ILO Convention 189 and Indian legal framework
on domestic workers: Analysis and Evaluation of
Deviations and Conformities therewith
Master Thesis: Academic session 2014-15
European and International Labour Laws
University of Amsterdam
Submitted by:
Parika Ganeriwal Student ID: 10840184
Supervised by:
TABLE OF CONTENTS Description Page List of Abbreviations 3. Section: 1 Introduction 3. Research question 5. Research methodology 5. Presentation of Research 5.
Section: 2 International Labour Standards for Domestic Workers: ILO Convention 189 and Recommendation 201
6. 2.1 Historical Perspective
- ILO instruments
- United Nations and Council of Europe instruments
6.
2.2 ILO Convention 189 and accompanying recommendation - Concept of domestic worker
- Protection of human rights and fundamental principles - Terms and conditions of employment
- Social Security
- Private employment agencies - Compliance and enforcement
8.
Section: 3 Indian Legal Framework 14.
3.1 The Minimum Wages Act, 1948 15.
3.2 Child Labour (Prohibition and Regulation) Act, 1986 16. 3.3 The Unorganized Sector Workers Social Security Act, 2008 16.
3.4 National Policy on Domestic Workers 17.
3.5 Draft Bill on working conditions and social benefits of domestic workers 19.
3.6 Other initiatives by the Government of India 21.
Section: 4 Comparison of ILO Convention 189 with the Indian domestic legal framework
- Concept of domestic worker
- Protection of human rights and fundamental principles - Terms and conditions of employment
- Social Security
- Private employment agencies - Compliance and enforcement
21.
Summary of Analysis 29.
Section: 5 Recommendations and Suggested Amendments - Concept of domestic worker
- Protection of human rights and fundamental principles - Terms and conditions of employment
- Social Security
- Private employment agencies - Compliance and enforcement
29. Conclusion 34. Bibliography -Primary Sources -Secondary sources 36.
LIST OF ABBREVIATIONS
C-189 ILO Convention No. 189 on decent work for domestic workers CL Act Child Labour (Prohibition and Regulation) Act, 1986
DW Bill Domestic Workers Welfare and Social Security Act, 2010’ Bill DW Policy National Policy on Domestic Workers
ECHR European Charter of Human Rights
ILO International Labour Organization
ICESCR The International Covenant on Economic, Social and Cultural Rights
MW Act The Minimum Wages Act, 1948
R-201 ILO Recommendation No. 201 accompanying Convention 189
SEWA All India Federation of Self Employed Women’s Association
UDHR Universal Declaration of Human Rights, 1948
USW Act The Unorganized Sector Workers Social Security Act, 2008
Section: 1 Introduction
"Never before in human history have so few owed so much to so many...A handful of men in this country have trained the remaining 99.9 per cent - as strong, as talented, as intelligent in every
way - to exist in perpetual
servitude: a servitude so strong that you can put the key of his emancipation in a man’s hands and he will throw it back at you with a curse. You’ll have to come here and see it for yourself to believe it. Every day millions wake up at dawn - stand in dirty, crowded buses - get off at their
masters’ posh houses - and then clean the floors, wash the dishes, weed the garden, feed their children, press their feet - all for a pittance"1
The domestic work sector is quite unusual and distinct as it is characterized by work performed in private households, rather than in conventional workplaces, away from the gaze of the general public and labour/ministerial authorities2. Domestic work comprises activities associated with functioning of a household such as cleaning, cooking, gardening, guarding the house, direct care responsibilities etc.3
1 A. Adiga, The White Tiger, Atlantic Books, London, 2009, pp. 175-176; quoted in Mitchell and et al, The Evolution of Labour Law in India: An Overview and Commentary on Regulatory Objectives and
Development, July 23, 2013, available online at SSRN:
2 Achieving Decent Work for Domestic Workers: An Organizer’s Manual to promote ILO Convention No.189, International Labour Organization, Geneva, 2012, available online at
http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---actrav/documents/publication/wcms_181344.pdf <last accessed 2.4.2015>
3 R.Palriwala and N.Neetha, Care Arrangements and Bargains: Anganwadi and paid domestic workers in India, 149 Int'l Lab. Rev. 2010 at pp. 510-527
The specific nature of domestic work and the context in which it takes place, namely private household premises, prompted the International Labour Organization (hereinafter “ILO”) to formulate specific international labour standards i.e. ILO Convention 189 on decent work for domestic workers (hereinafter “C-189”) and accompanying recommendation (hereinafter “R-201”)4.
The recent global and regional estimates published by the ILO pegs the number of domestic workers at a minimum of 52.6 million in 2010, representing approximately 3.6% of global wage employment, with women comprising 83% of the total (43.6 million)5. India houses an estimated 2.5-90 million domestic workers, (comprising 8-10% of the world figures) the range being very broad due to a gap in official and unofficially quoted figures, which has also been acknowledged in an ILO study on global and regional statistics of domestic workers across the world6.
Despite initial opposition, India did vote in favour of adoption of C-189 at the 100th
session of the International Labour Conference, held in Geneva on June 16, 2011. The said Convention entered into force on September 05, 2013. Since the coming into force of C-189, there has been mounting pressure on the Indian government to ratify C-1897. New
laws have been proposed dealing comprehensively with the working conditions and welfare of domestic workers8. A draft national policy on domestic workers, setting forth policy objectives for rights and entitlements of domestic workers is pending approval from the Cabinet. Some Indian States have made amendments to the State minimum wages legislation to include domestic workers as a legitimate section of workers who are to be compulsorily paid minimum wage.
The main reason cited by the Indian Government for not ratifying C-189 is that, it will not ratify the convention unless its local laws and regulations are in conformity with the
4 See Preamble to C-189.
5 Domestic Workers Across the World: Global and Regional Statistics and the Extent of Legal Protection,
International Labour Office, Geneva, 2013, at p.2, available online at http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_173363.pdf <last accessed 3.5.2015>
6 ibid at p.14
7 Ratify this Convention, The Hindu, published September 18, 2013, available online at
http://www.thehindu.com/opinion/editorial/ratify-this-convention/article5138791.ece; India doesn’t ratify ILO Convention on Domestic Workers: Bandaru Dattatreya, The Economic Times, 18.03.2015, available online at http://articles.economictimes.indiatimes.com/2015-03-18/news/60249562_1_domestic-workers-rashtriya-swasthya-bima-yojana-unorganised-workers <last accessed 3.5.2015>
8 See, Domestic Workers Welfare and Social Security Act, 2010 Bill proposed by the National Commission
of Women; Regulation of Employment Agencies Act, 2007 Bill proposed by National Commission of Women
convention9. Given India’s stand, I intend to assess the compatibility of the current and proposed provisions of Indian legal framework on domestic workers with C-189. In my opinion, this research is extremely crucial to judge as to where the Indian law stands in terms of complying with international labour standards for domestic workers. I believe that any further course of action by India in this regard, be it amending current laws or enacting new laws can only be successfully undertaken if a road map of possible compliances and digressions with the international standards is available as a reference point. This research can also be helpful in analyzing as to how prepared is India in ratifying C-189 and what changes/amendments will have to be brought into the domestic legal framework to ensure compliance therewith.
Research Question:
To what extent does the Indian legal framework (both proposed and existing) on welfare of domestic workers conform to ILO Convention 189 on Domestic Workers? In light of the digressions, what amendments are required to ensure alignment of domestic laws with ILO Convention 189?
Research Methodology:
The research is principally based on primary law sources i.e. the international conventions and the domestic legal enactments. The data collection is library based with extensive use of online sources and websites, especially the database of the ILO and the Ministry of Labour and Employment, India. The research techniques employed for this thesis is a combination of descriptive, normative and prescriptive techniques. The descriptive aspect is predominant in explaining the contents of C-189 and Indian legal framework, normative aspect in analyzing and evaluating the Indian legal framework in light of C-189 and prescriptive in suggesting amendments and changes required to be made to the Indian legal framework to ensure alignment with C-189.
Presentation of Research:
In trying to seek an answer to the research question I will first discuss in detail C-189 and the accompanying Recommendation (R-201) concerning domestic workers. The same shall include an analysis of the provisions of the convention itself, the preparatory materials/discussions used for drafting of the convention, the objective and purpose of
9 India’s Stand on ILO Conventions Briefed to Parliamentary Consultative Committee, National Legal
Research Desk, available online at http://nlrd.org/childs-rights-initiative/news-from-government-of-india-child-rights-initiative/indias-stand-on-ilo-conventions-briefed-to-the-parliamentary-consultative-committee <last accessed 3.5.2015>
enacting the convention, the existing status of ratification, the rights of domestic workers sought to be enforced under the convention and the obligations imposed on the member countries in this regard.
Secondly, I will discuss in extenso the existing as well as proposed legal framework in India for protection and enforcement of the labour rights of domestic workers. This section shall include a detailed presentation of legislative and policy initiatives in this field. The analysis of legislative initiatives will be limited to Central enactments only and cover State initiatives to the extent there is a Central enactment on that subject.
Thirdly, I shall focus on the analysis of the compatibility of Indian legal framework with the international labour standards explain herein. In making this analysis a detailed evaluation will be carried out to assess if the Indian legal framework meets the parameters and requirements set forth in the C-189. Aspects of conformity as well as digression shall be analyzed to seek an answer to the research question.
Based on the outcome of the analysis (as explained in the fourth section), the subsequent section shall provide for recommendations and propose amendments to be made to the Indian legal framework to ensure compliance with C-189. The concluding section shall provide concluding remarks for each of the sections of the thesis and final reflections based on the research and answer to the research question.
Section: 2
International Labour Standards for Domestic Workers: ILO Convention 189 and Recommendation 201
2.1 Historical Perspective
• ILO instruments
Prior to adoption of C-189 and R-201, the international labour standards applicable to domestic workers did not address their working conditions in a comprehensive manner. Although, the very early work of ILO from its inception in the 1920s did cover domestic workers (for instance the Convention concerning Sickness Insurance for Workers in Industry and Commerce and Domestic Servants, 1927 (No. 24), the Convention concerning Compulsory Old-Age Insurance for Persons Employed in Industrial or Commercial Undertakings, in the Liberal Professions, and for Outworkers and Domestic
Servants, 1933 (No. 35)10), over the years most international labour standards have focused on employment in industry or other specific sectors, such as maternity protection, working time, night work etc. leaving domestic work out of the picture11. Further, some conventions such as the Protection of Wages Convention, 1949 (No. 95),12expressly permitted ratifying States to exclude domestic workers from its scope.
After several years, it was in 1965 that the issue of developing standards for domestic workers gained momentum, with the workers’ group initiative at the International Labour Conference, leading to the adoption of the resolution concerning conditions of employment of domestic workers13. The period from 1970s-2000s was again predominated by standard setting for particular occupations and extensive use of flexibility clauses (permitting exclusion of domestic workers), such as The Minimum Wage Fixing Convention, 1970 (No 131), The Minimum Age Convention, 1973 (No. 138), the Occupational Safety and Health Convention, 1981 (No. 155) and The Private Employment Agencies Convention, 1997 (No. 181)14.
• United Nations and Council of Europe Instruments
Domestic workers are entitled to all the human rights comprised in the human rights treaties such as the UDHR and most significantly the ICESCR. Further, the European Court of Human Rights has interpreted Article 4 of the ECHR (which prohibits slavery, servitude and forced labour) to include an obligation on member states to take steps to provide effective and practical protection against servitude and forced labour in a domestic work setting15.
The European Committee of Social Rights has expansively interpreted the provisions of the European Social Charter to effectively protect the rights of domestic workers. For instance, the obligations of member states under Article 3(2) of the charter has been held to include coverage of domestic workers by national occupational and health and safety regulations, right to maternity protection and dismissal protection during pregnancy16.
10Convention Nos. 24 and 35 have now been labeled as outdated and therefore shelved.
11 Martin Oelz, The ILO’s Domestic Workers Convention and Recommendation: A window of opportunity for social justice, Int’l Lab. Rev., Vol. 153, No. 1, 2014 at p. 147
12 Article 2(2) of Convention No. 95
13 The resolution called for research and comprehensive study on domestic workers to be prepared by the
International Labour Office and further consideration by the Governing Body for possible standard setting. Oelz, Supra note 11 at p. 148
14 Ibid at p.149
15 C.N. v. The United Kingdom, Application No. 4239/08 (13.11.2012)
2.2 ILO Convention 189 and accompanying recommendation
The preparatory phase for drafting C-189 and R-201 commenced in March 2008. The initiative was led by the ILO with spearheading of extensive research into national law and practice with regards to domestic workers. The draft versions were subject to multiple rounds of consultations and discussions among the tripartite constituents of the ILO i.e. representatives of the member state governments, representatives of the employer’s and the worker’s representatives17. It was on 16 June 2011 that the International Labour Conference at its 100th session, adopted C-189 and R-20118, which together constitute, the international labour standards dedicated specifically to domestic workers as a particular group19.
The adoption of C-189 and R-201 has been hailed as a historic step in the struggle for social justice worldwide, a successful culmination of the efforts and extensive campaigning of domestic worker’s organizations and trade unions towards recognition of the rights of domestic workers and addressing their exclusion from labour law frameworks and social protection.20 The fact that C-189 and R-201 came into being, illustrates that for varied reasons, policy-makers have indeed started to pay greater attention to the economic and social value of domestic work and the need to establish appropriate frameworks for domestic worker’s labour and social protection21.
C-189 is a binding international instrument for countries that have ratified it (so far ratified by 21 countries22). R-201, on the other hand, is a non-binding instrument which serves as a practical guide for strengthening national law and policies on domestic work. R-201 builds on the provisions of C-189 and is required to be read in conjunction with it.
17 ibid at p. 2
18 See website of ILO, available at
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189 <last accessed 08.05.2015>
19 Decent Work for Domestic Workers, Convention 189 & Recommendation 201 at a Glance, International
Labour Organization, Geneva, 2011 at p.2, available online at http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_170438.pdf <last accessed 08.05.2015>
20 Achieving decent work for domestic workers: An Organizer’s Manual to Promote ILO Convention No. 189, International labour Office, Geneva, 2012 at p.2, available online at
http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---actrav/documents/publication/wcms_181344.pdf <last accessed 08.05.2015>
21 Oelz. Supra note 11 at p. 144 22 See website of ILO, available at
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:2551 460 <last accessed 23.07.2015>
The main rationale behind the formulation of specific international labour standards for domestic workers is to accord recognition to domestic workers, like other workers and to reinforce their right to decent living and working conditions23. The purpose of the provisions is to contribute progressively to the elimination of exploitation of domestic workers and of discrimination against them24. Discussed below are the key concepts and provisions in C-189 read with R-201:
A) Concept of a Domestic Worker
C-189 defines a ‘domestic worker’ to mean any person engaged in domestic work within an employment relationship25. The same excludes persons who render domestic work only occasionally and not on an occupational basis26. Further, the term ‘domestic work’ means work performed in or for a household or households27. It is pertinent to note that domestic workers are identified by their place of work, i.e. households and not by the type of work performed, which varies from country to country and may change over a period of time28. Therefore cleaning activities performed by workers in hotels and restaurants is
excluded from the definition29.
C-189 permits ratifying countries from excluding certain categories of workers from the scope of the convention, wholly or partly in case such workers are provided with at least equivalent protection or in respect of which special problems of substantial nature arise. The aforesaid exclusions can however apply only after consultation with the most representative organizations of employers and workers and where specific representative organizations of domestic workers or employers of domestic workers exist, then in consultation with these organizations30.
C-189 also addresses the particularities of certain specific categories of domestic workers such as:
23 Decent work for Domestic Workers, Supra note 11 at p.6
24 M.Tomei and P. Belser, New ILO standards on decent work for domestic workers: A summary of issues and discussions, 150 Int'l Lab. Rev. 2011 at p. 431
25 Article 1(a), C-189 26 Article 1(b), C-189 27 Article 1(c), C-189
28 ILO Global and Regional Statistics, Supra note 5 at p. 7 29 Tomei and Belser, Supra note 24 at p. 434
30 See Article 2, C-189. The ratifying country is also under an obligation to disclose the category of workers
excluded partly or wholly from the scope of C-189 alongwith reasons for such exclusion in the first report on the application of C-189 to be submitted with the ILO.
a) Child Domestic Workers: As per ILO statistics an estimated 3.5 million children (aged between 5 and 11) work as child domestic workers31. Given the vulnerability and the numbers, C-189 requires member states to fix a minimum age of employment as domestic workers32 and ensure that the work performed by child domestic workers (less than 18 years of age but above minimum age of employment) does not deprive them of compulsory education, or interfere with opportunities for further education and vocational training33.
b) Live-in Domestic Workers: the term refers to domestic workers who reside in the households for which they work34. C-189 requires member states to take specific measures in relation to live in workers such as ensuring inter alia decent living conditions respecting privacy of such workers and clear distinction between working time and non-working time35. Further, R-201 provides for giving a reasonable period of notice for termination (if termination is at initiative of employer) and time-off during the period for seeking new employment and accommodation36.
c) Migrant Domestic Workers: Due to data limitations, the ILO has not provided figures for estimated migrant domestic workers, but has acknowledged that their numbers are substantial37. C-189 obligates member states to inter alia require migrant domestic workers to be in receipt of a written job offer/contract38 enforceable in the country of employment, prior to migration39 and also specify conditions under which migrant domestic workers will be entitled to repatriation at the end of employment. Further R-201 states that member states may consider setting up a national hotline with interpretation services for migrant domestic workers, develop a network of emergency housing, take measures to raise
31 ILO Global and Regional Statistics, Supra note 5 at p. 19
32 Such minimum age is required to be fixed in compliance with the other ILO Conventions such as the
Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182). The minimum age cannot be lower than that established by national laws and regulations for workers generally (per Article 4(1) of C-189).
33 Article 4(2) of Convention No. 189
34 Decent work for Domestic Workers, Supra note 2 at p.12
35 Article 6 and Article 9(b), C-189. With respect to the accommodation, the R-201 provides that the
accommodation should be a separate, private room, suitably furnished, adequately ventilated with access to suitable sanitary facilities and equipped with a lock.
36 Paragraph 18, R-201.
37 ILO Global and Regional Statistics, Supra note 5 at p. 24
38 The written contract is required to address the terms and conditions enumerated in Article 7 of C-189. 39 Article 8(1), C-189. This provision is not applicable to migrant domestic workers who are (a) already
within the territory of the country of employment; and (b) workers benefitting from freedom of movement for employment under bi-lateral, regional, multi-lateral agreements or regional economic integration area.
awareness amongst employers of their obligations, enforcement arrangements and sanctions among others40.
B) Protection of Human Rights and Fundamental Principles
The preamble to C-189 reinforces the applicability of all international labour conventions and recommendations41 and other relevant international human rights instruments42 to all domestic workers. The obligation on member states to protect and effectively promote human rights of domestic workers is further spelt out in Article 3 of C-189. Further, the member states are required to take measures to respect, promote and realize the following fundamental principles and rights at work43:
i. Freedom of association and effective recognition of the right to collective bargaining: member countries are required to facilitate establishment of workers and/or employers organizations, federations etc., eliminate legislative or administrative hurdles and support measures to strengthen the capacity of workers’ or employers’ organizations44;
ii. Elimination of all forms of forced or compulsory labour; iii. Effective abolition of child labour45; and
iv. Elimination of discrimination and equal treatment: member states are obligated to ensure equal treatment between domestic workers and workers generally in relation to normal hours of work, overtime pay, period of daily and weekly rest46 and paid annual leave in accordance with applicable national laws/collective agreements47. Further, member states
40 Paragraph 21(1), R-201. The member country of origin of domestic workers can also establish legal
assistance funds, social services and specialized consular services to effectively protect the rights of migrant domestic workers.
41 In particular see Migration for Employment Convention (Revised), 1949 (No. 97), the Migrant Workers
(Supplementary Provisions) Convention, 1975 (No. 143), the Workers with Family Responsibilities Convention, 1981 (No. 156), the Private Employment Agencies Convention, 1997 (No. 181), and the Employment Relationship Recommendation, 2006 (No. 198), ILO Multilateral Framework
on Labour Migration (per Recital 7 of the preamble of C-189).
42 In particular see Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Convention against Transnational Organized Crime, Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (per Recital 9 of the preamble to C-189).
43 Article 3(3) of C-189 read with Paragraph 2(a) and (b) of R-201
44 Paragraph 3(a) and (c), R-201. For more details in relation to medical testing see Paragraph 4, R-201. 45 Member countries are required to take into account Worst Forms of Child Labour Convention, 1999 (No.
182), and accompanying Recommendation (No. 190).
46 As per Article 10(2) of C-189, the period of weekly rest shall be minimum 24 consecutive hours. Further,
periods during which the domestic worker is on stand-by i.e. required to be at the disposal of the household is also to be regarded as working time.
are to ensure respect for principles of confidentiality of personal data and privacy of domestic workers in all arrangements for work related medical tests.48
C) Terms and conditions of Employment
Various provisions of C-189 emphasize on decent working and living conditions and fair terms of employment, briefly discussed below:
i. Written Contracts: Member states are required to take measures to ensure that domestic
workers are informed of their terms and conditions of employment in a verifiable, appropriate and understandable manner, preferably through written contracts49 which should include details such as name and address of employer and worker, duration of contract or the start date of work, type of work to be performed, remuneration details, method and periodicity of payment, hours of work, annual leave and conditions for termination of employment50.
ii. Wage coverage: Member states, which have a minimum wage framework, are required
to extend the minimum wage coverage to include domestic workers51.
iii. Remuneration: Member states are obligated to ensure that remuneration is paid without
any discrimination on the basis of sex. Further, remuneration is to be paid directly, in cash at regular intervals of at least once in a month. C-189 also envisages payment of a limited proportion of the remuneration in kind provided that such payments are no less favorable than those applicable generally to other categories of workers; are paid with the consent of the domestic worker; are for the personal use and benefit of the worker; and the monetary value attributed to it is reasonable and fair52.
48 Article 3(2), C-189. By way of this provision, C-189 imbibes the obligations of ILO member states under
the 1998 Declaration on Fundamental Principles and Rights at Work.
49R-201 suggests establishment of a model contract of employment for domestic work by member states in
consultation with the most representative organizations of employers and workers (domestic workers if they exist). Such model contract must be made available free of charge (per Paragraph 6(3) and (4) of the R-201).
50 Article 7, C-189. Paragraph 6(2) of R-201 further provides for some additional terms and conditions of
employment which may be considered to be included in the contract such as job description, details of payment in kind, if any and its monetary value, details of accommodation provided, if any, details of authorized deductions from the remuneration etc.
51 Article 11, C-189.
52 Article 12, C-189. In the context of payment in kind, R-201 provides that member states should consider
establishing a ceiling on the overall limit of the remuneration that maybe paid in kind, items related to performance of domestic work such as uniforms, cleaning tools etc. are not appropriated towards payments in kind and in case of live-in domestic workers, no deduction is made from the actual remuneration payable in respect of accommodation unless agreed to by the worker (per Paragraph 14 of R-201)
iv. Health and Safety: C-189 recognizes the right of every domestic worker to a healthy and
safe working environment and accordingly requires member states to take effective measures in accordance with national laws and practice, to ensure occupational safety and health of domestic workers. R-201 suggests having in place an adequate and appropriate system of inspection and imposition of adequate penalties for violation of occupational safety and health laws53.
D) Social Security
Per ILO, in most countries, domestic workers form part of the informal economy and often do not qualify for coverage under social security schemes54. C-189 requires member states to take appropriate measures (may be implemented progressively) to ensure that conditions for social security protection, including maternity benefits are accorded to domestic workers, and are no less favorable than those applicable to workers generally55. In the context of migrant domestic workers, R-201 suggests that member states can consider concluding bilateral, regional or multi lateral agreements to provide migrant domestic workers with equality of treatment in respect of social security, access to and preservation or portability of social security entitlements56.
E) Private Employment Agencies
C-189 in Article 15 acknowledges that domestic workers, including migrant domestic workers are susceptible to abuse by private employment agencies. In this context, C-189 requires member states to (i) determine in accordance with national laws, regulations and practice, the conditions governing operation of private employment agencies; (ii) ensure setting up of adequate machinery to investigate complaints, alleged abuses and fraudulent practices in respect of activities of private employment agencies; (iii) enact laws or regulations specifying obligations of private employment agencies and households towards domestic workers, penalties and prohibition of agencies engaged in fraudulent practices; and (iv) take measures to ensure that there is no adjustment of the fees charged by the placement agencies against the remuneration of domestic workers.
R-201 makes reference to Convention No. 181 on Private Employment Agencies and accompanying Recommendation No. 188 in the context of the principles and approaches
53 Art 13(1), C-189 read with Paragraph 19(b), R-201. 54 Organizer’s Manual, ILO Supra note 2 at p. 24 55 Art 14, C-189.
which maybe taken into account by member states in promoting good practices by private employment agencies as contemplated under C-18957.
F) Compliance and Enforcement
Access to fair hearing by courts has been acknowledged as a universal fundamental right under the UDHR58. Recognizing the same explicitly, C-189 requires member states to take measures59 to ensure that domestic workers have effective access to courts, tribunals or other dispute settlement mechanisms under conditions equivalent to those available to workers generally; establish effective and accessible complaint mechanisms; develop and implement measures for labour inspection, enforcement and penalties, in accordance with national laws and regulations.
Specifically, in the context of labour inspection, C-189 takes into account respect for privacy rights of the household in which the domestic workers are employed and requires member states to specify in their national laws and regulations, conditions under which labour inspectors or other enforcement authorities can be granted access to enter the household premises60.
Having set forth the detailed framework under C-189 and R-201, in the next section, I shall set forth in detail, the legal framework pertaining to domestic workers in India, which shall include existing legislations, draft policies and draft laws on this subject.
Section: 3
Indian Legal Framework
It is pertinent to note that India has a quasi-federal structure, with the Union at the Centre and thereafter the States. In the context of competency to make laws, the Constitution of India provides for specific subjects under three lists61 namely the Union List (on which only the Parliament can make laws); the State List (on which only the State Legislature can make laws); and the Concurrent List, (on which both the Parliament and State Legislature can make laws and in case of any conflict, the law laid down by the Parliament will
57 Article 23, R-201
58 Article 10 of the UDHR provides that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
59 Article 16 and 17, C-189.
60 Article 17(3) of C-189 read with Article 24 of R-201.
61See VIIth Schedule to the Constitution of India available at http://indiacode.nic.in/coiweb/welcome.html
prevail). The subject ‘Labour’ is both in the Union List and the Concurrent List62, making both the Centre and the 28 States, competent to enact laws on labour. However, given the constraints of time and resources, the thesis principally covers central enactments and mentions state enactments to the extent they modify, amend or supplement the central enactment.
Presently, India lacks comprehensive laws on working conditions and social benefits of/for domestic workers. Through certain government initiatives, domestic workers have been included in the definition of ‘workers’ or ‘employee’ under some labour legislations but still fall outside the purview of majority legislations and continue to form a significant part of the informal workforce of the country.
Following labour legislations (relevant to the subject matter) will be analyzed in this section:
1. The Minimum Wages Act, 1948
2. Child Labour (Prohibition and Regulation) Act, 1986 3. The Unorganized Sector Workers Social Security Act, 2008 4. Draft National Policy on Domestic Workers
5. Domestic Workers Welfare and Social Security Act 2010 (Draft legislation proposed by the National Commission of Women).
3.1 The Minimum Wages Act, 1948 (hereinafter “MW Act”)
The MW Act, is a national legislation which mandates fixation of minimum wage for scheduled employments covered under the said Act. The rates of minimum wages are to be revised at least once every five years. The minimum wages can vary depending on the type of work carried out (time rate or piece rate), whether carried out by adults, adolescents or children and the type of scheduled employment.
The States have the competence to fix the minimum wage for different employments specified in the schedule as well as determine which occupations or employments are to be included under the schedule to the MW Act63.
Certain States such as Andhra Pradesh, Bihar, Maharashtra, Kerala, Karnataka, Rajasthan, Punjab, Haryana, Meghalaya, Tripura and Union Territory of Dadra and Nagar Haveli have included ‘domestic worker’ in the schedule to the MW Act and fixed minimum wages for the same. The daily minimum wage ranges from INR 240 (approx. 3.5 euro, fixed by the
62 See Constitution of India, Schedule VII, List III, Entry 22: Trade Unions, Industrial and Labour
Dispute; Entry 23: Social Security and Insurance, employment and unemployment, etc.
State of Punjab) to INR 61 (approx. 0.8 euro, fixed by State of Tripura)64. Most States however, have still not notified ‘domestic work’ as a scheduled employment and no minimum wages have been fixed thereof.
3.2 Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter “CL Act”)
The CL Act prohibits employment of children in certain occupations set forth in Schedule A to the CL Act. A child is defined under the CL Act to mean a person who is less than 14 years of age. Children are prohibited from being employed as domestic workers under the CL Act65.
3.3 The Unorganized Sector Workers Social Security Act, 2008 (hereinafter “USW Act”)
The USW Act, provides for social security and welfare of unorganized workers. An ‘unorganized worker’ is defined under the USW Act to mean a home based worker, self employed worker or a wage worker in the unorganized sector66.
Domestic workers are covered within the definition of wage worker67 which means a person employed for remuneration in the unorganized sector, directly by an employer or through a contractor, irrespective of the place of work for one or multiple employers. Pursuant to the USW Act, the Central Government is required to formulate and notify from time to time, suitable welfare schemes for eligible unorganized workers (i.e. workers who have been registered and issued an identity card by the district administration)68 in matters relating to (a) life and disability cover; (b) health and maternity benefits; (c) old age protection; and (d) any other benefit as determined by the Central Government69.
The welfare schemes may be fully funded by the Government or partly funded-partly contribution based. Presently, the Schedule to the USW Act, lists 10 social welfare schemes, of which the following schemes are relevant for domestic workers: (a) Indira Gandhi National Old Age Pension Scheme: INR 200 per month for persons above 60 years
64 See Table 5, ‘Report on the Working of the Minimum Wages Act, 1948 for the year 2013’, Ministry of
Labour and Employment, Government of India, January, 2015, available online at http://labourbureau.nic.in/MW_2013_final_revised_web.pdf <last accessed 23.02.2015>
65 See Schedule, Part A, Entry 14 of the CL Act.
66 Section 2(m) of USW Act, defines ‘unorganized sector’ to mean an enterprise owned by individuals or
self employed workers engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.
67 Section 2(n) of USW Act, the definition of wage worker includes a home-based worker, temporary or
casual worker, migrant worker, or workers employed by households including domestic workers…..
68 In order to be registered, the unorganized worker must be above 14 years of age and must provide a
self-declaration confirming that he/she is an unorganized worker (See Section 10, USW Act).
of age and below the poverty line70; (b) National Family Benefit Scheme: INR 10,000 given as family benefit to households below the poverty line on death of primary breadwinner71; (c) Janshree Bima Yojna: life insurance cover to persons below the poverty line and marginally above the poverty line72; and (d) Rashtriya Swasthya Bima Yojna: launched by the Ministry of Labour and Employment, the scheme provides health insurance coverage for households below the poverty line73.
Further, the State Government may also formulate welfare schemes covering provident fund, employment injury benefit, housing, educational schemes for children, funeral assistance, skill up gradation and old age homes.
3.4 National Policy on Domestic Workers
The Ministry of Labour and Employment, Government of India, set up a task force in December, 2009 to deliberate on the issues relating to welfare and promoting decent work for domestic workers74. The said task force drafted the National Policy on Domestic Workers (hereinafter “DW Policy”), for perusal and adoption by the Government. Although, the DW Policy is still a draft policy and has not been notified by the Government so far, it is indeed pertinent to note its contents and salient features, as the same forms a significant source of guidelines and principles, establishing formal rights of domestic workers and of utmost relevance for shaping the legislation for welfare of domestic workers.
The preamble to the DW Policy itself recognizes that domestic workers, just like other workers have the right to inter alia minimum wage protection and limitation of payments in kind, normal hours of work, compensation for overtime, suitable daily and weekly rest periods, paid annual leave and sick leave, social security coverage including maternity benefits, safe working environment and access to schemes and benefits available to other categories of workers75.
70 See FAQs on website of Ministry of Rural Development, available online at
http://nsap.nic.in/nsap/FAQ_ON_NSAP_NEW.pdf <last accessed 20.02.2015>)
71 ibid
72 See website of Life Insurance Corporation at https://www.licindia.in/social_securities_001_features.htm
<last accessed 20.02.2015>
73 See website of Ministry of Labour and Employment, at http://www.rsby.gov.in/about_rsby.aspx <last
accessed 20.02.2015>
74 Realizing Decent Work, Final Report of the Task Force on Domestic Workers, Ministry of Labour and
Employment, Government of India, September 12, 2011
Further, the DW Policy contemplates amendments to certain legislations76, to explicitly include domestic workers within their scope of coverage and to enable effective implementation and enforcement.
The table below sets forth the concepts encapsulated in the DW Policy.
Provision Description
Definition of Domestic Worker
The definition is broad and means a person who is employed for remuneration, in cash or kind, in any household through an agency or directly, on temporary or permanent, part time or full time basis, to do household work.
Based on number of hours of work and nature of employment relationship, domestic workers can be full time workers77, part-time workers or live-in workers78.
Right to
organize
Domestic workers have the right to form their own associations, trade unions or join an organization of their own choosing79.
Fair terms of
employment
Domestic workers are entitled to minimum wage protection, limited payments in kind, normal hours of work, rest periods, paid leave, social security benefits (including maternity benefit, disability benefit, old age benefit) and a safe and healthy work environment free from abuse, harassment and violence.
Migrant domestic workers
Migrant domestic workers are to be made aware of their rights and privileges in the country of work and appropriately trained as part of existing emigration procedures. The Ministry of Labour and Employment is to collaborate with the Ministry of Overseas Indian Affairs, to establish a mechanism of receipt of written employment contract by the domestic worker prior to crossing of borders for the purpose of taking up domestic work80.
Skill
development
State Governments are required to establish policies and programs to develop competencies and qualifications of domestic workers, including literacy training81. Placement
Agencies82
Central Government is required to establish a mechanism for regulation of placement agencies. In the interim, the DW Policy proposes that all such agencies be mandatorily registered under the Shops and Establishments Act of the relevant State. The placement agencies are required to maintain and make available records pertaining to domestic workers placed, details of employer and terms of employment such as hours of work,
76 The legislations include, The Trade Union Act, 1926; The Payment of Wages Act 1936; The Minimum
Wages Act 1948; The Maternity Benefit Act 1961; The Equal Remuneration Act, 1976; The Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979
77 Clause 3.1.1.2, DW Policy defines a full-time worker to mean a worker who works for a single employer,
every day for a specified number of hours and who returns back to his/her home every day after work.
78 Clause 3.1.1.3, DW Policy defines a live-in worker to mean a worker who works full time and also stays
on the premises of the employer or in a dwelling provided by the employer and does not return back to his/her home every day after work.
79 Clause 4.3, DW Policy. The Central Government in collaboration with workers organizations, has been
entrusted with the responsibility to identify and eliminate any administrative or legislative restrictions to the right of domestic workers to organize.
80 Clause 4.5, DW Policy. The migrant domestic worker is to be briefed about the helpline numbers and
contact points of the embassies, workers organizations in the country of work etc.
81 Clause 4.6, DW Policy, to enhance skill development, the DW Policy recommends that domestic work be
included as one of the occupations in the State level implementation of the National Skills Development Initiative (an initiative of the Directorate General of Education and Training, Ministry of Labour and Employment, Government of India).
mode of payment of wages, duration of placement. They are also required to send copy of the contracts to the State Labour Departments.
Grievance redressal
Domestic workers to have easy access to courts, tribunals or other dispute settlement procedures. Ministry of Labour and Employment is required to secure domestic worker’s access to complaint mechanisms and ability to pursue legal remedies83.
Code of
Practice
Ministry of Labour and Employment, in collaboration with workers’ and employers’ organizations to develop a Code of Practice for domestic workers and their employers. Centre and State Labour Departments to conduct seminars and workshops to create awareness about legitimacy of domestic work, rights of domestic workers and obligations of their employers84.
The implementation of the DW Policy has been entrusted with the Ministry of Labour and Employment, commencing with setting up of an Implementation Committee comprising representatives of the Ministry of Labour and Employment, Ministry of Women and Child and workers’ and employers’ organizations.
3.5 Draft Bill on working conditions and social benefits of domestic workers.
Given the vulnerability of domestic workers and their appalling working conditions, several initiatives were taken to draft legislations dealing comprehensively with the working conditions of domestic workers. The first attempt at drafting such legislation dates back to 1959 with The Domestic Workers (Conditions of Employment) Bill, 1959. Subsequent initiatives include the Domestic Workers (Regulation of Employment, Conditions of Work, Social Security and Welfare) Bill, 2008 (Draft legislation proposed by National Campaign Committee for Unorganized Sector Workers) and The Domestic Workers (Conditions of Service) Bill, 2009, a private member’s Bill introduced in the Parliament by Shri Arjun Ram Meghwal. Due to lack of political consensus, none of the aforementioned bills were passed as laws.
The National Commission for Women, a statutory body set up under the National Commission for Women Act, 1990 has drafted the latest proposal titled ‘Domestic Workers Welfare and Social Security Act, 2010’ Bill (hereinafter “DW Bill”) comprehensively dealing with the working conditions of domestic workers.
83 Clause 4.8, DW Policy. The mechanism set up by the Ministry of Labour and Employment should
provide for a single window access to domestic workers for all their needs, be it welfare matters, or social security, or harassment.
The DW Bill is currently pending before the Government and as apparent from a number of news articles, has been gathering dust, with little or nothing being done by the Government to introduce it in the Parliament85.
The table below, encapsulates the most significant provisions of the DW Bill (references to Act herein means the DW Bill).
Provision Description
Scope of
application
The DW Bill is not applicable to domestic workers emigrating for employment to any other country.
Definition of ‘domestic worker’
A person who is employed for remuneration whether in cash or kind, in any household or similar establishments through any agency or directly, either on a temporary or contract basis or permanent, part time or full time to do the household or allied work and includes a replacement worker86.
The DW Bill prohibits employment of children as domestic workers (a child is defined as a person of less than 18 years of age.)
All domestic workers, employers and service providers are required to register with appropriate authorities as per the procedure detailed in the DW Bill.
Establishment of Domestic Workers Welfare Fund
The DW Bill contemplates setting up of a welfare fund for domestic workers to meet the expenses of providing benefits such as education, insurance, family benefits etc.87 Working
Conditions88 Work hours: Maximum of 9 hours in a day or 48 hours in a week, 12 hours for live-in workers with 3-4 hours of rest. Overtime: Ceiling of 10 hours a day and 50 hours a week. The worker is entitled to twice the ordinary rate of wages.
Interval for rest: at least 30 min interval after 5 hours of work. Weekly holiday: one complete day off in a week
Minimum Wage
Appropriate Government to fix and notify the minimum wage for domestic workers. The rates fixed are required to be revised at least once every 5 years.
Placement agencies
All service providers engaged in the business of providing domestic workers to employers are required to be registered under the Act. They are required to maintain proper records of all domestic workers contracted by them in the prescribed format89.
85 See, news report titled ‘No progress in law to protect domestic helps’ published in Times of India,
October 30, 2013 accessible online at http://timesofindia.indiatimes.com/city/delhi/No-progress-on-law-to-protect-domestic-helps/articleshow/24892532.cms <last accessed 23.02.2015>
86 Section 2(f), DW Bill. Further, a replacement worker means a person who is working as a replacement for
the main worker for a short and specific period of time as agreed with the main worker. Household and allied work includes activities such as cooking, washing utensils or clothes, cleaning or dusting the house, driving, caring/nursing of children, sick, old, mentally challenged or disabled persons.
87 Section 19, DW Bill. The welfare fund shall comprise of grants made by Central or State Government,
amounts received as registration fees, incomes from investment of amounts of the fund, fine amounts etc.
88 Section 26(4), (5), (6) and (7), DW Bill. 89 Section 26(2) and (3), DW Bill.
Enforcement and
Implementation
The DW Bill, contemplates setting up of the following implementing authorities90: a) Central Advisory Committee constituted at Central level and entrusted
principally with review and monitoring the implementation of the Act;
b) State Advisory Committee constituted at State level to advise upon matters arising out of administration of the Act and review and monitor the functioning of the District Boards constituted in the State;
c) District Boards constituted at local level to prepare and implement welfare schemes for domestic workers in the district, carry out registration of domestic workers, employers and service providers and maintain records. Offences and
penalties91 a) Contravention by a service provider is punishable with imprisonment and/or fine. b) Contravention by an employer is punishable with fine.
3.6 Other initiatives
Based on the recommendations of the task force entrusted with the responsibility to draft the DW Policy, a letter addressed to all principal secretaries, was sent by the Director General Labour Welfare, Ministry of Labour and Employment on October 13, 2010 requesting them to take necessary steps for registration of placement agencies providing domestic workers under the Shops and Establishment Act92. Pursuant to the aforementioned communication, some State Governments such as that of Delhi have made registration of placement agencies mandatory under its Shops and Establishment legislation93.
Section: 4
Comparison of ILO Convention 189 with the Indian domestic legal framework
In this section, the standards set forth in C-189 and R-201 will be compared with the Indian legal framework to analyze the extent of conformity or deviation therewith.
a) Concept of domestic worker:
C-189 and R-201
C-189 gives a proper definition of a ‘domestic worker’, which is quite wide and means any person engaged in domestic work within an employment relationship. Further, C-189 permits member states to make certain exclusions from this definition provided that such persons are provided with at least equivalent protection.
Furthermore C-189 comprises specific provisions regarding child domestic workers, live-in domestic workers and migrant domestic workers (discussed in Section 2 hereof)
90 Chapter two, DW Bill. 91 Section 28, DW Bill.
92 See Matrix 1, Status of implementation of task force recommendations on domestic workers, final report
of the task force, Supra note 74
93 News report titled ‘Delhi Government makes registration mandatory for private placement firms’
published in Economic Times, October 1, 2014 available online at
http://articles.economictimes.indiatimes.com/2014-10-01/news/54516966_1_delhi-commission-private-placement-agencies-domestic-workers <last accessed 09.03.2015>
Existing domestic legal framework
At present, there is no specific legislation dealing with domestic workers, the term is not defined in any of the existing legislations, though referred to in the definition of ‘wage worker’ in the USW Act.
The CL Act, prohibits engagement of children as domestic workers.
Proposed domestic legal framework
DW Policy: comprises a proper definition of ‘domestic worker’. Scope of the definition is wide and includes both part time and full time workers whether engaged on permanent or temporary basis.
Further, there are specific provisions for according protection to migrant domestic workers (provide training and create awareness, receipt of written employment contracts etc.). The DW Policy does not specifically address issues pertaining to working and living conditions of live –in domestic workers, though the same forms part of the deliberations between the committee members wherein issues pertaining to privacy, personal hygiene, payment in kind, rest periods, stand-by periods etc. were tabled.
DW Bill: The definition of domestic worker excludes overseas migrant workers or international migrant workers. The definition otherwise is broad, covers workers engaged full time or part time, temporary or permanent basis and includes a replacement or a substitute worker.
Employment of children as domestic workers is prohibited. The DW Bill does not address the specific situation of live-in domestic workers and there are no protections envisaged in this regard.
Analysis:
The present domestic legal framework does not comprise any legislation, which expressly defines a ‘domestic worker’. Clearly, there is a gap in this regard, between C-189 and the existing legal framework. The proposed domestic law, however, does define ‘domestic worker’ though not completely in conformity with C-189. In particular, the concepts and situation of live-in-domestic workers and migrant domestic workers which are of particular significance in C-189 are not deliberated upon at all or fairly limited in the proposed law/policy. The DW Bill, even though touted as a comprehensive legislation pertaining to domestic workers, expressly excludes international migrant workers, who are also not covered under any other Indian legislation, thereby leaving them with no rights, safeguards or protection. Such exclusion is manifestly contrary to C-189.
Further, the DW Policy, does not lay any special emphasis on the safeguards to be observed when employing live-in domestic workers who are more vulnerable and in a situation different from other domestic workers (for instance, their right to privacy and decent living, method of calculating their remuneration etc.). The DW Bill also lacks specific provisions dealing with the situation of live-in workers and treats them at par with other domestic workers, thereby not conforming to the requirements under C-189.
b) Fundamental Principles at Work
C-189 and R-201
Member countries are required to take measures to realize the core labour standards viz. freedom of association and effective recognition of the right to collective bargaining, elimination of all forms of forced labour, abolition of child labour and elimination of discrimination in respect of domestic workers.
Existing domestic legal framework
Freedom of association is a fundamental right recognized in the Indian constitution itself.94 There is however, no express recognition of domestic workers right to bargain collectively, as domestic work does not fall within the scope of the Industrial Disputes Act, 1947 (the relevant legislation which comprises provisions in relation to collective bargaining95).
Forced labour in the form of bonded labour is prohibited under the Bonded Labour System (Abolition) Act, 1976. The said Act is general in scope and does not specifically mention domestic work or domestic workers.
Engagement of children as domestic worker is prohibited under the CL Act.
There is no specific anti-discrimination law, which covers domestic workers albeit constitutional provisions on equality, which are applicable to all citizens. Private households fall outside the purview of the Equal Remuneration Act, 1976, a legislation providing for gender equality in matters of remuneration.
Proposed domestic legal framework
DW Policy: it expressly recognizes the right of domestic workers to organize. It is however, silent as regards the right to bargain collectively.
The policy acknowledges in the preamble that legislation should be directed at abolishing forced migration and employment of children.96 Further, it also recognizes the right to equality of domestic workers vis-à-vis other categories of workers.
DW Bill: it does not deal with aspects relating to fundamental rights at work. Analysis:
With regards to fundamental principles and rights at work stated in C-189, the major gap between the domestic legal regime and the convention lies in non-recognition of domestic work as formal employment. Some of the core labour standards, which are encapsulated in labour legislations in India, do not extend to domestic workers, as private households are not covered therein. For instance, the Equal Remuneration Act, 1976 which requires equality in payment of remuneration irrespective of sex, presently does not extend to domestic work.
Collective bargaining rights for domestic workers are also not expressly recognized in the Indian legal framework. However, since freedom of association is a constitutionally
94 Article 19 (1)(c) of the Constitution of India accords all citizens the right to form associations or unions or
cooperative societies.
95 See Schedule V titled ‘Unfair Labour Practices’ of the Industrial Disputes Act, 1947. The said Act
regulates industrial relations and does not cover private households, thereby excluding domestic workers from its scope.
