Ms. Sachiko Yamamoto, Regional Director, ILO Regional Office for South Asia, in an email interview with the Labour File Team, argues that a well crafted regulatory mechanism with suitable enforcement is the need of the hour. She also speaks of  the purpose and the scope of the standard setting on decent work for domestic workers initiated by the ILO.

Is there currently a working draft of the Convention/Recommendation? What has been or will be the process of its drafting? What is the specific aim in this respect for the ILC 2010? What are the possible outcomes of the ILC discussions?

This is an exciting time for those of us involved in promoting `decent work` for domestic workers. Decent work refers to work undertaken in conditions of freedom, equity, security and human dignity. Improving the conditions of domestic workers has been an ILO concern since its early days. As early as 1948, the ILO adopted a resolution concerning the conditions of employment of domestic workers. In 1965, it adopted a resolution calling for normative action in this area whereas, in 1970, the first survey ever published on the status of domestic workers across the world made its appearance.

The Decent Work Agenda provides a new and promising avenue for ensuring visibility and respect for domestic workers. Standard setting on decent work for domestic workers will take the ILO beyond the identification of non-compliance and towards the provisions of specific, constructive guidance on how to regulate effectively a category of worker that is singularly in need of support.

In 2009, a report on the law and practice on domestic work accompanied by a questionnaire was sent out to the governments of the member states of the ILO, which were invited to send in their replies by 30 August 2009. The questionnaire sought to elicit views on the nature and content of a comprehensive standard(s). Replies were received from 103 member states. A considerable majority of respondents favour the adoption of a Convention supplemented by a Recommendation. For example, two-thirds of the government responses favour a Convention as opposed to a Recommendation only. Most responses received from the workers` organisations favour a Convention whereas most of the employers` organisations favour a Recommendation only.

Based on the replies received, the Office has compiled a second report, which includes the `Proposed Conclusions` that reflect the issues to be highlighted in the proposed instrument and to be discussed at the ILC in June 2010. Based on the outcome of the 2010 discussion, draft instrument(s) will be prepared, and adopted at the ILC in 2011.

It is common to describe the situation of domestic workers as unique, in which besides the general features of informal work, there are also issues concerning the regulation of domestic space of employment. Can a distinction be made between `regulating work` and the provision of `social security` for workers, in the case of domestic workers and their relationships?

The law and practice report has shown that the conditions of domestic workers do not improve unless there is concerted action to improve the legislative framework. This is a sobering insight. However, one of the most encouraging discoveries is that creative experimentation in regulating the occupation is underway in a broad cross-section of member states around the world. Studies confirm that well-crafted regulatory mechanisms with suitable enforcement machinery make an important difference in the everyday lives of domestic workers and convey the message that domestic workers are indeed workers, who deserve both rights and respect. What is important is to regulate the employment of domestic workers and their working conditions, provide employers with a rights-based framework upon which to determine what is `fair` in the domestic workplace, and identify factors that might be a source of occupational risk and to take appropriate steps. Providing social protection is an integral part of the decent work agenda and it should be addressed in the regulatory framework for domestic workers, taking into account national realities and existing programmes, with attention to the mechanisms through which social protection benefits will flow.

The GOI has asked that the phrase `young domestic worker` be used in place of `child domestic worker` in the definition of domestic worker. What would be the implications of this, in terms of the scope and application of a possible Convention and its relationship to other Conventions, such as those relating to child labour?

It would be best to stick to phrases that are not ambiguous. The implications of using `young domestic workers` would depend on how this is defined. In general, a young worker would be taken to mean a worker in the age groups of 14 or 15 years to 24 (14 in developing countries and 15 in developed countries). Using `young domestic workers` would, therefore, shift the focus in question from child labour to youth employment issues.

Does the ILO have a clear position on the treatment of child labour in domestic work, with regard to the Convention?

Throughout the world, thousands of children are working as domestic helpers, performing tasks such as ironing, cooking, minding children and gardening. In many countries, this phenomenon is not only socially and culturally accepted but might be regarded positively as a protected and non-stigmatised type of work, and, therefore, preferable to other forms of work, especially for the girl-child. Ignorance of or disregard for the risks children might be exposed to in this kind of work is an alarming reality in many parts of the world. Given its hidden nature, it is impossible to have reliable figures on how many children are globally exploited as domestic workers.

There are two important instruments for the abolition of child labour-Minimum Age Convention (No. 138) adopted in 1973 and the Worst Forms of Child Labour Convention (No. 182) adopted in 1999. Both these Conventions require ratifying countries to

• Define and make lists of hazardous work prohibited to children less than 18 years.
• Enforce the prohibition of this work through law and action.

Convention 138 requires that no child should be at work before completing compulsory education. For this purpose, countries must set a minimum age for admission to work of 14 or15 years, depending on national conditions. No child under 18 years of age should be engaged in hazardous work. Hazardous work by its nature or circumstances jeopardises the health, safety and morals of a child. Conventions 138 and 182 are identical in the aspect of age and definition of hazardous work. Convention 182 leaves it to members whether to define child domestic labour as the worst form of child labour or not but some of its provisions are applicable in cases of hazardous work, trafficked children or situations of forced labour or practices similar to slavery.

Hence, using the ILO Conventions as guidelines, child domestic labour is domestic work undertaken by (a) children under the legal minimum working age, and (b) children above the legal minimum age but under the age of eighteen and subject to slavery-like, hazardous, or other exploitative conditions- a form of `child labour to be eliminated`, as defined in international treaties.

India has listed domestic work in the schedule of hazardous work for children. Given this, the age for entering domestic work should not be less than 18 years, according to international law. However, India has not ratified Convention 182 and `hazardous work` is legal as per national legislations from 14 years onward. The ILO has been pointing out this age gap to the Government of India for some time, and there are signals that India may ratify Convention 182 in the near future and do away with this discrepancy.

Does the ILO Convention consider a model/principle or method for fixing the wages of domestic workers?

Conventions set minimum standards of protection to which a worker should be entitled. However, the exact provision and extent of protection needs to be defined by ratifying countries themselves, taking into account their national contexts. In this regard, detailed mechanisms such as a method for fixing minimum wage and migrant workers` specific concerns and regulating the so-called `placement agencies` social protection would be re-defined at the country level.

The Standard Setting Process of the ILC for domestic work has come up with a number of conclusions based on the questionnaires returned by member states. These conclusions lay out what the Convention will do as follows:

• Generic definition of domestic work and its built-in flexibility
• Reaffirmation of the application of fundamental principles and rights at work for domestic workers
• Measures to ensure fair terms of employment and decent working conditions
• Specific attention to needs of migrant domestic workers
• Easy and affordable access to dispute settlement procedures
• Suitable arrangements to ensure compliance

An important point to make note of in looking at these conclusions is that the domestic workers are entitled to `fair terms of employment and decent working conditions`, which are to be supported by the following measures:

• Setting a minimum age for admission to domestic work
• Contract particulars to be communicated to the worker in an appropriate and easily understandable manner
• Effective protection against all forms of abuse and harassment and protection of the workers` right to privacy
• Conditions not less favourable than those of other wage earners in respect of
  • occupational safety and health, and
  • social security, including maternity

How will the ILO address the issue of representation of employers, and ensure the validity of their representation?

That is the main challenge. Normally, employers own factories or offices in which they employ workers. For domestic workers, every individual household is a workplace. This makes an employer of every private person engaging domestic workers. The inputs by delegates at the ILC should provide answers to these issues and sure some original and innovative ideas will be generated to come up with solutions acceptable to all stakeholders.

A large number of domestic workers, especially women, are immigrants. What provisions are there in the proposed instrument to address specific problems of immigrants, in particular, non-discrimination with respect to national laws, illegal detentions, portability of social security, etc.?

Generally, the ILO promotes the equal treatment of national workers and migrant workers. At the same time, special measures will be introduced to make sure that migrant workers can enjoy special protection against abuse and exploitation, given their extra vulnerability.

It is clear that the mechanisms for recruitment and the provision of workers to employers is an issue for workers-both domestic and others. It has been recognised by the Government of India that these intermediaries should be directly regulated, and made accountable as employers. How would a Convention (or other document) seek to address this fact, especially in the larger context of generally exploitative labour recruitment for all sectors of employment?

Conventions set minimum standards of protection that a worker should be entitled to. However, the exact provision and extent of protection needs to be defined by ratifying countries at the national levels, taking into account their national context and conditions. In this view, the opinions of national social partners are extremely important in ascertaining the situation and proposing measures to address it.

A number of questions pertain to the inclusion of references to other conventions in the Preamble of the proposed Convention on domestic work. The Government of India has replied that the applicability of other ILO Conventions is not necessary because domestic work is `unique`. Could you please explain what is at stake in inclusion or otherwise-in the normative and the legal context? How would the inclusion or otherwise of the reference to the body of principles and Conventions regulating work impact the subsequent work of ILO?

It is common drafting practice to make reference to the Fundamental Principles and Rights at Work, related conventions and other international treaties in the Preamble of ILO Conventions. This is done to reaffirm the application of other Conventions to domestic workers, to ensure multiple and comprehensive coverage and avoid loopholes.

Such as...?

The relationship between hazardous child labour and domestic child labour is a good example. The potential loopholes and contradictions about the age of entry into domestic work could exist if domestic work is not seen in connection with child labour, particularly hazardous child labour. In countries where `domestic work` is listed as hazardous and, hence, the worst form of child labour, the age of entry should not be below 18 years of age.

Reference to other Conventions is another way to make sure that the coverage of those conventions extends to the beneficiaries of the new Convention, without cumbersome repetition in the text.

What are the future steps-beyond ILC 2010?

Further to the discussion of the `conclusions` in the ILC in 2010, the ILC in 2011 will move towards adopting a Convention or/and a Recommendation. Depending on the outcome of this process, the ILO will determine its next course of action. If a new Convention is adopted, the ILO will start a ratification campaign, in most cases, to provide international support for the protection and rights of domestic workers. We can do many things, including taking small steps such as translating the instruments to providing technical assistance to a social protection system. Again, consultations with ILO constituents will guide ILO action-this is the only acceptable way forward.