Domestic Workers’ Right to Form Trade Union: Delhi HC Issues Notice
Particularly noteworthy is Justice Midha’s observations during the course of the hearing on the right to collective bargaining.
May 1, 2019
In the neoliberal times that we are dwelling in, there is an ongoing onslaught on workers’ rights, and governments everywhere are leaving no stone unturned to launch an attack on workers’ right to organise. In India, this is more acute in the case of domestic workers, who are not recognised as a part of the organised sector, and have to suffer brutalities, indignity and deprivation, as former journalist Tripti Lahiri’s book Maid In India so vividly describes.
Therefore, it is not unsurprising that the Delhi Domestic Workers’ Union’s applications for getting trade union status, which were being made from 2016, were rejected by the Delhi Government. However, last week, the Delhi High Court’s Justice J R Midha, while hearing the writ petition filed by Gunjan Singh and argued by Sanjoy Ghose, offered a significant ray of hope.
During the course of the hearing, and while issuing notice to the Delhi government and the Labour Ministry, Justice Midha remarked that in the present times, there is all the more need for the government to provide safeguards to workers of the unorganised sector, and recognise the right of the vulnerable for organising and collective bargaining.
THE GOVERNMENT’S REFUSAL
On May 23, 2017, the Deputy Labour Commissioner rejected the Union’s application without citing any reason, and on appealing to the High Court, the Labour Department was directed to give a speaking order. On January 24, 2019, the Deputy Registrar rejected the application, holding that according to the judgement of the Madras High Court in Rangaswamy vs Registrar of Trade Unions (AIR 1962 Mad 231) , only persons engaged in trade or business could be allowed to form trade unions, domestic workers do not come within the definitions of industry or workmen under the Industrial Disputes Act , and domestic work is neither a trade nor an industry.
THE UNION’S ARGUMENTS
Aggrieved by the government’s decision, the Union moved the Delhi High Court earlier this year. Its arguments were as follows:
- A purposive reading of the Supreme Court’s constitution bench decision in the Bangalore Water Supply case (1978), which is still binding law, reveals that the work performed by domestic workers falls squarely within the definition of industry. In the 1978 ruling, the apex court had held that the true focus is a functional one and the decisive test is the nature of the activity, with special emphasis on employer-employee relations.
- Private placement agencies, which play a crucial role in getting domestic workers employment in Delhi, come under the definition of industry as they are involved in a systematic activity of providing domestic workers. there is cooperation between the agencies and the workers, and there is also the delivery of services which are domestic in nature. Moreover, these agencies are regulated by the Delhi Private Placement Agencies (Regulation) Order, 2014.
- Since Residents’ Welfare Organisations (RWAs) control the terms of employment of domestic workers, fix their wages, control their entry and exit from the premises, they fulfil all the conditions of the test laid down in the Bangalore Water Supply case.
- Vide a Notice dated October 10, 2017, the Ministry of Labour and Employment introduced the National Policy for Domestic Workers which recognises their right to form trade unions and associations.
- Moreover, two existing legislations– the Unorganised Workers Social Security Act, 2008 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Rederessal) Act , 2013 grant “labour” status to domestic work. Further, the Sexual Harassment Act regards a dwelling house as a “workplace”, and the Supreme Court in the Sharamjeevi Mahila Samiti case (2012) recognised domestic workers as “workers”.
- Already, there are two domestic workers’ unions in Delhi which have been accorded trade union status. These are the Delhi Gharelu Kamgar Sangathan and the Gharelu Kamgar Panchayat.
- Last, but not the least, India’s obligations under the International Labour Organisation’s Convention 189, Domestic Workers Convention 2011 makes it incumbent upon the government to recognise the right to be registered as trade unions.
As numerous reports and a considerable body of research has shown, domestic workers, especially in Delhi-National Capital Region, have no legal recourse even if they are heaped with the worst forms of cruelty. One only has to go back to 2017, to the torture which Zohra Bibi, a domestic worker in Mahagun Moderne, a plush and gated apartment complex in Noida , had to suffer. Till date, she is yet to get justice.
The next date of hearing in the case is in May 2019, and it is hoped that the Delhi government would not act in a manner which is insentient and contrary to law.
First published in Newsclick.
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