Plights of domestic workers
Usually domestic worker means a person do or help to do our household
chores for money or benefit. However, our existing Labour Law denies
their rights and does not include them as worker. The word “Servant”
used by the Act is itself an offensive word.
Nonetheless, recently enacted the Domestic Violence (Prevention & Protection) Act, 2010 also does not cover domestic workers under its purview. Only the Domestic Servants’ Registration Ordinance 1961 defines them as domestic servant among all others laws in this country. However, the law again does not ascertain any of the rights or duties of the domestic workers rather it merely deals with the provision of registration.
The term “Domestic worker” is very recent trend to recognise them as worker. Formally the Domestic Workers Convention, 2011 (Convention No. 189 of ILO) first recognises domestic work as “work” and persons engaged in this sort of work as worker and also introduces a set rights for these workers. This work may comprise cleaning house, cooking, washing, taking care of children/elderly/sick members of a family etc.
Though there is no special law on domestic workers but constitutional provision has guaranteed some rights as fundamental rights and enforceable by the court for every citizen of the country. Also there are few ordinary laws, which can defend the rights of domestic workers as an ordinary citizen of Bangladesh.
Among those, the Nari O Shishu Nirjatan Daman Ain, 2000 can be used to punish and prevent death, attempt to murder, grievous hurt or mutilation by using corrosive, incendiary or poisonous substances (especially throwing of acid), trafficking of women for prostitution and allied matters, trafficking and stealing of children, rape etc. Although this Act of 2000 covers many aspects relevant for domestic workers, it was promulgated to safeguard women and children in general and no specific attention was given to the domestic workers.
However, all criminal acts are adjudicated by criminal courts and tribunals and the domestic workers, like any other citizen, are under the jurisdiction of these criminal courts of the State. A domestic worker can take the advantage of the Penal Code, 1860 to prosecute the culprits for culpable homicide, murder, hurt, grievous hurt, wrongful restraint, wrongful confinement, assault, kidnapping, abduction, rape, theft etc. There is however no statute that specifically deals with domestic workers and declares an act to be a criminal act considering the special circumstances of the domestic workers.
Whenever a domestic worker starts to work in a household, there is an agreement between the employer and the worker. This agreement is almost oral. Everybody shall be paid for his work on the basis of the principle ‘from each according to his abilities, to each according to his work’. However, there is lack of law which can determine minimum wages for every sorts of domestic worker and can ensure other employment rights as ensured for other workers.
One can enforce his agreement by the Contract Act, 1872 if any breach has been occurred. Moreover, in case of any violation of the service contract, or any injury sustained by the worker, a case of compensation can be filed before the civil courts.
Domestic workers are mostly unlettered and unaware about their rights. Moreover, we have no effective mechanism to inform them about these legal protections and cannot bring them under the shield of the court of law. In addition, it is really difficult for them to fight against their wealthy and giant bosses. Hence, State should arrange such effectual machinery to inform them about their rights and provide sufficient legal aid to fight against suppression.
Bangladesh National Women Lawyers Association (BNWLA) V Govt. of Bangladesh is the first judicial pronouncement to uphold the rights of the domestic workers and recognise them as worker. The HCD directs that the children between the ages of 14 to 18, who are engaged in the domestic sector, should be incorporated automatically within the provisions of the Labour Act.
There should be a system of registration and monitoring of all persons engaged in domestic work. It also declared that the cases relating to the violence upon the domestic workers must be monitored and prosecution of the perpetrators must be ensured by the government. The government has a duty to protect all citizens of this country, be they rich or poor.
Apart from this, a draft policy titled ‘Domestic Workers Protection and Welfare Policy, 2010’ had also been finalised about couple of years ago by the Ministry for Labour and Employment. Despite the fact the policy is still under scrutiny and yet to be implemented by the authority.
Employing children in domestic work is a problem of our society, culture and economy. As a consequence initiatives have to be taken at first to keep child domestic workers away from exploitative and dangerous works and to provide all of them safe and decent working environment, appointment letter, identity card and other necessary things to ensure the payment of their due wages and other rights as worker like other workers.
Domestic work is particularly isolated in nature as it is carried out in the home of the employer. Domestic service thus needs to come under some form of private and public regulation, inspection and supervision. Hence to protect the rights of the domestic workers there needs to be in place a sound and functioning institutional framework that will ensure that the legal provisions and policies are observed as well as enforced. In addition, sufficient help centers should be established in different parts of the country where domestic workers can seek help in cases of cruelty, violence and a violation of their bill of rights.
Bangladesh is obliged under both national and international law to protect and promote the rights and interests of the domestic workers. Hence Bangladesh should become a signatory State to the ILO C189 and should ratify the provisions into domestic law immediately.
A special piece of legislation for the domestic workers could be a proper solution in this regard. However, mere enactment of a new law may not be able to bring changes to the society. We need to change our mind set up, otherwise the scenario will remain same. A more humanitarian approach towards the domestic workers can ensure more contentment in the mind of them.
THE writer IS A SENIOR LECTURER OF LAW, DHAKA INTERNATIONAL UNIVERSITY (DIU).