brand logo

Domestic workers’ legal and policy black hole 

27 Jul 2021

  • The denial of workers' basic rights
  • SL needs to ratify ILO Convention 189 on Domestic Workers  
By Sumudu Chamara Anyone working a job – or anyone at all, for that matter – would like to be treated with some dignity. But when it comes to people engaged in a legitimate form of employment, there needs to be a system in place to ensure humane working conditions and to protect them from exploitation. Unfortunately, most of our workforce – two-thirds of it, according to the International Labour Organisation (ILO) – is engaged in informal labour, and thus does not see adequate protection by the existing legal system. This lack of legal protection afforded to Sri Lanka’s informal workers – especially domestic workers, which disturbingly, includes underage children in this field – recently came into the spotlight, after the death of the 16-year-old girl who worked as a maid at MP Rishad Bathiudeen’s house. In light of this incident, the Police announced that it was planning to launch a special operation to find underage children (below 16 years) employed as domestic workers. Speaking to the media, the Police Media Spokesperson Senior Deputy Inspector General of Police (SDIG) Ajith Rohana noted that this would be a pilot operation, launched in collaboration with the Police officers engaged in community police service work, and the Police Child and Women’s Bureau officers in Colombo city and its suburbs, as well as those in the Western Province. He explained that when looking into reports and recent related incidents, it was noted that the employment of underage children as domestic workers remains prevalent in Sri Lanka. He added: “The objective of this operation is to implement the law against those employing children under 16 years for domestic work, and the owners and residents of the houses where such children are employed. In addition, legal action would be taken against those acting as brokers to facilitate the process of employing underage children for domestic work, and also those sending such children for domestic work.” This decision comes after Public Security Minister Rear Admiral (Retd.) Dr. Sarath Weerasekera instructed the Police to carry out raids to enforce the law against those who employ underage children as domestic workers. In addition, the National Child Protection Authority (NCPA) has stated that it is planning to take steps to find child domestic workers working in houses located in Colombo city, based on the information it has received with regard to such illegal employment. As far as child labour is concerned, 2021 is a rather notable year, as Sri Lanka took certain actions to protect children from illegal child labour and early employment. The most notable measure was the NCPA increasing the minimum age for employment in Sri Lanka from 14 years to 16 years, in recognition of the World Day Against Child Labour, which fell on 12 July 2021.  However, the prevailing legal and policy situation is such that not only children, but also adults working as domestic workers, who in some cases have been engaged in such work since they were children, require adequate protection and better working conditions, as is the case in the mainstream.  Domestic workers and laws Though there is a lack of specific laws and policies in Sri Lanka that particularly benefit domestic workers, according to an analysis by the ILO in 2020, there are several other laws and policies that apply to them. Among these are the Industrial Disputes Act, the Trade Unions Ordinance, the Employees Provident Fund (EPF) Act, the Employees Trust Fund (ETF) Act, the Payment of Gratuity Act, the Workmen’s Compensation Ordinance, the Employment of Women, Young Persons, and Children Act, the Maternity Benefits Ordinance, the Shop and Office Employees (Regulation of Employment and Remuneration) Act, the Wages Boards Ordinance, the Factories Ordinance, the Employees Councils Act, and laws on sexual harassment in the workplace under Section 345 of the Penal Code. Among the policies applicable to domestic workers are the Sri Lanka National Human Rights Action Plan (2017-2021) with special review of the chapters on Labour Rights, the Rights of Women, and the Rights of Children, the National Policy for Decent Work in Sri Lanka, the Women’s Charter (Sri Lanka), and the National Policy on Eliminating Child Labour in Sri Lanka. However, trade unions representing domestic workers have raised the issue that even though law enforcement authorities have started taking action against underage child domestic work, Sri Lanka still largely lacks appropriate laws – where domestic workers are concerned, regardless of their age – regarding their basic human rights and working conditions. This lack of legal provisions means that Sri Lanka’s domestic workers, who constitute a considerable part of the country’s informal sector workforce, are not legally recognised to ensure appropriate working conditions and employee benefits. The Morning first discussed their plight in a context where they had claimed that the lack of support from the Government and the lack of laws to protect them had left them unable to make a living to survive during the Covid-19 pandemic. Sri Lanka employed over 80,000 domestic workers in 2016, according to a survey conducted at the time by the Protect Union, a trade union representing Sri Lanka’s informal sector. The Protect Union claimed that informal sector workers have been excluded by a number of mechanisms in place, mainly owing to the existing legal and policy framework concerning job security being inapplicable to informal sector workers, which in turn has resulted in them not being included in the programmes conducted to revive the country’s workforce after the Covid-19 lockdowns. This lack of legal protection has deprived them of even the most basic aspects of employment, such as a minimum wage.  Explaining this, the Protect Union’s General Secretary Kalpa Madhuranga earlier told The Morning: “There is no minimum wage for informal sector employees, even though there is the National Minimum Wage of Workers Act, which stipulates a minimum monthly wage for those in the formal sector. This, however, does not apply to informal sector employees, who are forced to do a lot of work for a very small salary. In addition, the informal sector is not entitled to most of the allowances or benefits granted by the Government, such as EPF, ETF, and gratuity pay.” Although The Morning attempted to contact Labour Commissioner General Prabath Chandrakeerthi, to query as to whether the Labour Department would be taking any action in light of the recent events concerning child domestic workers or domestic workers in general, he was not reachable.   International laws and policies    Although Sri Lanka’s laws do not adequately protect domestic workers, there are international conventions for that very purpose, with the most prominent one being the ILO’s Domestic Workers Convention, No. 189 of 2011 – which, Protect Union stressed, the Sri Lankan Government should ratify. This Convention, which is also known as the Convention concerning decent work for domestic workers, was adopted by the ILO in 2011, at its international convention held in the same year. It offers specific protection to domestic workers, and specifies their basic rights and governing and operative principles. Also, the Convention requires states to take a series of measures with a view to making decent work a reality for domestic workers. The Convention defines domestic work as “work performed in or for a household or households”, which typically includes tasks such as cleaning the house, cooking, washing and ironing clothes, taking care of children, the elderly, or sick members of a family, gardening, guarding the house, driving for the family, and even taking care of household pets. Under the Convention, a domestic worker is “any person engaged in domestic work within an employment relationship”. According to the ILO, when a country ratifies the Convention, its Government formally makes a commitment to implement all the obligations provided in the Convention, and to report periodically to the ILO on the measures taken in connection with the Convention. The Convention may be implemented by extending or adapting existing laws and regulations or other measures, or by developing new measures specific to domestic workers, and some of the measures required under the Convention may be implemented gradually over time. In addition, the Convention requires governments to consult with the most representative organisations of employers and workers and, where they exist, with organisations that represent domestic workers and those that represent their employers, on four particular matters – including identifying categories of workers who would be excluded from the scope of the Convention, taking measures on occupational safety and health, taking measures regarding regarding their social security, and protecting workers from abusive practices by private employment agencies. The Convention affirms domestic workers’ fundamental rights and sets minimum labour standards for them. As part of domestic workers’ basic rights, the Convention identifies the promotion and protection of the human rights of all domestic workers, in addition to ensuring effective protection against all forms of abuse, harassment, and violence, and assuring fair terms of employment and decent living conditions. It also identifies the respect and protection of fundamental principles and rights at work, which include the elimination of all forms of forced or compulsory labour, and the abolition of child labour, among others. With regard to information on the terms and conditions of employment, it says that domestic workers must be informed of such terms in a manner they can fully understand. When it comes to the number of hours of work – regarding which Sri Lanka does not have adequate legal provisions as far as domestic workers are concerned – the Convention identifies the importance of taking measures to ensure equal treatment of domestic workers (and workers in general) with respect to the normal hours of work, overtime compensation, periods of daily and weekly rest, and annual paid leave. This is in addition to a mandated weekly rest period of at least 24 consecutive hours. Also, as far as remuneration is concerned, while emphasising that a minimum wage should be identified if such exists for other workers, and that this payment should be made out in cash, the Convention says that in-kind payments (providing a good or service as payment instead of cash), which is prevalent in Sri Lanka, is allowed under three conditions; namely, only a limited proportion of the total remuneration can be paid in kind, the monetary value should be fair and reasonable, and the items or services given as in-kind payments are of personal use to, and benefit, the workers. These in-kind payments cannot include uniforms or protective equipment – these must be provided by the employer to the workers at no cost. With regard to social security, the Convention identifies the availability of social security, including maternal benefits as well as conditions that are not less favourable than those applicable to workers generally, as minimum standards for domestic workers. However, Sri Lanka again lacks legal and policy provisions in terms of social security for informal workers. The Protect Union told The Morning earlier that Sri Lanka is in need of a social security scheme to help informal sector workers in need, as the existing legal and policy framework does not see them entitled to such benefits. This is in addition to the request for the establishment of a Wages Board for informal sector workers, to determine their salaries and other perks. In addition, the Convention identifies minimum standards concerning a number of other aspects of work affecting domestic workers, such as occupational safety and health, regarding the status of live-in workers and migrant domestic workers, private employment agencies and dispute settlement, complaints and enforcement, and the minimum age of employment. Domestic workers are of the opinion that they do not receive adequate legal and policy protection and recognition, which should however be considered their basic right, as they are engaged in a legitimate form of work. Sri Lanka’s informal sector, which includes domestic workers, constitute a significant part of the country’s workforce, and despite having little to no recognition, they are the ones who provide the most basic, day-to-day services for the public. Not only do they provide a vital service, but they also pay their taxes and contribute to the economy. Is it really too much for them to ask to be treated as equal human beings in carrying out their profession?


More News..