How Not to Regulate Domestic Work: Punjab Domestic Workers Bill 2018
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Government of Punjab tabled a bill titled as Punjab Domestic Workers Bill 2018 before the provincial legislature on 12 December. The Bill, though a positive action, has certain inconsistencies which need to be rectified before its formal passage from the legislature, hence this petition asking for removing those inconsistencies.
Domestic work is one of the oldest professions in the history of the world with highest workforce participation by women and children. It is mostly undervalued and a low paid activity, to be performed by the socially disadvantaged groups of a society. The reason for undervaluation is the assumption that women are innately capable of performing this work, so it is considered as unskilled. Its low economic value also comes from the fact that it is an extension of the unpaid domestic work, which in itself is unregulated and unaccounted for. Although we don’t have very clear estimates of the number of domestic workers, an ILO report estimated that around 4-10% of total employment in the developing countries’ domestic work sector (both for males and females). While males are also employed as domestic workers (like gardeners, chauffeurs, cooks and guards), around 80% of the domestic workers are women (engaged for home, child and elderly care).
Punjab Domestic Workers Bill 2018 was tabled earlier this month in Punjab Assembly. A similar bill is under preparation at the Ministry of Human Rights and will be tabled shortly in the Parliament. The bill finally recognizes the economic and social value of more than 8 million domestic workers in the country, brings domestic work into the mainstream and addresses the exclusion of domestic workers from labour and social protection mechanisms. Considering the fact that an overwhelming number of domestic workers are women, the bill will also help in promotion of gender equality in the country. The Bill, for the first time, addresses the vulnerabilities faced by live-in and child domestic workers by setting the minimum age for employment as well as other rights.
While the Bill is a step in the right direction, it has certain inconsistencies and, if passed in the current form, it will not be able to meet the desired objective of promotion of decent work for domestic workers.
First, the Bill sets the minimum age for employment as 15 years. The minimum age for employment, in principle, cannot be less than the compulsory schooling age. The 18th Constitutional Amendment in 2010 sets the compulsory schooling age as 16 years (article 25-A). By setting the minimum age for employment lower than the age of compulsory schooling, the government will undermine the compulsory schooling legislation and rather facilitate the menace of child labour including child domestic work. The same misconception is evident in the Lahore High Court’s order of 20 December 2018 where the honourable court banned the employment of children below 15 years in domestic work. Moreover, the Bill sets the minimum age for both live-in and live-out domestic workers as 15 years. However, as has been recommended in ILO instruments on the subject, the minimum age for live-in domestic work should generally be 18 years. Domestic child labour is the most hazardous and fatal profession as has been indicated by various news reports of beatings, thrashings and killing of child domestic workers. The minimum age for task specific, live-out domestic work where the adolescent worker is accompanied by a family elder should be set as 16 years (in accordance with Article 25-A of the Constitution) while the minimum age for live-in domestic work must be set as 18 years.
Second, while domestic workers were mentioned in the labour legislation since 1960s, no minimum wage was announced for these workers in this period. The current bill refers to declaration of minimum wages for domestic workers and takes into account the principle of equal pay for the work of equal value which essentially means that a guard at the house and nanny for children must be paid the same wage. The draft legislation does not take into account in-kind payments and reasonable deductions for food and accommodation, thus allowing for exploitation.
Third, while the Bill plans to promote gender equality and refers to non-discrimination on various grounds, the maternity benefit for women is set as equivalent to six weeks’ wages. The general provision under Pakistan’s labour laws is 12-week maternity benefit. Laws cannot promote discrimination among the workforce on the basis of occupation in access to basic social protection benefits.
Fourth, penalties under a law must be set at a dissuasive level and be coherent with other legislation. Interestingly, Punjab has three separate laws on child labour: two sector specific, i.e., Child Labour at Brick Kilns Act 2016 and Punjab Domestic Workers Bill 2018, and one general law, i.e., Punjab Restriction on Employment of Children Act 2016. The minimum age for employment and penalties under all these laws are different, the highest (fine of Rs. 50,000-500,000) under the brick kiln law. While the brick kiln and general law propose an imprisonment term of 7 days to 6 months in the event of violation, the domestic workers bill stipulates imprisonment, up to one month, only on the employment of a child under 12 years. Once a child is 12 years and one day, hiring of child domestic worker until he/she reaches the age of 15 years, the penalty is only a fine which may range from Rs. 10,000 to 50,000. The penalties need to be harmonised.
Fifth, it is heartening to note that the Bill requires issuance of an employment letter to every domestic worker however without setting a time limit. Unless a time limit (a fortnight or a month) is set for provision of contracts and it is made a liable action, workers will never receive the employment contract in time and thus would not be able to register with the Fund and avail various benefits. Non-provision of employment letter is a serious concern and millions of workers are working in factories and offices without employment letters. Thus, it should not be taken lightly.
Sixth, there is a misconception among the masses and the policy makers that domestic work is a non-hazardous activity. The most common hazards in domestic work include long working hours (leading to fatigue) and isolation (precluding social and intellectual development). The domestic work also involves carrying heavy loads (children, laundry, lifting of elderly or ill persons with limited mobility), exposure to chemicals, sharp objects, and hot stoves and deprivation of education. Instead of declaring domestic work as a hazardous occupation, as has been done in India, Punjab did not include it in its list of 38 hazardous works under Punjab Restriction on Employment of Children Act 2016. Domestic work must be declared hazardous work and thus the minimum age for engagement in domestic work (live-in) must be raised to 18 years.
Seventh, while the law aims to protect the rights of domestic workers, it fails to mention the most fundamental and enabling right of all, i.e., the right to freedom of association which is guaranteed under article 17 of the Constitution of Pakistan. Reasonable restrictions can be imposed by law in the interest of public order or morality, as guided by the Constitution, to protect the private sphere, i.e., sanctity of the four walls of a household. Workers must have the right to form and join trade unions of domestic workers, bargain collectively and must have the right to collective action.
Eighth, private homes are not safe havens for domestic workers especially child domestic workers. Working in a private home presents serious dangers to the health and safety of such workers. Since there is a lack of public scrutiny, child domestic workers are exposed to sexual exploitation especially in cases of labour bondage. The rules must define health and safety provisions in detail and require provision of personal protective equipment, e.g., gloves to domestic workers working with chemicals and in kitchen.
Ninth, many would say that the minor issues (difference in live-in and live out, deductions for payment in kind) can be dealt with in the framing of rules. However, it must be realized that rules making takes years. Examples of Khyber Pakhtunkhwa and Sindh are handy in this case where new labour legislation was enacted years ago however it is yet not implemented for lack of implementing rules. Thus, the law itself must clear the ambiguities and rule making must also be started at the earliest.
In the end, law in itself can’t protect the rights of workers since workers lack awareness and the resources to pursue legal action. There is a need to realize the limitations of the law and limit our expectations to a reasonable level. However, an inconsistent, incoherent and incomplete law is a sure recipe for laggard implementation.
With this campaign, we suggest the Labour & Human Resource Department, Punjab and Speaker Provincial Assembly, Punjab to take the necessary action and fix these lacunas in the law before proceeding further.
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