The COVID-19 pandemic has affected the labour market world-wide. The short-term consequences were sudden and severe. As reported by the ILO, one-in-five workers found themselves working from home in the initial months of the Covid-19 pandemic in 2020 and the numbers have only gone up since then. Home workers are more vulnerable when it comes to social security, safety and health and are offered on average about 50% less than the other workers in India. With the lockdown in place, more than 3 billion people have been forced to work from home, excluding essential workers such as defence and healthcare officials. As the “future of work” is set to revolve around non-traditional working methods, a robust regulatory framework is the need of the hour for countries across the globe. Not all aspects of the remote, non-traditional work are covered by law but it is crucial for India, where 96% of organisations implemented WFH since the national lockdown last year and for certain work lines that were most affected, to develop a consistent regulatory framework for remote work.
What does ILO propose with respect to Home workers?
ILO has a clear stand with regard to home based workers and it strives towards achieving recognition for home workers in national policies. Home workers are one of the most neglected workforce around the world and this is substantiated by the fact that the Convention 177 i.e. The Home Work Convention has been ratified by only 10 countries despite it being adopted by the ILO in 1996. Only a handful of countries have actual comprehensive legal framework with regard to home-based work and that’s a bitter truth considering the global pandemic which has forced many people to retreat back to their homes for work without any solid laws in place to regulate the same.
The ILO Convention’s definition of home work is provided under Article 1; it states that “home work means work as carried out by a person, for remuneration which results in generation of a service or product as stated by the employer, in his home or in any other place of his choice, other than the workplace of the employer”. The person performing such work will be known as a homeworker. ILO seeks to bring the vulnerable homeworkers at par with other wage earners by granting them equal treatment in terms of remuneration, occupational health and safety, access to training, statutory social security, maternity protection etc.
Recommendation 184 of ILO i.e. Home work Recommendation, 1996 provides a broad outline for policy makers and national governments to look into while formulating policies for home based workers. These recommendations take into account all the important facets which are likely to affect such workers be it wages, working conditions and hours, dispute resolution, rights to organize and bargain collectively, maternity leaves etc. Hence, these Recommendations together with Convention 177 can pave the way for elaborate and customized national level polices to protect the home-workers around the globe.
With the advent of novel corona-virus the employers have started using digital labour platforms to monitor their employees’ productivity by keeping track of their devices by taking screenshots at regular intervals, which may be ill-timed and may result in privacy issues and can also allow the employer to harass the employee based on an artificial-intelligence’s handiwork. Workers generally have few claims to privacy at work alone, but if homes are now the new work sites, monitoring software invites the employers into the private homes, which results in higher probabilities of a potential privacy breach. Therefore, ILO in its report titled “Work from Home: From invisibility to Decent Work” recommended that since the tele-workers were at risk of working overtime and there’s a threat of privacy breach, they shall have a ‘right to disconnect’ after the working hours.
What India has in place for its home-workers?
India is totally ill-equipped in terms of laws relating to the home-workers, their safety, security and working conditions. The new labour codes don’t have much to offer either. The lone mention of work from home (WFH) in the Labour Codes is in the draft Model standing Order for Service sector issued vis-à-vis the Industrial relations Code, 2020. This order guides the employer on the rules of conduct for workers. An employer may allow his employees to WFH, subject to any contract or agreement between the parties. However, this barely qualifies as a guideline for a comprehensive WFH framework.
Occupational Safety, Health and Working Conditions Code, 2020: This code describes “Establishment” as a place employing workers, connoting a physical space where work takes place. Any alternate place will not be an establishment, so naturally questions of health, safety and working conditions outside the physical space arises and these questions are all the more serious now that there is a pandemic looming over us. Home workers are being asked to finish the work within deadlines without any regard to their working hours & mental health and on top of that they are being monitored 24/7 which increases the amount of pressure and stress in these delicate times.
India has not yet ratified the ILO Convention 177 on “home-work”. Considering the situation as it stands now, it is high time that India recognizes the obvious gaps in its legal structure regarding home based work. We need to bring those vulnerable home-workers at par with other workers in terms of social security, safety and health and for that we require a definitive legal understanding of terms relating to “home-based work” like ‘remote-work’, ‘tele-work’, ‘work at home’ etc. ILO Convention 177 along with Recommendation 184 provides excellent guidelines for governments to formulate laws on the said issues.
What WFH legislations have other countries came up with?
Spain: In September 2020, Spain passed legislation on remote work. Remote work shall, without prejudice to the general employment legislation or existing collective bargaining agreements, be reversible, voluntary and official in a written agreement. The law indentifies two sets of workers on whom it will be applicable i.e. firstly, those under an employment contract and secondly, those who have been engaged in “remote work” for at least 3 months or 30% of the employees’ working days. It also distinguishes between “tele-work” and “work from home.” Companies shall supply the resources, equipment and consumables necessary for remote work and maintenance. Employees also have the right to pay and compensate for equipment expenses, the right to privacy and data protection and a right, among others, to digital disconnection.
The UK: Flexible Working Arrangements (FWAs) are permitted to support the employees with care responsibilities to request FWAs through a proposal and negotiation procedure in 2002. The approach of flexibility in the United Kingdom is based on three main pillars, these are; qualifying employees proposing changes with respect to hours, location and time of their jobs; an employer’s duty is to look at such an application in a “reasonable way” with refusal only for pre-selected reasons.
Employers in the Philippines are required to develop a telecommuting program that includes working hours, alternative workplaces, equipment costs, occupational safety and health, applicable benefits, and data privacy. The employer shall also ensure that tele-employees are treated in the same way as the employers’ peers.
Concluding Remarks
The ILO in its abovementioned report has firmly highlighted that these unforeseen times call for comprehensive national level policies for home workers and their proper implementation. It’s high time that India pays heed to its home-based workers and provide them with a legal support. If they are neglected, India will be compromising the human rights of millions of its workers who have contributed greatly to its economy and yet are invisible in the legal realm. There aren’t many countries with a comprehensive legal mechanism in place for home-workers but the ones highlighted above amongst others are worth drawing inspirations from. However, the first step for India in this regard should be ratifying the ILO Convention 177, 1996.
Avani Malhotra and Chandrika Shaktawat, students at the Institute of Law, Nirma University..
Picture Credits: US News Money
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