klibel5 law 35
TRANSCRIPT
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DISCRIMINATION IN EMPLOYMENT IN THE PRIVATE SECTOR OF SRI LANKA:
A CRITIQUE IN THE LIGHT OF INTERNATIONAL CONVENTIONS
M.P.S. Kaushani Pathirana
Department of Private and Comparative Law, Faculty of Law
University of Colombo, Colombo 03, Sri Lanka
Email: [email protected]
ABSTRACT
Discrimination in employment can take place in various forms. Although, the international instruments such as
United Nations and International Labour Conventions adequately protect the rights of the workers in the world, the
conflicts and violence on discrimination in employment has been arisen not only from the surface, as it seems but
also from the bottom of the law in Sri Lanka. This research is mainly focused on the discrimination in employment
in the private sector with the objectives to explore and comment on the current labour laws and practices and make
reforms for a best mechanism to eliminate the discrimination in employment. The paper drives to identify the
different types of discrimination in employment, relevant international standards and its impact on the Sri Lankan
law with a critical evaluation on the current Sri Lankan legal responses. Further, the author purported to make
recommendations on how to reduce or eradicate discrimination in employment in the private sector. The elements of
employment discrimination together with gender inequality shall also be examined vis-à-vis its major consequences.
The evaluation shall be made sometimes with comparing the public sector of employment in the light of
international standards.
Keywords: Types of Discrimination, International Standards, Private Sector, Sri Lankan Context
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1. INTRODUCTION TO DISCRIMINATION IN EMPLOYMENT
Discrimination in employment can occur at various stages in the working life of a person, from the recruitment and
until the termination or retirement. Discrimination takes various forms such as gender, age, disability, religious,
race, pregnancy, national origin, and job description. It can take place between individual – individual, individual-
group or individual-institution as inequality in or violating the rights or unfair treatment. Discrimination at work can
affect a large variety of workers, workplaces and work practices as well.1
In the case of Baker v. California Land Title Co2, the word ‘discrimination’ has been defined as,
“the effect of statute or established practice which confers particular privileges on a class
arbitrarily selected from a large number of persons, all of whom stand in the same relation to
the privileges, or a class arbitrarily selected from a large number of persons, all of whom stand
in the same relation to the privileges granted and between whom and those not favoured no
reasonable distinction can be found. Unfair treatment or denial of normal privileges to persons
because of race, age nationality or religion (emphasis are mine) a failure to treat all persons
equally where no reasonable distinction can be found between those favoured and those not
favoured ”.
The Universal Declaration of Human Rights (hereinafter mentioned as UDHR) of 1948 in its preamble
states ‘Where as recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice, and peace in the world”3. In accordance with this statement,
labour rights should be considered as human rights without any ground of discrimination.4
The features of the UDHR are secured by the long-standing conventions of the International Labour
Organization (ILO) such as Equal Remuneration Convention5 and Discrimination (Employment and Occupation)
Convention6. As well as by the more recent United Nations International Covenants on Civil and Political Rights
and Economic, Social and Cultural Rights (1966). Moreover, they are enforced by the reporting systems of the ILO
and the United Nations, are also very often repeated in state constitutions, and labour laws with the result of the
legal protection at the national level as well.7
Employment discrimination has been described as an inferior treatment in hiring, promotions, work
assignments and such for a particular group of employees.8Thus, an economy, society or nation that allows
1Sankaran K., Discrimination and the World of Work in South Asia,
http://www.southasia.ox.ac.uk/sites/sias/files/documents/Oxford%20University%20CSASP%20Work%20in%20Pro
gress%20Kamala%20Sankaran.pdf, 01/06/2012, p.01 2Baker v. California Land Title Co,D.C. Cal, 349 F Supp. 235, cited in Black’s Law Dictionary 5th edition, further
reference, Bamiwola K. H. Human Right and Employment Discrimination: A Comparative Examination of Equal
Job Opportunities,
http://www.ilo.org/public/english/iira/documents/congresses/regional/lagos2011/3rdparallel/session3a/discriminatio
n.pdf, 08/11/2012, p. 03 3 Preamble of UDHR
4 Alston, P. ‘Labour Rights as Human Rights: The Not So Happy State of the Art’, Alston.P, Labour Rights as
Human Rights, Vol. XIV/1, [Oxford University Press, 2005], p. 02 5No. 100 of 1951
6No. 111 of 1958
7Woodiwiss. A, Globalization, Human Rights and Labour Law in Pacific Asia, [Cambridge University Press,
1998], p.10 8McConnell & Brue, Economics, [Irwin McGraw-Hill, 1999], Glossary, G: 8, further reference, infra. 09, Bamiwola
K. H., p. 03
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discrimination of any form in its socio-economic struggles or political development may be ridden by poverty,
chaos, injustice, inequality disutility, disunity and conflict of its political will.9
Discrimination in employment based on personal characteristics such as sex, race, religion, national origin
or disability occurs in all the continents of the world.10
Discrimination in the workplace may take various forms.
From the advertisement for job vacancies till the selection of the candidate and from the selection till termination or
retirement, discrimination can be take place. This may take place most of the times when the employer refuses an
employee training or promotion, or dismisses an employee for reasons unrelated to his work record or skill.
Discrimination is not confined to the workplace and it can be at different stages in life. Discrimination based on sex,
race or disabilities are the most common forms. However, a person can also be discriminated against on the grounds
of age, religious beliefs, political persuasion, trade union membership, sexual orientation or for having a criminal
record11
.
Discrimination can be further categorized into three areas; direct discrimination, indirect discrimination,
and victimization. Direct discrimination occurs when a person is treated less favourably because, for example, of
that person’s sex, marital status, race or disability. Indirect discrimination is hidden or covert discrimination. An
action that may appear at first not to discriminate, but might on reflection be said to indirectly discriminate against a
group of people.12
Victimization means a person is discriminated because of some previous or current involvement
in a complaint made against his employer.13
2. THE PRINCIPLES ON DISCRIMINATION IN EMPLOYMENT IN INTERNATIONAL
CONVENTIONS
International labour standards consist of the rights and responsibilities of employers, employees and the State
parties. Historically, the International Labour Organization (hereinafter mentioned as ‘ILO’) has promulgated the
most influential of these instruments. This is an organization, established by the Treaty of Versailles in 1919, which
has survived to exert a measure of influence today as a United Nations (hereinafter mentioned as ‘UN’) agency.14
The ILO is the competent body to set and deal with International Labour standards, but the substance of ILO
constitutional norms, conventions and recommendations have long been reflected in instruments adopted by the UN,
such as the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic,
Social, and Cultural Rights 1966.15
There are many international instruments, which have addressed discrimination in employment expressly and
impliedly in its contexts. This section focuses, in particular, on those international instruments which addresses the
discrimination in employment and its applicability in the Sri Lankan context.
9Bamiwola K. H. ‘Human Right and Employment Discrimination: A Comparative Examination of Equal Job
Opportunities’,
http://www.ilo.org/public/english/iira/documents/congresses/regional/lagos2011/3rdparallel/session3a/discriminatio
n.pdf , accessed on 08/11/2012, p. 03 10
Ibid, p. 04 11
__, ‘Discrimination in Employment’,
http://catalogue.pearsoned.co.uk/assets/hip/gb/uploads/M02_NAIR5417_04_SE_C02.pdf , accessed on 26/01/2013,
p. 34 12
Ibid, p. 36-37 13
Op.cit 14
Novitz, T. ‘The European Union and International Labour Standards: The Dynamics of Dialogue between the EU
and the ILO’, Chapter 07, Alston. P , Labour Rights as Human Rights, Vol. XIV/1, [Oxford University Press, 2005],
p. 214 15
Ibid. p. 215
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2.1 The Universal Declaration on Human Rights of 1948
The Universal Declaration of Human Rights (UDHR) of 1948 in its preamble states, “Whereas recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world”16
. In accordance with this statement, labour rights should be considered as
human rights without any ground of discrimination. This was recognized under the UDHR with the inclusion of the
“right to be free from slavery17
; the right to non-discrimination and equal protection of the law18
; the right to
freedom of association19
; the right to social security20
; the right to work, to free choice of employment, to just and
favourable condition of work, and to protection against unemployment21
; the right to equal pay for equal work22
; and
the right to reasonable limitation of working hours”.23
However, this formal recognition is only one part of the
overall picture of discrimination in employment.’24
2.2. The International Covenant on Civil and Political Rights – 1966 (ICCPR)
The ICCPR describes in Article 26, the principle in equality before the law and equal protection of the law without
any discrimination on any ground. Further, Article 07 and 17 prohibits torture, cruel, inhuman, or degrading
treatment, prohibits discrimination on any ground including sex, and protects the right to privacy.
2.3. The International Covenant on Economic, Social and Cultural Rights – 1966 (ICESCR)
The ICESCR from its Article 6, 7 and 8 demonstrated the right to work, right of everyone to the enjoyment of just
and favourable conditions of work including equal remuneration, safe and healthy working conditions, and the right
of everyone to form and join trade unions of his choice.
2.4. Convention on the Elimination of All forms of Discrimination against Women (CEDAW)
In considering the situation of the discrimination in employment, CEDAW has adopted provisions to eliminate
discrimination against women in the field of employment in order to ensure right to work and right to health and
safety in working conditions. Article 11 (1) mentioned that, “States parties shall take all appropriate measures to
eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men
and women, the same rights, in particular, right to work; right to the same employment opportunities; right to free
choice of employment, promotion and job security; right to equal remuneration; right to social security; right to
protection of health and safety”.
Article 11 (2) mentioned that state parties shall take appropriate measures in order to prevent discrimination against
women on the grounds of marriage or maternity and to ensure their effective right to work.
2.5. International Convention of All forms of Racial Discrimination - 1969
According to the Article 01 of the Convention, ‘racial discrimination’ means any distinction, exclusion, restriction,
or preference based on race, colour, descent, or national or ethnic origin…’ Article 05 (e) of the convention has
mainly focused on the elimination racial discrimination in all its forms to guarantee the rights to work, to free choice
of employment, to just and favourable condition of work, to equal pay for equal work, the right to form and join
trade unions.
16
Preamble of UDHR 17
Article 05 of UDHR 18
Article 07 of UDHR 19
Article 20 of UDHR 20
Article 22 of UDHR 21
Article 23 of UDHR 22
Article 23 of UDHR 23
Article 24 of UDHR 24
Alston, P. ‘Labour Rights as Human Rights: The Not So Happy State of the Art’, Alston.P, Labour Rights as
Human Rights, Vol. XIV/1, [Oxford University Press, 2005], p. 02
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2.6. UN Convention on the Rights of Persons with Disabilities – 2007
The purpose of this convention is to promote, protect, and ensure the full and equal enjoyment of all human rights
and fundamental freedoms by all persons with disabilities.25
Article 05 is the equality and non-discrimination clause
and it describes state parties shall prohibit all discrimination based on disability and guarantee to persons with
disabilities, equal and effective legal protection against discrimination on all grounds. Article 27 recognized the
rights of persons with disabilities to work on an equal basis with others and prohibit discrimination based on
disability with regard to all matters concerning all forms of employment.
2.7 International Labour Organization; Labour Standards
The features in the UDHR are reinforced by the long-standing conventions of the International Labour Organization
(ILO) such as Equal Remuneration Convention, No. 100 of 1951 and Discrimination (Employment and Occupation)
Convention, No. 111 of 1958 as well as by the more recent United Nations International Covenants on Civil and
Political Rights and Economic, Social and Cultural Rights (1966). Moreover, they are enforced by the reporting
systems of the ILO and the United Nations, and are also repeated in state constitutions and labour laws with the
result of the legal protection at the national level.26
International labour organizations have adopted 189 ILO conventions to date. Among these conventions eight are
core labour conventions. They are;
1. Freedom of Association and Protection of the Right to Organize Convention27
;
2. Right to Organize and Collective Bargaining Convention28
;
3. Forced Labour Convention29
;
4. Abolition of Forced Labour Convention30
;
5. Equal Remuneration Convention31
;
6. Discrimination (Employment and Occupation) Convention32
;
7. Minimum Age Convention33
;
8. Worst Forms of Child Labour Convention34
.
There are important provisions in the above-mentioned core labour conventions, which highlight the elimination of
discrimination in employment. In addition, these core conventions embody the principles relating to human rights
standards of employment. Sri Lanka has ratified all core conventions while many other countries in the South Asian
region have not ratified them yet.35
2.7.1 Freedom of Association & Collective Bargaining
Article 02 of the ILO Convention No. 87 on Freedom of Association and protection of right to Organize mentions
that, “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to
25
Article 01 of UN Convention on the Rights of Persons with Disabilities 26
Woodiwiss. A, Globalization, Human Rights and Labour Law in Pacific Asia, [Cambridge University Press,
1998], p.10 27
No. 87 of 1948 28
No. 98 of 1949 29
No. 29 of 1930 30
No. 105 of 1957 31
No. 100 of 1951 32
No. 111 of 1958 33
No. 138 of 1973 34
No. 182 of 1999 35
Sarveswaran, A. ‘An Evaluation of Sri Lankan Labour Standards in the light of the Core Conventions of the
International Labour Organization’, Proceedings, [Annual Research Symposium, 2010], University of Colombo, p.
62
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the rules of the organization concerned, to join organizations of their own choosing without previous
authorization”. Article 3(1), 3(2) and Article 05 emphasize right of workers and employers to form and join
organizations of their own choosing without prior authorization, right of organizations to draw up constitutions,
programmes, activities and elect officers free from government interference and right to federate and confederate.
Convention 87 applicable to public sector employment as well and Sri Lanka has ratified this Convention on 15th
of
September 1995.
ILO Convention 98 on Right to Organize and Collective Bargaining mentioned that ‘Workers shall enjoy adequate
protection against acts of anti-union discrimination in respect of their employment’.36
This convention protects
workers including some categories of public sector workers against anti-union discrimination. Article 04 of the
Convention promotes collective bargaining and Convention 135 on Protection of Workers Representatives37
in its
Article 01 mentioned, “workers representatives… shall enjoy effective protection against any act prejudicial to
them, including dismissal, based on their status or activities as a workers’ representative or on union membership
or participation in union activities , in so far as they act conformity with existing laws or collective agreements or
other jointly agreed arrangements.”
2.7.2. The Abolition of Forced Labour
Sri Lanka has ratified Forced Labour Convention No. 29 on 05th
of April 1950. Article 2(1) of the Convention
mentioned that, ‘For the purposes of this convention the term forced or compulsory labour shall mean all work or
service which is exacted from any person under the menace of any penalty and for which the said person has not
offered him voluntary’. In addition, according to the Convention any employer cannot force or compulsory labour in
all its forms within the shortest possible period.38
Abolition of Forced Labour Convention No. 105 was ratified by Sri Lanka on 07th
of January 2003 and Article 01 of
the convention mentioned that, “Each Member of the International Labour Organization which ratifies this
Convention undertakes to suppress and not to make use of any form of forced or compulsory labour:
a) As a means of political coercion or education or as a punishment for holding or expressing political views or
views ideologically opposed to the established political, social or economic system;
(b) As a method of mobilising and using labour for purposes of economic development;
(c) As a means of labour discipline;
(d) As a punishment for having participated in strikes;
(e) As a means of racial, social, national, or religious discrimination.”
2.7.3. Equality & Non – discrimination
ILO convention 100 on Equal Remuneration set out the principle of equal pay for work of equal value.39
The
Convention mainly focuses on wage discrimination and applies to all workers40
and to all elements of
remuneration41
. Under the ILO Recommendation 90, States should take appropriate action to ensure equal
remuneration for all employees in government departments, encourage its application to employees in provincial and
local government level, and provide legal enactments of the principle of equal remuneration.
The Discrimination (Employment and Occupation) Convention ratified by Sri Lanka on 27th
November 1998
prohibits discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction, or social
origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or
36
Article 1(1) of Convention No. 98 37
Complement to Convention No. 98 38
Article 3(1) of the Convention No. 29 39
Article 2(1) of Convention No. 100 40
Ibid, Article 02 41
op cit, Article 01
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occupation.42
Discrimination could be intentional or non-intentional and direct or indirect. This convention applies
to all persons including public and private sectors and to all stages of employment, vocational training and
education, terms and conditions of work.
According to the Article 02 of the Convention No. 111, “Each Member for which this Convention is in force
undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national
conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view
to eliminate any discrimination in respect thereof.”
2.7.4. The Elimination of Child Labour
There are two core conventions; Minimum Age Convention 138 and Worst Forms of Child Labour Convention 182.
Article 2(3) of the convention, 138 mentioned that, ‘the minimum age specified in .. shall not be less than the age of
completion of compulsory schooling and, in any case, shall not be less than 15 years’ and Article 2(4) mentioned,’ a
member whose economy and educational facilities are insufficiently developed may, after consultation with the
organization of employers and workers concerned , where such exist, initially specify a minimum age of 14 years.’
In addition, according to the convention, the minimum age for admission to any type of employment or work, which
by its nature or the circumstances in which it is carried out, is likely to jeopardize the health, safety or morals of
young persons shall not be less than 18 years.43
Under the Convention 182, each member state shall take immediate effective measures to secure the prohibition and
elimination of the worst forms of child labour as a matter of urgency.44
The term of worst forms of child labour
comprises; all forms of slavery such as sale and trafficking of children, forced and compulsory labour including
children in armed conflict, prostitution, pornography, work which harm the health, safety and morals of children.
Further, the protection from child labour has identified in UN Convention on the Rights of the Child of 1989 and its
two optional protocols; they are optional protocol on the involvement of children in armed conflict and optional
protocol on the sale of children, child prostitution, and child pornography.
Sri Lanka has ratified these all eight core labour conventions and therefore Sri Lanka has an obligation to give effect
to the principles embodied especially in the core convention No. 111. However, there is no specific policy in Sri
Lanka, which mentions the policies of discrimination in employment.
2.8. ILO Declaration on Fundamental Principles and Rights at Work of 1998
The ILO Declaration on fundamental principles and rights at work of 1998 has recognized the principle of
discrimination in employment as one of its fundamental principles. They are;
1. Freedom of association and the effective recognition of the right to collective bargaining;
2. The elimination of all forms of forced or compulsory labour;
3. The effective elimination of child labour;
4. The elimination of discrimination in respect of employment and occupation.
There are many international instruments, which contains provisions to eliminate discrimination in employment.
Among those conventions, it should be given the priority to the ILO core labour conventions, which has mainly
emphasized the rights and responsibilities at the employment. Other international conventions which adopted by
United Nations should be also considered as it included some provisions on discrimination in employment. Sri
Lanka has ratified all eight core labour conventions and some of other international conventions. Though Sri Lanka
ratified those conventions, the lack of provisions in the national legislation to prevent discrimination is still remains.
42
Article 01 of Convention No. 111 43
Article 3(1) of Convention No. 138 44
Article 01 of Convention No. 182
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In addition, there is no specific national policy, to implement the principles in ILO Convention No. 111 on
discrimination in employment.
3. THE SRI LANKAN LEGAL RESPONSE FOR DISCRIMINATION IN EMPLOYMENT IN THE
PRIVATE SECTOR
In Sri Lanka, employment avenues can be classified into two groups, those in the public sector and the private
sector. Government sector employment is in keeping with the Constitution of Democratic Socialist Republic of Sri
Lanka, which recognizes fundamental rights and the provisions in the Establishment Code generally govern their
terms and conditions. Many statutes dealing with various aspects cover the private sector employment and the
remedies available are contained in the Industrial Disputes Act, the Termination of Employees Act, the Wages
Boards Ordinance, the Shop and Office Employees Act and other similar Acts of parliament.
In terms of the forums to which private sector employees may go to in seeking relief, the labour tribunals have
become extremely popular forums for seeking redress. Once the decision of the labour tribunal has been given, the
parties are then free to appeal from this decision to the Supreme Court. However, the jurisdiction of the Supreme
Court is in terms of its appellate jurisdiction and not the fundamental rights jurisdiction.45
In the event of the discrimination in employment, the Constitutional provisions on the right of equality and non-
discrimination are applicable only to the public sector and equivalent provisions for non-discrimination is not found
in the legislation which is applicable to the private sector. Therefore, this paper mainly focuses on the salient
features in the labour legislation which are applicable in the private sector of employment in Sri Lanka and how its
application in the event of the prevention of discrimination in employment in the light of international labour
standards.
Private sector employees, unlike employees in the public sector, do not have the privilege of invoking the
fundamental rights jurisdiction of the Supreme Court for violations of their rights. The writ jurisdiction of the court
of Appeal is also amenable only in so far as the cause of action is traceable to a statutory right or duty. Therefore, in
most instances the rights available to private sector employees is limited to the special laws enacted specifically to
deal with this sector.46
Although the Constitutional provisions are not applicable to the private sector, the provisions
in the other labour legislation could be creatively applied to the promotion of non-discrimination in employment in
the private sector.
3.1. Industrial Disputes Act47
The Industrial Disputes Act (IDA) defines ‘industrial dispute’ as,
“Any dispute or difference between an employer and a workman or between employers and workman or between
workmen and workmen connected with the employment or non-employment, or the terms of employment, or with the
conditions of labour, or the termination of services, or the reinstatement in service, of any person, and for the
purpose of this definition, ‘workmen’ includes a trade union consisting of the workman;’’48
Accordingly, a dispute that arises from discrimination in employment could be interpreted as an industrial dispute
under the IDA and such dispute can refer to the commissioner or the minister for settlement.49
The IDA empowers
45
Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace,
[International Labour Organization, 2006], p. 511 46
Ibid. 47
No. 43 of 1950 (as amended) 48
Section 48 of IDA 49
Section 3(1)(d), 4(1), 4(2) of IDA
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the labour courts to make just and equitable decisions on industrial disputes under Sections 17(1), 24(1), 31C (1) of
IDA. The labour courts can make just and equitable decisions to promote non-discrimination in employment. For
instance, in the case of Jayasuriya v. Sri Lanka State Plantations Corporation50
, the court stated that the tribunal
must make an order in equity and good conscience, acting judicially, based on legal evidence rather than on beliefs
that are fanciful or irrationally imagined notions or whims.’
In Elmo Rex Lord v. Eksath Kamkaru Samithiya51
made a salutary approach to courts to consider the provisions of
the other relevant statutes and conventions as guidelines in making creative judgment. In this case, Amarasinghe J.
cited the Article 28 (C) of the Constitution which provides; ‘the exercise and enjoyment of rights and freedoms is
inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri
Lanka to work conscientiously in his chosen occupation. In this case to decide an appeal from IDA, a provision form
the directive principles of the Constitution have been cited.
Section 4(1) of IDA mentioned that, ‘Minister may, if he is of the opinion that an industrial dispute is a minor
dispute, refer it by an order in writing for settlement by arbitration to an arbitrator appointed by the minister or to a
labour tribunal, notwithstanding that the parties to such dispute or their representatives do not consent to such
reference.’ And also, Section 4 (2) stated that, the Minister may by an order in writing; refer any industrial dispute to
an industrial court for settlement. This power granted to the Minister for compulsory arbitration contrary to the
Article 03 of the ILO Core Convention 87 on Freedom of Association.
According to the IDA the collective agreements has legal status in Sri Lanka under section 5-10 of IDA. Section 40
(1) (a) and (b) mentioned that violation of a collective agreement is an offence under the IDA. In this manner,
parties could promote non-discrimination in employment by including provisions to the collective agreement.
However, in practice employers in the Free Trade Zones have consistently refused to conclude collective agreements
with representative trade unions of these zones. Employers frequently argue that they do have a legal obligation to
bargain but not to reach agreement.52
Sri Lanka’s labour law system traditionally recognizes worker’s right to strike. For example, in the case of Rubberite
Company v. Labour Department,53
Court of Appeal held that, ‘the basic right of worker to strike is not only
consistent with the international obligations in ratifying the ICESCR, but also consistent with the accepted standards
in other national and regional jurisdictions.’ However, the extent of the practical exercises of this right and its
precise limitations are yet to be defined in law. The Supreme Court of Sri Lanka has held principles of ILO
conventions No.87 and 98 on the right to strike are inadmissible in Sri Lanka.54
3.2. Termination of Employment
In the public sector, the employee can challenge the discriminatory decisions of the employer regarding the
termination of employment under Article 12 of the Constitution. The private sector employees cannot challenge the
decisions of the employer on such a right based ground. In Sri Lanka, non-disciplinary terminations are strictly
regulated under the Termination of Employment of Workmen Act55
(TEWA) and require the approval of the
Commissioner of Labour unless the employee consents to the termination.56
The Act provides that the commissioner
50
Jayasuriya v. Sri Lanka State Plantations Corporation(1995) 2 SLR 379 at p. 392, further reference, Sarweswaran.
A, ‘The Creative Role of The Appellate Courts in The Development of Industrial Law Under The Industrial
Disputes Act’, [The Bar Association Law Journal, 2001] Vol. IX Part I, p. 108 at p. 111 51
S.C. Appeal No. 37/99, further, ibid, Sarvewaran, A. 52
ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on
core labour standards in Sri Lanka, October 2005, p. 67-71 53
Rubberite Company v. Labour Department (1990) 2 SLR 2 54
Abeywickrama v. Pathirana [1986] 1 SLR 120, Further, Egalahewa, U. ‘Contract of Employment and Unfair
Dismissals’, http://www.lawnet.lk/docs/articles/sri_lankan/HTML/CV22.html , accessed on 04/02/2013, p. 38-40 55
Termination of Employment of Workmen (special provisions) Act No. 45 of 1971 (as amended) 56
Sharenguivel S., ‘Terminating Relationships- Husband and Wife, Employer and Employee: A Critique of Sri
Lankan Law’, Proceedings, [Annual Research Symposium -2012], University of Colombo, p.144
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may order to continue employment of the workman with back wages for illegal termination.57
However, there are
some cases58
which have interpreted this provision to permit the commissioner to pay compensation in lieu of re-
instatement.59
In addition, the TEWA expressly provides that the inquiries should be conducted in accordance with the principles
of natural justice.60
However, since it does not provide to give reasons for decisions of the commissioner it can lead
to make discriminatory and conflicting decisions under the Act.61
3.3 Trade Union Ordinance62
Freedom of association and the right to form trade unions is recognized by the Article 14(1) (d) of the Constitution
and the Trade Union Ordinance. All workers have right to form trade unions including public sector workers.
However, in practice forming a trade union requires the trade union to ask for recognition, which requires a
threshold of 40% of workers in a workplace. The commissioner of labour then conducts a referendum, but these
referenda are usually time consuming and often do not achieve their intended objectives, as the employers in many
cases keep on changing their work so that the 40% requirement is never achieved.63
No. 56 of 1999 IDA (amendment) providing the recognition of unions for the purpose of collective bargaining upon
the showing of a sufficient minimum representation at a workplace, but this provision remains unenforced. Currently
the law only provides for the requirement of a membership not less than 40% of workers on whose behalf such trade
union seeks to bargain. However, the vote must be conducted base on a list of employees furnished by the
employer.64
Therefore, collective bargaining rights should be granted to all the unions so that they may negotiate at
least on behalf of their own members. Otherwise this can be discrimination in employments’ rights.
In its 2005 observation, the ILO Committee of Experts on the Application of Conventions and Recommendations
notes that the government of Sri Lanka has not yet taken legal actions in order to penalize employers on the ground
of anti-union discrimination. At present, a complaint can be made to the Magistrate Courts only by the Department
of Labour. There are no time limits imposed on Labour Department within which such complaints should be made
to the Magistrate Courts. This gives wide discretion to labour authorities to delay issues until the Union is made
defunct. Therefore, the IDA should be amended so as to enable workers and trade unions to be given the right to file
a complaint directly to the Magistrate Courts in the instances of anti-union discrimination or there should be a
maximum time period for the filing complaints by labour authorities.65
3.4. Wages Boards Ordinance 66
57
Section 06 of TEWA, 58
Lanka Multi Moulds (Pvt) Ltd v. Commissioner of Labour [2003] 1 SLR 143, Samyang Lanka (Pvt) Ltd. v.
Commissioner of Labour C.A 1837/2004 59
Sarveswaran A., ‘A Critical Evaluation of the Termination of Employment of Workmen (Special Provisions) Act
in light of balancing the interests of Employers, Workmen and the State’, Proceedings, [Annual Research
symposium, 2011] University of Colombo, p. 138 60
Section 17 of TEWA 61
Samalanka Ltd. v. Commissioner of Labour [1994] 1 SLR 405, Kundanmal Industries Ltd. v. Commissioner of
Labour [2001] 3 SLR 229, Liyanage Case [2004] 2 SLR 23, Srimasri Hapuarrchchi v. Commissioner of Elections
[2009] B.L.R. 34 62
No. 14 of 1935 (as amended) 63
ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on
core labour standards in Sri Lanka, October 2005, p. 67-71 64
Ibid. 65
Abeywickrama v. Pathirana [1986] 1 SLR 120, Further, Egalahewa, U. ‘Contract of Employment and Unfair
Dismissals’, http://www.lawnet.lk/docs/articles/sri_lankan/HTML/CV22.html, accessed on 04/02/2013, p. 38-40 66
No. 27 of 1941(as amended)
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The Wages Boards Ordinance provide the decisions of the wages boards such as, minimum rates of wages, liability
of employer to pay minimum wages, wages of worker who works for less than normal working day or does not work
of all on any day, intervals at which wages shall be paid, hours of work and weekly holidays, annual holidays,
computation of service for purpose of holidays, determination of different rates of wages etc. Thus, wages boards
could decide the terms and conditions which promote non-discrimination in employment with regards to the
employees governed by waged boards.
3.5. Women Workers Rights in the Private Sector
Protection against Discrimination in employment based on gender has recognized in Article 12 (2) of the
Constitution, however it is only applicable to the public sector workers. Women in the private sector have no legal
protection against discrimination in employment under the Constitution. However, there are number of gender
related labour regulatory frameworks that apply to Sri Lanka women workers employed in the private sector. Sri
Lanka ratified the CEDAW in 1981 and the principles of this instrument, which ensures equality in access to
employment, were translated into the Sri Lanka Women’s Charter adopted in 1993 as state policy. However,
women’s charter has yet to be integrated into national policy and legislative frameworks through appropriate
legislative enactments.67
The Maternity Benefits Ordinance68
(MBO) and the Shop and Office Employees Act69
are the main legislation,
which covers maternity protection and other employment and remuneration in the private sector. These laws allow
an entitlement of 84 working days fully paid leave for the first two live births of all pregnant workers working in all
sectors, irrespective of length of service and marital status. For children born thereafter, women are entitled to only
42 days paid leave and these clearly discouraging further pregnancies.70
Moreover, it still does not address the
importance of bringing men into the scene as carers and parents; nor does it include parental leave or provide for day
care for private sector.71
Further, MBO provides expectant women with legal protection from dismissal for any illness connected with
pregnancy and confinement, and from engaging in work that is deemed injurious to the health of the pregnant
worker or the unborn child.72
Furthermore, the controversial provision in MBO that enables husbands to collect the
maternity allowances due to women workers, still remains in the law and still used in some plantations.73
Employment of Women, Young Persons and Children’s Act74
is another legislation which strengthens its coverage
with regard to compensation, working times, working conditions, and prohibition of employing children less than 14
years etc. however, there is an unfortunate tendency in the Sri Lankan legal system, as seen by the title of this
legislation, that the women put into group along with children. This is including in the Article 12 (4) of the
Constitution as well.
Workmen’s Compensation Ordinance75
has no reforms so far on occupational health and the provisions in the
Factories Ordinance76
and Shop and Office Employee’s Act77
permitting night work for women are not being
monitored to ensure that employers provide the necessary facilities for night workers even today.
67
Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace,
[International Labour Organization, 2006], p.01 68
No. 32 of 1939 (as amended) 69
No. 19 of 1954 70
Shop and Office Employee’s Act amended by No.44 of 1985, Sections 18B(1),(2) 71
Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace,
[International Labour Organization, 2006], p. 02 72
Shop and Office Employee’s Act section 18D (1), 18D(2), 18(E) and MBO, section 10A(1), 10B(1) and (2), 12B 73
Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace,
[International Labour Organization, 2006], p.03 74
No. 47 of 1956 (as amended) 75
No. 19 of 1934 (amended by 15of 1990)
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Sexual harassment in the workplace is a burning issue in the aspect of women’s rights. There are many international
standards to prevent sexual harassment in the workplace and all of these instruments are ratified by Sri Lanka. For
instance, Article 02 and 23(1) of UDHR, Article 07, 17 and 26 of ICCPR, Article 7(b) of ICESCR, Article 11 (1) (f)
of CEDAW and ILO convention No. 111 are the important provisions.
In considering the national standards on sexual harassment, Section 345 of the Penal Code (amended by No.22 of
1995) is the main protection for victims. It is mentioned that, ‘whoever, by assault or use of criminal force, sexually
harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other
person commits the offence of sexual harassment...’ In explaining it further, the Act states that ‘unwelcome’ sexual
advances by words or action used by a person in authority, in a working place or any other place, shall constitute the
offence of sexual harassment.78
To establish a case of sexual harassment, the prosecution would have to conform to
criminal standard of proof beyond a reasonable doubt.
In the landmark case of India, Vishaka v. State of Rajasthan79
, the Indian Supreme Court, for the first time, drawn
upon an international instrument i.e. CEDAW, to pass a set of guidelines known as Vishaka guidelines.80
Further,
the Supreme Court mentioned that the right to life means life with dignity and it includes the safe working
environment as well.
It is difficult to balance family responsibilities with the working responsibilities and many female workers have
faced this complexity due to inflexible labour legislation. Therefore, due to the considerable women workforce in
the country, this is the time to Sri Lanka to decide whether it should ratify the ILO Convention No.156 and
Recommendation No. 165 on the Workers with Family Responsibilities and incorporate the principles into the
legislation of Sri Lanka. This can be promoting the principles relating to non-discrimination in employment by
balancing the work and family responsibilities.
3.6. Disabilities Rights
Sri Lanka lacks behind in the rehabilitation and in the integration of the disadvantaged persons. The government
should lay down strong national policies and take active interest in the welfare of the disadvantaged. Sri Lanka is
still a signatory country to the UN Convention on the Rights of Persons with Disabilities in 2007 and yet to be
ratified. The current law to protect disabilities rights is Protection of the Rights of Persons with Disabilities Act81
.
There exists in Sri Lanka a strong stigma against those disadvantaged by disability. The government should take
active steps to change these attitudes and to remove the stigma by educating the public, by awareness campaigns
throughout the island.82
3.7. Superannuation Benefits
Employees are provided superannuation benefits by legislation in the form of the Employee’s Provident Fund Act 83
(EPF), Employee’s Trust Fund Act84
(ETF) and Payment of Gratuities Act85
(PGA). In assessing the existing
76
Factories Ordinance No. 45 of 1942, Section 67A 77
Shop and Office Employee’s Act, section 10(2) 78
Haspels N, Kasim Z.M, Thomas C,McCann D, Action against Sexual Harassment at work in Asia and the Pacific,
International labour office, ILO Bangkok area office and East Asia Multidisciplinary Advisory Team, 2001, p.72 79
Vishaka v. State of Rajasthan (1997) 6 SCC 247 80
Haspels N, Kasim Z.M, Thomas C,McCann D, Action against Sexual Harassment at work in Asia and the Pacific,
International labour office, ILO Bangkok area office and East Asia Multidisciplinary Advisory Team, 2001, p.70 81
No. 28 of 1996 82
Wijayaratnam, K. The Differently Able and their Social Integration, Sri Lanka Labour Gazette, vol.62, No.01 (Jan-
March) 2011, p.05 83
No. 15 of 1958 84
No. 46 of 1980 85
No. 12 of 1983
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system, though Sri Lanka has a well-established social security system, there are several important reasons to reform
the current retirement benefit scheme for the private sector.
In the entire process of EPF, it is well connected with the employers, but does not have any contact with employees
who are benefited by the scheme. As a result, the beneficiaries become conscious about the failure of their
employers only at the time of retirement.86
Because of this process, the employer can work out his discretion
regarding the matters of the employee and they have obvious reasons to avoid the registration of their employees
with provident funds. Therefore, the workers in small-scale firms of private sector have missed the opportunity to
receive an income security.87
Currently, the majority of Sri Lankan aging population in the private sector has no access to a pension or any other
supportive income. Though the EPF has mandatory contributions it does not provide regular cash benefits and only
as a lump sum. The public service pension scheme only covers a small percentage of the population and therefore
the superannuation schemes in Sri Lanka are not adequately covered the whole aging population in other sectors.88
According to the PGA, it is applicable to the employer who employs fifteen or more workmen in his place.89
However, the employer who employs less than fifteen workmen, the employee has to make an application to the
labour tribunal for gratuity.90
Therefore it can be suggested that PGA should be amended to make it applicable even
to the employer who employs only one workman.91
3.8. Discrimination on the Rights of the Workers in other Working Sectors
Although, Sri Lanka has ratified all eight ILO core labour conventions there some discriminations in employment
among the other working sectors such as agricultural sector, plantation sector, industrial sector, migrant workers,
domestic workers etc.
In the agricultural sector, vestiges of bonded labour were seen until recent times, where proprietors of paddy fields
employed persons to cultivate their fields employed persons to cultivate their fields, which later grew into a concept
of tenant cultivation. Tenant cultivator would work the field and give the major share to the owner. Legislation has
now been brought in to safeguard the interest of tenant cultivator while maintaining the relationship between the
two.92
In addition, in the situation of migrant workers, both legal and illegal migrant workers are sometimes heard to
be the subject of inhuman treatment and constitute another area where there is bonded labour and forced labour.
Sri Lanka has adopted the Conventions relating to forced labour, abolition of slavery and child labour; those are, the
UN Slavery Convention of 1926, ILO Core Conventions on Abolition of Forced Labour and Compulsory Labour93
and Conventions on Elimination of the Worst Forms of Child Labour94
.
In considering the legal protection from the forced labour in Sri Lanka, Article 27 (7) of the Constitution provides
that the ‘State shall eliminate economic and social privilege and disparity and the exploitation of man by man or by
the State’. Article 27 (13) mentioned that ‘the State shall promote with special care the interests of children and
86
__, Review of Superannuation Benefit Programs in Sri Lanka, May 19, 2000, Finance and PSD Sector Unit, South
Asia Region, p. 16, http://www1.worldbank.org/finance/assets/images/fssd0014.pdf, accessed on 12/04/2012 87
Karunaratne P.D.L.W, Reforming the formal Social Security System in Sri Lanka, National University of
Singapore, 2005, p.147 88
Tackling Poverty in Old Age; A Universal Pension for Sri Lanka, published by Helpage International, London, p.
08 , http://www.helpagesl.org/images/Universal%20Age%20%2013%20Nov%202008.pdf, accessed on 24/06/2012 89
Section 5(1) of PGA 90
Section 31B(1)(b) of the Industrial Disputes Act No.43 of 1950 91
Sarveswaran, A. A Critique of the Industrial Law of Sri Lanka in the Context of Foreign Investment Description,
http://www.lawnet.lk/docs/articles/sri_lanka/HTML/CV17.html, accessed on 30/01/2013 92
Chandra, S. (Justice), ‘Labour Rights as Human rights, Bonded Labour and Modern Slavery’, p. 08 93
Conventions No. 29 and 105 94
Conventions No. 138 and 182
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youth, so as to ensure their full development, physical, mental, moral, religious and social and to protect them from
exploitation and discrimination.’ these are the provisions which ensure the freedom of exploitation in Sri Lanka’s
Human rights environment. In addition the amendment in 2006 to the penal code also envisages the prevention of
forced labour.
In the situation of women worker’s rights, women are under-represented in many disciplines and mainly employed
in low-wage and low skilled work. Most are concentrated in plantation sector, local traditional industries, garment
industries, health services and domestic services.95
According to the 2001 study by ILO Colombo describes the problems of sexual harassment in tea plantation sector
where hundreds of thousands of workers are employed and 90% of tea-pluckers are women. They work in groups of
20 to 40 workers under a male supervisor. A report by the American Centre for International Labour Solidarity
entitled ‘The struggle for workers’ rights in Sri Lanka’ gives a description of working conditions in the Free Trade
Zones (FTZ), based on interviews with FTZ workers, mentioned that their work involves, ‘strong use of hands and
eyes for hours of unremitting work each day leading to chronic physical and visual aliments; unknown working
hours; they have sharp restrictions on bathroom use, conversation, rest breaks and other rights; some
discrimination in employment in employment against persons with disabilities exists in practice’.96
The private sector of the employment recognized as the “engine of growth” in the development process of the
country together with the Government sector. However, Constitutional provisions on equality and non-
discrimination are applicable only to the public sector and not for private sector of employment. Therefore, private
sector employees cannot seek relief under fundamental rights jurisdiction and the rights of private sector are limited
to other labour legislation in Sri Lanka. The disputes under private sector, which arises from discrimination in
employment, can be construed under IDA. In addition, labour courts can make just and equitable decisions to
promote non-discrimination in employment. Moreover, parties could promote non-discrimination by including
provisions to the collective agreements under IDA. However, the Minister’s power for compulsory arbitration is
contrary to the ILO convention No.87.
Trade union rights of the private sector are adequately protected but with few amendments. Women workers rights
in the private sector have not adequately protected by national legislation. Only main legislation is the Penal Code.
Disabilities rights should be protected satisfactorily and there should be an effective mechanism in the process of the
current superannuation benefits schemes for private sector. Discrimination in other working sectors also still
remains.
95
ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on
core labour standards in Sri Lanka, October 2005, p. 69 96
Ibid, p.70
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4. CONCLUSIONS AND RECOMMENDATIONS
The plethora of labour legislation and other legislation in Sri Lanka expressly and implicitly represent most of the
principles embodied in ILO core conventions. However, in the situation of the discrimination in employment there
are some contradictory provisions in law and practices in Sri Lanka, which should be amended as soon as possible to
enhance the protection of the rights and interests of the employees in Sri Lanka without compromising the wider
interests of investors, society and the state. The legal framework provided by the constitutional provisions relation to
equality and other legislation satisfactorily eliminates discrimination in the public sector and semi government
sector. However, it fails to eliminate the discrimination in employment in the private sector. Therefore, the private
sector should be included in the fundamental rights jurisdiction. In addition, there should be some amendments in
the TEWA regarding the powers of the Commissioner on termination of employment of private sector.
Conversely, the constitutional protection has not applied to women workers in the private sector. Though Sri Lanka
has the Women’s Charter, which ensures the rights in the CEDAW, it has yet to be integrated into national policy.
Therefore, these policies should be incorporated in order to protect the rights of the women workers in the private
sector. Further, there are disparities in the maternity benefits between the public sector and private sector. There are
restrictive provisions in the Maternity Benefits Ordinance and the Shop and Office Employee’s Act on maternity
leave for the private sector than the public sector. This discrimination should be eliminated and also the facility for
paternity leave should be granted for private sector. While the Factories Ordinance and the Shop and Office
Employee’s Ordinance permitted to night for women, the employers have not provided necessary facilities for night
workers. Further, labour legislation should be revised to address the rights of domestic workers, since most of the
workers are women. Although, Sri Lanka has ratified many international instruments to prevent sexual harassment at
workplace, this critical problem has still remains in Sri Lanka. The only protection is the penal code and there are no
any other mechanisms to prevent sexual harassment in the private sector. Many female workers have faced
complexities on balancing family responsibilities with working responsibilities. Sri Lanka should ratify the ILO
Convention No. 156 to incorporate the principles on workers with family responsibilities to eliminate
discrimination.Private sector employees have legal protection against discrimination in employment under the
Industrial Disputes Act, primarily because of the just and equitable jurisdiction and enforcing collective agreements.
However, the Minister’s power for compulsory arbitration is contrary to the ILO convention No. 87.
Freedom of association and the right to form trade unions of the private sector workers are sufficiently recognized
under the Trade Union Ordinance. Nevertheless, the 40% threshold of workers to fulfil the requirement of
recognition and for collective bargaining should be amended in favour of employees’ rights. Further, the
government should take legal actions in order to penalize employers on the ground of anti-union
discrimination.Wages boards could decide the terms and conditions, which promote non-discrimination in
employment. However, there is a different in the wage rates in the different working sectors especially in the
domestic working sector there is no minimum wage rate. Therefore, there should be a universal national minimum
wage rate to protect the workers’ rights from discrimination. The government should integrate strong national
policies to protect the rights of disabilities in both sectors by ratifying the UN Convention on Rights of Persons with
Disability of 2007.There are many practical problems in the superannuation benefit schemes applicable in the
private sector. Hence, there should be a special supervisory mechanism to protect the rights of private sector workers
to enhance social security.The concept of ‘mutual trusts and confidence’ should be included to the contract of
employment as other requirements in favour of employer and the employee. Mutual trust and confidence is a phrase
used in English law, particularly with reference to contracts in labour law in United Kingdom to refer to the
obligations owed in an employment relationship between the employer and the worker. This concept relates to a new
but highly important concept in employment law, and constitutes a term that is implied into all employment
contracts.97
97 See, Mahmud and Malik v Bank of Credit and Commerce International SA [1998] AC 20, Eastwood v Magnox
Electric plc. [2004] UKHL 35
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