Labour LawIncorporation of core International Labour Organization (ILO) Convention principles into Sri Lankan legislation

April 26, 20220

Incorporation of core International Labour Organization (ILO) Convention principles into Sri Lankan legislation

The International Labour Organization (ILO) is a UN agency founded in 1919, with its main objective being the promotion of rights at work, encouraging decent employment opportunities, enhancing of social protection and the strengthening of dialogue on work-related issues.[1] In line with these objectives, the ILO has implemented 189 Conventions and 205 Recommendations relating to international labour standards[2]. State parties who ratified the Conventions are under a legal obligation to adhere to the same.  Recommendations are however merely guidelines which are not binding on member States.

The ILO has recognised eight fundamental Conventions and these include the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Forced Labour Convention, 1930 (No. 29), Abolition of Forced Labour Convention, 1957 (No. 105), Minimum Age Convention, 1973 (No. 138), Worst Forms of Child Labour Convention, 1999 (No. 182), Equal Remuneration Convention, 1951 (No. 100), and Discrimination (Employment and Occupation) Convention, 1958 (No. 111).[3]

These principles are also found in ILO’s Declaration on Fundamental Principles and Rights at Work (1998). By virtue of this Declaration, an obligation falls upon all member States of the ILO to adhere to the fundamental Conventions despite the fact that they may have not ratified the relevant Conventions. Sri Lanka, being a member State of ILO has ratified all these Conventions, and is thereby obliged to comply with the Core Conventions[4]. Moreover, the preamble of the National Workers’ Charter affirms Sri Lanka’s pledge to the Conventions. It declares that the State will guarantee trade union rights,[5] provide equality of opportunity and treatment to all employed women,[6] and take steps to prevent the employment of children.[7]

This paper evaluates the extent to which Sri Lankan legislation has incorporated the principles found in the core ILO Conventions, and will attempt to provide probable suggestions so as to improve labour standards in Sri Lanka.

Sri Lanka is a dualist country as reiterated by Sarath N Silva, C.J in Nallaratnam Singarasa v. A.G[8]. Therefore, in order to be effective, the Parliament has to incorporate the international standards by way of local legislation.[9] However, Fernando J in Weerawansa v. A.G[10] stresses that the directive principle of State policy in the Constitution provides that the State should respect its treaty obligations in its dealings with its own citizens.

The Freedom of Association and Protection of the Right to Organize Convention, 1948, allows employers to establish and join organizations without previous authorization. It also allows for the right to establish and join federations and confederations, as a consequence of which they may partner with international organizations of workers and employers.[11] The Right to Organise and Collective Bargaining Convention, 1949, protects organisations from State interference and incorporates the principle of free and voluntary negotiations.[12]

Sri Lanka’s attempt to incorporate the above principles can be explained by firstly looking at the case of Ariyapala Guneratne v. The Peoples Bank.[13] The Supreme Court held that the requirement of resigning from a trade union for a promotion was a violation of the freedom of association enshrined in Section 18(1)(f) of the 1972 Constitution.  As per Article 14(1)(d) of the Constitution of 1978, the freedom to form and join a trade union is a guaranteed fundamental right. A drawback however is that only public sector officials can seek redress under the 1978 Constitution, and private sector employees are not covered.

The Industrial Disputes Act however provides protection for employees of private sector, semi – government sector and non-citizens over trade union rights.[14]  However, the Trade Unions Ordinance states that certain types of employees such as members of armed forces, police officers, judicial officers, and prison officers cannot form a trade union.[15] The Conventions Nos. 87[16] and 98[17] provides for such limitations which is justified based on national security.

Since the Trade Union Ordinance does not specify types of ‘workman’, employees of different types such as probationers, temporary employees and employees under fixed term contracts could also enjoy trade union rights provided for by the legislation[18].

The Trade Unions Ordinance distinguishes public sector unions from non-public sector unions. Further, it categorises associations of the public sector employees into different categories and imposes various limitations which includes membership[19] and federation[20]. Although this is incompatible with ILO Conventions No. 87 and 98, since Sri Lanka is a State with a number of trade unions, this could be justified bearing in mind the wider interests of society in mind.[21]

The Industrial Disputes Act recognizes the right of collective bargaining only if the trade union has in its membership not less than 40% of the workmen.[22] This does not essentially imply that an employer cannot bargain with trade unions with less than forty per centum of employees. Nonetheless, some trade unions are of the view that 40% should be lowered to 25% of the employees. Furthermore, certain employers are critical of compulsory recognition as only voluntary negotiation is recognised in the ILO conventions. Therefore, it is questionable as to whether the objectives of collective bargaining are achieved by this provision.[23]

Section 5-10 of the Industrial Disputes Act relates to provisions in support of collective bargaining. However, since it does not cover the public sector, there is a pressing need to amend the Industrial Disputes Act so as to provide the same protection to public sector employees alike.

The right to strike can be impliedly recognised from the phrases ‘to organize their administration and activities and to formulate their programmes’[24] and ‘for furthering and defending the interests of workers´[25] in the ILO Convention. This right is recognised in Sri Lanka by both case law and legislation as can be seen in the Constitution,[26] Industrial Disputes Act,[27] and Trade Unions Ordinance[28].

The Forced Labour Convention 1930[29] discourages use of forced or compulsory labour in all its forms. This is reflected in the Sri Lankan Constitution by way of directive principle which states that the State “shall eliminate exploitation of man by man or by the State.”[30] It also provides for freedom from torture, cruel, inhuman or degrading treatment or punishment.[31] Both these provisions safeguard employees from forced and compulsory labour.

Historically, Sri Lanka had exercised a form of slavery called rajakariya during the Kandyan Kingdom which was abolished in 1832 during the period of British colonisation[32]. The ‘Tundu System’ in the plantation sector which was a form of forced labour curtailing employer’s choice was abolished by the Tundu Prohibition Ordinance.[33] In addition to these, the Tesawalamai also provided for a caste system which restricted the choice of employees, particularly those from the lower castes.[34]

However, the Prevention of Social Disabilities Act[35] has made it an offence to obstruct a person from engaging in lawful employment or activity. The Privy Council held that the Prevention of Social Disabilities Act supersedes and invalidates the caste system established by the Tesawalamai.[36] In addition, slavery also became a penal offence by way of the Penal Code (Amendment) Act No. 16 of 2006. The provisions prohibit any form of forced and compulsory labour including customary practices[37].

Despite these protections provided for by the law, there are still reported cases where Sri Lankans migrate to the Middle East and are made to work under extremely precarious conditions. They are forced to work in unacceptable conditions, and these are not covered by legislation. The Sri Lanka Bureau of Foreign Employment Act[38] should be amended to ensure that recruiting agencies identify foreign employers who provides the basic human rights to workers.[39]

The Convention on Discrimination (Employment and Occupation)[40] provides for equality of opportunity and treatment in respect to employment and occupation. The Convention on Equal Remuneration[41] provides for the equal remuneration of both men and women. This is reflected in Article 12 of the Constitution which provides that all persons are “protection of the law”. However, private sector individuals cannot seek protection under the Constitution. Thus, private sector employees should resort to other legislations for protection against discrimination.

The Industrial Disputes Act construes an industrial dispute to be an act of discrimination in employment and such disputes could be referred by the Commissioner[42] or Minister[43] for settlement under the mechanism provided by the Industrial Disputes Act. The Labour Courts[44] can provide just and equitable relied in addressing non-discrimination issues.

Wages Boards Ordinance[45] allows for the Wages Boards to determine minimum wages and terms and conditions of employment of employees. Therefore, the Wages Boards can determine the same based on non-discriminatory grounds.

Female employees are protected by the Shop and Employees’ Act[46] and the Maternity Benefits Ordinance[47] where they cannot be “terminated by reason only of her pregnancy or confinement or of any illness consequent on her pregnancy or confinement,” thereby safeguarding female employees from discriminatory treatment based on gender.

The Shop and Office Employees (Regulation of Employment and Remuneration) Act and the Maternity Benefits Ordinance provide for maternity leave and benefits. However, there is inconsistency between the maternity leave by employees covered under each Act as the former considers the number of working days[48] whereas the latter counts the number of weeks[49] which include holidays. Nursing intervals are only covered by Maternity Benefits Ordinance[50] and not for employees under the Shop and Office Employees Act. Paternity leave is not covered for by labour legislation relating to private sector. Thus, it is strongly suggested that legislation incorporates provisions providing paternity leave and address the inconsistencies discussed above.

A further suggestion is for Sri Lanka to ratify the Workers with Family Responsibilities Convention[51] of the ILO. This allows the incorporation of provisions promoting non-discrimination in employment thereby also allowing female workers to balance their work and family life.

Labour legislations like the Factories Ordinance, Shop and Office Employees’ Act and Wages Boards Ordinance should be amended to protect employees from sexual harassment in the workplace even though the Penal Code provides for it. This would result in stronger mechanisms in place and greater protection by the law.

The Protection of the Rights of Persons with Disabilities Act[52] and Prevention of Social Disabilities Act[53] prohibits discrimination on the ground of disability in recruitment or lawful employment. Many ex-militants from post-war Sri Lanka are disabled. Sri Lanka must conduct programs to change the attitude of the society towards the stigma surrounding them and undergo rehabilitation programs.

Sri Lanka has many legislations prohibiting child labour. Article 27(13) of the Constitution makes it obligatory on the state to eliminate child labour and worst forms of child labour. The Employment of Women, Young Persons, and Children Act[54], Shop and Office Employees (Regulation of Employment and Remuneration) Act[55] and Minimum Wages (Indian Labour) Ordinance[56] prohibit employment of children under the age of fourteen years. It is suggested that the minimum age be raised to 15 years considering economic growth and educational facilities in the country.[57]

There are also several Acts which prohibits persons under 15 years of age working in vessels[58], and persons under 18 years engaging in employment leading to life endangerment.[59] These Acts also prevent children under 18 from working at night. The Factories Ordinance states that persons between 16 and 18 years cannot work for more than 50 hours as overtime.[60] The Penal Code also provides adequate protection for children employed under 18.[61]

In conclusion, with rapid economic developments, employment opportunities and educational facilities coming up, Sri Lanka has created a favourable environment to enforce these fundamental employment principles.

The study above clearly portrays that the Sri Lankan legal system has satisfactorily incorporated provisions of core ILO Conventions by way of various legislation. The suggested amendments and improvements laid out will help protect rights of employees in Sri Lanka further by addressing employees from all sectors and segments of society.

[1] Ilo.org. (2019). About the ILO. [online] Available at: https://www.ilo.org/global/about-the-ilo/lang–en/index.htm

[2] How International Labour Standards are created. 2019. How International Labour Standards are created. [online] Available at: https://www.ilo.org/global/standards/introduction-to-international-labour-standards/international-labour-standards-creation/lang–en/index.htm.

[3] Eight Fundamental Conventions – History of the ILO – ILO Research Guides at International Labour Organization. 2019. Eight Fundamental Conventions – History of the ILO – ILO Research Guides at International Labour Organization. [online] Available at: http://libguides.ilo.org/c.php?g=657806&p=4649148.

[4] See Article 27 (15) of the Constitution

[5] National Workers Charter, 1995, Part 1.

[6] National Workers Charter, 1995, Part 7.

[7] National Workers Charter, 1995, Part 7.

[8] S.C.Spl (LA) No. 182/99.

[9] Ekanayake v. A.G 1988(1) Sri LR 46.

[10] [2000] 1 Sri LR 387 at 409.

[11]  Rules of the game: A brief introduction to international labour standards / International Labour Office. – Geneva: ILO, Third Revised Edition 2014

[12]   Ilo.org. C098 – Right to Organise and Collective Bargaining Convention, 1949 (No. 98). [online] Available at:

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C098

[13] (1986) 1 Sri LR 338.

[14] Industrial Disputes (Amendment) Act, No. 56 of 1999.

[15] Trade Unions Ordinance, No.14 of 1935 (as amended).

[16] ILO Convention, No. 87, Article 9.1

[17] ILO Convention, No. 98, Article 5.1.

[18] Sarveswaran, A. An Evaluation of Sri Lankan Labour Standards in Light of the Core Conventions of the International Labour Organisation.

[19] Trade Unions Ordinance, No.14 of 1935 (as amended), Section 21(1)(b)(i).

[20] Trade Unions Ordinance, No.14 of 1935 (as amended), Section 21(1)(b)(ii).

[21] Sarveswaran, A. An Evaluation of Sri Lankan Labour Standards in Light of the Core Conventions of the International Labour Organisation.

[22] Industrial Disputes Act, 32A (g). See S.R.De Silva, The Legal Framework of Industrial Relations in Ceylon, H.W.Cave & Company, Colombo, 1973, at p. 63 for a discussion about 40% threshold for negotiation before the Industrial Disputes (Amendment) Act, 56 of 1999 has been enacted

[23] Sarveswaran, A. An Evaluation of Sri Lankan Labour Standards in Light of the Core Conventions of the International Labour Organisation.

[24] ILO Convention No. 87, Article 3.

[25] Article 10 of ILO Convention No. 87.

[26] Article 14(1)(d) of the Constitution.

[27] 61 Industrial Disputes Act, Section 32 A.

[28] Trade Unions Ordinance, Sections 2, 18(b), 26 and 27.

[29] Convention No. 29. It has been ratified by Sri Lanka on 05-04-1950.

[30] 70Article 27(7) of the Constitution

[31] Article 11 of the Constitution

[32] G.C.Mendis, The Abolition of Compulsory Services in The Colebrook – Cameron Papers: Documents on British Colonial Policy in Ceylon 1796-1833, Vol I, Oxford University Press, London, 1956, Pp 233-242.

[33] Tundu Prohibition Ordinance, No 43 of 1921.

[34] Tesawalamai Code, Section 4

[35] Prevention of Social Disabilities Act, No 21 of 1957 (as amended).

[36] Suntharalingam v. Inspector of Police, Kankesanthurai 1971)74 NLR 457.

[37] Section 358 A.

[38] Sri Lanka Bureau of Foreign Employment Act, No. 21 of 1985 (as amended).

[39] Sarveswaran, A. An Evaluation of Sri Lankan Labour Standards in Light of the Core Conventions of the International Labour Organisation.

[40] Convention No.111. It has been ratified by Sri Lanka on 27-11-1998.

[41] Convention No.100. It has been ratified by Sri Lanka on 01-04-1993.

[42] Ibid, Section 3(1)(d)

[43] Ibid, Section 4(1) and 4 (2). There are criticisms against compulsory arbitration provided by these provisions

[44] Arbitrator, Industrial Court and Labour Tribunal.

[45] Wages Boards Ordinance, No. 27 of 1941 (as amended).

[46] Section 18E(1) of the Shop and Employees’ Act, No.19 of 1954 (as amended).

[47] Section 10A(1) of the Maternity Benefits Ordinance No.32 of 1939 (as amended).

[48] Shop and Office Employees Act, Sections 18B (1) and (2).

[49] Maternity Benefits Ordinance, Section 3

[50] Section 12B.  Maternity Benefits Ordinance

[51] Convention No. 156 and Recommendation No. 165

[52] Protection of the Rights of Persons with Disabilities Act, No. 28 of 1996.

[53] Prevention of Social Disabilities Act, No. 21 of 1957 (as amended).

[54] No. 47 of 1956 (as amended), Sections 13 and 34.

[55] Shop and Office Employees (Regulation of Employment and Remuneration) Act, Section 10(1)

[56] Minimum Wages (Indian Labour) Ordinance, No. 27 of 1927 (as amended), Section 4.

[57] Sarveswaran, A. An Evaluation of Sri Lankan Labour Standards in Light of the Core Conventions of the International Labour Organisation

[58] Employment of Women, Young Persons and Children Act, Section 9(1).

[59] Ibid, Section 19(1)

[60] Factories Ordinance, Section 68(1).

[61] Penal Code, Section 358 A, 360 A, 360 B, 360 C, 363, 286 A.

 

Article by:

Preveena Thayaparan, LL.B

Senior Paralegal

Velox Partners

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