This article addresses key concerns & the laws that protect both the employer & employee in the context of domestic work in India; where they can place their complaints and reach out for help.
Tue May 03 2022 | Employment, Criminal and Labour | Comments (0)
‘Instead of paying what was owed to me, they accused me of stealing INR 17,000 from the house. I was beaten up. I fled to the basement of the apartment complex in terror, and the guards brought me out early this morning.’
The above statement reflects the anguish of the narrator, a domestic help in Noida, who recounted her story dating back to 2017. This statement, however, is representative of the plight of several domestic workers in India, raising questions about their legal rights and protection. .
India has a large-scale unorganized labour class, of which domestic help is a rather small section that fails to find representation anywhere. The Factories Act, 1948; Industrial Disputes Act, 1947; or the recent Code on Social Security, 2020 - none of these legislations mentions even the basic rights of domestic help or benefits of any sort.
While the official statistics suggest that there are around 4.7 million domestic workers in India, the unofficial estimate crosses the 50 million mark. While several of them do not earn minimum wages (officially, registered at 178 INR/day), most domestic workers work long hours without breaks. Further, more than 50% of domestic workers (approximately 3 million) are women who are either illiterate or have attained minimal education. These women are mostly from minority communities of Jharkhand, Orissa and Bihar, who migrate to metro cities like Delhi and Mumbai, to secure work through organized agencies for domestic help. Several of them are duped by these agencies throughout the term of their association. There have been cases when the employer (house-owner) paid the salary, but the domestic help did not receive the amount, indicating that there are chances of the money going into the agency’s pocket.
Apart from the factual and statistical side, the legal side is no different. While there are several legislations (Domestic Workers Welfare and Social Security Act, 2010 Act ; Domestic Workers Regulation of Work and Social Security Bill, 2016; Domestic Workers Welfare and Social Security Act, 2010 Bill), none of them has been enforced to date. Even though India voted in favour of the ILO’s 189th Convention, it didn’t ratify the convention, thereby avoiding a formal commitment to lay down the basic rights and principles of domestic workers in India.
In fact, in 2008, a legislation for the regulation of domestic workers was discussed. It was termed as the Domestic Workers (Registration, Social Security and Welfare) Act, 2008. This legislation was aimed to regulate payment, exploitation, trafficking and working conditions of domestic help. The drawback being, however, that it was not a central legislation, and thereby not mandatorily implemented by states. Since the implementation was left to states, it never came to fruition and has now conveniently evaded memory when it comes to laws on domestic workers.
Domestic help is a person employed to do household chores. The International Labour Organization (ILO) defines domestic work as, ‘housework such as sweeping, cleaning utensils, washing clothes, cooking, caring of children and such other work which is carried out for an employer for remuneration’.
Irrespective of where they come from (migrant or inter-state), domestic workers can be classified into two main categories:
While a lot has already been said about the absence of regulations for domestic work in India, and why domestic workers do not fall under the category of ‘employees’, this article tries to carve a space for these workers in the existing legislations by exploring the employer-employee relationship between a domestic help and a homeowner. This article examines the legal gaps and the current possible solutions, until a new central legal framework is drafted, to bring domestic workers under the organized sector and ensure their rights are protected.
One of the prominent reasons why domestic workers are unable to access rights that workers from the organized sector enjoy is due to an absence of the definition of ‘place of work’. Households are not prominently regarded as ‘place of work’ like industries and factories, for example. Therefore, they are deprived of many benefits that persons in the organized sector enjoy, simply by working under one of the many places described as ‘place of work’ under
Reading further down the line, the Social Security Code of 2020 defines an ‘establishment’ as:
‘(a) a place where any industry, trade, business, manufacture or occupation is carried on;
(b) a factory, motor transport undertaking, newspaper establishment, audiovisual production, building and other construction work or plantation;
(c) a mine, port or vicinity of port where dock work is carried out.’
An establishment, clearly, does not include a house. Further, domestic workers do not fall under any government department. Therefore, these legislations do not apply to domestic workers in India owing to the ‘place of work’.
Under the Minimum Wages Act, 1948, definitions of the terms ‘employer’ and ‘employee’ - mentioned under Section 2(e) and 2(g) - include the use of the phrase ‘scheduled employment’. This means that the Act applies to workers and employers who work in the industries mentioned in the schedule of the Act. As is, the schedule to the Minimum Wages Act consists of establishments such as mills, mines, manufacturing units, and employment in agriculture such as soil and dairy farming, poultry farming, beekeeping, etc.
Therefore, implicitly,it becomes clear that the Act is not applicable to housework and homeworkers. One method through which some states have managed to bring domestic workers under the purview of The Minimum Wages Act, 1948, is by treating them as “scheduled employers” under the Act. The domestic workers industry falls solely under the State ambit, and thus, it is at the discretion of the states whether they include domestic workers under the Act or not. In Andhra Pradesh, Bihar, Karnataka, and Rajasthan, for example, domestic workers are treated as “scheduled employers” and thus, are entitled to a “minimum wage”.
The Maternity Benefit Act, 1961, is, technically, inapplicable to domestic workers. This is a major flaw in the domestic workers’ legal framework. This gap has not been fulfilled by other laws or drafts either. Benefits of the said Act accrue only to woman who are working as an employee in an “establishment” for a period of at least 80 days in the past 12 months, to be entitled for maternity benefits. As we already know, domestic workers do not fall under the “worker” (or “employee”) umbrella; and households are not “establishments” under labour laws. “Establishments” are mines (defined in the Mines Act, 1952), plantations (defined in the Plantations Labour Act, 1951), factories (defined in the Factories Act, 1948). Due to this nuanced explanation and definitions of words, domestic workers working in domestic households will fail to fall within the purview of The Maternity Act, 1961.
Until a central legislation, that thoroughly covers domestic workers and their basic rights is passed, certain stop-gap solutions to the issues highlighted are given below. Households must ensure that basic domestic workers rights are not violated. Thus, below are some of the legal short-term answers and legal rights of domestic workers to the issues posed:
Although household work does not fall under the purview of ‘place of work’ under any of the central labour codes, the Domestic Workers Welfare & Social Security Act, 2010, under Chapter VI, discusses the regulation of working conditions for workers engaged either directly, or through an agency, into households. Section 26(4), 26(5) and 26(7) lays down the structure for working conditions in households Article 21 of The Indian Constitution provides the right to live with dignity, and this is applicable to household working conditions as well. In the absence of a nuanced regulatory framework, the Constitution may come to the rescue of domestic workers and their working conditions.
While it is evident that the current legal framework is inadequate for regulating the Domestic Workers industry, there are a few laws that are applicable to them, which we, the employers, may be blatantly violating.
There is no numerical indication to what comprises a “minimum wage”, it has been understood to be a wage that ensures a “sustainable standard of living”. However, no indication has been provided as to what is meant by this phrase. By recognizing domestic helps as “scheduled employers”, a minimum wage can be guaranteed to them, with any household falling below the set threshold thereby committing illegality.
Additionally, the Labour & Skills Department has revised the wage rate for household workers and it is currently set at 37.50 INR/hour for all domestic chores. Some states, for example Rajasthan, have fixed a monthly figure of 5642/month. This is a positive step. However, in the absence of a grievance-redressal mechanism, many households tend to violate this minimum amount.
Covering maternity benefits for women domestic workers is perhaps the biggest challenge for the legislature, given that there exists no mechanism, not even implicitly, that can cover maternity benefits for such women all across the unorganized sector. Even in the Domestic Workers Welfare & Social Security Act, 2010, a passing reference is made to maternity benefits. Section 13(b)(iv) provides maternity beneifts for upto two children and the implementation is simply left to the functions of the District Board under Section 13. Firstly, a limit is based on the number of children and secondly, the provision does not even remotely provide any indication about the time of leave and other such information; there are no directions about the Board and its composition given either. Thus, in the absence of the applicability of The Maternity Benefit Act, 1961, Section 13 and the fundamental right enshrined in the Constitution may alleviate this condition of domestic workers.
If all else fails, each individual in this country has a right to live with dignity under Article 21 of The Indian Constitution. Maternity Benefits are a fundamental right of a woman and a right to live with dignity of a mother and it can be contested for under Article 21 under the “right to life” doctrine.
Without a central legal framework for domestic workers rights, the existing laws come to the aid of domestic workers. It is important that the employer-households are aware of the laws that are applicable to them, so as to safeguard the basic rights of their domestic helps, and to simultaneously ensure, that they are not on the wrong side of the law.
Following are the basic responsibilities of all employer-households towards their domestic workers:
Under Domestic Workers Welfare & Social Security Act, 2010:
Under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013:
Employer-households must be conscious and aware of the laws and rights that apply to them and those that are basic rights for their domestic workers. Upholding these rights in the meantime will go a long way in alleviating at least some of the domestic workers’ concerns.
For complaints against employer-households in the case of abuse or exploitation, the normal procedure of law applies to domestic workers. They are fully eligible to file an FIR at the nearest police station under provisions of the Indian Penal Code, POSH, or any other legislation they deem fit/violated of. In case the officer in charge refuses to lodge the FIR, the concerned person can approach the Superintendent or Commissioner of Police under section 154(3) of the Criminal Procedure Code (CrPC).
There is no separate legislation that governs the grievance mechanism for domestic workers because of the absence of a centralized law. However, some additional mechanisms, particularly for women domestic workers, exist outside of the aforementioned criminal law framework.
Women workers facing abuse or exploitation can reach out to NCW, which looks out for the legal rights of women with remedies. They also provide an effective redressal mechanism for grievances. The following link can be used to lodge a complaint at the NCW: http://ncwapps.nic.in/onlinecomplaintsv2/frmPubRegistration.aspx
The NCW can also be contacted via telephone, with different numbers available for different cities and jurisdictions. The NCW Head Office in New Delhi can be contacted at: 011 2694 4805
SEWA was established in 1992. The sole purpose of this organisation is to provide a voice to informal women workforce sector, which includes domestic workers.
SEWA provides support to women in the informal workforce vis-à-vis their livelihoods and also to women who feel exploited or abused at the hand of her employer-household. SEWA is spread across many cities. The Head Office is in Ahmedabad.
It is suggested that the first step in cases of worker exploitation and/or abuse must be lodging a police complaint/FIR. The aforementioned mechanisms are additional ways of seeking redressal.
Though cases of employee harassment are widespread, there are multiple counts of employers being harassed, in one way or another, by the employees. However, no special legislation is present to govern such instances. The Indian Criminal Law framework, if implemented well, suffices to cover such instances. The employer has no option but resort to police complaints under established criminal legislations such as the Indian Penal Code, 1860. Provisions of the Code that may apply to cases of robbery, theft, extortion, and sexual harassment are as follows:
There has been a demand for the enforcement of the Domestic Workers Welfare and Social Security Act 2010 Act as well as the Domestic Workers Regulation of Work and Social Security Bill, 2016. While the former will help with basic rights of domestic workers, the latter will ensure documentation, identification, and verification of domestic workers in India and implement provisions regarding minimum wages, working hours, grounds of termination, notice period, etc. It will further lay down the responsibilities of employers, shifting the onus of maintaining social security funds for domestic workers and other related benefits from the state to the employer. Enforcement of these legislations will not only bring clarity on the rights and benefits derived by domestic workers but will also widen the scope of the employer’s duties, responsibilities, and safeguards for and against domestic helps working part-time or full-time in India.
Given the domestic workers often cross state boundaries in order to obtain work, it is essential that a central legislation is drafted, with all plausible areas covered, including, but not limited to, working conditions, payment of wages, sexual harassment, maternity benefits etc. Currently, the legislation is so widespread and distorted that those concerned have to refer to different legislations for different legal problems; thus, creating confusion and unawareness.
Consequently, a Board must be put in place, as a watchdog, on the implementation of this legislation. The structure must be such that the Board is divided amongst different elected members, each with a different responsibility. This Board must be given full autonomy and include functionalities such registration of workers and their social security rights, constant monitoring and regulation of working conditions, social protection, collection of employee social security benefits, helpline for complaints and a committee to handle them.
There is a need that employers support their house help(s) by signing them up as ‘employers’ so that these workers can avail benefits the labour codes. However, this will not take place until it was made compulsory by legislation, and that is only possible when the labour laws recognize domestic help as “workers” and households as ‘place of work’.
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