By Dithhi Bhattacharya
The ILO Convention On Domestic Workers (C189) was adopted in 2011 with India supporting it. Over a decade later, India continues to debate ratifying the convention despite being the largest employer of domestic workers across the world. Estimates vary that there are as many as between twenty-five and eighty million domestic workers in India. The main reason for non-ratification, as cited by the government of India, is that our existing legal framework does not provide the protections required under C189, particularly regarding the equal treatment of domestic workers with other workers in the country.
Since then, the political dispensation that was in power in 2011 has changed. The NDA government that came to power in 2014 promised labour law reform in their first and subsequent two manifestos for election. The BJP government, since 2014, has presented labour law reform as a top agenda and successfully passed all four Labour Codes by 2020. Still, the government has neither ratified C189 nor are there any discussions regarding it. In fact, the Codes take us further away from being able to meet the requisites of the convention.
Out of the four Codes, the Code on Wages is the only one that recognises domestic workers as a category of workers. But even there, the Code clearly mentions that its provisions (that includes application of minimum wage, payment of wages, payment of bonus as well as equal remuneration) would only apply to domestic workers if five or more of them are employed at an establishment. This, simply put, implies that if I am a domestic worker, I can only be covered under the minimum wage law, the equal remuneration law, the bonus law as well as the law on payment of wages that will ensure my basic right to receive my wages on time, if and only if I can ensure there are at least four other domestic workers working with me in the same household where I am employed!
This provision of the Code, thereby, ensures that domestic workers employed in most households across the country, as well as a wide range of income levels, are not covered by the Code on Wages. This also means that if I am a domestic worker working in a household that is not covered by the Code, I can now be paid a wage lower than the minimum wage – and that will not be illegal!
The Supreme Court of India has on multiple occasions reiterated that non-payment of minimum wages amounts to forced labour. By deductive logic, the Code on Wages also legalises forced labour in India. This is not just a gross violation of Article 23 of the Constitution but also Article 3 of C189.
To add to this absurdity, the Code on Wages does not specifically recognise a household as an establishment. It simply states that any place can be considered to be an ‘establishment’ if any ‘occupation is carried on’ in that place. Thus, for domestic workers to be covered under the Code, domestic work has to be recognised as an ‘occupation’ first. Then it has to be established that it is being carried out in a household. In this, the entire burden of proof, of course, lies with the worker. Given the power imbalance, any of this would be impossible for a domestic worker to establish given the precarious employment relation that exists between most employers and domestic workers employed by them.
The other Code that tangentially could apply to domestic workers is the Code on Social Security by including them within the broad spectrum of unorganised workers. Under this Code, workers are clearly divided into two distinct categories – organised workers, who have access to PF, ESI, gratuity, and unorganised workers, who do not. Thus, by definition, workers identified as ‘unorganised’ will remain perpetually outside the purview of legally protected social security rights such as PF. The existing PF, ESI, and gratuity laws did not, by statute, exclude any category of workers – any employer desirous of registering their workers under PF could do so. But now the Code is clear. The social security provisions for unorganised workers are distinct and separate from the legally protected social security provisions extended to organised workers.
Under the Code, the appropriate government, thus both state and central, will frame schemes to provide social security for unorganised workers. Being schemes, and not legal entitlements, their availability to workers will be contingent on the budgetary provision for these and the discretion of government. With the government simultaneously exercising fiscal ‘prudence’ and drastically reducing all expenditure on social spending steadily, the extension of social security under these schemes will be at best perfunctory. Domestic workers unions such as Penn Thozhilalargal Sangam in Tamil Nadu have, for over a decade, demanded extension of ESI to domestic workers. Demands such as this were within the legal framework under the earlier laws, but with the new Codes in place, this will be outside the purview of the law itself.
The reasons for the non-ratification of C189, however, goes beyond the will of only the government. A study in 2022 looked closely at employers’ perspective on the need for legal provision of rights for domestic workers in India. Employers interviewed in this study articulated a wide range of reasons, from fearing an increase in wages to the possibility of workers becoming more demanding. Employers also stated that an upward revision of wages could “negatively affect the domestic workers, as their services would become unaffordable for a large number of employers.” Employers also raised the issue of implementation gaps if laws were indeed legislated, focusing on the ‘fear’ of inspection and penalising. The study however does not specify who these employers are and there lies the real challenge of ensuring that domestic workers are given protection under labour law.
On International Domestic Workers’ Day (16 June) in 2022, the All India Organizations of Employers (‘AIOE’) and Employers Federation of India (‘EFI’) launched and adopted a ‘Voluntary Employers’ Pledge to Promote Decent Work for Domestic Workers in India’. But again do the AIOE and the EFI represent any employers’ federation of domestic workers? We, of course, know as individuals that each of the members of the employers’ associations are also probably employers of domestic workers but so are possibly all the representatives of government and trade unions. Employing domestic workers in homes in India is so ubiquitous that almost every household that earns possibly three times the minimum wage, is able to employ a domestic worker in our country at a wage far below the minimum wage. Thus, it is indeed true that if domestic workers by law would have to be paid a minimum wage a large number of employers will not be able to remain ‘employers’.
Bringing domestic workers within a legal framework is thus opposed not just by capital, but people like you and I, even as women, who savour the fruit of feudal domination of women, especially from marginalised communities. Giving domestic workers legal rights would mean restructuring the responsibilities within a household. In societies where domestic work is recognised as work and protected by labour laws, it is only the super-rich who can afford domestic workers and thus household chores have to be done by members of the family. This is when we hear the stories of misery of a large number middle class Indian men and women who go abroad to seek the ‘good life’ and yet have to clean their own houses, cook their own food, wash and iron their own clothes and even look after their own kids.
Legalising domestic work is not just about ensuring rights of domestic workers. It is about changing how society views household chores. In India, household chores are tasks often defined and determined by caste/religion and of course by gender. Tasks that involve cleaning or menial jobs are assigned to people from discriminated castes, while a task such as cooking is assigned to people from the same or higher caste as the employer. This is about viewing some tasks as ritualistically pure and others as impure, thereby also determining the dignity attached to that work.
Much has been written about the indignity of domestic work, but it is critical to link this to existing caste discrimination and violence. Many migrants who move to cities and work as domestic workers change their caste names and even conceal their religious identity in order to not just access work but also to secure some respect and dignity at work. The anonymity the city offers allows them to seek a life of greater dignity than one they would experience back in their homes and in their villages.
Further, within the deeply patriarchal society, women, even if they are working outside their homes, even in middle and upper middle class families, are expected to bear the double burden of household chores and caregiving. To avoid this double burden, most of these households employ domestic workers as a solution that conveniently allows them to bypass the difficult conversation around distribution of care work and household chores between men and women in the family.
Low wages of domestic workers protects us all from this uncomfortable question that can rock the boat of family practices. It is not unfamiliar that male trade union leaders, over generations, have relied on their wives/mothers/sisters/daughters to provide and care for the families and in the rare cases, where the trade unionist is a woman, the dependence has been again on mothers/sisters and domestic workers.
It is thus not surprising that the voice calling for rights of domestic workers is very weak and compromised. To strengthen this voice, trade unions will need to recognise household chores and care work as not just work but necessary work that requires a collective solution. In some recent feminist writings, there has been a demand for wages for care work and household chores performed by women in families, drawing parallel to the demand for a decent wage for domestic workers. This argument though recognises the importance of care work, by monetising the work it allows for and justifies its perpetuation.
To move towards a world where women can fully participate on an equal footing with men in economic production and public sphere, we need to come together to commit to share the burden of care equally within the family along with collectively demanding social provision for collective services such as laundries, daycare centres, canteens, old-age care facilities etc. These facilities could also then be locations of decent work for both men and women.
None of this can take away from providing legislative protection to one of the largest sources of employment in the country. (IPA Service)
Courtesy: The Leaflet
Dithhi Bhattacharya is Vice President, Karnataka Garment and Workers Union affiliated to the NTUI.
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