domestic-workers

Women Domestic Workers and Legal Protection:

It was realised that migrant women workers from slums were the only earners in the family and about 95 per cent of them were all earning their living through domestic work, that is they were selling the only skill they had of cheap domestic labour to the high-rise apartments around the slums. About 78 percent of these domestic workers were women. It was realised that these women domestic workers were helpless and had to come to terms with the exploitation in their place of work. The struggle first began with personal representations and dialogues with the individual employers. Later, a draft bill was prepared. This drafting bill was first drafted in 1994 and it was the result of the efforts of three Mumbai based NGOs. These NGOs were Youth for Unity and Voluntary Action(YUVA); Bombay House-Workers Solidarity Group; and `Setu' - a Nirmala Niketan College of Social Work Project.

The Domestic Workers Bill has been formulated to:

Cover all disputes relating to domestic workers;
Recognise them as being within the fold of the working class;
improve the conditions of domestic workers; and
give them access to the courts.

Full-time domestic workers are generally not given any kind of job description. They are generally asked to come and look after the children and end up doing all the household work: from looking after the children to washing the car, to giving a `massage' to the `madam' or her employer and all other kinds of work. Therefore, this draft bill has defined what is domestic work. The domestice worker also includes the gardener, the driver, the liftman, and so on. The draft bill provides for working hours, holidays and leave. The working hours have to be spelt out because, in the case of domestic workers who live with their employers, are expected to be `on call' round the clock for 24 hours. The draft bill states that no domestic worker be allowed to work for more than eight hourse on any day or not more than 48 hours per week. If a domestic worker works on any day in excess of this limit, there is a provision for overtime wages. A rest period is also provided of eight continuous hours has been provided in the draft bill.

The workers have been classified into two main categories: skilled workers and unskilled workers. Skilled workers include the cook, the security guard, the driver, the liftman, the waterpump man, the telephone operator and all those who use sophisticated gadgets and instruments like washing machines, electrical appliances, and so on. Unskilled workers include the remaining type of domestic workers.

The other provisions in the draft bill relate to the following issues:
1. Leave: Every domestic worker will be entitled to 15 days leave after one year of service.

2. Minimum Wages: For full-time, unskilled domestic worker for Mumbai and Pune cities, minimum
    wage should be Rs.1,600/- per month. For other areas, it will be Rs.1,200/- per month. The
    minimum wages for part-time domestic workers in the unskilled category, should be Rs.200/- for
    one hour of work. The wages for the skilled worker shall be fifty per cent more than that of an
    unskilled worker.

3. Special Allowance: A special allowance increase on the lines of the Shops and Establishment
    Act, 1948, should be provided, taking into account the rise in the cost of living.

4. Bank Account: Many domestic workers have unbelievable trust in their employers. This trust has
    been betrayed in several instances. A domestic worker had worked for 17 years and wanted to
    go home to attend a marraige in the family. Her parents were looking forward to her return as they
    expected her to bring back a `sizeable' amount. When she was given a paltry sum of Rs.3,000/-
    for 17 years of service, she was shocked. She was under the impression that her salary was being
    accumulated in a bank account. Therefore, the draft bill provides for a bank account to be opened
    by all employers.

5. Living conditions: Living conditions should be suitable for human habitation with adequate
privacy, security and hygiene as there have been several instances of sexual harassment of
domestic workers.

6. Termination: Domestic workers are normally `hired' and `fired' very easily. If he/she asks for an
    increase in wages, he/she is asked to leave. Two domestic workers, who were young girls, were
    sent out at midnight as the employers found them to be getting ` too cheeky'. The clause on
    termination specifies that no employer could dispense with the service of domestic worker except
    for misconduct. There is a provision for notice and compensation for termination.

The draft bill also provides for bonus, provident fund, gratuity, welfare fund and letters of employment for domestic workers. the campaign has also asked for women inspectors to enforce these provisions. Social workers and NGOs could be part of this vigilance body.

THE DOMESTIC WORKERS CONDITIONS OF SERVICE BILL, 1994

Statement of Objects and Reasons Domestic work in India is an age-old industry. However, the working conditions of domestic workers are highly exploitative. Since no protective legislation includes them, they are exposed to insecurity of employment, meagre wages, indefinite working hours, absence of any leave and medical facilities.

Yet according to the 1971 national census, domestic workers form 5.9 per cent of the total labour force. According to the Gharelu Kamgar sanghatana, a union of domestic workers, the number of domestic workers in the major cities together is 5 lakhs. According to a study conducted by the Social Welfare Department of the Government of Maharashtra in 1990, there were 78,000 women domestic workers in the city of Mumbai alone.

If the benefits of existing labour legislation are to reach this large mass of workers, it is then necessary that the law should take note of the unique features of the industry and should provide not merely for the welfare of the workers but also for regulation of employment itself.

It is with this perspective that this Domestic Workers (Condition of Service Bill), 1994, is being formulated. This Bill is formulated:

to cover all disputes relating to Domestic Workers;
to recognise them as being within the fold of the working class;
to improve the conditions of domestic workers; and
to give them access to courts.

Preliminary

Short Title, Extent and Comenencement

1. This Act may be called the Domestic Workers (Conditions of Service) Act, 1994.
2. It extends to the whole of the State of Maharashtra.
3. The State Government, by notification in the official gazette, will announce the date from which the Act will come into force. This date will be within 6 months of passing the bill.

Definitions

In this Act, unless the context otherwise requires:

1. 'Domestic Worker' means a worker employed to do housework.
2. 'Child' means a person who has not completed his fourteenth year of age.
3. 'House work' means any of the following tasks:

cooking or a part of it;
washing clothes;
washing utensils;
dusting or cleaning of house or a part of it;
looking after or caring for people-infants, children, the sick, the old, the handicapped and others;
fetching children;
fetching milk;
marketing;
ironing clothes;
washing cars;
running errands;

4. `Employer' means any person/s who utilises/employs a domestic worker, by whatever name called. Domestic workers employed through a contractor / agency will be deemed to be the employee of the person whose house/place she works in.

5. 'Registering body' means a body appointed under the Act which registers domestic workers.

6. 'Year' means 240 working days.

7. 'She' means a female or male working as a domestic worker.

Working Hours, Holidays and Leave

Working Hours

No domestic worker shall be required or allowed to work for more than ten hours in any day; or for more than 60 hours in any week.

If a domestic worker works for any period in excess of the limit fixed by this section, she is entitled to the payment of overtime wages. If she works overtime, her work should not exceed twelve hours in any day and in the aggregate, 72 hours in any week (not including rest periods).

Wages for Overtime Work
Where any domestic worker is required to work overtime, she shall, in respect of such overtime work, be entitled to wages at the rate of twice her ordinary rate of wages.

Intervalfor Rest
The perilm of work for a domestic worker each day shall be fixed, and no continuous period of work shall exceed five hours and no domestic worker shall work for more than five hours continuously before she has had an interval for rest of at least one hour.

Every domestic worker is entitled to personal free time for a period of at least three continuous hours during the day.

Every domestic worker will be entitled to a night rest period of at least eight continuous hours.

The periods of work of a domestic worker shall be so arranged that inclusive of her intervals for rest they shall not spread over for more than twelve hours in any day.

Weekly Holidays
Every domestic worker shall be entitled to one day holiday in a week, and for that the domestic worker shall be paid, not withstanding any contract to the contrary, wages at a rate equal to the daily average of her wages for the days on which she has worked during the week immediately preceding the holiday,
exclusive of any overtime earnings.

For a part-time, piece-rated worker under two employers, the weekly day off should be the same day.

Leave
Every domestic worker shall, after one completed year of service with the employer, be entitled to 30 days leave with wages.

The wages to be paid to a domestic worker for such leave shall be equal to one month's salary.

Sick Leave
Domestic workers shall get 10 days of sick leave per year.

Wages
Minimum rates of pay shall be calculated by the hours of work or by piece-rate.

Bonus
Domestic worker shall obtain a minimum of one month wages as bonus per completed year.

Living Conditions
The accommodation provided for house workers by the employer shall be reason- ably suited to human habitation with adequate privacy , security and hygiene. Decent bathing and toilet facilities should be provided.

Notice of Termination
No employer shall dispense with the service of a worker who has been in employment for not less than a year without giving 30 days notice in writing or wages in lieu of such notice.

For less than a year but more than three months without giving such person 14 days in writing or wages in lieu of such notice.

Compensation for Termination
A compensation shall be paid by the employer, if he terminates the employment of a domestic worker. This compensation would be equal to 15 days for each year's work. This payment is condition precedent to termination.

III

Letter of Appointment and Maintaining of Registers

Issue of Letter of Appointment by Employer
1. Every employer of a domestic worker shall furnish to the domestic worker a letter of appointment, the format of which will be made available with the registering body.

2. The letter of appointment shall be in form given in the Schedule.

3. Whenever any change occurs in the particulars mentioned in the letter of appointment given by the employer to a domestic worker, the employer shall, before instituting such changes, communicate in writing the change to the domestic worker.

Maintaining of Registers
The employers will cooperate with the domestic worker in maintaining a register which will remain with the domestic worker and a copy with the employer .

The register will contain all the details in terms of the attendance, leave holidays and wages, including overtime and bonus paid to the domestic worker.

Inspectors and Chief Inspectors
1. The State Government shall, by notification in the Official Gazette, appoint such women who are members of NGOs and unions as it thinks fit to be inspectors for the purpose of this Act, for each Municipal ward.

2. The State Government shall, by notification in the Official Gazette, appoint a woman to be the Chief Inspector who shall exercise the powers of an inspector throughout the State.

3. Every Chief Inspector and Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860).

4. The State Government may for the purpose of advising and assisting the Inspectors in the efficient performance of the functions under the Act, appoint an advisory board consisting of not more than five social welfare workers/rep- resentatives of trade unions / domestic workers themselves out of whom at least one third would be domestic workers. This advisory board would also function as a vigilance body.

Power of Inspectors and Vigilance Body
Subject to any rules made by the State Government in this behalf, an Inspector, including a Chief Inspector, may for the purpose of ascertaining whether any of the provisions of this Act has been complied with by the employer of a domestic worker:

require the employer to furnish such information as may be necessary for the above purpose which would include the inspection of the attendance, leave and wage register;
inspect the premises if there is any complaint of violence or harassment; and
exercise such other powers as may be prescribed.

Duty to Give Information

Any person required by an Inspector to furnish any information under Section 12 shall be legally bound to do so.

Registering Body

The State Government shall constitute a Registration Body for each municipal ward which shall maintain a register of domestic workers. Women domestic workers will have proportionate or 50 per cent, whichever is higher, representation among the representative of workers in the Registering Body.

Welfare Fund
The domestic worker, with or without the help of the employer, will open a postal/bank account in her own name wherein the employer deposits 10 per cent of each month's wages. This 10 per cent is over and above the wages paid according to the Act. This could be put in the PPF or the postal equivalent.

Penalties and Procedures Penalty

If any employer contravenes the provisions of any section of this Act or any rules made under this Act, he shall be punishable with fine which may extend up to five thousand rupees.

Cognisance of Offences

Any dispute between domestic worker and employer including disputes regarding increase in wages, unfair treatment and dismissal will be tried by the Labour Courts, Industrial Courts and the High Courts.

VI Miscellaneous

Agreements Inconsistent With the Act

1. The provisions of this Act shall have effect not withstanding anything inconsistent therewith contained in a contract of service, whether made before or after the coming into force of this Act.

2. Nothing contained in this Act shall be constructed to preclude a domestic worker from entering into an agreement with her employer for granting her, in respect of any matter, rights or privileges which are more favourable to her than those to which she will be entitled under the Act.

VII

The State Government shall notify in the official Gazette, and make rules to carry, out the purpose of this Act within 6 months of this Act coming into being.

Source: CED Reference: title:`Symposium on Women's Rights at the Workplace: Emerging Challenges and Legal Interventions: Proceedings and Select Papers/Presentations [CED Ref. B. A21b.B60].