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In Quest of a Legal Framework for Domestic Workers in Bangladesh

Authors:

Abstract

Bangladeshi domestic workers suffer from lack of legal protection. There are a lot of laws, but none can ensure the rights of the domestic workers separately. Albeit, the Constitution of the People’s Republic of Bangladesh guaranteed some rights of the domestic workers impliedly. However, domestic workers can seek redress under ordinary civil and criminal laws of Bangladesh. Nonetheless, they need some sort of special treatment, because, they work in private place and in more vulnerable situation. In addition, the nature of their work is quite different from other traditional work sectors. There is no provision for their working hours, leave, minimum wages, holiday, maternity benefits etc. Though the ILO Convention No C189 has been adopted to ensure the rights of the domestic workers but Bangladesh is not a state party to the convention. Hence they need a new piece of legislation to protect their employment rights. This research paper aims to find out the lacunas of existing laws of Bangladesh and recommend to enact a new law in this regard
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 21
* MD. RAISUL ISLAM SOURAV achieved his LL.B (Hons) & LL.M degree from Northern University
Bangladesh (NUB); currently he works as a Senior Lecturer & Coordinator, Department of Law, Dhaka
International University (DIU), Dhaka, Bangladesh. Contact Address: Raisul Islam Sourav, Senior Lecturer
& Coordinator, Department of Law, Dhaka International University (DIU), 66, Green Road (9th oor),
Dhaka-1205, Bangladesh. E-mail: sourav.mollick@gmail.com Blog: www.legalviewsofsourav.blogspot.com
Cell: +88 01912 298 126, Facebook: www.facebook.com/raisul.sourav
1 Bangladesh Labour (Amendment) Act 2013, s. (1)(4).
2 Adams, Kathleen, “Home & Hegemony: Domestic Service and Identity Politics in South and Southeast Asia,”
University of Michigan Press, 2000, Michigan.
In Quest of a Legal Framework for Domestic Workers in
Bangladesh
Md. Raisul Islam Sourav*
Abstract
Bangladeshi domestic workers suffer from lack of legal protection. There are a lot
of laws, but none can ensure the rights of the domestic workers separately. Albeit,
the Constitution of the People’s Republic of Bangladesh guaranteed some rights
of the domestic workers impliedly. However, domestic workers can seek redress
under ordinary civil and criminal laws of Bangladesh. Nonetheless, they need
some sort of special treatment, because they work in private place and in more
vulnerable situation. In addition, the nature of their work is quite different from
other traditional work sectors. There is no provision for their working hours, leave,
minimum wages, holiday, maternity benets etc. Though the ILO Convention No
189 has been adopted to ensure the rights of the domestic workers but Bangladesh
is not a state party to the convention. Hence they need a new piece of legislation to
protect their employment rights. This research paper aims to nd out the lacunas
of existing laws of Bangladesh and recommend to enact a new law in this regard.
I. INTRODUCTION
Most of the Bangladeshi middle class families are very familiar with domestic worker,
though they do not recognize them as “worker” and do not recognize their rights to
get minimum wages, allowances, xed working hours, leave, bonus, weekly holiday,
maternity benets etc. As a result, they do not get any leave during any festival period and
usually work until midnight. In addition, the existing labour laws of Bangladesh also deny
their rights and do not include them as worker.1 Consequently, this community becomes
vulnerable and disenfranchised and they do not have ways to ventilate the injustices.2
Further, they do not have any practical and effectual legal means to enforce their rights.
JURNAL UNDANG-UNDANG 2014
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For the legislators and other stakeholders, domestic workers are not in the agenda because
of their powerlessness.3 This research paper is aimed to explore the reasons behind the
vulnerability of the domestic workers in Bangladesh and to nd out the loopholes in
existing law along with some suggestions to change the situation.
A. Legal Denition of Domestic Worker
The term “Domestic Worker” is very recent trend to recognize them as worker. Formerly
they were known as servant, housemate, helping hand etc. However, formally The
Domestic Workers Convention 2011 (Convention No. 189 of ILO) rst recognizes
domestic work as “work” and persons engaged in this sort of work as domestic worker
and also introduce a set of rights for these workers. According to the Convention No. 189
(Decent Work for Domestic Workers), work performed in or for a household or households
is domestic work and any person engaged in domestic work within an employment
relationship is domestic worker.
This work may comprise cleaning house, cooking, washing and ironing clothes,
taking care of children or elderly or sick members of a family, gardening, guarding the
house, driving and even taking care of domestic pets. A domestic worker may work
on full-time or part-time basis; may be employed by a single household or by multiple
employers; may be residing in the household of the employer (live-in worker) or may
be living in his or her own residence (live-out). A domestic worker may be working in
a country of which she/he is not a national.4 A large number of men also work in this
sector i.e. as gardeners, drivers or butlers. However, it remains a highly feminized sector.
However, domestic work and worker has the following features:
a) The workplace is a private home;
b) The work performed has to do with servicing the household;
c) The work is carried out on behalf of the direct employer;
d) The work performed must be done on a regular basis and in a continuous manner;
e) The employer shall not derive any pecuniary gain from the activity done by the
domestic worker and
f) The work is performed in return for remuneration, either in cash and/or in any kind.
The employer of a domestic worker may be a member of the household for which
the work is performed or an agency or enterprise that employs domestic workers and
makes them available to households. Nevertheless, the nature of domestic work is different
from other traditional industrial work.5 Hence, they require special treatment and special
law to protect their rights as worker.
3 Anderson, Bridget, Doing the Dirty Work: the Global Politics of Domestic Labour,” Zed Books, 2000, London.
4 Convention No. 189.
5 Ismail Hossain,, Structural Adjustment: Policies and Labour Market in Bangladesh,” CIRDAP, 1998, Dhaka.
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 23
II. CONSTITUTIONAL SAFEGUARDS FOR DOMESTIC
WORKERS IN BANGLASDESH
The Constitution of the People’s Republic of Bangladesh is the solemn expression of
will of the common people of Bangladesh.6 They achieved this golden piece of Bill of
Rights through the great freedom ght in 1971 and they paid an ocean of blood for this.
This is a Constitution adopted, enacted and given by the people for themselves.7 Thus,
the constitutional spirit authorizes that the rights of the neglected sections of the society
are guaranteed, including those of the domestic workers.
Bangladesh has four guiding principles in its Constitution. One of the four guiding
principles of the Constitution is socialism meaning economic and social justice8 which
imposes an obligation on the shoulder of the State to uphold the rights of the deprived
sections of people of the country. Chapter II of the Constitution ensures development
of the position of marginal and deprived people, like domestic worker, which are the
guiding principles as well as fundamental principles of state policy of Bangladesh. Some
of these relevant principles are:
1) Fundamental human rights and freedoms and respect for dignity of the human
beings.9
2) The State is responsible to emancipate the toiling masses, the peasants and workers,
and backward sections of the people from all forms of exploitation.10
3) The State responsibility to ensure the provision of basic necessities, right to work at
reasonable wages, right to reasonable rest, recreation and leisure and right to social
security.11
4) Free and compulsory education for the inhabitants of Bangladesh.12
5) Work is a right, a duty and a matter of honour for every citizen.13
Everybody shall be paid for his work on the basis of the principle ‘from each according
to his abilities, to each according to his work’.14 It further says that the State shall endeavour
to create conditions in which human labour in every form, intellectual and physical, shall
become a fuller expression of creative endeavour and of the human personality.
Albeit these principles are not judicially enforceable in the court of law as per the
provision of the Constitution.15 However, these principles shall be fundamental to the
governance of Bangladesh, shall be applied by the State in making of laws, shall be a
6 Mahmudul Islam, “Constitutional Law of Bangladesh,” 2nd ed., Mullick Brothers, 2010, Dhaka.
7 Preamble of the Constitution of the People’s Republic of Bangladesh.
8 Preamble & Art. 8 of the Constitution of Bangladesh.
9 Article 11 of the Constitution of Bangladesh.
10 Art. 14 of the Constitution of Bangladesh.
11 Art. 15 of the Constitution of Bangladesh.
12 Art. 17 of the Constitution of Bangladesh.
13 Art. 20 of the Constitution of Bangladesh.
14 Anker, Richard, “Gender and Jobs,” International Labour Ofce, 1998, Geneva.
15 Dr. Mohiuddin Farooque v. Bangladesh [1997] 49 DLR (AD) 1 and Arts. 8-25 of the Constitution of Bangladesh.
JURNAL UNDANG-UNDANG 2014
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guide to the interpretation of the Constitution and of the other laws of Bangladesh and
shall form the basis of the work of the State and its citizens.16
Further, part III of the Constitution provides fundamental rights, which are judicially
enforceable and guaranteed by the Constitution itself. These rights are enforceable by
the High Court Division of the Supreme Court of Bangladesh under its Writ (Judicial
Review) jurisdiction.17 As a citizen of Bangladesh all domestic workers are entitled to
enjoy all these following fundamental rights:
1) Article 27 declares that all citizens are equal before the law and are entitled to equal
protection of law.
2) Article 28 enumerates that the State shall not discriminate against any citizen on
grounds of religion, race, caste, sex or place of birth. Women shall have equal
rights with men in all elds of the State. However, it further states that nothing shall
prevent the State from making special provision in favour of women or children or
for the advancement of any backward section of citizens. Hence, the Constitution
undoubtedly permits statutes approving afrmative action for backward sections
of citizens like domestic workers.
3) Article 31 states that no action detrimental to the life, liberty, body, reputation or
property of any person shall be taken except in accordance with the law.
4) Article 34 prohibits all forms of forced labour.
5) Article 38 says that every citizen shall have the right to form associations or unions.
In case of violation of any of the above mentioned fundamental rights, which are to
be interpreted in the light of the preamble and the fundamental principles, the aggrieved
person can le a writ petition before the High Court Division.18 Apart from the fundamental
rights guaranteed under the Constitution, every person has other legal rights recognized
by various statutes. The High Court Division may also take steps suo moto for legal rights
violated by the government if there is no other equally efcacious remedy. Public interest
litigation in Bangladesh has grown, and now any person can move the court representing
the interests of the underprivileged or the under-represented.
III. PROTECTION ENSURED BY ORDINARY LAWS OF
BANGLADESH
Aside from the Constitution, there are few ordinary laws, which can protect the rights
of domestic workers as an ordinary citizen of Bangladesh. However, there is no single
special law in Bangladesh which deals with domestic worker exclusively except the
Domestic Servants’ Registration Ordinance 1961.
A. The Domestic Servants’ Registration Ordinance 1961
The only statute in Bangladesh directly dealing with domestic workers is the Domestic
Servants Registration Ordinance 1961. The purpose of this Ordinance appears clear from
16 Mahmudul Islam, “Constitutional Law of Bangladesh,” 2nd ed., Mullick Brothers, 2010, Dhaka.
17 Arts. 44 & 102 of the Constitution of Bangladesh.
18 Art. 44 of the Constitution of Bangladesh.
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 25
its title, it is to oblige domestic workers to register with the police. The Act says that if a
domestic worker fails to register with the police station, he shall be punished with simple
imprisonment which may extend to one month or with ne which may extent to 100 taka
or with both. 19 It is interesting that this Ordinance was made applicable for only ve police
stations of the Dhaka metropolitan area. Apart from registration, this Act comprising of
only nine sections, do not touch any other aspect. Apparently, the purpose of the statute
of 1961 was not to improve the fate of domestic workers, but to assist employers to nd
domestic workers in case they commit any offence and run away. Even in the area of its
jurisdiction, the ve police stations, the Act is not implemented and the domestic workers
do not actually register with the police.
Beside this, the denitions provided by this law needs to be extended. This denition
does not attempt to dene “household affairs” and thus can be interpreted in a very wide
sense including guards, gardeners, vehicle drivers etc. 20 Albeit, the entire informal sector
cannot be included in the legal discourse relating to domestic workers, many categories
not commonly regarded as domestic workers should be included in the denition so that
legal protection can be given.21 Apparently, the identifying criteria should not be working
in ‘household’ but ‘working in a household or doing similar works’.22 Again, presence
of ‘wages’ should not be an identifying factor at all. The most important criteria should
be whether she is working for her own family or for someone else.
B. The Labour Act 2006
Formerly the labour laws of Bangladesh consisted of various statutes, each dealing with
one or more aspects. However, the Labour Act 2006 repealed most of the earlier statutes
and modied some others.23 Now this single statute provides almost entire labour law
related provisions applicable in Bangladesh. Nonetheless, the Labour Act excludes
domestic workers from its ambit. Section 1(4)(o) expressly provides that the law shall
not be applicable to domestic servants. The implication of this provision is very clear.24
Domestic workers cannot claim any of the rights guaranteed under the Act of 2006.
Furthermore, there is no scope for them to go to the labour courts, which is established
exclusively for labour matters. It is very interesting to note that in certain cases, the Act
of 2006 actually goes backwards. For example the Minimum Wages Ordinance 196125
included domestic workers within its denition of workers and as such their minimum
wages could be xed through the mechanism provided by the Ordinance. The Act of 2006
has repealed this Ordinance and incorporated the provisions of the Ordinance of 1961
19 Section 5.
20 Section 2(a).
21 Selim Jahan, Domestic Service Labour Force: The Bangladesh Perspective,” Institute for Law and
Development, 1991, Dhaka.
22 Dr. Ahmed Naim, “Safeguarding the Rights of Domestic Workers: Existing Laws and Ways to Move Forward,”
Democracywatch and International Labour Organization, 2009, Dhaka.
23 Section 353.
24 Jan Breman, “A Dualistic Labour System? A Critique of the ‘Informal Sector,” Economic and Political Weekly,
1976, Vol. 11, No. 48, Pp. 1870-1876.
25 Ordinance No. XXXIV of 1961 (Bangladesh).
JURNAL UNDANG-UNDANG 2014
26
in Chapter 11 including formation and functions of a Minimum Wage Board. Similarly,
the Children (Pledging of Labour) Act 193326 provided that all agreements to pledge the
labour of children were void. This was also repealed by the Act of 2006 without making
any alternative for the domestic workers.27
C. The Prevention of Suppression Against Women and Children Act 2000
The Prevention of Suppression Against Women and Children Act 2000 promulgates to
take stringent measures against crimes oppressing women and children.28 Many of the
provisions of this statute deal with issues that are relevant for domestic workers, for
examples section 4 deals with death, attempt to murder, grievous hurt or mutilation by
using corrosive, incendiary or poisonous substances (especially throwing of acid); section
5 deals with trafcking of women for prostitution and allied matters; section 6 provides
for trafcking and stealing of children; section 7 deals with kidnapping and abduction of
women and children; section 9 deals with rape and section 9A covers situations where
women are led to suicide because of acts of others; section 13 provides for children born
after rape; and section 14 protects privacy of women and children from media exposure.
The punishments for the crimes dened under the Act are very stringent. The Act
establishes a tribunal to effectively adjudicate these matters and provides for detailed
procedures. Although the Act of 2000 covers many aspects relevant for domestic workers,
it was promulgated to safeguard women and children in general and no specic attention
is given specically to the domestic workers.
D. The Children Act 2013
The Children Act 2013 is the major legislation that aims to protect children. This statute
provides for the creation of juvenile courts and a separate system of trial for children.
It provides for probation ofcers, establishment and operation of certied institutions
for offender children, protection of their privacy, their custody during and after trial etc.
The court may also issue a warrant to search for a child. Since a considerable portion of
the domestic workers are children, the Act is very relevant in safeguarding their rights
and interests.
Section 34 of the Act has special relevance as it provides for penalty when a child
is assaulted, ill-treated or neglected by a person having charge or care of the child. The
remedy, being imprisonment for two years and/or ne not exceeding taka one thousand,
however is very minimal. However, section 44 provides that if a person secures a child
ostensibly for the purpose of menial labour in a factory or other establishment, but in fact
26 Act No. II of 1933 (Bangladesh).
27 Section 35 of the Act of 2006 incorporates the provisions of the Act of 1933 for children who are not domestic
workers.
28 Faruque, Dr. Abdullah Al, “Analysis of Decisions of the Higher Judiciary on Protection of Women’s Rights in
Bangladesh,” National Human Rights Commission of Bangladesh, 2013, Dhaka.
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 27
exploits the child for his own ends, withholds or lives on his earnings, shall be punishable
with ne which may extend to one thousand taka. These provisions, if property followed,
can be used by any conscious citizen to save child domestic workers from torture and
abuse even when the child’s natural parents are absent or silent.
E. The Penal Code 1860
Any act that has been dened by law as a crime is punishable by the courts of law. Apart
from the Penal Code 1860, many other laws dene criminal acts in Bangladesh. All
criminal acts are adjudicated by criminal courts29 and the domestic workers, like any
other citizen, are under the jurisdiction of the criminal courts. Under the Penal Code,
especially relevant for the domestic workers are culpable homicide, 30 murder, 31 hurt, 32
grievous hurt, 33 wrongful restraint, 34 wrongful connement, 35 assault, 36 kidnapping, 37
abduction, 38 rape, 39 and theft.40 These and many other provisions of criminal law apply
to domestic workers in the same way in which they apply to other citizens. There is
however no statute that specically deals with domestic workers and declares an act to
be a criminal act considering the special circumstances of the domestic workers.
F. The Domestic Violence (Prevention & Protection) Act 2010
Recently enacted the Domestic Violence (Prevention & Protection) Act 2010 does
not cover domestic workers under the purview of the said law. In accordance with the
provision of this law, only a female & child family member can get protection under
this Act. Hence, an unknown domestic worker who is not a member of her employer’s
family cannot take shelter under this law to prevent abuse against her.
G. The Contract Act 1872
Whenever a domestic worker starts to work in a household, there is an agreement
between the employer and the worker. This agreement is almost oral. Yet it cannot be
ignored that there is an understanding between the parties. The most important term of
the understanding is often the amount of money the worker will get at the end of the
29 Alhaj Zahirul Huq, “Penal Code,” 5th ed., 2010, Anupam Gyan Bhander, 2010, Dhaka.
30 Section 299.
31 Section 300.
32 Section 319.
33 Section 320.
34 Section 339.
35 Section 340.
36 Section 351.
37 Section 359.
38 Section 362.
39 Section 375.
40 Section 378.
JURNAL UNDANG-UNDANG 2014
28
month as salary.41 There may be other terms such as how many times she can take a
vacation to visit her village home, how many times she will be given new clothes by the
employer etc. Accordingly, even if not formal, written or exhaustive, the parties enter
into an agreement. This agreement is enforceable under the Contract Act, 1872. This is
also a service contract.
The relationship between the domestic worker and his/her employer is one of
“master-servant” relationship.42 Under this relationship, the employer is always the
dominant partner and can impose unfavourable terms. But as long as the employer follows
the terms agreed between the parties, the worker cannot protest. The employer however
has certain limitations under the established legal principles.43 For example, he cannot
violate the fundamental right of a worker even when the worker agrees to surrender the
right. Again, a worker cannot be dismissed on ground of any default unless given an
opportunity of fair hearing. It follows that in case of any violation of the service contract,
or any injury sustained by the worker, a case of compensation can beled before the civil
courts. The civil courts also have power to issue directions and declare any action taken
by an employer to be illegal. The legal provisions are thus not ambiguous.
But the problem lies in implementing these provisions since it depends upon each
individual contract between the employer and the domestic worker. Domestic workers
are mostly illiterate and unaware of their legal rights. Further, it is very difcult for them
to enforce their rights through legal proceeding. On the other hand, the employer stands
on a strong footing where he/she has the means to appoint expert lawyer to defeat the
poor worker. Hence, the domestic workers need legal literacy and free legal aid to battle
against their giant lords.
H. The National Child Labour Elimination Policy 2010
The denition of ‘child’ differs between one statute and another and a clear denition of the
terms ‘child labour’ or ‘child labourers’ are not found anywhere.44 In these circumstances,
the age-based denitions of child and adolescents as given in the Bangladesh Labour
Act, 2006 are followed in every discussion relating to child labour. According to the
denition, work performed by a child will be considered as child labour but the term ‘child
labourer’ should not be used here rather he may be termed as a child engaged in labour.
The policy advocates a friendly world for the children engaged in work and provides a
standard framework concerning education, health, working environment, specic working
conditions, recreation, treatment, security, social awareness building for managing and
reducing risks of child abuse by employers etc.45
41 Philippa Smales, “The Right to Unite: A Handbook on Domestic Worker Rights across Asia,” Asia Pacic
Forum on Women, Law and Development (APWLD).
42 Siddiqui, K., “Better Days, Better Lives,” 1st ed., The University Press Limited, 2001, Dhaka.
43 Selim, Nadia, “Domestic Service in Bangladesh: A Case Study in Dhaka,Expressions Ltd., 2009, Dhaka.
44 Maria, Amparita S. Sta., “Study on the Legal Protection of Child Domestic Workers in the Asia-Pacic,
International Labour Ofce.
45 Living Inside Room Outside Law: A Study on Child Domestic Worker and the Role of Govt. and Civil Society,
ASK and Save the Children, 2010, Dhaka.
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 29
Matters concerning children are regulated by the Ministry of Women and Children
Affairs and labour related issues are by the Ministry of Labour and Employment. But
no ministry is wholly authorised to administer the child labour issues.46 That is why the
policy articulates recommendation for giving the entire responsibility of supervising
every issue concerning child labour to the Ministry of Labour and Employment as a focal
Ministry. A Child Labour Unit is also suggested for coordinating all the activities that are
mentioned in the Policy of 2010. Furthermore, the policy points out that a National Child
Labour Welfare Council can also be created by the experts in child labour studies whose
duty will be to observe the circumstances of child labour at national and international
level with a view to making recommendations to the government.
Therefore, different statutes of Bangladesh have dened children differently
according to the different labour sectors, though the National Child Labour Elimination
Policy 2010 has made the age of child labour specic. In fact, the above provisions of
different Acts do not prohibit child labour rather insert provisions for the employment of
children. The reason behind this may be that if child labour is absolutely forbidden, that
will severely affect children and their families who depend on the income of children
and children may be involved with more exploitative informal activities (which do not
come under the purview of the above Acts).47 So child labour cannot be eliminated from
the society totally as yet.48 That is why steps should be taken to decrease it gradually.49
In this case the laws regarding child labour should be more child-friendly.50
IV. PROTECTION ENSURED BY THE JUDGMENT OF THE
SUPREME COURT OF BANGLADESH
Domestic workers are the most disadvantaged and deprived segments of society in
Bangladesh. In particular, child and female domestic workers are often abused and
subjected to torture and other forms of inhuman treatment. Bangladesh National
Women Lawyers Association (BNWLA) Vs. Govt. of Bangladesh51 is the rst judicial
pronouncement to investigate the legality of such practices in Bangladesh. This Public
Interest Litigation (PIL) had been led in view of a news item published in a national
daily newspaper of Bangladesh on the abuse of domestic workers and numerous other
examples of violence inicted upon domestic workers, in particular child and female
domestic workers.
46 Aktar, Sharmin and Abdullah, Abu Syead Muhammed, “Protecting Child Labour in Bangladesh: Domestic
Laws Versus International Instruments,” Bangladesh e-Journal of Sociology, January 2013, Vol-10, No. 01,
Dhaka.
47 Khair, Sumaiya, “Limiting Child Labour: The Impact of Protective Legislation in Bangladesh,” The Dhaka
University Studies, Part-F, 1996, Vol. 7, No. 1, Dhaka.
48 Rahman, G. Shamsur, “Laws Relating to Children in Bangladesh,” Bangladesh Shishu (Children) Academy,
1994, Dhaka.
49 Rahman, M., “Child Labour and Human Rights: Bangladesh Perspective,” The Dhaka University Studies,
Part-F, 1994, Vol. 5, No. 1, Dhaka.
50 Vittachi, A., “Stolen Childhood: In Search of the Rights of the Child,” Polity Press in Association with North-
South Productions and Channel Four, 1989, Cambridge.
51 Writ petition no. 3598 of 2010.
JURNAL UNDANG-UNDANG 2014
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It was submitted by the petitioner that the children and women, who were engaged
as domestic help, found themselves in a helpless situation being far away from home
and no one to turn to in times of need. There is no record maintained by anyone with
regard to the women and children employed in the domestic sector and it so happens on
many occasions that even the family members of the children are unable to trace their
whereabouts until it is too late. The government should take steps so that the employment
of women and children in the domestic sector may be monitored and their rights as worker
projected in accordance with the Constitution and the law of the land. They are subjected
to inhuman torture sometimes leading to death and at other times leading to suicide.
It is also a fact that female domestic workers, in particular, are subjected to physical
as well as sexual abuse. In many cases, action is taken against the employers by ling
cases with the police station, but the police are reluctant to record any case against the
perpetrators, particularly since they are well-to-do and inuential persons. It should be
noteworthy that the denition of worker under the Bangladesh Labour (Amendment)
Act, 2013 does not include anyone engaged in work as a domestic worker. The National
Child Labour Elimination Policy, 2010 also does not clearly show up to what age a child
would be totally prohibited from working. The policy shows that children under the age
of 14 years shall not be employed in regular work.
The court highlighted that such a situation should not be allowed to continue and
it is unfortunate that such service has not been recognized as such and nds no place in
the labour laws. The court suggested that the benecial provisions outlined in the three
policy documents namely, Domestic Worker Protection and Welfare Policy 2010 (Draft),
National Child Labour Elimination Policy, 2010 and the Children Policy 2011 must be
brought into effect at once so that the benets of the provisions of those policies may be
given to the domestic workers. It was also suggested by the court that children between
the ages of 14 to 18, who are engaged in the domestic sector, should be incorporated
automatically within the provisions of the Labour Act. There should be a system of
registration and monitoring of all persons engaged in domestic work. In the above facts
and circumstances, the court issued the following directions to the government:
1. In order to make the provision and concept of compulsory primary education
to be meaningful, we direct the government to take immediate steps to prohibit
employment of children up to the age of 12 from any type of employment, including
employment in the domestic sector, particularly with the view to ensuring that
children up to the age of 12 attend school and obtain the basic education which is
necessary as a foundation for their future life.
2. Education/training of domestic workers aged between 13 and 18 must be ensured by
the employers either by allowing them to attend educational or vocational training
institutes or by alternative domestic arrangements suitable to the concerned worker.
3. The government should implement the provisions mentioned in the National
Child Labour Elimination Policy 2010 and establish a focal Ministry/focal point,
Child Labour Unit and National Child Labour Welfare Council in order to ensure
implementation of the policies as mentioned in the Policy of 2010.
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 31
4. The government should include domestic workers within the denition of “worker”
in the Bangladesh Labour Act, 2006 and also to implement all the benecial
provisions of the draft Domestic Worker Protection and Welfare Policy 2010 as
announced by the government.
5. The cases relating to violence upon domestic workers must be monitored and
prosecution of the perpetrators must be ensured by the government. The government
has a duty to protect all citizens of Bangladesh, be they rich or poor. It must not be
forgotten that the domestic workers come from poverty- stricken backgrounds and
deserve all the more protection from the government and the authorities set up by
the government.
6. In order to prevent trafcking, in particular, and also to monitor the movement of
young children from the villages to the urban areas, parents must be required to
register at the local Union Parishad the name and address of the person to whom
the child is being sent for the purpose of employment. The Chairman of the Union
Parishad must be required to maintain a register with the details of any children of
his Union who are sent away from the locality for the purpose of being engaged in
any employment. If any middleman is involved, then his/her name and other details
must be entered in the register.
7. Government is directed to ensure mandatory registration of all domestic workers
by all employers engaging in their household any child or other domestic worker
and to maintain an effective system through the respective local government units
such as Pourashava or Municipal Corporations in all towns and cities for tracking
down each and every change of employment or transfer of all the registered domestic
workers from one household to another.
8. Government should take steps to promulgate law making it mandatory for employers
to ensure health check up of domestic workers at least once in every two months.
9. The legal framework must be strengthened in order to ensure all the benets of
regulated working hours, rest, recreation, home-visits, salary etc. of all domestic
workers.
10. Laws must also ensure proper medical treatment and compensation by the employers
for all domestic workers, who suffer any illness, injury or fatality during the course
of their employment or as a result of it.
V. PROPOSED LEGISLATION ON THE REGISTRATION
AND PROTECTION OF THE DOMESTIC WORKERS IN
BANGLADESH
Leading human rights NGO Ain O Shalish Kendro (ASK) has drafted a law on domestic
workers in 2012 titled the Domestic Workers’ Registration and Protection Act 2012 and
submitted it to the Ministry of Labour & Employment for enactment. However, till now
there is no visible sign to enact the said law. The objects of the ASK proposed law are:
To uphold the constitutional guarantee to ensure dignity of labour;
To bring all domestic workers within a legal frame work;
JURNAL UNDANG-UNDANG 2014
32
Make provisions for proper documentation of employment of domestic workers;
and
To substitute the existing discriminatory law (the Domestic Servants’ Registration
Ordinance 1961)
The Act mostly contains the provisions and procedure for registration of domestic
workers; the whole scheme of the Act is so devised that the registration along with other
provisions of the Act will ensure protection of the domestic workers; issues like assault,
torture and other forms of violence against domestic workers can be addressed by the
existing legislations such as the Suppression Against Women and Children Act 2000,
and the Penal Code 1860; and the Act is not intended to contain penal provisions; rather
it would be a regulatory law.
The proposed law also suggests procedure to register domestic workers such as:
employer to register employment of domestic worker within 10 working days. Section 2 of
the proposed Domestic Workers’ Registration and Protection Act, 2012 denes “Domestic
Worker” & “Child Domestic Worker” as follows: “Domestic worker” is dened as any
person who is employed for household works in consideration of wages or any other
benet. “Juvenile domestic worker as any domestic worker within the age of 12-18
years and ‘child domestic worker as any domestic worker below the age of 12 years.
VI. RECOMMENDATIONS
To protect the rights of the domestic workers there need to be in place a sound and
functioning institutional framework that will ensure the legal provisions and policies are
observed as well as enforced properly and actions will be taken to protect the domestic
workers if the Bill of Rights for Domestic Workers are violated and the guilty will be
punished accordingly. A district unit needs to be formed to help domestic workers under
the Ministry of Social Welfare which would take the lead in passing laws, overseeing
its enforcement and acting as a platform where all the relevant actors i.e. community
organizations, NGOs, private sector, bilateral and multilateral donors can mobilize their
agenda, resources and actions.
In addition, sufcient help centers should be established in different parts of the
country where domestic servants can seek help in cases of cruelty, violence and a violation
of their bill of rights. The existence of these help centers should be made widely known.
The centers should also be easily accessible by having extended hours of operations.
Furthermore, they should be equipped with minimum medical facilities, including
counseling, to deal with extreme situations of violence and cruelty. These centers will
also provide social interaction so that live-in maids can come to simply socialize and
meet others in order to alleviate their isolation. Workers from these centers should have
the power from the government to visit employers’ houses, particularly where children
are employed. For extreme cases where domestics are locked up and cannot access these
centers, a hot-line system should be in place.
Alongside these help centers and telephone hotlines, a department under the law
enforcement agencies should be established that would be geared towards solely focusing
on investigating cases of violation of bills of rights for domestic workers, particularly for
41 (2) JMCL IN QUEST OF A LEGAL FRAMEWORK 33
cruelty and violence against them. This department should make sure that the training of
police be more sensitive to cases of domestic workers and engage women police ofcers
in such cases who may be more sensitive to cruelty and violence to domestic workers.
In cases of the violation of the bill of rights for domestic workers, their contracts and
violence, a domestic workers’ special court should be created. More government funding
and ofcial support should be given to the existing drop in schools for child workers
operated by private NGOs.
All the policy measures mentioned above would need widespread public and policy
advocacy. Public advocacy is generally led by civil society. But in the area of policy
advocacy, the proposed unit on domestic help under the Ministry of Social Welfare can
interact with parliamentarians and convince them about the need for legal and institutional
frameworks such that the politicians give the political support needed in parliament to
get all the policy measures passed. The Ministry can also work towards creating alliance
among the private and public entities working in public advocacy and generate social
awareness.
VII. CONCLUSION
A special piece of legislation for the domestic workers could be a proper solution to
uphold their rights. Albeit, mere enactment of a new law may not be able to bring changes
over night, if we do not change our mind set. More humanitarian approach towards the
domestic workers can ensure more contentment in the mind of them.
The Government of Bangladesh should take initiatives immediately for appropriate
legal reforms and other necessary actions to implement the above mentioned
recommendations. However, the current governance decit in Bangladesh has further
aggravated the situation because the duty bearers such as lawmakers, executives, police,
and government ofcials remain insensitive to domestic workers’ rights. It is noteworthy
to mention that the Government is committed to protect the citizens but it lacks depth of
understanding and consistent planning. That is why action at the national level is needed
now, as timely steps can only bring positive impact towards domestic labourer from all
tiers of the society. But in case of taking action in full conformity with reality, all the
factors such as, economic, social, political, cultural have to be taken into consideration.
Further initiatives have to be taken at rst to keep child domestic workers away
from exploitative and dangerous works and to provide all of them appointment letter,
identity card and other necessary things to ensure the payment of their wages and other
rights as workers. Apart from these, Governmental bodies should ensure all rights of
domestic workers like other workers.
However, Bangladesh is obliged under both national and international law to protect
and promote the rights and interests of the domestic workers. The Constitution of the
People’s Republic of Bangladesh guarantees basic and fundamental human rights. These
rights are the guiding principles for formulating policies and laws relating to domestic
workers. Bangladesh will have to be a signatory State of the ILO C189 very soon, so
then these initiatives will be widespread and the afuent, elite countries and international
organizations will come forward to help the government and NGOs, not only in case of
nancial assistance but also in the actual performance of the eld level work.
JURNAL UNDANG-UNDANG 2014
34
... A domestic worker may be working in a country of which they are not a national [1]. In Bangladesh, many of them have migrated out of poverty from the rural to urban areas and adopted this profession as a livelihood strategy [2]. ...
... The employers do not recognize their rights to get minimum wages, allowances, fixed working hours, leave, bonuses, weekly holiday, maternity benefits etc. As a result, they do not get any leave during any festival period [1]. ...
Article
Full-text available
Domestic Helping Hands are one of the most vulnerable and exploited groups among informal workers in Bangladesh and the world. Considering their vulnerabilities, this cross-sectional study was carried out in Dhaka city to determine the factors associated with the working environment and safety of the Domestic Helping Hands. In this study, a total of 300 samples were interviewed face-to-face during 2017-2019 using a pre-coded structured survey questionnaire. The research found that 70.7% of respondents can not avail themselves any weekend and do not get any treatment if they become sick, 39.3% are physically tortured, and 67.3% do not receive their wages in time. A total of 74% of respondents are confined under lock and key when all other household members go out. There is solid evidence of a violation of the existing laws, and the respondents do not get any written contract for the services. Therefore, the victims cannot take any legal measures for breach of the service rules and conditions. Establish a robust complaint response mechanism with a dedicated helpline number, insurance policy, Domestic Helping Hand trade union, and institutionalizing their services to shape them according to legal protection policies.
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