Do we need a new law to protect Zohra Bibi?

The recent Zohra Bibi incident in Noida on 12 July led to the unfolding of a series of events, exposing the fault lines of class that characterise urban India. This was an incident that yet again exposed the power of the middle and upper middle class over the working class and how this defines public opinion.

The 2015 Draft National Policy for Domestic Workers places the number of domestic workers in the country at 30 million. With two thirds of the workers in urban areas, Tier I and Tier II cities have the highest demand for domestic workers.

India’s largest cities in the past several decades have expanded exponentially, in many cases have merged with satellite cities, like Noida and Gurgaon around Delhi, with multi-storied apartments in gated colonies to accommodate the influx of the growing middle class and industrial working class in these cities. On the other hand, a large section of the rural landless are migrating in search of work in these growing cities and constituting a reserve army that creates conditions for low wage and poor working conditions.

Domestic work: Workplace control by Employers

We all know it is difficult to unionise domestic workers and much has been written on why.

Workplaces of domestic workers can be classified into three broad categories in order to understand strategic unionising:

  • Live-in workers in standalone residences or in flats in gated apartments/ apartment blocks
  • Live-out workers in standalone residences/ flats in un-gated areas
  • Live-out workers in flats in gated apartments/ apartment blocks

Live-in workers in Tier-I and II cities, are mostly workers brought in or trafficked from the poorer states of Jharkhand, West Bengal, and states in the North east through organised networks of agents. They are bound to their agents through complex relations of debt and family complicity and are placed by these agents across a city and hence are difficult to access for organising.

Live-out workers in un-gated areas live near these areas or in cases where cities have been ‘cleaned’ of slums, they are forced to come to these areas from the resettlement colonies where they live. Their workplaces are disconnected and scattered with each contract of work being negotiated individually with no interface with any collective body of residents. Even monitoring of work and worker is done individually by the employers. Here access to workers may be easier but effort required to organise would be higher and negotiations would have to be with individual employers.

However, with a growing number of workers being employed in gated apartments/ apartment blocks in the large cities, it may be seen as a strategic point of entry for unionising live-out workers in these gated apartments.

The gated apartments, as we saw in the infamous Mahagun Moderne apartment in Noida where Zohra bibi was accused of theft, confined and then the issue was communalised when her family and neighbours gate crashed to find her and finally their slum razed to the ground, have the following characteristics:

  • Administered by powerful Resident Welfare Associations (RWAs)
  • RWAs are empowered to hire security services to ensure security of residents; entry and exit from gates are monitored by security personnel; security guards frisk all workers and check their belongings at entry and exit; CCTVs are installed to ensure security of residents
  • RWAs issue identity cards to domestic workers who are allowed to work in the apartment/ apartment complex after police verification
  • Many RWAs also fix rates of wage of domestic workers working in the apartment complex
  • Many RWAs allocate separate toilets and drinking water facilities for domestic workers within the apartment
  • RWAs act as dispute resolution bodies in case of dispute between residents and between residents and non-residents.

Thus the RWAs are representatives of residents and hence in the case of domestic workers, representatives of employers within a defined geographical boundary with power to appoint and dismiss, fix wages and working conditions, control and monitor. If employers’ interest can be protected and represented through the RWAs, the gated apartment complex represented by the RWA should be treated as an integrated employer that provides employment to the several domestic workers. This would ensure employer accountability and responsibility. It therefore should be the responsibility of RWAs to ensure basic rights of domestic workers within their premises to:

  • Minimum wages: Many states have already notified hourly minimum wage for domestic workers.
  • Equal wages for equal work
  • Payment of wages by 7th of every month
  • Weekly off
  • Medical leave and Annual leave
  • Bonus
  • Protection under the Sexual Harassment of Women at Workplace Act: RWAs should set up an Internal Complaints Committee within the apartment complex.

If the RWA employs 20 or more workers, not just domestic workers, the workers should also be covered under:

  • Employees State Insurance including paid Maternity leave: The government has already proposed that domestic workers will soon be included in ESI scheme with employers contributing Rs. 200 as a pilot scheme in Delhi and Hyderabad. (This proposal though is in violation of the ESI Act, where employers’ contribution must be linked to wage and not some absolute amount.)
  • Provident Fund: There is also a proposal to extend PF to unorganised sector workers.

The possible reactions to such a proposition would be:

 Reactions of EmployersPossible response
1Each domestic worker is employed individually by the household that hires herThat may be true but the RWA conducts security checks on her, issues identity cards to her, monitors her entry and exit, fixes her wage in some cases and ensures her dismissal from the apartment in case of gross misconduct.
2RWAs do not have the mandate to hire any worker. They do not have employer-employee relation with anybody.RWAs hire agencies in most apartments that provide workers, such as cleaning workers, maintenance workers, security workers, including estate managers.
3RWA cannot take responsibility for workplace conditions.Since many employers deny access to toilets and drinking water to the workers working within the apartment complex, the RWAs allocate toilets and drinking water facilities for service providers.
4RWAs do not have the right to dismiss workers.If a worker commits a grave act of misconduct, the individual employer fires her, but in case of serious misconduct, the employer also ensures that she is not given access to the apartment complex. Thus RWAs exercise power to deny access to employment to serve their interest.
5RWAs do not monitor the domestic workersCCTVs are installed and checked by representatives of the RWA. Security personnel hired by RWAs frisk domestic workers. Text, Whatsapp messages are used to monitor movement of domestic workers within an apartment.
6PF, ESI apply to factories, shops and not to residential apartmentsTrue in the strict sense of the law but the law can also be opened for interpretation on establishing existing clear employer-employee relation.

 Looking beyond and Stretching the existing laws

 In April 2013, Brazil passed a constitutional amendment that placed domestic workers among the other categories of workers mentioned in article 7 of chapter II of the Brazilian Constitution, which provides for social rights. Only in 2015, after enactment of the Enabling Law of 1 June, was it possible to state that the occupational activities of domestic workers were fully defined and regulated.

Constitution of South Africa too guarantees rights of domestic workers as universal rights.

RightsBrazilS Africa
Compensation in the event of dismissal without just cause××
Unemployment insurance×
Time of Service Guarantee Fund (FGTS)×
Wages not less than the minimum××
Bonus for night work20%
Wage protection×
Family-Wage×
8 hour workday and 44 hours a week×– 45 hours per week

– 9 hours for a 5 day work week

-8 hours for a 6 day work week

 

OvertimeAt least 1.5 times1.5 times
Work in a place where standards of hygiene, health and safety are met×
Right to collective bargaining×
Insurance against work-related accidents×
Equal remuneration×
Night workAt least 10% of the ordinary daily wage
Annual Leave3 weeks leave per year
Sick leave1 day for every 26 days worked
Maternity leave4 months
Prohibition of wage discrimination against workers with disabilities×
Prohibition of employment of minors of less than 16 yearsAt night, dangerous, or unhealthy work Less than 15 years

Why is this important for India?

  • India has not ratified the Domestic Workers Convention (C189) which among its other provisions requires ratifying countries to ensure minimum wage protection for domestic workers, regulations for occupational health and safety and social security of workers.
  • India has only managed a put together a National Domestic Workers Policy that is only a guiding document for states and not legally binding.
  • All organisations/ unions of domestic workers and working with them have been demanding a robust legislation specific to the domestic workers that encapsulates the specificity of the employment.

The concern for the specificity of the employment and the belief that it requires a special law comes from the underlying principle of protecting the right of employers to privacy. It is time to think of laws for workers that protect the interest of the workers and not their employers. This was never a problem in any other employment and in the demand for laws in these areas of work as there was no underlying need to protect employer interest in the mind of those demanding the law. With all policy makers, those advocating for the law, almost without exception, being employers of domestic workers, there is always a conflict of interest that has been the greatest barrier to the regulation of this sector.

There is no reason why the domestic workers cannot be brought under the ambit of all labour laws, like in Brazil, that relate to them.

There is no reason for unions to wait for a new law to regulate employment conditions of domestic workers.

There is no reason for unions to wait to negotiate with employers for better wages and workplace protection.