Toil and troubleLabour Act deprives domestic workers of basic labour rights that all other workers enjoy, at least at policy level
A few years ago, Nepal’s child rights activists encountered a horrific incident. A school janitor in Pokhara found a girl lying on a bench in a classroom early one morning when he went to sweep the room. It turned out that the girl, a domestic worker, had spent the whole night alone in the classroom to escape from her employer who had been raping her regularly. A medical examination substantiated her statement. About the same time, I met a Kamlari girl in Dang who had gone mentally ill due to trauma triggered by regular sexual abuse by her employer.
These are just two examples of the acute human rights violation of domestic workers that we often read about or witness in our society. The other phenomena we see everyday include domestic workers working for more than 12 hours a day, seven days a week, without a single day off, often accompanied by non-payment of wages, confinement in the workplaces, and forced labour mostly in slavery-like situation. These phenomena are still accepted socially, culturally and even legally (except in the case of children) as norms in Nepal. Moreover, the Labour Act deprives domestic workers of basic labour rights that all other workers enjoy, at least at policy level.
Domestic workers’ deprivation of basic labour rights is a multi-dimensional issue. More specifically, the issue lies at the intersection of gender, class, child rights and legal status, and needs to be discussed, analysed and addressed accordingly. Traditional patriarchal gender norms and structures consider domestic sphere as women’s place. When wealthy and middle class women cannot cope with their gendered responsibilities, their chores are not shared with male family members but rather with external hands, preferably females, who are easy to find because of poverty. A study shows that globally almost 90 percent of all domestic workers are women, and according to the International Labour Office (ILO), one in every 13 working women is a domestic worker. The situation is not too different in Nepal.
Globally, with the increase in the number of women participating in formal economic activities outside their homes, the demand for domestic workers is also increasing. If domestic workers’ basic rights are ensured, the practice of paid domestic work benefits both affluent and poor women. Educated and wealthy women can participate in formal economic activities leaving their domestic work to be performed by domestic workers, while less wealthy and less educated women also benefit by earning their livelihood performing domestic paid work. Domestic work has also significantly promoted women’s migration globally within and beyond national borders. In the past, women’s international migration rate was very low, but now with the increase in the global demand of domestic workers it has also increased significantly. Now women make up over 50 percent of the total global migrants. In some Asian countries, such as the Philippines, over 80 percent of migrant worker going abroad are women. Most migrant women from poor nations work as domestic workers in less poor and developed countries.
Therefore, promotion of paid domestic work is very important for social and economic reasons. For that to happen, domestic work has to be regulated by law so as to protect the rights of the workers. However, no such laws or policies exist in Nepal as the current Labour Act excludes domestic workers from protection. A person working in a factory can enjoy the rights guaranteed by the Labour Act, while another person working in the domestic sphere cannot. It makes a big difference whether a labourer is protected by the law or not as the Labour Act stipulates minimum labour standards that include normal hours of work (no more than eight hours a day), minimum wage, overtime compensation, period of daily and weekly rest, annual paid leave, right to join unions, and payment of wage at regular interval of no longer than one month. None of these labour rights are applicable in the case of domestic workers as the Act only protects the rights of labourers working in enterprises.
One may wonder why the existing Labour Act excludes labourers involved in domestic sphere. The answer is simple: it is a function of the gendered state. Domestically performed labour such as cooking, cleaning and caring for children and other dependents has been traditionally performed by women, hence it is undervalued, and the state does not bother to intervene.
Exclusion of domestic workers from the protection of the Labour Act and these workers’ deprivation of basic labour rights is against the spirit of Nepal’s constitution and international human rights frameworks. Right to equality, reasonable remuneration and right to union and collective bargaining are some of the basic principles of the constitution. However, by excluding domestic workers from its scope, the existing Labour Act contradicts these principles of the constitution and discriminates workers on the basis of the work they perform.
Glimmer of hope
At the international level, many UN human rights conventions and the Human Rights Declaration call for protecting the labour rights of domestic workers. The ILO Convention 189 is specifically relevant in this case. The convention intends to eliminate discrimination among workers based on the work they perform, and urges its members to provide domestic workers with basic labour rights. Hence, Nepal is obligated to make changes in the existing labour laws to protect the labour rights of all workers, including domestic workers.
Recently, however, some progress is in the offing. To fulfil its international obligation in regard to domestic workers’ labour rights, a bill has been drafted to amend the existing Labour Act. According to its preamble, the bill aims at ensuring the basic labour rights of all workers including domestic workers, establishing healthy relationship between employers and workers, and ending existing labour exploitation. The bill departs from the existing laws in the sense that it will cover all workers including domestic workers, and will eliminate, at least at policy level, the existing discrimination among workers based on the work performed. Let’s hope that Parliament passes the new bill, whereby existing discrimination between workers will end.
Kanel, a freelance policy analyst, holds a Master’s in Social Policy from the University of Melbourne, Australia