Aditi, student at Rajiv Gandhi National University of Law, Punjab. Introduction
India has had a culture of domestic servitude1 since the late Vedic times when the society was divided into four castes where the lower castes catered to the needs of the upper castes by offering them services of cleaning, sweeping, cooking, childcare etc. As Indian society progressed, the culture continued under different names and conditions. In contemporary India, the hire of domestic help depends on economic affluence and general need. However, the constant feature of the culture is the continued exploitation of the vulnerable classes. The COVID-19 pandemic has laid bare the weaknesses of this extensive system of the informal economy of domestic workers.
Domestic work as is known to the generally involves majorly unskilled or semi-skilled work like cooking, cleaning, driving, caretaking etc and thus finds traction with most of the labour who do not have to invest in a specific learning exercise. The number of domestic workers in India range from official estimates of 4.2 million to unofficial estimates of more than 50 million. The major constituent of domestic workersin India as well as the world are young girls and women because of the gendered nature of the work. Adomestic worker may work full-time or part-time; may be hired by a single home or by various employers; may stay in the employer’s household (live-in worker) or in his or her own residence (live-out). The major issue at hand for the effective regulation of this sector is its formalization. Even if there exists legislation or scheme to promote the interests of domestic workers, it is difficult to implement the same because the workspace of domestic workers is a ‘private space’ which unlike factories and industries cannot be regularly inspected. The associated issues with the informal economy like low wages, no overtime payments, lack of job security, lack of maternity and other social security benefits also come into play in this sector.
The author in this account shall not go into the discussion of the existing schemes and legislations because the same has been discussed at length in the existing literature. But the blog post is a suggestive piece on how there is a need for collaborative efforts by the government, civil society and domestic workers to add an element of formalization and accountability in this sector. An attempt has been made toprovideviable recommendations, taking into consideration the new and existing trends in the employment of domestic labour alongside the peculiarities and limitations of formalizing the highly informal economy of domestic workers to minimize their exploitation to the maximum extent. The aim is to bring the issue to focus and provide a contribution to the labour law framework as the Central Government works on the draft of the National Policy for Domestic Workers, notification for which was notified in 2019 but the policy is still in cold storage.
Challenges and Suggestions
Resolving the Conundrum of Definition
The biggest challenge to deal with before the legislature and the government before bringing any legislation or scheme to aid domestic workers is coming up with an inclusive definition to encompass all of them. Defining to whom a particular law applies is an essential feature for entitling that target beneficiaries to the benefits and protection enlisted under that law. International Labor Organization (hereinafter, the ILO) is one of the leading organizations working in the field of labour welfare and policy research. As per the ILO, ‘domestic workers’ are those workers who perform work in or for a private household or households.It considers the ‘workplace’ as the determining factor, however, such determination excludes the domestic workers who work in cooperative societies that are not a household or households per se. The technical questions like whether a security guard appointed by the Residential Welfare Association(RWA), working for an RWA would be called a ‘domestic worker’ or not as he is not working for or in a household or households. However, if the same definition is tweaked a little with the addition of words “in relation to household or households” instead of “in or for a household or households”, the apparent complications may be resolved and the ambit of such legislation could be widened to benefit the maximum number of domestic workers. Another issue that may be predicted is the employment of services of companies who offer onetime services for or in the households like Urban Company in India. Thus, the definition should account for the aspect of way of employment i.e., whether it is direct or indirect as well as the duration of employment to ensure that the targeted informal workers are benefitted. This is not at all a suggestion at barring organized workers from receiving any benefits but a suggestion to bifurcate policies and schemes as per the intensity of need. For example, a company-employed worker may already have a pension scheme in place but the government pension policy may be targeting those workers who are completely independent and that is where the distinction comes into picture to find the beneficiaries that need such government policy.Similarly, a uniform set of rules with regards to the provision of safety gears for the domestic workers may encompass all kinds of domestic workers, whether independent or company-employed. Therefore, it is suggested that the definition of ‘domestic workers’should be broad enough to encompass all the elements of what constitutes ‘domestic workers’ with prime focus to Indian conditions of domestic employment.
Leveraging the Bargaining Power
With the abundance of labour willing to engage in domestic work and lack of collective bargaining power with an individual, employers are benefitted from the vulnerabilities of the domestic worker who agrees to work on meagre wages. However, the measures to unionize domestic workers can be an effective way to regulate employer-employee relations and maintain a balance in this highly unequal landscape. While membership in a federation of domestic workers can be an effective deterrent against exploitation, it is suggested that domestic workers organize themselves into cooperative societies. Apart from gaining better bargaining power by unionizing themselves into an autonomous group that aims for a decent workplace environment and related social security benefits, they may be able to formalize their jobs and gain better returns. The establishment of cooperatives and registration of the same can act as a way out of the informal sector. The subservient treatment meted out by the employers towards the employee may also be kept in check since now the domestic workers are an association of service providers. They can also enhance their commercial value by providing professional services with necessary occupational gear and thereby charging profitable charges from their customers. Domestic Workers’ Cooperatives have been successful in upgrading the employment conditions of labourers engaged in domestic work. In Spain, Las Kellys Association is a network of domestic cooperatives comprising women who clean hotels and resorts. The cooperatives were formed to improve working conditions and wages for these workers. Uruguay is another jurisdiction with active cooperative societies providing domestic services to employers. These societies have played an active role in bringing about labour reforms in their country and the same may be reproduced in India too. But the support of civil society is necessary to aware the domestic workers who are majorly illiterate and do not have access to the resources required. India is not completely devoid of such organizations. SEWADelhiis one such organization that besides running legal awareness campaigns for its members who are informal workers provides employment to them. However, the problem is lack of such organizations to help the 50 million strong workforce.
Model Contracts and the Awareness Campaigns
Most domestic workers are employed by word of mouth of a neighbour or a friend. The basis of employment is the need of the domestic worker to find employment while the employer enjoys a higher position in the equation where they are free to hire and fire them any day in the absence of any contact and thus any legal recourse. Model contracts are another way to ensure the formalization of the sector and ensure that there exists a legal remedy for the worker in case of breach of the terms and conditions of the contract. The model contracts may carry terms and conditions related to the number of hours, place of work, nature of work, the remuneration termination or separation of employment and other such conditions as the party to the contract may desire. ILO promotes the existence of such model contracts in the legal framework of the member countries as per the 2011 Convention to ensure the formalization of domestic work. It is intended to serve as an advocacy tool by laying out the contents of a contract that are necessary to guarantee the fundamental rights of domestic workers and fulfil minimal labour standards. Again, one cannot expect the same when there is lack of awareness of the same amongst the beneficiaries of the said proposal. There is no doubt that India needs comprehensive legislation for domestic workers that is based on the extensive study of the nature and conditions of the work carried out by domestic workers, however, the above steps can be stepping stones to a better picture of domestic work in India. Defining the ‘domestic work’ and ‘domestic worker’ and adding such definitions to already existing legislation like the Minimum Wages Act, The Unorganized Workers’ Social Security Act and other state legislations can be the first step. Apart from that, the new statute concerning domestic workers may include provisions for the right to association but until then the domestic workers may be aided by the Cooperative Societies Act of respective states to expand their bargaining power. The Ministry of Labour and Employment may also release a model contract for reference while civil society has a role to play in creating awareness among the vulnerable classes about such tools. NGOs and Law Schools may be active participants in the process of unionizing domestic workers. They may conduct awareness campaign drives like various legal aid clinics of the country do on various other societal and legal issues. There are various schemes announced specifically for the unorganized sector like Pradhan Mantri Shram Yogi Maandhan, a pension scheme; Rashtriya Swasthya Bima Yojana, a health insurance scheme; National Child Labour Project, to rescue and rehabilitate domestic child workers etc., however, the problem remains with the implementation because of the lack of awareness. Government and Civil Society should take active steps in the day and age of digitization to reach the remotest parts of the countries to ensure that the maximum number of people could avail benefits of such schemes.
Conclusion
India’s domestic workers are operating in their respective jobs in a legal space that is inadequate. To fill that space, it is suggested that while India takes inspiration from international practices and covenants, it should not blindly emulate them but should Indianize them to the practical realities of the landscape of domestic labour in India. In 2011, ILO adopted the Domestic Workers Convention to ensure decent work for domestic workers. India, being a founding member of ILO, has commitments that need to be fulfilled by bringing about comprehensive legislation to ensure that domestic workers are not wronged. However, as the work on the draft policy continues, the workers can find relief in organizing themselves into cooperative societies and using contract law. However, given that domestic workers are majorly illiterate, civil society has a greater role to play. These small steps can pave the way for a long road ahead to somewhat regularize this highly informal yet mass job-producing sector, a sector on which millions of lower-income families are dependent.
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