Addressing Paid Domestic Work: A Public Policy Concern

Author(s): NIMUSHAKAVI VASANTHI

Source: Economic and Political Weekly , OCTOBER 22-28, 2011, Vol. 46, No. 43 (OCTOBER
22-28, 2011), pp. 85-93
Published by: Economic and Political Weekly

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 REVIEW OF WOMEN'S STUDIES

Addressing Paid Domestic Work:

A Public Policy Concern

NIMUSHAKAVI VASANTHI

While domestic workers are covered by the legislative

|he recently adopted International Labour Organisa
Convention on domestic work, 2011, draws atten
framework in many countries, in India they stand
JL long-standing demand for decent work in the un
excluded from national legislations that deal with
sector and, in particular, one which is associated with
minimum wages, dispute settlement, conditions of
whelmingly performed by women. The convention ca
work, social security and workplace injuries.
fyingThis study
states to use principles and guidelines provided b
vention
draws upon the findings of a research project to formulate legislative responses to the issue
of the
work for domestic workers. In this context, it becomes
National Domestic Workers Movement that was
to address paid domestic work as a public policy concer
conducted between February 2010 and February 2011.
Paid domestic work is commonly associated with three
It sets out the definition of domestic work as a for caring, cooking and cleaning as well as being
stand
with the three "d"s, the consequences of migration, bei
conceptual issue that is necessary for understanding
dangerous and dull. The association with low skills, l
domestic work and explores the constitutional and
and often precarious employment has meant that dome
employment law framework and the challenges in
is not associated with standard-setting as few norms
this
legislating for this sector. It concludes with sector. International conventions and domestic l
exploring
often exclude these workers or they are excluded by im
ways of reducing the gap between law and practice.
The push factors for domestic workers are rooted in
insecurity and growing insecure employment. The d
domestic work is rooted in slavery, colonialism and ot
of servitude. The rising demand for domestic worker
years is located in the increase of participation of wom
labour force, the ageing of societies, intensification of
of adequate public care policies and the absence of wo
reconciliation policies.1
Some pull factors for part-time domestic work are:
ability, the ease of entry, given that no formal qualifi
prescribed, the nature of the work which is perceived
strenuous than manual labour; and most importantly,
tunity it provides to balance work and home, includi
after small children.2
The ilo background paper locates the debate around
work in an older debate around status and contract, wit
work often not being categorised as contract employment
terms and conditions of employment. Payment in kin
ment as a continuance of a relationship of dependence
labour reinforce the association with status rather th
contract entered into by both parties. Domestic work, thu
I gratefully acknowledge the financial support from Indian Council of
Social Science Research for this project. I would like to thank the National as a vestige of an old form of employment associate
Domestic Workers Movement and Sister Lissy in particular, for their status of the worker, where rights and entitlements are no
assistance during fieldwork, which was carried out between February negotiation. Its association with slavery and other form
2010 and February 2011.1 also would like to thank Kalpana Kannabiran
tude highlights the need to pay special attention to this
and Padmini Swaminathan for their comments on drafts of this paper.
The lack of public care policies in the areas such as
NimushakaviVasanthi (vasanthi_nkavi@yahoo.com) iswithNALSAR facilities, nursing facilities, care for the aged, or eve
University of Law, Hyderabad.
educational facilities has contributed to the growth

Economic & Political weekly nran October 22, 2011 vol xlvi no 43 85

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for domestic workers. The outsourcing of such responsibilities
from the public sphere to the family/household has meant that,
instead of concentrating on cooperative or collaborative public
care facilities, there is a growth in demand, which is actively sup
ported by the state, for cheap migrant domestic labour. The Fac
variety of jobs were interviewed to gain an insight into the com
plexity of defining domestic work, the perception of the workers
towards their work, the push and pull factors as well as the reali
sation of rights such as the right to a minimum wage. The work
ers were asked about their awareness of the notification issued in

tories Act, 1950, makes it mandatory to operate creches, but such Hyderabad on minimum wages and its effect on their wages and
legislations are not enforced. Moreover, since it applies only to other conditions.

establishments with a minimum number of women employees, The essay sets out the definition of domestic work as a concep
few establishments even within the formal sector are included in tual issue necessary for the understanding of domestic work and
the provision of public care policies. The lack of neighbourhoodthen moves on to explore the constitutional and employment law
schools and the delay in the implementation of the Right to Edu framework and challenges in legislating for this sector. Finally,
cation is a reflection of the low priority accorded to public care the paper concludes with exploring ways of reducing the gap
systems by the state. The primary responsibility to provide forbetween law and practice.
such care remains with the individual who would have to depend
on cheap labour to adequately meet the need for such care. 1 Frameworks Appropriate to Define Domestic Workers
The ratification of the convention on domestic work by IndiaThis sector suffers from under-regulation for a variety of reasons,
would require revisiting public policy choices that have beenone of which is the lack of definition. Several frameworks are in
made and are continuing to be made in terms of the availabilityplace for defining domestic work, such as the distinction drawn
of quality care facilities and the need to protect the rights of thosebetween productive and unproductive work, or the dichotomy
who are subsidising the state in providing such care. While between public and private activities, or the distinction between
domestic workers figure within the legislative framework in manycare work and domestic work or the existence of forced labour
countries, India does not explicitly or implicitly include domestic and slavery within domestic work.
workers in a majority of its labour legislation. Domestic workers Traditionally, the classification of work as productive and
stand excluded from national legislations providing for minimum reproductive labour has meant that domestic work, which does
wages, dispute settlement, conditions of work, social security not produce any goods of durable value, is classified as non
and workplace injuries. productive, reproductive and/or unproductive labour. The division
Following international attention on domestic work, India hasof labour on the basis of sex also contributes to the understanding
begun to address the issue by the inclusion of domestic workersof domestic work as the work done at home rather than in terms
in some of its legislation governing working conditions. The first of the range of jobs that are included within domestic work. This
is the Minimum Wages Act, 1948, which did not include domestic association with the private and domestic sphere has the effect of
workers within the schedule. Four states (Karnataka, Kerala, excluding women from consideration in matters of policy and, as
Tamil Nadu and Andhra Pradesh) have made amendments to its outcome, into legislation.
extend this protection to them. The new legislation providing The exclusion of workers on the basis of the place of work, i e,
social security protection to unorganised workers is the first tothe domestic sphere, although prevalent in all labour legislation,
explicitly include domestic workers. is most evident in the new Bill on Protection of Women from
The unprecedented attention given to domestic work in the Sexual Harassment, which was to be introduced in Parliament in
past few years provides an opportunity to look at public policy 2010. The legislation extends to most employment in the formal
implications for domestic workers. Although there have been leg sector as well as in the informal sector. Domestic workers stand
islative initiatives regarding domestic work performed by children excluded on the ground that since they work in private house
as hazardous work and fixing minimum wages for workers in holds, the law would be an unwarranted intrusion into the
some states, paid domestic work sector continues to be addressed privacy of people's homes.
inadequately. The implications of the new ilo instruments, the Regulation and valuation of domestic work challenges the
convention as well as the background paper, are being examined existing paradigms of regulation as the activity is not carried on for
with a view to changes in public policy. profit; there is no manufacturing process and no final product. The
The essay draws upon the findings of a research project located traditional idea of work, which ordinarily refers to paid employ
in Hyderabad, which involved interviews with domestic workers ment done outside the home in fixed places for fixed number of
through the National Domestic Workers Movement (ndwm), a hours, does not fit these workers. A large number of domestic
group engaged in organising domestic workers in Hyderabad.workers work part-time for wages that are far below the statutory
The project included a survey of social conditions as well as minimum wage, working essentially for food or accommodation.
access to the right to decent work by domestic workers in terms of Being so poorly paid, it does not figure as a major source of income
legislative protections. The project, conducted from February 2010 or employment. It is necessary to re-conceptualise "work" itself in
to February 2011, apart from interviewing domestic workers also order to include paid domestic work within the protection of law.
interviewed employers and labour department officials in the Bridget Anderson writes that,
city of Hyderabad with the help of the Hyderabad chapter of the
Paid domestic workers are often required to work to far higher standards
ndwm, which has its presence in various cities in India. Several than employers themselves would meet. They often perform degrading
categories of workers, both part-time and full-time, carrying out a tasks that it is unlikely that any woman with a choice would be

october 22, 2oii vol xlvi no 43 0353 Economic & Political weekly

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 prepared to undertake. Tasks I have been told of include flushing em relatively better conditions of work enjoyed by some categories of
ployers' toilets, cleaning pet cats' anuses, scrubbing the floor with a care workers. Both Raghuram (2001) and Chigateri (2007) com
toothbrush three times a day, or standing by the door in the same posi
menting on Indian domestic workers, observe the intersections of
tion for hours at a time (Anderson 2001: 28).
caste within domestic work and its consequences in terms of
A definition of domestic work must necessarily prohibit prac working conditions. The work referred to as care would normally be
tices reminiscent of slavery or servitude in any form. carried on by workers with a higher social standing in the caste
In countries that receive a significant number of immigrant hierarchy than those associated with the supposed menial jobs of
domestic workers, there is now a distinction sought to be made cleaning and washing. Though it is true that caring for children
between domestic and care work. In the United States and New or adults would normally involve multitasking and include an el
Zealand, both destination countries for domestic workers, it has
ement of washing or cleaning, for employers to even allow work
been observed that tasks tend to be separated between those ers
of into the house to do these jobs would require them to have a
the nanny and those involving cleaning. It is acknowledged that
higher social standing.
internationally domestic work involves cooking, cleaning, caring, These findings have been confirmed in the survey of domestic
workers done in Hyderabad. The participants in the study were
but all forms of domestic work do not represent all three (Callister
et al 2009). Duffy (2005) identifies two conceptual frameworks
all women and among them an overwhelming 84% belonged to
to understand the term care work and names them the nurturance scheduled castes (scs), scheduled tribes (sts) and Other Back
and reproductive labour frameworks. In the nurturance frameworkward Classes (obcs). Although most of the participants were non
"care" is defined as a responsive action in the context of personal literate, there were workers with some literacy and there was a
relationships, whereas reproductive labour is the work required small 12%, who had finished high school. Among those surveyed,
to sustain the labour force. The reproductive labour framework women who were employed full-time and provided services
does not include the emotional or relational aspect that the term such as cooking or looking after children or the elderly had
care involves when viewed through the nurturance framework. a higher degree of literacy than those who were engaged in
cleaning and washing.
Domestic vs Care Work
The survey showed that a larger number of women from scs
(about
This distinction is not without controversy as some scholars also 40%) were engaged in "pure" domestic work such as
cleaning,
categorise care work into at least eight kinds of work: day care, care washing whereas their numbers were equal to that of
for the sick, emotion work, social capital development, growth
other castes in jobs like child care or elderly care. The wage levels
of workers
work, housework, yard work and household management where the in full-time care work was higher than for domestic
work and they enjoyed better housing, were relatively better
distinction between reproductive and emotional work is blurred
educated
(Williams 2001), while others deliberately choose to use the and aware of legal protection. Most workers who
terms domestic and care work interchangeably (Blackett 2011).
worked part time lived in semi-permanent houses but those who
The use of the term care work to represent subcategories worked
within full-time or as care workers had better access to pucca
houses. During the course of the project it was suggested that
domestic work has consequences which need to be thought through.
Care work, viewed through the nurturance model introducesthese workers were not to be considered as domestic workers as

differences between "menial" and "spiritual" domestic work they were far more protected than the ordinary domestic worker.
(Duffy
Care workers registered with agencies enjoyed higher levels of
2005). There are also connotations of racial segregation within
domestic work, differentiating menial jobs of cleaning, washing,
income and employment security than those employed directly.3
We need to consider whether in India we should distinguish
cooking from care, which do not involve these jobs. Duffy (2005)
between care work and domestic work and whether we should
interprets that the two theoretical frameworks - the nurturance
opt
model and the reproductive labour framework - as having to delineate care work performed through service providers
very
fromas
different implications for understanding care. Care defined those employed directly. We will also need to consider if
bringing
nurturance includes not only teachers, doctors and nurses but a the two together might make it possible to argue in
terms
range of other educational, social and religious care givers. The of the comparable worth of domestic work in relation to
inclusion of better paid, highly educated workers within thecare work, while separating the two might reinforce a caste
broad
framework of care workers complicates the debate. She basedargues
hierarchy with domestic workers at the bottom.
The other dimension that needs to be addressed is trafficking
that it is the lack of a conceptual clarity in defining care work
and its linkages with domestic work. While the Palermo protocol
which contributes towards reproducing labour inequalities.
After considerable debate within the ilo on the nomenclature
addresses the issue of migrant domestic labour, it has been cri
to be used, the ilo has preferred to use the phrase domestic tiqued
work,because of its focus on law and order rather than on human
thus, retaining the reproductive labour paradigm as wellrights
as its(George et al 2010). Further, the confluence of trafficking
and domestic work might also work to the detriment of domestic
relationship to work done at home rather than in the public sphere.
Thus, the term domestic work does not include maintenance or if employment is linked to the production of identity cards
workers
or any such regulatory mechanism. The economic fragility of
cleaning or any of the other wide variety of work that otherwise
falls within domestic work if it is done in the public sphere.domestic workers should not be ignored in the debate on national
security
This debate is important in the Indian context in relation to and the united efforts of countries to combat trafficking
caste-based division of work within domestic work as well as
bythe
increasing restrictions on people seeking employment.

Economic & Political weekly 0323 october 22, 2011 vol xlvi NO 43

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REVIEW OF WOMEN'S STUDIES

The above concerns around definition are demonstratedthe

by supervisory
the character of the work and home-based personal
manner in which the Domestic Workers (Regulation of care workers which includes the various jobs associated with
Employ
both
ment and Conditions of Service) Bill, 2002 is drafted. The children and the aged. Classification 9 refers to domestic
draft
and related
bill provides for mandatory registration of domestic workers who helpers, cleaners and launderers. This again includes
cannot seek employment without registration. This provision
private households as well as commercial establishments.
seems to reflect the concern with trafficking as a crime In addition to this, the new convention defines domestic work
rather
as "work
than the rights of those trafficked. The chapter on conditions of performed in or for a household or households" assum
ingtakes
service provides for a minimal set of rights, which neither that countries adopting the convention will further refine the
into account the vulnerability of workers in this sector, definition
nor guar in terms of classifications and terms of employment.
antees core labour standards such as freedom of association,
However, in various legislations and other provisions in force
acrossor
freedom from discrimination, prohibition of forced labour the world, there are references to various categories of
worst forms of child labour. domestic workers such as cook, butler, nanny, gardener, laundry
personnel, security guard, driver, household employee, elder
Most of the workers interviewed found work through informal
networks and were employed within 2 kms of their caregiver
place of and a variety of other categories. These categories are
then
residence. The reasons for choosing domestic work ranged either included or excluded from legislations.
from
In India,
lack of mobility, illiteracy and that ease of entry and the need to there have been various proposals on regulating
domestic workers. It would be useful to examine the different
balance work within the home and outside the home. Legislative
approaches
protections do not focus on any of these issues and provide for a taken towards the definition of "domestic work". The
bare minimum set of rights such as minimum wages Domestic
withoutWorkers (Regulation of Employment and Conditions of
Service) Bill, 2002, one of the draft legislations on affording
addressing substantial rights such as the right to decent standards
of work, substantial rights of social protection and training protection
to move for domestic labour in India, defines the application of
the Act to any household work or allied work such as cooking or
out of domestic work, or awareness programmes for employers.
As such, the proposed law does not satisfy the requirements
part of
of ait, washing clothes/utensils, dusting or cleaning the house
human rights approach to domestic work. or a part of it, looking after or caring/nursing infants, children,
The reference to human rights instruments by the ilo marks
sick, old, handicapped and others, attending telephone, door bell
the move towards a comprehensive human rights framework that
and/or any other such sophisticated instruments, running errands
and such
includes labour rights as a mechanism of ensuring access toother related work.5
rights. International Human Rights law refers to three obliga
There is no definition of domestic work independent of the
tions of the state - to respect, protect and promote human rights.
general applicability of the Act. As this shows, the inclusion of a
This duty is not discharged by mere non-interference of large
the state
variety of work into a single occupation is a characteristic of
in the area of human rights, but extends to promote anddomestic
protect work. Thus, occupations as varied as cooking, nursing,
human rights. This obligation to promote and protect washing
requiresand cleaning are classified as a single occupation.
The draft
proactive steps by the state to take appropriate legislative steps to proposed by the National Campaign Committee for
secure the rights of its citizens. Unorganised Sector Workers, i e, the Domestic Workers (Regula
tion of Employment, Conditions of Work, Social Security and
2 Definitions according to the ILO and Draft Legislations
Welfare) Bill, 2008, defines domestic workers, establishments
It is well-recognised that paid domestic work remains invisible,
but not the jobs under domestic work. According to this bill,
domestic
as it takes place in the house and is predominantly carried out by worker "means a person between the age of 15 and 60
women. The reproductive significance of domestic work is often
years working in any domestic employments, directly or through
either disregarded or at best undervalued. Its coverage under ex or contractor whether exclusively for one employer or
any agency
isting international conventions is poor and legislative protection
in a group or otherwise one or more employers whether simulta
offered by various states is inadequate. The exclusion of domestic
neously or otherwise and includes a casual or temporary domes
workers from the ambit of law and from a range of collective and migrant worker; but does not include any member of
tic worker;
insurance mechanisms renders them acutely vulnerable.4
the family of an employer".6
The newly-adopted ilo Convention based on this report Herehas
again there is no definition of the place of work, nor any
proposed the setting up of complaint redressal mechanisms and
classification of domestic work. These are only two of the several
stressed the need to organise domestic workers to reduce draft
the gap
bills that have been proposed to regulate the conditions of
between the entitlements of decent work and the realitieswork
of their
for domestic workers. They do not classify domestic work
working conditions. The ilo's engagement with domestic
likework
the ilo does, on the basis of the nature of the work.
has focused on three main concerns, i e, the invisibility of the The adoption of the new convention by the ilo may persuade
sector,
the gap between law and practice and the need for collective
governments to pay more attention to these classifications and to
action by domestic workers. ensure that the standards laid down with regard to different
The ilo International Standard Classification of Occupations
classes of workers are followed, whether the workplace is the
(isco) addresses domestic work through two classifications:
home or a commercial establishment. In spite of being actually able
5 and 9. Classification 5 addresses both commercial establishments
to classify domestic work into various categories, it was found
and private households and covers housekeeping and focuses
that it on
is still important to delineate domestic work performed by

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 REVIEW OF WOMEN'S STUDIES

individuals in a private home from similar activities done of

in basic
the freedoms such as freedom of association and freedom
public domain. Common to various categories of domestic workers
from exploitative conditions of work, minimum age of work and
is the place of work and the special vulnerabilities that arise
basic rights including the right to equality, non-discrimination,
from the location of the work. Since labour standards were not liberty in terms of provisions for living wages and adequate
followed because the home was not recognised as a workplace, thesocial security protection. The need for a public policy approach
convention now recognises the home as the workplace insofar towards
as domestic work stems from this need to address constitu
paid domestic work is concerned. tionally the guaranteed rights for domestic workers.
But even after the recognition of the home as a workplace, the The core labour standards as set out by the ilo declaration on
classification of work is important. The Child Labour (Prohibition
fundamental rights and principles at work such as the freedom of
association, right against discrimination, prohibition of child
and Regulation) Act, for instance, talks about domestic workers
labour and forced labour can be located within Part hi of the
and servants. The distinction between the two is not clear. Work

Indian Constitution, which contains the fundamental rights

done in a household would include work such as driving, which is
considered skilled but done for a household and performed out
guaranteed by the Constitution. Articles 14,15,23 and 24 provide
side the home. Such drivers receive higher wages than women
for the right to equality, right against discrimination, right against
who perform skilled jobs within the employers' homes. exploitation in terms of child labour in hazardous employment
India, like many other countries, needs to have an understanding
and a right against forced labour or begar (i e, the rights against
employment without payment). The courts have widened the
of the diversity of work, skill and responsibilities involved in
domestic work (Table 1). We need to understand the difference
scope of the right to life under Article 21 to include a prohibition
of forced labour which was expansively interpreted as the non
between direct and indirect employment on the basis of the nature
of the job and the skill level generally associated with them. It is
payment of minimum wages.7 The rights to dignity,8 livelihood,9
possible to evolve a simple classification of domestic work draw
privacy,10 protection from sexual harassment,11 and the right to
a safe and non-hazardous workplace12 as well as the right to
ing on the variety of ways in which the Indian domestic workers
operate and the levels of vulnerability (Callister et al 2009: 8). health13 have been read into the right to life. The rights under
Part hi have been held to be indivisible and
Table 1: Ways of Understanding Domestic Work
Cooking Cleaning Childcare Elderly Care Driving the right to equality should be read with the
In home Parttime Through agency Catering Housekeeping Nanny Ayah/nurse right to life.14
Independently Cook Housemaid Nanny Ayah/nurse In addition to this express reading of rights,
Fulltime Independently Cook Housemaid Nanny Ayah/nurse state action in terms of legislating on labour
Through agency Catering Housekeeping Nanny Ayah/nurse welfare has been upheld, in spite of challenges
Live in Cook Housemaid Nanny Ayah/nurse on the basis of violation of the right to equality
Live out Cook Housemaid Nanny Ayah/nurse and an unreasonable restriction on the right to
Out of Restaurant Launderers School/ Old-age Driver/
carry on trade and business.15 The pursuance of
home creche homes chauffeur
the directives has resulted in legislations on
These differences have an impact on wages, conditions of work, social security, minimum wages, equal remuneration, maternity
amenities at work, responsibilities of employers, right to privacy relief and health and safety at the workplace. The lack of protec
in case of live-in workers and health and social security benefits. tion against termination of employees was held to be violative of
It will be important to understand varying vulnerabilities of the right to equality and as an unreasonable and arbitrary power
workers to develop adequate impact programmes (Table 2). even if it was part of the contract of employment.15

Table 2: Vulnerability of Workers

The application of fundamental rights has not been denied
Low Fulltime Independently/ Cook/caterers Elder care in their entirety to the private sector as well. Although public
Vulnerability through agency employment has been accorded a higher status is terms of protec
ofworker High Parttime Housemaid Cook Eldercare/ tions they have not been denied in the private sector as far as
for cleaning childcare
child labour or forced labour or bonded labour are concerned. In
a recent decision of the Supreme Court on a petition filed by the
3 Constitutional and Legislative Framework
National Campaign for Dignity and Rights of Sewage and Allied
Workers of the regarding
This section examines the conflicting frameworks Delhi Jal Board, delivered in July 2011, the Court
the
observed
legal position of domestic workers. While that the Constitution
the Indian state could not deny responsibility merely
because
recognises equality and entitlements to employmentlivelihood,
a dignified was outsourced to private contractors. In
spiteof
other factors often hamper the application of this constitutionalrights
fundamental framework, domestic workers are
unable
for workers in the unorganised sector. The vasttolabyrinth
access legislative protections.
of labour
legislation in India operates in a dualistic manner embracing
Legislative
a small proportion of workers identified Protection: Legislative
as "organised" but protection
out is far from uniform in
the application
casting the vast majority of unorganised workers. of laws to domestic workers. Here we examine
laws which exclude domestic worker legislations which expressly
Part III Rights and Their Relevance include them and those
to Domestic that can apply provided they are inter
Workers'
pretedenable
Right to Decent Work: Decent work must more broadly.
the realisation

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REVIEW OF WOMEN'S STUDIES

industrial
Exclusions: Although the fundamental rights are capable of an peace through a variety of dispute settlement proce
dures, is wide enough to include all occupations and avocations
expansive interpretation and apply to all categories of workers
including domestic workers, there have been difficulties in
of workmen, it has been interpreted to exclude domestic workers
working in private homes.19 The same workers are included
extending protections to domestic workers under employment
within
protection legislation. The exclusion of domestic work from the legislation if the workplace is a more organised space,
the
such
definition of work has made it difficult to interpret labour as a block of apartments where several workers are engaged
legisla
in providing services to the flat owners.20 Similarly, the definition
tions to include them. To illustrate this point the interpretations
of the Trade Unions Act 1926 and the Industrial Disputes Act,
of factory or establishment in the Factories Act/Employees Provi
1947 are given below. dent Fund Act usually operates only in establishments where
10/20
In the 1960s, the Madras High Court refused to interfere or more workers are employed. Thus, a private household
with
where domestic
the decision of the registrar of trade unions refusing to register a work is carried out is not intended to be covered

union of workers under the Trade Unions Act, 1926, on the

under this Act. The assumption being that it is only industrial
workcould
ground that these workers were performing duties which that gets the protection of the law and not work done in
non-office
not be said to be state duties and hence were not workers carry settings. This is curious, given that in India the indus
ing on a trade or business. The plea by persons employed for
trial workforce is small. Most of these legislations, for example,
doing domestic work in the Raj Bhavan, i e, the governordoofnothe
operate in the agricultural sector or in the informal sector.
state's residency, such as gardeners, peons, household The
staff
interpretation of the terms "industry" and "worker" in the
engaged for domestic work and other services, maintenance of
major legislation in India, i e, the Industrial Disputes Act, 1947,21
governor's household, staff and state guests, that they were
rather than explicitly in the words of the statute, exclude domestic
providing material services which were systematic was workers.
rejected.The terms are wide enough to cover all employments in
trade
The registrar was of the view that before a trade union canand
be business as well as the services sector but have speci
registered, the members must be connected with a fically
trade excluded
or the domestic sector.22
industry or business of the employer, and that if such condition
The growth of the services sector in contributing to economic
growth
was not being satisfied by workers, they could not register is being noticed within the tax regime, but even within
a trade
the being
union. The court held that the services rendered by them services sector, work that is done at home is not being
purely of a personal nature they were not contemplated asThe same domestic work, i e, housekeeping or cooking,
counted.
workmen under the Act.17 cleaning and care that is done in offices and factories and other
Similarly, in the Bangalore Water Supply and Sewerage Board vs
establishments23 gets counted as work but not when done at home.
A Rajappa and Others,18 the Supreme Court of India, while
Possible
interpreting the term "industry" in the Industrial Disputes Act, Inclusions: The legislations that can apply to the infor
mal sector and thereby to domestic workers are Bonded Labour
1947, held a variety of occupations, professions and undertakings
as industry, laying down a test of systematic activity which
System (Abolition) Act, 1976, Child Labour (Prohibition and Reg
involved cooperation between employee and employer that
ulation) Act, 1986, Workmen's Compensation Act, 1923, Trade
resulted in the production of material goods and services.Unions
TakingAct, 1926, Industrial Disputes Act, 1947 and the Minimum
in its sweep educational institutions, hospitals, professionals, it 1948.
Wages Act,
These legislations can operate in the organised as well as the
also held that "the ordinary spectacle of a cobbler and his assistant
or a cycle repairer with a helper, we come across in unorganised
the pave sector because the definitions of the terms "employer",
"establishment"
ments of cities and towns, repels the idea of industry and indus and "employee" can be interpreted broadly
although
trial dispute. For this reason, which applies all along with the such an interpretation is still to come. The Bonded
line, to small professions, petty handicrafts, domestic Labour
servants
Act has, in fact, been used in several cases of child labour
do not fall within the definition of industry". where children have been forced to work as domestic labour in

return for a lump sum amount or to repay the debts incurred by

Inapplicable Legislations family members. State amendments in four south Indian states,
Following this line of reasoning, all labour legislations i in
e, India
Tamil Nadu, Karnataka, Kerala and Andhra Pradesh, to the
until 2006, when domestic work was identified as hazardous
Minimum Wages Act have resulted in notifications being issued
work for children below 14 years under the Child Labour (Prohi
fixing minimum wages for domestic workers.
The
bitions and Regulation) Act 1986, were inapplicable to the nomenclature is also far from consistent. Domestic
unor
ganised sector and to domestic workers because of the rigid
workers working in state employment or private establishments,
definitions of terms such as "establishment", "worker" through
and "em contractors in outsourced housekeeping or catering
ployer". The amendment to the Child Labour Act was theor
first in
cleaning contracts are governed by the Contract Labour
stance of recognising domestic work as "work" which could be and Regulation) Act, while domestic workers in
(Abolition
hazardous for children. This was followed by the notification
private of
households are excluded. Similarly, the Child Labour Act
minimum wages in various state amendments. has been amended to prohibit the employment of children in
domestic
Labour protections vary according to the location of the work work in October 2006. The use of the term domestic
place. For example, although the definition of an industry under or servants in the Act points to a lack of clarity on what
workers
domestic
the Industrial Disputes Act, 1947, a legislation to provide forwork means.

october 22, 2011 vol xlvi no 43 HTTTi Economic & Political weekly

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 REVIEW OF WOMEN'S STUDIES

daily wage of Rs 44 in case they worked for eight hours. W

The Trade Unions Act and the Industrial Disputes Act in principle
engaged
do not exclude domestic workers; it is the interpretation that has in full-time care work faced discrimination and
resulted in the exclusion, which could change with a change in to practises of untouchability, and notions of wh
subject
public policy towards domestic workers. appropriate for a person of her social standing includi
The exclusion of domestic workers from the Workmen's denial of a bed and toilet facilities or a place to eat.
Compensation Act is also due to the scheduler nature of Unionisation
the has had little impact on the realisation o
Act, similar to the Minimum Wages Act. An amendment minimum
to the wage or paid leave. Unions did not negotiate
schedule of employments under the Act could make it applicable
although the workers were aware of welfare schemes of the
to domestic workers. Hours of work varied greatly with workers working in one
for a couple of hours to full-time workers working 16 h
Laws That Expressly Include Domestic Workers Wages ranged from Rs 600 per month to Rs 6,000 per m
depending on the number of hours worked, the number of
(1) Minimum Wages Act, 1948: The Andhra Pradesh state gov
a person working part-time did and the nature of the work
workers
ernment by a notification dated 10 December 2007 published in earned between Rs 1,500 and Rs 6,000. Most o
workers
the gazette on 19 December 2007 has fixed minimum rates of lived near these houses and received no amenities such
as the
wages in the employment of "domestic workers" in Part I of toilets/washrooms at the workplace. None of the workers
Schedule of the Minimum Wages Act, 1948. The notificationreported
issued receiving any health benefits or compensation for
in consultation with the state Minimum Wages Advisory injuries
Board or sickness, or loans or termination benefits.
and in exercise of the powers conferred by Section 3(1) andThe
Seccauses for taking up domestic work reveal a set of constraints
on the participants. The most cited cause for doing domestic
tion 5(2) of the Minimum Wages Act, 1948, fixes the minimum
workof
rates of wages which consists of basic wage for the duration was that it was close to their homes, the other reason that it
hours mentioned therein. The employers are exemptedwas
from
easily found and that they had small children and it was
maintenance of registers and records and inspectors are prohib
important to be able to do their housework along with domestic
work
ited from entry into any residential location. The notification profor pay. The other allied reasons were that they were
uneducated
hibits the employment of children below the age of 14 years and and could not do any other work or could not find
provides for a day of rest of four days per month. any other work and that they were migrants and mobility was an
issue. A small number of participants said that they did this work
(2) The Unorganised Workers Social Security Act, 2008:because
This it was their choice or because of a perceived benefit
legislation passed in 2008 is a response to the growing need of
forreduced
a hours of work and more pay for limited work. For
example, one participant said that she could work only for half a
comprehensive legislation to provide social security to unorgan
day and
ised workers. The legislation defines the term "wage worker" as make more money than not working or taking up work
including workers employed by households including domestic
for a full day. One of the participants said she did domestic work
because there were scholarships for children of domestic workers
workers.24 Under the Act, the central government may formulate
and notify from time to time suitable measures relating and
to life
one of the participants said that she did it so that her children
could
and disability cover, health and maternity benefits, old-age progo to school.
tection and any other benefit as may be determined by theThe
cenAct provides for a schedule of employments to which the
tral government and the state government may formulate
Act applies such as the construction industry, bakeries, canteens,
plantations, etc. The undervaluation and invisibility of domestic
schemes relating to provident fund, employment injury benefit,
workof
housing, educational schemes for children, skill upgradation is obvious when compared with minimum wages notified
workers, funeral assistance and old-age homes. for other similar work done in the public sphere. A comparison is
drawn between wages notified by Andhra Pradesh for other
4 Access to Law
comparable occupations. The minimum wage notified25 for various
The Minimum Wages Act 1948 has been extended to domestic
categories of workers in the bakery industry ranged from Rs 6,291
Rs 4,844
workers in Hyderabad by their inclusion in the schedule perAct.
of the month. The workers were classified as head baker
(highly
On 6 July 2006, the State of Andhra Pradesh notified the skilled category), oven worker (skilled category), baker/
addition
assistant
of employment of domestic workers to Part I of the bakerof
schedule (semi-skilled) and helper (unskilled). Housekeep
ing managers/laundry
Minimum Wages Act, 1948. In 2008, the government notified a managers are notified a wage of Rs 6,618
as they
minimum wage of Rs 325 per hour of work per month. are would
This considered highly skilled workers. Skilled workers
include bearer/waiter, who could get up to Rs 4,625 per month
amount to Rs 2,600 for eight hours of work in a month.
and unskilled
Domestic workers access to the little legal protection offered include
in utensils cleaners, who could get Rs 4,209
per month.
terms of notification of wages under the Minimum Wages Unskilled
Act workers, i e, scavengers and helpers in the
bakery
and the provision for a paid leave once a week has industry
remained meawere to get Rs 4,844, the unskilled plantation
worker
gre even after two years. A majority of them (about 80%)was to get
did notRs 144 per day, i e, Rs 4,500 per month, watch
man/gardener/sweeper/scavenger
know about the wage fixation or paid leave. The workers said is to get Rs 4,209 in other in
dustries,
that they worked for wages which were as low as Rs 166 and thean
for same applied to unskilled utensil cleaners in the
bakery
hour per month, i e, a daily wage rate of Rs 5.50 for an industry.
hour or The
a cooks and other semi-skilled, skilled, very

Economic & Political weekly 0353 october 22, 2011 vol xlvi no 43 91

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REVIEW OF WOMEN'S STUDIES

yearscon
skilled workers got much higher minimum wages. Unskilled of wage notification, no impact on employment was in
cated. The argument that wage fixation would lead to a fall i
struction workers were notified a wage of Rs 5,130 per month.
It is evident that domestic workers are notified a wage demand
that is made by the state is not borne out.
Thecon
roughly half of what an unskilled cleaner would get in either lack of classification of work is another reason for little
impact
struction or plantation or cooking or canteen services. It is noton wages. The specific situations of domestic workers
terms
clear why such a low wage was notified or what were the of recognition of the home as the workplace, the classific
param
tion
eters of assessing domestic work. If across industries such of workers, the need for a recognition of a wide set of righ
as con
including
struction, plantation to canteen and bakery, the minimum wage privacy and forced labour at the workplace, the iden
fication
for unskilled work roughly was the same, i e, around Rs 4,000, of the hazards of work, the need to provide for approp
ate social security schemes and other mechanisms still remain to
the same logic should have been extended to domestic workers.
be addressed.
5 Conclusions
The use of a rights framework to understand discrimination and
state action
The issue of regulation of domestic work must necessarily be such
ad as the Convention on the Elimination of All Forms of
Discrimination
dressed through public policy choices that the state makes. So far against Women (cedaw) might help in highlight
ing the gravity
we have chosen to allow domestic work to remain unrecognised and of the situation. The cedaw provides for a broad
spectrum
a private matter.26 This neglect spills over to paid domestic of rights for women against discrimination.27 State par
work.
The survey results indicate that legal strategies in terms
ties toof
thefix
convention are required to identify the barriers faced
by women
ing minimum wages have not had much impact. This leads to equal participation and enjoyment of rights and ad
to two
dress in
conclusions; one that wage fixation alone does not result them.
theDiscrimination perpetuated by state inaction could
be said
worker receiving the wage; the other, that wage fixation doesto not
be a systematic violation of rights of women. It has
have a detrimental effect on employment. The survey
beenshowed
argued that in the case of domestic workers employed by
that workers did receive more than the minimumdiplomats
wage evenin Germany, that the failure of the state to protect and
without being aware of it. This depended on the location of the
promote therights of these workers could be understood as a sys
workplace and the bargaining power of the worker.tematic
After violation
two by a state party inviting an inquiry procedure

Economic&PoliticalwEEKLY

REFLECTIONS ON EMPIRE
March 26,2011

Resurrection arid Normalisation of Empire - Rohit Chopra

Taming the Imperial Impulse: Realising a Pragmatic Moral Vision - Abdullahi Ahmed An-Na'im

Adam's Mirror: The Frontier in the Imperial Imagination - Manan Ahmed

Indian Empire (and the Case of Kashmir) - Suvir Kaul

Imperial Democracies, Militarised Zones, Feminist Engagements - Chandra Talpade Mohanty

Rethinking News Agencies, National Development and Information Imperialism - Oliver Boyd-Barrett

Digital Imperialism through Online Social/Financial Networks - Radhika Gajjala, Anca Birzescu

Pandemic, Empire and the Permanent State of Exception - Cindy Patton

For copies write to:

Circulation Manager,
Economic and Political Weekly,
320-321, A to Z Industrial Estate, Ganpatrao Kadam Marg,
Lower Parel, Mumbai 400 013.
email: circulation@epw.in

92 october 22, 2011 vol xlvi no 43 B23 Economic & Political weekly

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 REVIEW OF WOMEN'S STUDIES

was
into that country's practices.28 A similar argument could be on improving wages. Legislation on domestic workers needs
made
in the case of all domestic workers who face neglect, exclusion
to be integrated with broader interventions such as recognition
and exploitation as a result of state inaction to protect and
of a pro
set of social rights in education, housing and health. Legisla
mote their rights. tive interventions, which result in the rigidity of the labour mar
The human rights framework helps in understanding
ket the
by introducing restrictions on entry into the work, might pro
exploitation of domestic workers in wider terms than the need
duce for
negative results. This might result in denying employment
to those who need it most. It is well-documented that the infor
employment law protection. The association with servitude,
racial connotations and caste-based occupations highlights
malthe
sector workers are economically fragile and any legislative
interventions
serious violations of fundamental human rights far wider than must take into account that their sustenance is not
the denial of minimum wages and hours of work. harmed in any way.
The other framework useful in understanding public policy
A broader agenda to provide recognition to domestic workers
interventions is the recognition and redistributive justice as
frame
workers and to change cultural stereotypes regarding work to
work enunciated by Nancy Fraser. The idea as used in the enhance
contextthe visibility of domestic work as a form of work is called
of class, caste and gender intersections in domestic work
for.isThis
to recognition has been denied to domestic workers by not
value domestic work quite independently of conditions of
including
work them as workers in most labour legislations on social
protection.
and wages through suitable legislative interventions or the redis In order to extend the powers of the labour depart
tributive framework (Chigateri 2007). ment to conduct inspections at the workplaces of domestic work
ers, the
The absence of such an approach of recognition going hand in home must be seen as a workplace, which will need a
changed perception towards domestic work. Similarly, access to
hand with redistribution is demonstrated by the lack of assessment
of the skills and efforts that go into domestic work. The courts,
mannerdispute resolution mechanisms, protections against ter
in which various legislations have excluded domestic workers
mination of employment by specifying the grounds of dismissal,
inclusion within the ambit of workers for maternity protection
reveals the biases in public policy that effect domestic workers.
and
The workers interviewed expected a wider intervention legislations extending protection for women, such as the
from
law which included a range of benefits like ration cards, educaprotection of women from sexual harassment bill, are all
pending
tion and housing. The most important expectation from steps
the law
towards a greater visibility to domestic workers.

NOTES includes any such person who has been dismissed, 28 Female domestic workers in the private house
discharged
1 ILO background paper on decent work for domes or retrenched in connection with, or as a holds of diplomats in the Federal Republic
tic workers, 2009. consequence of, that dispute, or whose dismissal, of Germany. Information collected for the CEDAW
discharge of retrenchment has led to that dispute, Committee to open an inquiry procedure accord
2 Findings from field study conducted by the re
but does not include any such person- (1) who is ing to Article 8 OP/ CEDAW. Legal consultation:
searcher in the city of Hyderabad 2010.
subject to the Air Force Act, 1950 (45 of 1950), or Petra Follmar, Jurist; Daniela Hodl, Lawyer; Dr
3 Interview with Sister Lissy, Hyderabad, 2010.
the Army Act, 1950 (46 of 1950), or the Navy Act, Ulrike Mentz-Eickhoff, jurist, September 2003.
4 ILO 2009.
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5 Section 2. police service or as an officer or other employee of Last accessed on 12 April 2011.
6 Section 3 (h). a prison; or who is employed mainly in a manage
7 PUDR vs Union of India 1982 3 SCC 235. rial or administrative capacity or (3) who, being
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