A recent analysis of the existing legal and policy framework Sri Lanka’s Domestic Workers by a top research body has advocated three unique approaches to reform to ensure decent work for domestic workers in Sri Lanka. This is after the study carried out by Sri Lanka’s Verité Research, found that presently there are gaps between international standards and existing law and therefore recommends Sri Lanka to adopt an 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,” the study undertaken by the Legal Research Team of Verité Research and headed by Sabrina Esufally noted.
Following are the recommendations extracted from the concluding remarks in the report.
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 characterised
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:
a) Guarantee of a minimum wage
b) Regulation of ‘in-kind’ payments
c) Ensuring domestic workers enjoy conditions that are not less favourable than those applicable to workers generally with respect to maternity
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.
The amendments described above would result in compliance with the following standards contained in ILO C189:
a) Guarantee of a minimum wage
b) Ensuring domestic workers enjoy conditions
c) that are not less favourable than those applicable to workers generally with respect to social security, and maternity
Introducing 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 study proposes three specific interventions in this regard:
a) A dynamic social security mechanism
A dynamic social security payment scheme designed to address ongoing vulnerabilities of domestic work (as opposed to a scheme that offers only a safety net accessible upon retirement) should be introduced. This scheme may be modeled on the Indian Domestic Workers Welfare and Security Bill of 2010.
b) A registration mechanism
A registration mechanism for employers should be introduced 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. Introducing such a mechanism necessarily involves drafting new legislation – perhaps modelled on the Indian Domestic Workers Welfare and Security Bill, which provides for a registration system.
c) A new law on personal security
A new law that protects domestic workers from abusive practices within the home that do not amount to criminal offences should be enacted. The law should include a complaints mechanism to ensure that a worker’s personal security is safeguarded during the course of employment.