16 December 2008

Domestic Servants -- Legal Protections?

Overview

The Draft Bill on the Protection of Domestic Servants intends to formalize a type of work that was always a part of, and currently remains, the informal employment sector. The rationale is that while these types of domestic service remain a part of the informal employment sector then these workers are potentially subject to abuse and have little or no protective mechanisms to support them when their employment situation turns bad.

Human Right to Work
The government characterizes work as a human right and one that is to be protected. Work is to be a situation where you are paid in accordance for the value of your work and at a level equal to your skills and capabilities. The Draft Bill is explicit that this is to happen without discrimination. The 1945 Constitution of the Republic of Indonesia after amendment includes a basic “Bill of Rights” and among those rights is a right to work.

Therefore, this Draft Bill is intended to give some effect to that right and to ensure that adequate protections are in place for this right to work to be fully realized. The relevant articles of the Constitution are:
· Article 5(1);
· Article 27(2);
· Article 28A; and
· Article 28D(2).

Two Concurrent Versions of the Draft Bill
There are currently two versions of the Draft Bill in circulation. The first is a Non-Governmental Organization version and the second is a Government version. The version here is the government one.

The government version provides an explanation in the Elucidation as to why the term “pekerja” has been chosen in preference to “pembantu”. Generally, in the context of the home, pekerja would translate to domestic servant. In contrast, pembantu would translate to maid or more specifically, house maid. It is clear from the title of the Draft Bill that the term is intended to be the broader and all encompassing pekerja rather than the more restrictive pembantu.

Features
The most striking feature of the Draft Bill is that it will require all domestic servants to be employed based on either a written or oral work contract that guarantees some basic rights such as:
· to be treated humanely;
· welfare;
· health;
· work safety; and
· any other rights included in the work contract.

This is a striking feature because it is rare if not unheard of that domestic servants are employed on anything other than a basic verbal agreement. These oral contracts are difficult to enforce and general offer little or no protection for domestic servants. This very much leaves a domestic servant at the whims and discretion of their employer. It is interesting that the Draft Bill maintains these oral contracts.

However, in terms of contracts between the end user and domestic servant placement agencies, these contracts must be written and clearly set out the rights and obligations of each of the parties.

These features are contained in Article 3 and unfortunately the Elucidation to this Article states no more than it is “self-explanatory”. For example, is the entitlement to health to be evidenced by the employment taking out health insurance on behalf of the domestic servant?

It is clear that the socialization process needs to address some of the specifics of the protections to be afforded. Simply, without greater clarity in terms of what health, welfare, and work safety entail then both compliance and enforcement will be subjective and difficult.

Scope
The scope of the bill is all domestic servants and not just house maids. The provisions cover the following individuals, among others:
1. house maids;
2. caretakers;
3. baby sitters;
4. nannies;
5. governess;
6. gardeners;
7. personal drivers;
8. private security; and
9. private tutors.

The types of employment covered are both live-in and live-out, but all have some relationship to the maintenance of the home or a home environment.

Direct and Indirect Recruitment
The provisions of the Draft Bill cover both privately recruited domestic staff and those recruited and placed through agencies.

Article 5 expressly states that the employment of a child requires the written permission of the parents or guardians of the child. In difficult economic times it seems very likely that this permission will be easy to obtain as parents and guardians will see their 15 – 17 year old children as a source of income. This particular provision appears to run counter to Indonesia’s stated commitments to the protection of the interests of children through to the age of 18.

The Draft Bill sets out the minimum requirements that must be met during the recruitment process in order for an individual to be employed as a domestic servant. These requirements, among others, include:
· possess a self-identity;
· be at least 18 years of age;
· where the age is between 15 and 17, recruitment is for specific purposes;
· the existence of an agreement between the employer and the domestic servant; and
· possess the requisite skills for the work envisaged.

Minimum Age and Child Labor
Interestingly, the Draft Bill seems to set the minimum age limit for domestic servants at 15. Article 6 explicitly states that it is prohibited to employ anyone under 15 as a domestic servant. At 15 one is still a child and this would seem to be legislating positively for the legitimizing of child labor.

Although the Draft Bill seems to modify the work that 15 – 17 year olds can do to “specific tasks” and be limited to four hours of work. And, as noted previously the child can only be employed after the permission of the parents or guardians of the child has been obtained.

Rights and Obligations
The Draft Bill sets out the rights and obligations that domestic servants must enjoy. These rights include:
· the right to a reasonable wage;
· a right to know the type of work that they will be doing;
· an allowance of one month’s salary for their relevant religious holiday;
· weekly and annual leave;
· a right to add knowledge and a right to access information within the framework of improving work productivity;
· a right to communicate and to receive communications from their family;
· an opportunity to organize or unionize;
· breastfeed any children that they have;
· an opportunity to practice their faith;
· a right to maternity leave;
· a right to occupational health and safety (inclusive of reproductive rights);
· a right to not be subject to violence; and
· a right to three sets of clothes annually.

The obligations include:
· to perform their work in accordance with the work contract;
· maintain morality and security in their place of work;
· maintain the good name of the family and protect any confidential family information that they may obtain;
· notify within at least 15 days of any intent to resign;
· complete all work properly; and
· assist in the maintenance of the peace, harmony, and security of their place of work.

The Draft Bill also sets out the rights and obligations for both the employer of a domestic servant and also the rights and obligations for domestic servant placement agencies. For example, the employer of a domestic servant has a right to obtain information on the domestic servant employed. Unfortunately, the Elucidations to this Article provide no insight as to what this information might be. Nevertheless, this information presumably includes such things as the name and age of the domestic servant as well as such information as a home address and previous work history (if any), among other information.

Domestic servant placement agencies have a right to receive payments for their services in providing domestic servants to an end user or employer. The size of any fee is to be stipulated in the written agreement that is to be signed by both the placement agency and the employer.

Termination of Work Contracts and Wages
A work contract can terminate for any number of reasons. However, some specifics are listed in the Draft Bill. These include the death of the domestic servant (and presumably the employer), the period of the work contract has expired, a situation arises that is outside the ability of either party to overcome, and by mutual consent, among others.

If the domestic servant wishes to sever the employment contract, then the domestic servant is to provide 15 working days notice of their intention to do so.

The Draft Bill envisages that the minimum wage for domestic servants is to be set by Provincial Governments, Municipalities, and Cities in accordance with the economic conditions of the respective locations. In addition, the Draft Bill provides that the employer and the domestic servant can agree to any other incentives that they wish.

Work Hours and Leave
The drafters have realized that setting any specific times for work negates the reality that is domestic work; simply the only way to regulate time is on a flexi-time schedule with a maximum number of hours per day that may be worked. The maximum number of hours per day has been set at ten.

In terms of leave, a domestic servant is entitled to one day off per week. Presumably this day is by mutual consent of the domestic servant and the employer. This is in addition to a mandatory minimum six hours of rest per day. Interestingly, this six hours of rest does not seem to be a continuous six hours but potentially it could be in one hour lots or similar.

A domestic servant becomes eligible for 12 working days annual leave once they have worked for the employer for 12 consecutive months.

Dispute Resolution
Any dispute is to be resolved by negotiation between the parties in conflict. If this negotiation does not reach a settlement that is mutually agreed by the parties, then the dispute is to be resolved by involving the Neighborhood Head (Rukun Tertangga / RT) and the Community Head (Rukun Warga / RW). If the involvement of the RT and RW fail to get the parties to reach a mutually acceptable settlement, then the parties can then escalate the dispute to the courts.

The reality is that these provisions as they relate to dispute resolution seek to redress the power balance between the employer and employee (domestic servant). Traditionally, domestic servants have had very little power and have generally been at the whim of their employer. The option of alternative dispute resolution and, if need be, the courts mean that domestic servants will have some legal protection from arbitrary actions of their employers.

Supervision
It is expected that primary supervision will be by the relevant service division of the Department of Labor and Transmigration. It is also envisaged that the RT and RW will play a role in the supervision on a much more local level.

Sanctions
The basic sanctions in the Draft Bill are administrative in nature and cover breaches of Articles 11, 13, and 17. The sanctions include written warnings, temporary suspension of the activities of placement agencies, cancellation of licenses, and the cancellation of work contracts, among others. However, it is expected that additional sanctions will be included through specific Ministerial and Regional Regulations.

Enactment
The Draft Bill will come into immediate force on its enactment.

Conclusion

It is clear that the government is intent on providing enforceable protections for domestic servants. It is also clear that in order to achieve this there is a need to formalize the employment situation from its current informal nature.

However, there appears to be some serious shortcomings if the intended purpose is to take these types of work from the informal to the formal. For example, it would make sense that the work contract between the domestic servant and the employer is in the written form. This would ensure that there are better prospects for enforcement in the event that the employment relationship breaks down.

Nevertheless, the intention is an honorable one.

The Draft Bill is currently in the socialization phase. It is expected that there will be considerable input from various stakeholders and therefore the final version of any bill that reaches the House of Representatives to work through the Commission and Committee processes prior to any enactment is destined to be quite different from the current versions.

Postscript

By way of explanation. This is a revised copy of something I have written for some other purpose. Perhaps some will be interested in the substantive matter that it covers and some won't be interested at all. Nevertheless, I guess if you live in Indonesia and have the luxury of any of these domestic services such as a house maid or two, drivers, gardeners, and the like then the draft bill is likely to be of some interest to you.

We have a domestic servant, a house maid. She is excellent. She works hard and is reliable. however, having read through the provisions she seems to be on a pretty good thing already working for us. Her salary is above average and once she has done the obligatory chores then her time is pretty much her own. Like for example tonight, she asks if she can stay the night with some family who live near by. We have no problem with that and so off she goes.

Provided there are no significant changes to the basic provisions of the draft bill then we are already in compliance. So, perhaps we can tighten the screws a little and make the conditions our house maid works under to comply with the absolute minimum.

Just kidding!

5 comments:

Katadia said...

I would so want to purchase a health insurance policy for maids/baby sitters. Do you know any specific companies offering such policies to be paid for by employers? It'll be a good idea.

Rob Baiton said...

KD...

You're a good employer! Nope, but I am looking into it. I am guessing all the "biggies" in the insurance sector will adapt current policies to include the domestic servants or will devise some ridiculously expensive alternative.

GJ said...

Rob, on the oral contract, do you think this was done as some/many servants have limited reading and writing ability? They could possible sign something that they had no understanding of, this especially if some legal Mumbo-jumbo (no offence) creeps in. It may have been the best option on balance considering that servants were highly unlikely to engage profession help to review the contract.
Just my option!
Cheers GJ

Great to hear the Boy is doing well, any more pics???

Rob Baiton said...

GJ...

Without a doubt that was the consideration. It would have been impossible to achieve universal written contracts across the board for the reason you mention.

Undoubtedly, there would be unequal power relationships develop as the employer would pay a lawyer to draft a really long contract that is biased towards the employer and get the domestic staff to sign it or make their mark.

I do not see a lot of lawyers wanting to line up to do pro bono work of this kind.

There are more photos of Will. I just have not gotten around to shrinking them down to a more manageable size.

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