Domestic Workers

DOMESTIC WORKERS DOMESTIC WORKERS (The Legal Identity, recognition, and protection) By Shoaib Anwar Qureshi, Additional District and Sessions Judge, Lahore "It is necessary to protect the rights of the domestic workers; to regulate their terms of employment, and working conditions of service; to provide them social protection, and ensure their welfare, and to provide for the matters ancillary thereto1" INTRODUCTION Pakistan is the land with the employment of about 8.5 million domestic workers. Still, there was no coherent legislative framework to regulate their employment, and this informal sector was left at the mercy of the employers. Identity has always remained an issue for domestic workers. These workers have remained excluded from the scope of labor laws for private households and have never been entitled to claim social securities2. The domestic workers have remained vulnerable to deplorable working conditions, labor exploitation, human rights abuses, and legal protection. The Punjab Domestic Workers Act, 20193 is aimed to create such a framework by incorporating the recommendations of ILO's Domestic Workers Right Convention4 into domestic law. This paper will argue that in what manner this law5 will bring a drastic change in society by drawing the informal sector of domestic workers into the mainstream. We shall discuss how the law has given the identity to large-scale household employees and what protections are guaranteed to domestic workers. The courts' role has always been towards recognizing and protecting this vulnerable informal sector of employment. We will find how the Lahore High Court played its role in convincing the legislature to draft the enactment6. BACKGROUND Admittedly, there is no accurate figure for domestic worker employment in Pakistan. A report of Labor Force Survey7 put the total number of domestic workers in the Country at 284,700 (0.5% of total employment), the more recent media reports fixed this number closer to 8.5 million (4.7 % of the total population). The International Labor Organization (ILO) estimates the number of domestic workers in the Asia Pacific, around 4.7 % of total employment8. This lack of authentic data demonstrates this part of the labor force's overlook and certainly the economic input. It also exhibits the lack of Government initiative or interest to regulate this sector, locally and internationally. This sector's negligent overlook invited problems such as child labor, bonded labor, sexual assault and harassment, violence, abuse to humanity, and deploring working conditions. This miss also took away the constitutional protections of fundamental rights, in the form of the work description, calculated working hours, leave period, job protection, standard of minimum wages, and left this large scale sector only on employers' mercy. Islamabad High Court seriously took the criminal neglect to deal with the domestic workers. In 2012, an Additional District and Sessions Judge, Islamabad, and his wife were prosecuted and con-victed for employing a household worker and maltreating a minor girl9. As per official data10, 103 cases were registered against 'cruelty to the child at the workplace11' and 'the employment of children12' in Lahore, and out of this, 90 are only registered in 2020. I can say with full conviction that this has never been the accurate figure and may not even reflect the actual figure's small percentage. The lack of identity to the informal sector of domestic workers never encourages the individual to come forward and make their claim and fight for their rights, either civil or criminal, against the resourceful employers. DRAFTING AND ENACTMENT OF BILL Pakistan is a signatory and ratifier of ILO's domestic workers' convention 201113. An initiative was taken by Senator Osman Saifullah Khan and presented the private bill with the description "Domestic Workers (Employment Rights) Bill 2013" in National Assembly, but unfortunately, the Federation of Pakistan has remained unsuccessful in making the enactment, till the date a private members bill "The Islamabad Capital Territory Domestic Workers Act, 2019" is pending as legislative business of National Assembly of Pakistan14. After the eighteenth amendment15 and the evolution of concurrent legislative list, the welfare of the labor, conditions of labor, provident fund, employer's liability, health insurance, and old-age pensioners are beyond the subject matter of federal laws16 and provincial assembly has the power to make laws for the matter not enumerated in the federal legislative list17. The Hon'ble Lahore High Court took the initiative to entertain the petition titled as Subay Khan v. Federation of Pakistan18, where the direction was sought to provide/ notify guidelines for minimum wages of the domestic workers. It was conceded that there was no regulation or law to deal with domestic workers. The Hon'ble High Court vide order dated 09.12.2015 held that the domestic workers were unduly indiscriminate, and the issue of minimum wages for the domestic workers required prompt legislation. It was a policy issue; the Court further directed the Secretary Labor and the Human Resource Department Government of Punjab to concede legislation. The Government of Punjab could not surface any legislation on the subject for about two years. After that, on contempt petition19, it was argued that under Article 3 of the Constitution of the Islamic Republic of Pakistan 1973, all the domestic workers were required to be protected in Pakistan, to its dismay, the domestic workers were exposed to exploitation and hazardous working conditions, further there was no proper legislation to protect the fundamental right of the domestic workers. This contempt of Court petition20 was taken as a matter of public importance and converted into a regular writ petition titled as Subay Khan v. Secretary Labor Government of Punjab21 and the then Chief Justice Hon'ble Mr. Justice Syed Mansoor Ali Shah passed a specific direction to the Secretary, Labor and Human Resource Department Government of Punjab, with the hope and expectation that the government would consider legislation on the subject. After that, on 13.03.2018, Hon'ble Mr. Justice Jawad Hassan, Judge Lahore High Court ordered that the department might constitute a committee after consideration with the experts, social workers, legal fertility, academic, and other stakeholders to finalize all recommendations and inputs would finalize the draft Act for its practical implementation, thereon the Punjab Domestic Workers Act, 2019 was promulgated. The Court further held that the domestic workers in Pakistan were entitled to all the fundamental rights, i.e., the right to elimination of exploitation22, right to life including the right of livelihood23, right to equality24, right to trade and business25, right to education26, protection against slavery and forced labor27 and all other principles of policy which are devised for the promotion of social justice, eradication of social evils, social and economic well being of the people of Pakistan28. RIGHTS AND THEIR ENFORCEMENT --- IMPLEMENTATION AND MANAGEMENT The Punjab Domestic Workers Act, 201929 is promulgated with the object to recognize and regulate the domestic workers' rights. It also aims to protect and improve employment conditions and provide social security, safety, healthy facility, and welfare. The Act30 establishes the domestic workers' Board31, domestic worker welfare fund32, Governing Body33, Dispute Resolution Committee34, Appellate Authority35 and also provide executive enforcement mechanism and judicial scrutiny through Inspectors36 and Labor Courts37. The Act prohibited the working of a child below the age of 15 years in a household in any capacity and allowed the child under 18 years to light work only38. The contravention to this provision is declared a criminal offense, triable by the Magistrate 1st Class, punishable with imprisonment extending to one month and fine39. The substantive part of the Act provides a breakdown of the rights and the entitlement of domestic workers. Every employment or appointment shall be subject to the issuance of an employment letter showing the terms and conditions of employment, and the employer cannot assign extra work to the domestic worker without his free will and extra remuneration40. The identity is given to the domestic workers, and now they cannot be called "servants." There shall not be any bonded labor or forced labor. The Act also prohibits any discrimination, in recruitment or wages, based on religion, race, sex, and creed41. The Act also guarantees the domestic workers' benefits, including medical care, sick leaves, maternity leaves, weekly holiday and festival holidays, the Punjab Employees Social Security Ordinance, 1965, and the Rules thereunder available to domestic workers42. The Act has also provided minimum wage protection to the domestic workers, which may be classified on an hourly, daily, weekly, or monthly basis. The recommendations of the "Board" shall comply concerning the minimum wages of domestic workers. The Board must follow the procedure under section 6 of the Minimum Wages Ordinance, 1961 to calculate minimum wages43. The registration of the domestic workers with the "Governing Body" is an important milestone to qualify the domestic workers for the financial benefits from the "Domestic Workers Welfare Fund," which is made available for their education, training, and skill development44. The powers of the Civil Courts are given to the "Dispute Resolution Committee" to enforce the attendance and examination of any person, or for the production of the record. This committee may be material for the resolution of the disputes at the local level45. The "Labor Inspectors" also function on the direction of the Dispute Resolution Committee46. ROLE OF COURTS The movement of superior courts in Pakistan is to guard and protect the rights of the low privileged spectrum of the society including, the labor, unskilled workforce, bonded workers, low paid faction, child and women employment in domestic work. The judicial precedents reflect our judiciary's proactive role to hold any unconscionable contract of employment with the low privileged class to be void. In Darshan Masih Alias Rehmatay v. The State47, the honorable Supreme Court termed the matter of bonded labor and illegal detention by employers in the brick kiln industry falling within the ambit of public interest litigation. The Court extended its jurisdiction on the telegram by illegally detained and employed labor in brick Kiln and held that the Contract Act contains the provisions to safeguard against illegal, immoral, unconscionable, and other contracts against public policy. The Hon'ble Supreme Court further held that bonded labor is against the fundamental rights and advised effective legislation. The Courts in Pakistan have forcefully discouraged employment on nominal wages. In Human Rights Commission of Pakistan and others v. Government of Pakistan48, the honorable Court laid ratio that all contracts whereby a person agrees to render services without wages or for nominal wages, forfeit the freedom of employment or movement, forfeit the right to appropriate, sell at market value any of his property or product of his labor are void. It was further held that while forced labor and clog on the freedom of movement by way of consideration for the repayment of the debt would be impermissible, the outstanding amount could be recovered through normal legal channels, the Court discouraged the magnitude of exploitation of disadvantaged people arising from the unequal bargaining position. In the matter of H.R. CASES NOS. 16360 of 2009, 1859-S and 14292-P of 201049, initiate on the anonymous applications seeking remedy for lady health workers and lady health supervisors, the honorable Supreme Court extended the scope of 'West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 (for private organizations)' and made it applicable on the persons engaged by the Government or any of its organization. The Court held that non-adherence to minimum wages or avoidance of the same through an agreement was a violation of Articles 9 and 25 of the Constitution. The Court directed that the judgment should be considered a guideline for all the executive departments in the future while fixing the employees' wages being engaged by the government organizations on a contract basis or under any other program funded by the government or any other agency. The workplace's exploitation is taken in violation of fundamental rights, which are guaranteed under the Constitution. In All Pakistan Newspapers Society and others v. Federation of Pakistan50, the honorable Supreme Court has observed that the word 'life' is very significant as it covers all facets of human existence, life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The right to life also includes the right to livelihood. Under Article 3 of the Constitution, the State is bound to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work; therefore, a right person is required to be engaged in the right job, and there should not be any exploitation whatsoever. The honorable Islamabad High Court in Javed Iqbal and others v. Federation of Pakistan51 held that no one would be willing to provide services for another for less than the minimum wage, especially when he knew that under the law, he was entitled to get a minimum wage from his employer. When a person provided labor or service to another against remuneration, which was less than the minimum wage, he acted under some compulsion force, which deprived him to work. However, he was paid less than what he was entitled under the law to receive. A person would accept a salary less than a minimum wage when he could not bargain with the employer. Every person who had provided labor or service to another was entitled at least to the minimum wage. If anything less than the minimum wage was paid, he could complain of violating his Fundamental Right. In Pakistan, the legislature and judiciary appear to be conscious of any abuse against women and children, especially at the workplace. The National Commission On the Rights of Child Act, 201752, is promulgated to examine the legislations and administration instructions for the welfare of child, the Employment of Children Act, 199153 is promulgated to prohibit the employment of children in certain occupation and to regulate their working conditions, right to Free and Compulsory Education Act, 201254, is promulgated to provide free and compulsory education to all the children of the age of five to sixteen years in schools of federal government and local government in Islamabad territory, Prevention of Trafficking in Persons Act, 201855 provide effective measures to prevent in combat the trafficking in persons, especially women and children, Punjab Prohibition of Child Labor Brick Kilns Act, 201656 acknowledges that the environment in the brick kiln is hazardous for children, adversely affects their growth, health and education and provides and prohibits their employment and also, Punjab Restriction on the Employment of Children Act, 201657, prohibit the employment of children and restrict the employment of adolescents in certain occupations relating to hazardous work. The criminal law Second Amendment Act, 201658 has added certain cognizable offense relating to children, including exposure to seduction59, children pornography60, cruelty to a child61, trafficking of human beings,62 and sexual abuse during employment63. One of the highlighted domestic worker abuse case is Tayyaba's case where the Hon'ble Chief Justice of Pakistan took suo motu notice of child victim Tayyaba who being a domestic worker, was subjected to severe torture by a judicial officer and observed, "Though the child claimed she had fallen from stairs and was burnt while switching on the television, the wounds showed she had been tortured for a long time and harassed/ forced by someone to give that statement. The burn injuries were not caused by electric current, and I can surely say someone had [tortured her with] hot iron rods." Later on, in the exercise of original jurisdiction, the Islamabad High Court observed that circumstances established that the accused had left the minor alone in the house and exposed her to cold weather, hid the minor in injured conditions, did not provide the medical assistance, deprived the girl of education and kept her in virtual servitude; all was willful neglect and ill-treatment and was sufficient to establish the actus rea and mens rea to constitute the offense64. The Hon'ble Supreme Court on appeal further held that the offense "Cruelty of Child" (Section-328-A, P.P.C.) encompasses even an act of omission, which does not necessarily result in physical harm but may cause or likely to cause psychological harm, the assault, ill-treatment, neglect and medically un-attendance are the act of cruelty towards a housemaid. However, the prosecution did not invoke any provision regarding the minors' employment; rather, the prosecution was convinced that there was no legislation to cater to the domestic workers65. CONCLUSION The present law on domestic workers attempts to challenge and change the deeply entrenched norms of our society. Whenever any such social change is envisaged through legislation, the main concern has always been that either the law is of symbolic value or intending to hit real change; for "real change," the effective enforcement of all the provisions of the Act is of paramount importance. At present, The Act prevails in glimpses in the society, and an aggressive campaign must create proper awareness and enforcement. The successful implementation of the Law (order of the court) depends upon the particular social forces in the backdrop of local history, the prevailing economic pressures, and related issues66. In this regard, the Domestic Workers Board has to play a proactive role in public awareness and formulate the policy for effective and sustainable implementation. It must devise and propose further amendments in the Act to rule out the difficulties. ILO's convention guarantees the Freedom of Association and to form a Union, but the same is not part of our statute. Prior to the industrial revolution in Europe, the laborers, like domestic workers in Pakistan, were easily replaceable and were only on the mercy of the employers' market forces and will. They were exploited and bargained over the working terms and related issues. By incorporating the same provision in the present Act may drive the informal sector of Domestic Workers into an assertive and protected body with the full potential to inject handsome direct cash flow into the lower middle class of the society and to improve their living standards, it may turn this informal sector into a big industry with the tag "Domestic Workers." The Act has only elaborated and discussed the rights of Domestic Workers and the employee's responsibilities thereof. Still, to cater to a huge informal sector, it was required to put some legal responsibilities on the registered domestic workers. The Act is silent to tag the Domestic Workers to escape themselves from work without any notice, who claim sick leaves by making a false statement, and who fails to perform their duties as per terms and conditions of the employer's contract. The Act has provided for the employment of a household worker within the age of 15 to 18 years also, but nothing is specified that who would sign the contract on behalf of the minor worker; if the parents get the contract signed on behalf of the minor worker then whether it may not be a kind of slavery or forced labor through next friend? The framing of Rules is the first step to seek the objects of the enactment. Let's hope that the civic society and human rights organizations will convince the Executive to draft the Rules. Rather the Court invokes the jurisdiction under Article 199 of the Constitution of Pakistan 1973.