Guaranteed wages and security of employment recommended for local domestic workers
View(s):A recent research study on protecting domestic workers in Sri Lanka has recommended a guaranteed minimum wage, decent working conditions, social security, proper registration and laws on personal safety.
The March report by the Legal Research Team at Verité Research, in a study titled “Sri Lanka: Domestic Workers – An Analysis of the Legal and Policy Framework”, said they examined the concept of ‘decent work’ within the legal and policy framework of Sri Lanka’s domestic work sector.
It used ILO C189 as a frame of reference for appropriate standards and best practices and concludes that a number of prevailing laws and practices are inconsistent with the convention. The September 2013 ILO Convention 189 refers to decent work for domestic workers
In its recommendations, Verite Research said domestic workers should enjoy conditions that are not less favourable than those applicable to workers generally with respect to social security, and maternity
It said given the unique nature of domestic work, integrating domestic workers into the existing labour protection framework will not always ensure compliance with international standards.
“Therefore, new laws need to be introduced to address specific gaps in the legal and policy framework,” it said.
The report proposed the creation of a (a) dynamic social security payment scheme that would address ongoing vulnerabilities of domestic work (as opposed to a scheme that offers only a safety net accessible upon retirement) should be introduced; (b) registration mechanism for employers to ensure that employing households maintain minimum standards with respect to living conditions, hours of work and rest for residential workers. The mechanism should also provide for labour inspection; (c) law on personal security that protects domestic workers from abusive practices within the home that do not amount to criminal offences; and (d) a complaints mechanism to ensure that a worker’s personal security is safeguarded during the course of employment.
Excerpts of the conclusions in the 38-page report are as follows:
The current exclusion of domestic workers from the framework of protection contributes to: (1) high levels of vulnerability associated with domestic work, and (2) devaluation of the economic benefit of the services performed by domestic workers.
In this respect, the study identified three approaches to legal reform:
(1) Expansive interpretation of existing laws
(2) Amendment of existing laws to reflect international standards
(3) Introduction of new laws based on international standards
Expansive interpretation
Domestic workers are prevented from accessing protection with respect to certain fundamental conditions of work (e.g. minimum wage, living conditions, rest, and annual leave) due to a conceptual hurdle. This hurdle essentially relates to the definitional limitation of the term ‘trade’ and the fact that domestic work is seldom characterized as a trade. However, a worker that performs services in a private household is not statutorily barred from interacting within the labour marketplace.
Hence it is possible to conceive of domestic work as a ‘trade’ for the purpose of statutory interpretation that includes non-industrial occupations. Such an expansive interpretation already applies to the Trade Union Ordinance and Industrial Disputes Act, both of which extend to domestic workers. Hence a similar expansive interpretation enables the inclusion of domestic workers as a protected class of employees under the Wages Boards Ordinance and the Maternity Benefits Ordinance.
This strategy will ensure that Sri Lanka’s legal and policy framework complies with the following minimum standards contained in ILO C189:
Amending existing laws
Sri Lanka is currently party to the ILO conventions that govern minimum wage and maternity protection for workers. The conventions in their current form are applicable to all wage earners regardless of whether they are engaged in the formal or informal sector. Compliance with these international conventions requires that existing laws be amended to include domestic workers within their scope. Certain laws such as the Wages Board Ordinance and Maternity Benefits Ordinance contain ambiguity over their respective definitional scopes. These laws could be amended to clearly include domestic workers within their ambits.
Meanwhile, regulations under the EPF Act and the ETF Act should be amended to include domestic workers within their ambit. Such inclusion may not necessarily guarantee social security to domestic workers. However, it will, at least, remove an unnecessary barrier that prevents employers of domestic workers from contributing towards the social security of long-term employees.-
New laws
Given the unique nature of domestic work, integrating domestic workers into the existing labour protection framework will not always ensure compliance with international standards.
Therefore, new laws need to be introduced to address specific gaps in the legal and policy framework.
This analysis reveals the complex nature of the gaps between international standards on domestic workers and the current legal and policy framework in Sri Lanka.
A generic model of reform (i.e. introducing a new law) may not be necessary to guarantee compliance with certain standards. Rather, an expansive interpretation of existing law, or the revision of its scope suffices in many cases. This option is important to consider, as introducing new laws can be time consuming, and may be met with greater legislative reluctance. Therefore, lobbying policymakers to interpret existing laws broadly to include domestic workers may be a feasible ‘first resort’.
Where such interpretation is difficult, lobbying legislators to amend existing labour laws to include domestic workers within their scope may be prudent. Despite the availability of such an incremental approach, this study also reveals that certain international standards unique to domestic work cannot be guaranteed without fresh legislation. Hence the incremental approach may be inadequate for certain minimum standards such as those relating to living conditions, social security and personal security. In these circumstances, a new law dealing with certain aspects of domestic work ought to be enacted.
Having carefully assessed the gaps between international standards and existing law, this study proposes three unique approaches to reform (i.e. expansive interpretation, amending existing laws, and introducing new laws). A combination of these approaches, we believe, could narrow and eventually eliminate the gaps, and ultimately ensure decent work for domestic workers in Sri Lanka.