Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labour

Abstract

This article examines the problem of ‘legislative precariousness’ of workers, and its compatibility with human rights. Legislative precariousness is defined as the special vulnerability created by the explicit exclusion or lower degree of protection of certain categories of workers from protective laws. A group that is frequently made precarious by law in many jurisdictions are domestic workers, the situation of whom the second part of the article explores. The intersection of numerous expressions of legislative precariousness of this category of workers disadvantages them in comparison to other workers, and also makes enforcement difficult. The legislative precariousness of domestic workers, therefore, places them in a uniquely vulnerable position.

Looking at the European human rights system, which is an influential and effective mechanism of protection, the third part of the article examines the legal protection of the rights of domestic workers. It emerges that human rights law has potential to assist this group, but what also becomes evident is that aspects of the law on social rights create further precariousness. The exclusion of undocumented migrants is very troubling, but may be corrected to a degree, as the European example shows.

The fourth part of the paper considers how human rights practice in Europe sheds light on the interplay between human rights and labour rights in the context of migrant domestic work. It emerges that human rights law challenges the traditional public/private divide, and plays an important role in addressing the legislative precariousness of domestic workers. It is, therefore, valuable to them. In addition, importantly, some further conclusions can be drawn as to the normative foundation of the two bodies of rules (human rights and labour rights). These involve their shared theoretical justification: dignity as non-commodification, liberty and distributive justice. At a normative level, the final part of the article finds that the human rights and labour rights of precarious workers have much in common, and have potential to address the legislative precariousness of domestic workers, and of other groups of workers found in a precarious position.

Keywords: domestic labour, human rights, labour rights, precariousness