment, which was to be introduced in Parliament in 2010. The legislation extends to most employment in the formal sector as well as in the informal sector. Domestic workers stand excluded on the ground that since they work in private households, the law would be an unwarranted intrusion into the privacy of people’s homes.

Regulation and valuation of domestic work challenges the existing paradigms of regulation as the activity is not carried on for profit; there is no manufacturing process and no final product. The traditional idea of work, which ordinarily refers to paid employment done outside the home in fixed places for fixed number of hours, does not fit these workers. A large number of domestic workers work part-time for wages that are far below the statutory minimum wage, working essentially for food or accommodation. Being so poorly paid, it does not figure as a major source of income or employment. It is necessary to re-conceptualise “work” itself in order to include paid domestic work within the protection of law.

Bridget Anderson writes that,

Paid domestic workers are often required to work to far higher standards than employers themselves would meet. They often perform degrading tasks that it is unlikely that any woman with a choice would be

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prepared to undertake. Tasks I have been told of include flushing employers’ toilets, cleaning pet cats’ anuses, scrubbing the floor with a toothbrush three times a day, or standing by the door in the same position for hours at a time (Anderson 2001: 28).

A definition of domestic work must necessarily prohibit practices reminiscent of slavery or servitude in any form.

In countries that receive a significant number of immigrant domestic workers, there is now a distinction sought to be made between domestic and care work. In the United States and New Zealand, both destination countries for domestic workers, it has been observed that tasks tend to be separated between those of the nanny and those involving cleaning. It is acknowledged that internationally domestic work involves cooking, cleaning, caring, but all forms of domestic work do not represent all three (Callister et al 2009). Duffy (2005) identifies two conceptual frameworks to understand the term care work and names them the nurturance and reproductive labour frameworks. In the nurturance framework “care” is defined as a responsive action in the context of personal relationships, whereas reproductive labour is the work required to sustain the labour force. The reproductive labour framework does not include the emotional or relational aspect that the term care involves when viewed through the nurturance framework.

Domestic vs Care Work

This distinction is not without controversy as some scholars also categorise care work into at least eight kinds of work: day care, care for the sick, emotion work, social capital development, growth work, housework, yard work and household management where the distinction between reproductive and emotional work is blurred (Williams 2001), while others deliberately choose to use the terms domestic and care work interchangeably (Blackett 2011).

The use of the term care work to represent subcategories within domestic work has consequences which need to be thought through. Care work, viewed through the nurturance model introduces differences between “menial” and “spiritual” domestic work (Duffy 2005). There are also connotations of racial segregation within domestic work, differentiating menial jobs of cleaning, washing, cooking from care, which do not involve these jobs. Duffy (2005) interprets that the two theoretical frameworks – the nurturance model and the reproductive labour framework – as having very different implications for understanding care. Care defined as nurturance includes not only teachers, doctors and nurses but a range of other educational, social and religious care givers. The inclusion of better paid, highly educated workers within the broad framework of care workers complicates the debate. She argues that it is the lack of a conceptual clarity in defining care work which contributes towards reproducing labour inequalities.

After considerable debate within the ILO on the nomenclature to be used, the ILO has preferred to use the phrase domestic work, thus, retaining the reproductive labour paradigm as well as its relationship to work done at home rather than in the public sphere. Thus, the term domestic work does not include maintenance or cleaning or any of the other wide variety of work that otherwise falls within domestic work if it is done in the public sphere.

This debate is important in the Indian context in relation to caste-based division of work within domestic work as well as the

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relatively better conditions of work enjoyed by some categories of care workers. Both Raghuram (2001) and Chigateri (2007) commenting on Indian domestic workers, observe the intersections of caste within domestic work and its consequences in terms of working conditions. The work referred to as care would normally be carried on by workers with a higher social standing in the caste hierarchy than those associated with the supposed menial jobs of cleaning and washing. Though it is true that caring for children or adults would normally involve multitasking and include an element of washing or cleaning, for employers to even allow workers into the house to do these jobs would require them to have a higher social standing.

These findings have been confirmed in the survey of domestic workers done in Hyderabad. The participants in the study were all women and among them an overwhelming 84% belonged to scheduled castes (SCs), scheduled tribes (STs) and Other Backward Classes (OBCs). Although most of the participants were nonliterate, there were workers with some literacy and there was a small 12%, who had finished high school. Among those surveyed, women who were employed full-time and provided services such as cooking or looking after children or the elderly had a higher degree of literacy than those who were engaged in cleaning and washing.

The survey showed that a larger number of women from SCs (about 40%) were engaged in “pure” domestic work such as cleaning, washing whereas their numbers were equal to that of other castes in jobs like child care or elderly care. The wage levels of workers in full-time care work was higher than for domestic work and they enjoyed better housing, were relatively better educated and aware of legal protection. Most workers who worked part time lived in semi-permanent houses but those who worked full-time or as care workers had better access to pucca houses. During the course of the project it was suggested that these workers were not to be considered as domestic workers as they were far more protected than the ordinary domestic worker. Care workers registered with agencies enjoyed higher levels of income and employment security than those employed directly.3

We need to consider whether in India we should distinguish between care work and domestic work and whether we should opt to delineate care work performed through service providers from those employed directly. We will also need to consider if bringing the two together might make it possible to argue in terms of the comparable worth of domestic work in relation to care work, while separating the two might reinforce a castebased hierarchy with domestic workers at the bottom.

The other dimension that needs to be addressed is trafficking and its linkages with domestic work. While the Palermo protocol addresses the issue of migrant domestic labour, it has been critiqued because of its focus on law and order rather than on human rights (George et al 2010). Further, the confluence of trafficking and domestic work might also work to the detriment of domestic workers if employment is linked to the production of identity cards or any such regulatory mechanism. The economic fragility of domestic workers should not be ignored in the debate on national security and the united efforts of countries to combat trafficking by increasing restrictions on people seeking employment.

The above concerns around definition are demonstrated by the manner in which the Domestic Workers (Regulation of Employment and Conditions of Service) Bill, 2002 is drafted. The draft bill provides for mandatory registration of domestic workers who cannot seek employment without registration. This provision seems to reflect the concern with trafficking as a crime rather than the rights of those trafficked. The chapter on conditions of service provides for a minimal set of rights, which neither takes into account the vulnerability of workers in this sector, nor guarantees core labour standards such as freedom of association, freedom from discrimination, prohibition of forced labour or worst forms of child labour.

Most of the workers interviewed found work through informal networks and were employed within 2 kms of their place of residence. The reasons for choosing domestic work ranged from lack of mobility, illiteracy and that ease of entry and the need to balance work within the home and outside the home. Legislative protections do not focus on any of these issues and provide for a bare minimum set of rights such as minimum wages without addressing substantial rights such as the right to decent standards of work, substantial rights of social protection and training to move out of domestic work, or awareness programmes for employers. As such, the proposed law does not satisfy the requirements of a human rights approach to domestic work.

The reference to human rights instruments by the ILO marks the move towards a comprehensive human rights framework that includes labour rights as a mechanism of ensuring access to rights. International Human Rights law refers to three obligations of the state – to respect, protect and promote human rights. This duty is not discharged by mere non-interference of the state in the area of human rights, but extends to promote and protect human rights. This obligation to promote and protect requires proactive steps by the state to take appropriate legislative steps to secure the rights of its citizens.

2 Definitions according to the ILO and Draft Legislations

It is well-recognised that paid domestic work remains invisible, as it takes place in the house and is predominantly carried out by women. The reproductive significance of domestic work is often either disregarded or at best undervalued. Its coverage under existing international conventions is poor and legislative protection offered by various states is inadequate. The exclusion of domestic workers from the ambit of law and from a range of collective and insurance mechanisms renders them acutely vulnerable.4

The newly-adopted ILO Convention based on this report has proposed the setting up of complaint redressal mechanisms and stressed the need to organise domestic workers to reduce the gap between the entitlements of decent work and the realities of their working conditions. The ILO’s engagement with domestic work has focused on three main concerns, i e, the invisibility of the sector, the gap between law and practice and the need for collective action by domestic workers.

The ILO International Standard Classification of Occupations (ISCO) addresses domestic work through two classifications: 5 and 9. Classification 5 addresses both commercial establishments and private households and covers housekeeping and focuses on

88 the supervisory character of the work and home-based personal care workers which includes the various jobs associated with both children and the aged. Classification 9 refers to domestic and related helpers, cleaners and launderers. This again includes private households as well as commercial establishments.

In addition to this, the new convention defines domestic work as “work performed in or for a household or households” assuming that countries adopting the convention will further refine the definition in terms of classifications and terms of employment.

However, in various legislations and other provisions in force across the world, there are references to various categories of domestic workers such as cook, butler, nanny, gardener, laundry personnel, security guard, driver, household employee, elder caregiver and a variety of other categories. These categories are then either included or excluded from legislations.

In India, there have been various proposals on regulating domestic workers. It would be useful to examine the different approaches taken towards the definition of “domestic work”. The Domestic Workers (Regulation of Employment and Conditions of Service) Bill, 2002, one of the draft legislations on affording protection for domestic labour in India, defines the application of the Act to any household work or allied work such as cooking or part of it, washing clothes/utensils, dusting or cleaning the house or a part of it, looking after or caring/nursing infants, children, sick, old, handicapped and others, attending telephone, door bell and/or any other such sophisticated instruments, running errands and such other related work.5

There is no definition of domestic work independent of the general applicability of the Act. As this shows, the inclusion of a large variety of work into a single occupation is a characteristic of domestic work. Thus, occupations as varied as cooking, nursing, washing and cleaning are classified as a single occupation.

The draft proposed by the National Campaign Committee for Unorganised Sector Workers, i e, the Domestic Workers (Regulation of Employment, Conditions of Work, Social Security and Welfare) Bill, 2008, defines domestic workers, establishments but not the jobs under domestic work. According to this bill, domestic worker “means a person between the age of 15 and 60 years working in any domestic employments, directly or through any agency or contractor whether exclusively for one employer or in a group or otherwise one or more employers whether simultaneously or otherwise and includes a casual or temporary domestic worker; migrant worker; but does not include any member of the family of an employer”.6

Here again there is no definition of the place of work, nor any classification of domestic work. These are only two of the several draft bills that have been proposed to regulate the conditions of work for domestic workers. They do not classify domestic work like the ILO does, on the basis of the nature of the work.

The adoption of the new convention by the ILO may persuade governments to pay more attention to these classifications and to ensure that the standards laid down with regard to different classes of workers are followed, whether the workplace is the home or a commercial establishment. In spite of being actually able to classify domestic work into various categories, it was found that it is still important to delineate domestic work performed by

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individuals in a private home from similar activities done in the public domain. Common to various categories of domestic workers is the place of work and the special vulnerabilities that arise from the location of the work. Since labour standards were not followed because the home was not recognised as a workplace, the convention now recognises the home as the workplace insofar as paid domestic work is concerned.

But even after the recognition of the home as a workplace, the classification of work is important. The Child Labour (Prohibition and Regulation) Act, for instance, talks about domestic workers and servants. The distinction between the two is not clear. Work done in a household would include work such as driving, which is considered skilled but done for a household and performed outside the home. Such drivers receive higher wages than women who perform skilled jobs within the employers’ homes.

India, like many other countries, needs to have an understanding of the diversity of work, skill and responsibilities involved in domestic work (Table 1). We need to understand the difference between direct and indirect employment on the basis of the nature of the job and the skill level generally associated with them. It is possible to evolve a simple classification of domestic work drawing on the variety of ways in which the Indian domestic workers operate and the levels of vulnerability (Callister et al 2009: 8).

Table 1: Ways of Understanding Domestic Work

of basic freedoms such as freedom of association and freedom from exploitative conditions of work, minimum age of work and basic rights including the right to equality, non-discrimination, liberty in terms of provisions for living wages and adequate

social security protection. The need for a public policy approach towards domestic work stems from this need to address constitutionally the guaranteed rights for domestic workers.

The core labour standards as set out by the ILO declaration on fundamental rights and principles at work such as the freedom of association, right against discrimination, prohibition of child labour and forced labour can be located within Part III of the Indian Constitution, which contains the fundamental rights guaranteed by the Constitution. Articles 14, 15, 23 and 24 provide for the right to equality, right against discrimination, right against exploitation in terms of child labour in hazardous employment and a right against forced labour or begar (i e, the rights against employment without payment). The courts have widened the scope of the right to life under Article 21 to include a prohibition of forced labour which was expansively interpreted as the nonpayment of minimum wages.7 The rights to dignity,8 livelihood,9 privacy,10 protection from sexual harassment,11 and the right to a safe and non-hazardous workplace12 as well as the right to health13 have been read into the right to life. The rights under

Part III have been held to be indivisible and

Cooking Cleaning Childcare Elderly Care Driving the right to equality should be read with the

In home Part time Through agency Catering Housekeeping Nanny Ayah/nurse right to life.14

Independently Cook Housemaid Nanny Ayah/nurseIn addition to this express reading of rights,

Full time Independently Cook Housemaid Nanny Ayah/nurse state action in terms of legislating on labour

Through agency Catering Housekeeping Nanny Ayah/nurse welfare has been upheld, in spite of challenges Live in Cook Housemaid Nanny Ayah/nurse on the basis of violation of the right to equality Live out Cook Housemaid Nanny Ayah/nurse and an unreasonable restriction on the right to

Out of Restaurant Launderers School/ Old-age Driver/ carry on trade and business.15 The pursuance of home crèche homes chauffeur

the directives has resulted in legislations on

These differences have an impact on wages, conditions of work, amenities at work, responsibilities of employers, right to privacy in case of live-in workers and health and social security benefits. It will be important to understand varying vulnerabilities of workers to develop adequate impact programmes (Table 2).

Table 2: Vulnerability of Workers

Low Full time Independently/ Cook/caterers Elder care
Vulnerability through agency
of worker High Part time Housemaid Cook Elder care/
for cleaning childcare
3 Constitutional and Legislative Framework

This section examines the conflicting frameworks regarding the legal position of domestic workers. While the Indian Constitution recognises equality and entitlements to a dignified livelihood, other factors often hamper the application of fundamental rights for workers in the unorganised sector. The vast labyrinth of labour legislation in India operates in a dualistic manner embracing a small proportion of workers identified as “organised” but outcasting the vast majority of unorganised workers.

Part III Rights and Their Relevance to Domestic Workers’ Right to Decent Work: Decent work must enable the realisation

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social security, minimum wages, equal remuneration, maternity relief and health and safety at the workplace. The lack of protection against termination of employees was held to be violative of the right to equality and as an unreasonable and arbitrary power even if it was part of the contract of employment.16

The application of fundamental rights has not been denied in their entirety to the private sector as well. Although public employment has been accorded a higher status is terms of protections they have not been denied in the private sector as far as child labour or forced labour or bonded labour are concerned. In a recent decision of the Supreme Court on a petition filed by the National Campaign for Dignity and Rights of Sewage and Allied Workers of the Delhi Jal Board, delivered in July 2011, the Court observed that the state could not deny responsibility merely because employment was outsourced to private contractors. In spite of this constitutional framework, domestic workers are unable to access legislative protections.

Legislative Protection: Legislative protection is far from uniform in the application of laws to domestic workers. Here we examine laws which exclude domestic worker legislations which expressly include them and those that can apply provided they are interpreted more broadly.

Exclusions: Although the fundamental rights are capable of an expansive interpretation and apply to all categories of workers including domestic workers, there have been difficulties in extending protections to domestic workers under employment protection legislation. The exclusion of domestic work from the definition of work has made it difficult to interpret labour legislations to include them. To illustrate this point the interpretations of the Trade Unions Act 1926 and the Industrial Disputes Act, 1947 are given below.

In the 1960s, the Madras High Court refused to interfere with the decision of the registrar of trade unions refusing to register a union of workers under the Trade Unions Act, 1926, on the ground that these workers were performing duties which could not be said to be state duties and hence were not workers carrying on a trade or business. The plea by persons employed for doing domestic work in the Raj Bhavan, i e, the governor of the state’s residency, such as gardeners, peons, household staff engaged for domestic work and other services, maintenance of governor’s household, staff and state guests, that they were providing material services which were systematic was rejected. The registrar was of the view that before a trade union can be registered, the members must be connected with a trade or industry or business of the employer, and that if such condition was not being satisfied by workers, they could not register a trade union. The court held that the services rendered by them being purely of a personal nature they were not contemplated as workmen under the Act.17

Similarly, in the Bangalore Water Supply and Sewerage Board vs A Rajappa and Others,18 the Supreme Court of India, while interpreting the term “industry” in the Industrial Disputes Act, 1947, held a variety of occupations, professions and undertakings as industry, laying down a test of systematic activity which involved cooperation between employee and employer that resulted in the production of material goods and services. Taking in its sweep educational institutions, hospitals, professionals, it also held that “the ordinary spectacle of a cobbler and his assistant or a cycle repairer with a helper, we come across in the pavements of cities and towns, repels the idea of industry and industrial dispute. For this reason, which applies all along with the line, to small professions, petty handicrafts, domestic servants do not fall within the definition of industry”.

Inapplicable Legislations

Following this line of reasoning, all labour legislations in India until 2006, when domestic work was identified as hazardous work for children below 14 years under the Child Labour (Prohibitions and Regulation) Act 1986, were inapplicable to the unorganised sector and to domestic workers because of the rigid definitions of terms such as “establishment”, “worker” and “employer”. The amendment to the Child Labour Act was the first instance of recognising domestic work as “work” which could be hazardous for children. This was followed by the notification of minimum wages in various state amendments.

Labour protections vary according to the location of the workplace. For example, although the definition of an industry under the Industrial Disputes Act, 1947, a legislation to provide for industrial peace through a variety of dispute settlement procedures, is wide enough to include all occupations and avocations of workmen, it has been interpreted to exclude domestic workers working in private homes.19 The same workers are included within the legislation if the workplace is a more organised space, such as a block of apartments where several workers are engaged in providing services to the flat owners.20 Similarly, the definition of factory or establishment in the Factories Act/Employees Provident Fund Act usually operates only in establishments where 10/20 or more workers are employed. Thus, a private household where domestic work is carried out is not intended to be covered under this Act. The assumption being that it is only industrial work that gets the protection of the law and not work done in non-office settings. This is curious, given that in India the industrial workforce is small. Most of these legislations, for example, do no operate in the agricultural sector or in the informal sector.

The interpretation of the terms “industry” and “worker” in the major legislation in India, i e, the Industrial Disputes Act, 1947,21 rather than explicitly in the words of the statute, exclude domestic workers. The terms are wide enough to cover all employments in trade and business as well as the services sector but have specifically excluded the domestic sector.22

The growth of the services sector in contributing to economic growth is being noticed within the tax regime, but even within the services sector, work that is done at home is not being counted. The same domestic work, i e, housekeeping or cooking, cleaning and care that is done in offices and factories and other establishments23 gets counted as work but not when done at home.

Possible Inclusions: The legislations that can apply to the informal sector and thereby to domestic workers are Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Workmen’s Compensation Act, 1923, Trade Unions Act, 1926, Industrial Disputes Act, 1947 and the Minimum Wages Act, 1948.

These legislations can operate in the organised as well as the unorganised sector because the definitions of the terms “employer”, “establishment” and “employee” can be interpreted broadly although such an interpretation is still to come. The Bonded Labour Act has, in fact, been used in several cases of child labour where children have been forced to work as domestic labour in return for a lump sum amount or to repay the debts incurred by family members. State amendments in four south Indian states, i e, Tamil Nadu, Karnataka, Kerala and Andhra Pradesh, to the Minimum Wages Act have resulted in notifications being issued fixing minimum wages for domestic workers.

The nomenclature is also far from consistent. Domestic workers working in state employment or private establishments, through contractors in outsourced housekeeping or catering or cleaning contracts are governed by the Contract Labour (Abolition and Regulation) Act, while domestic workers in private households are excluded. Similarly, the Child Labour Act has been amended to prohibit the employment of children in domestic work in October 2006. The use of the term domestic workers or servants in the Act points to a lack of clarity on what domestic work means.

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The Trade Unions Act and the Industrial Disputes Act in principle do not exclude domestic workers; it is the interpretation that has resulted in the exclusion, which could change with a change in public policy towards domestic workers.

The exclusion of domestic workers from the Workmen’s Compensation Act is also due to the scheduler nature of the Act, similar to the Minimum Wages Act. An amendment to the schedule of employments under the Act could make it applicable to domestic workers.

Laws That Expressly Include Domestic Workers
  • (1) Minimum Wages Act, 1948: The Andhra Pradesh state government by a notification dated 10 December 2007 published in the gazette on 19 December 2007 has fixed minimum rates of wages in the employment of “domestic workers” in Part I of the Schedule of the Minimum Wages Act, 1948. The notification issued in consultation with the state Minimum Wages Advisory Board and in exercise of the powers conferred by Section 3(1) and Section 5(2) of the Minimum Wages Act, 1948, fixes the minimum rates of wages which consists of basic wage for the duration of hours mentioned therein. The employers are exempted from maintenance of registers and records and inspectors are prohibited from entry into any residential location. The notification prohibits the employment of children below the age of 14 years and provides for a day of rest of four days per month.
  • (2) The Unorganised Workers Social Security Act, 2008: This legislation passed in 2008 is a response to the growing need for a comprehensive legislation to provide social security to unorganised workers. The legislation defines the term “wage worker” as including workers employed by households including domestic workers.24 Under the Act, the central government may formulate and notify from time to time suitable measures relating to life and disability cover, health and maternity benefits, old-age protection and any other benefit as may be determined by the central government and the state government may formulate schemes relating to provident fund, employment injury benefit, housing, educational schemes for children, skill upgradation of workers, funeral assistance and old-age homes.
  • 4 Access to Law

    The Minimum Wages Act 1948 has been extended to domestic workers in Hyderabad by their inclusion in the schedule of the Act. On 6 July 2006, the State of Andhra Pradesh notified the addition of employment of domestic workers to Part I of the schedule of Minimum Wages Act, 1948. In 2008, the government notified a minimum wage of Rs 325 per hour of work per month. This would amount to Rs 2,600 for eight hours of work in a month.

    Domestic workers access to the little legal protection offered in terms of notification of wages under the Minimum Wages Act and the provision for a paid leave once a week has remained meagre even after two years. A majority of them (about 80%) did not know about the wage fixation or paid leave. The workers said that they worked for wages which were as low as Rs 166 for an hour per month, i e, a daily wage rate of Rs 5.50 for an hour or a

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    daily wage of Rs 44 in case they worked for eight hours. Workers engaged in full-time care work faced discrimination and were subject to practises of untouchability, and notions of what was appropriate for a person of her social standing including the denial of a bed and toilet facilities or a place to eat.

    Unionisation has had little impact on the realisation of the minimum wage or paid leave. Unions did not negotiate wages although the workers were aware of welfare schemes of the state. Hours of work varied greatly with workers working in one house for a couple of hours to full-time workers working 16 hours. Wages ranged from Rs 600 per month to Rs 6,000 per month, depending on the number of hours worked, the number of houses a person working part-time did and the nature of the work. Care workers earned between Rs 1,500 and Rs 6,000. Most of the workers lived near these houses and received no amenities such as toilets/washrooms at the workplace. None of the workers reported receiving any health benefits or compensation for injuries or sickness, or loans or termination benefits.

    The causes for taking up domestic work reveal a set of constraints on the participants. The most cited cause for doing domestic work was that it was close to their homes, the other reason that it was easily found and that they had small children and it was important to be able to do their housework along with domestic work for pay. The other allied reasons were that they were uneducated and could not do any other work or could not find any other work and that they were migrants and mobility was an issue. A small number of participants said that they did this work because it was their choice or because of a perceived benefit of reduced hours of work and more pay for limited work. For example, one participant said that she could work only for half a day and make more money than not working or taking up work for a full day. One of the participants said she did domestic work because there were scholarships for children of domestic workers and one of the participants said that she did it so that her children could go to school.

    The Act provides for a schedule of employments to which the Act applies such as the construction industry, bakeries, canteens, plantations, etc. The undervaluation and invisibility of domestic work is obvious when compared with minimum wages notified for other similar work done in the public sphere. A comparison is drawn between wages notified by Andhra Pradesh for other comparable occupations. The minimum wage notified25 for various categories of workers in the bakery industry ranged from Rs 6,291-Rs 4,844 per month. The workers were classified as head baker (highly skilled category), oven worker (skilled category), baker/ assistant baker (semi-skilled) and helper (unskilled). Housekeeping managers/laundry managers are notified a wage of Rs 6,618 as they are considered highly skilled workers. Skilled workers include bearer/waiter, who could get up to Rs 4,625 per month and unskilled include utensils cleaners, who could get Rs 4,209 per month. Unskilled workers, i e, scavengers and helpers in the bakery industry were to get Rs 4,844, the unskilled plantation worker was to get Rs 144 per day, i e, Rs 4,500 per month, watchman/gardener/sweeper/scavenger is to get Rs 4,209 in other industries, and the same applied to unskilled utensil cleaners in the bakery industry. The cooks and other semi-skilled, skilled, very skilled workers got much higher minimum wages. Unskilled construction workers were notified a wage of Rs 5,130 per month.

    It is evident that domestic workers are notified a wage that is roughly half of what an unskilled cleaner would get in either construction or plantation or cooking or canteen services. It is not clear why such a low wage was notified or what were the parameters of assessing domestic work. If across industries such as construction, plantation to canteen and bakery, the minimum wage for unskilled work roughly was the same, i e, around Rs 4,000, the same logic should have been extended to domestic workers.

    5 Conclusions

    The issue of regulation of domestic work must necessarily be addressed through public policy choices that the state makes. So far we have chosen to allow domestic work to remain unrecognised and a private matter.26 This neglect spills over to paid domestic work.

    The survey results indicate that legal strategies in terms of fixing minimum wages have not had much impact. This leads to two conclusions; one that wage fixation alone does not result in the worker receiving the wage; the other, that wage fixation does not have a detrimental effect on employment. The survey showed that workers did receive more than the minimum wage even without being aware of it. This depended on the location of the workplace and the bargaining power of the worker. After two years of wage notification, no impact on employment was indicated. The argument that wage fixation would lead to a fall in demand made by the state is not borne out.

    The lack of classification of work is another reason for little impact on wages. The specific situations of domestic workers in terms of recognition of the home as the workplace, the classification of workers, the need for a recognition of a wide set of rights including privacy and forced labour at the workplace, the identification of the hazards of work, the need to provide for appropriate social security schemes and other mechanisms still remain to be addressed.

    The use of a rights framework to understand discrimination and state action such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) might help in highlighting the gravity of the situation. The CEDAW provides for a broad spectrum of rights for women against discrimination.27 State parties to the convention are required to identify the barriers faced by women to equal participation and enjoyment of rights and address them. Discrimination perpetuated by state inaction could be said to be a systematic violation of rights of women. It has been argued that in the case of domestic workers employed by diplomats in Germany, that the failure of the state to protect and promote the rights of these workers could be understood as a systematic violation by a state party inviting an inquiry procedure

    REFLECTIONS ON EMPIRE

    March 26, 2011

    Resurrection and Normalisation of Empire – Rohit Chopra
    Taming the Imperial Impulse: Realising a Pragmatic Moral Vision – Abdullahi Ahmed An-Na’im
    Adam’s Mirror: The Frontier in the Imperial Imagination – Manan Ahmed
    Indian Empire (and the Case of Kashmir) – Suvir Kaul
    Imperial Democracies, Militarised Zones, Feminist Engagements – Chandra Talpade Mohanty
    Rethinking News Agencies, National Development and Information Imperialism – Oliver Boyd-Barrett
    Digital Imperialism through Online Social/Financial Networks – Radhika Gajjala, Anca Birzescu
    Pandemic, Empire and the Permanent State of Exception – Cindy Patton

    For copies write to: Circulation Manager,

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    320-321, A to Z Industrial Estate, Ganpatrao Kadam Marg, Lower Parel, Mumbai 400 013. email: circulation@epw.in

    october 22, 2011 vol xlvi no 43

    into that country’s practices.28 A similar argument could be made was on improving wages. Legislation on domestic workers needs in the case of all domestic workers who face neglect, exclusion to be integrated with broader interventions such as recognition and exploitation as a result of state inaction to protect and pro-of a set of social rights in education, housing and health. Legislamote their rights. tive interventions, which result in the rigidity of the labour mar-

    The human rights framework helps in understanding the ket by introducing restrictions on entry into the work, might proexploitation of domestic workers in wider terms than the need for duce negative results. This might result in denying employment employment law protection. The association with servitude, to those who need it most. It is well-documented that the inforracial connotations and caste-based occupations highlights the mal sector workers are economically fragile and any legislative serious violations of fundamental human rights far wider than interventions must take into account that their sustenance is not the denial of minimum wages and hours of work. harmed in any way.

    The other framework useful in understanding public policy A broader agenda to provide recognition to domestic workers interventions is the recognition and redistributive justice frame-as workers and to change cultural stereotypes regarding work to work enunciated by Nancy Fraser. The idea as used in the context enhance the visibility of domestic work as a form of work is called of class, caste and gender intersections in domestic work is to for. This recognition has been denied to domestic workers by not value domestic work quite independently of conditions of work including them as workers in most labour legislations on social and wages through suitable legislative interventions or the redis-protection. In order to extend the powers of the labour departtributive framework (Chigateri 2007). ment to conduct inspections at the workplaces of domestic work-

    The absence of such an approach of recognition going hand in ers, the home must be seen as a workplace, which will need a hand with redistribution is demonstrated by the lack of assessment changed perception towards domestic work. Similarly, access to of the skills and efforts that go into domestic work. The manner courts, dispute resolution mechanisms, protections against terin which various legislations have excluded domestic workers mination of employment by specifying the grounds of dismissal, reveals the biases in public policy that effect domestic workers. inclusion within the ambit of workers for maternity protection

    The workers interviewed expected a wider intervention from and legislations extending protection for women, such as the law which included a range of benefits like ration cards, educa-pending protection of women from sexual harassment bill, are all tion and housing. The most important expectation from the law steps towards a greater visibility to domestic workers.

    Notes includes any such person who has been dismissed, 28 Female domestic workers in the private house1 ILO background paper on decent work for domes

    discharged or retrenched in connection with, or as a holds of diplomats in the Federal Republic tic workers, 2009.

    consequence of, that dispute, or whose dismissal, of Germany. Information collected for the CEDAW discharge of retrenchment has led to that dispute, Committee to open an inquiry procedure accord2 Findings from field study conducted by the rebut does not include any such person- (1) who is ing to Article 8 OP/ CEDAW. Legal consultation: searcher in the city of Hyderabad 2010.

    subject to the Air Force Act, 1950 (45 0f 1950), or Petra Follmar, Jurist; Daniela Hödl, Lawyer; Dr 3 Interview with Sister Lissy, Hyderabad, 2010.

    the Army Act, 1950 (46 of 1950), or the Navy Act, Ulrike Mentz-Eickhoff, jurist, September 2003.

    4 ILO 2009.

    1957 (62 of 1957); or (2) who is employed in the www.ban-ying.de/downloads/cedaw%20engl.pdf 5 Section 2.

    police service or as an officer or other employee of Last accessed on 12 April 2011. 6 Section 3 (h).a prison; or who is employed mainly in a manage7 PUDR vs Union of India 1982 3 SCC 235.rial or administrative capacity or (3) who, being 8 Francis vs Union Territory A 1981 SC 746.employed in a supervisory capacity, draws wages

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    9 Board of Trustees of Port of Bombay vs Dilip Kumar A exceeding Rs 1,600 per month or exercises, either 1983 SC 109 and Olga Telles A 1986 Sc 180. by nature of the duties attached to the office or by Anderson, Bridget (2001): “Paying for Domestic reason of the powers vested in him, functions Work”, Gender and Development, Vol No 1: 25-33.

    10 Govind vs State of MP A1972 SC.

    mainly of a managerial nature. Blackett, Adelle (2011): “Regulating Decent Work for

    11 Vishakha vs State of Rajasthan A 1997 SC 3011.

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    24 Section 2(n). Callister, P, L Tortell and J Williams (2009): “Domestic of the Supreme Court delivered in July 2011.

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    Andhra Pradesh, viewed on 14 August 2011. and the Recognition-Redistribution Debate: Brojonath Ganguly 1986 3 SCC156.

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    Unions A 1962 Mad 231.SCC 218, a case on motor vehicle compensation Development Journal, Vol 1. 18 A 1978 SC 548.

    expressed their reservations over domestic work, Duffy, Mignon (2005): “Reproducing Labour Ine19 BWSSB vs Rajappa A78 SC 548. whether paid or unpaid, being rated by the census qualities: Challenges for Feminists Conceptualis20 Karnani Properties Ltd vs State of West Bengal and questionnaire as unproductive work along with ing Care at the Intersections of Gender, Race,

    Others A 1990 SC2047. begging and prostitution and prisoners. The court and Class”, Gender and Society, Vol 19, No 1, 21 Industry means any business, trade or undertaking, was deciding on a case for compensation for the pp 66-82.

    manufacturing or calling of employers and includes death of a housewife and whether she was earning George, Annie, U Vindhya and Sawmya Ray (2010):

    any calling, service, undertaking handicraft or any income. “Sex Trafficking and Sex Work: Definitions,

    industrial occupation or avocation of workman. 27 Article 6 of CEDAW deals with traffic in women Debates and Dynamics – A Review of Literature”, 22 Workman means any person (including an ap-and directs that “State parties shall take all ap-Economic & Political Weekly, Vol 45, No 17, prentice) employed in any industry to do any propriate measures, including legislation, to sup-24 April. manual, unskilled, skilled, technical, operation-press all forms of traffic in women and exploita-Raghuram, Parvati (2001): “Caste and Gender in the al, clerical or supervisory work for hire or reward, tion of prostitution of women”. Article 8 of the Organisation of Paid Domestic Work in India”, whether the terms of employment be express or optional protocol provides for an inquiry proce-Work, Employment & Society, 15: 607-17. implied, and for the purposes of any proceeding dure in case of a systematic violation of a state Williams, Joan (2001): “Care as Work, Gender as under this Act in relation to an industrial dispute, party of rights set forth in the convention. Tradition”, Chi.-Kent L. Rev. 76: 1441.

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