• Lawyers and women’s rights activists call for focus on employees’ concerns to be articulated via a balanced, fair discourse to identify issues and solutions

Although labour law reforms are a need of the hour, whether the ongoing labour law reform plans truly address the existing issues in the labour market and uplift the working conditions and job security of the employees remains a question. On the one hand, it is due to the lack of consensus in identifying certain issues faced by employees and also the solutions to them, while on the other hand, it is due to the lack of space provided for employees’ concerns in the ongoing labour law reform processes.

According to several experts on the labour market and labour law, in order to make these ongoing law reform efforts an opportunity to uplift the labour market and support the economy, more attention needs to be paid to employees’ concerns. They added that balanced and fair discourses between employees, employers, and the Government are crucial in these efforts. They discussed these matters during a recent discussion held in Colombo, which was organised by the Dabindu Collective. It was attended by attorneys-at-law Lakmali Hemachandra and Jayanatha Dehiaththage, and also Women and Media Collective’s Director Programmes – Women’s Economic Rights and Media Dr. Sepali Kottegoda.

Labour law reform process

Hemachandra raised serious concerns about the transparency of the ongoing labour law reform processes, adding that the stakeholders representing the Government’s side, i.e. the Labour Minister/the Labour Ministry and the Labour Department, do not appear to be giving fair importance to employees. She explained that even internationally, labour laws and policies are generally formed through a tripartite effort which involves the employees or employees’ representatives, employers or employers’ representatives, and the Government or the Government’s representatives. In Sri Lanka’s case, she added, these efforts should also take into account the prevailing economic situation, changes in various industries and societal changes. According to her, however, employees’ interests have not received adequate attention, while employers’ interests seem to have received priority.

“The (Labour) Minister (Manusha Nanayakkara) has created a separate platform, which has been formed after the Minister sent letters to selected people, especially employers, which is a violation of the tripartite aspect. The National Labour Advisory Council (NLAC), which we already have with the relevant parties’ representation, has the ability to reform the labour law. We could point out as an issue that the NLAC is lacking the representation of certain sectors, and I think that we could consider that as a fair criticism. However, the solution is not commencing an ad-hoc process,” she said, alleging that the Government has formed a new body to conduct the ongoing labour law reforms instead of allowing the NLAC to lead that process.

“This is an uneven bargaining platform. There are no benefits for those who are currently not part of the NLAC and I don’t see any new benefits (for employees). When we cannot reach a consensus, what happens is the unilateral expression of opinions about the law reforms and also the law reforms not being challenged. We cannot accept this process. We must protect the existing democratic structure. As far as labourers and labour laws are concerned, the NLAC is an important structure with which trade unions can engage. We cannot allow this structure to be dismantled, and it should continue to operate.”

Detrimental law reform proposals

One of the demands put forward by the employers, according to Hemachandra, is that law reforms provide them with the power to terminate employment without the consent of the employees and permission from the department. Although they have agreed to pay compensation as they are required to, that is a proposal that goes against the existing legal provisions which require the employees’ consent and the department’s permission for layoffs when determining the amount of compensation.

“In the event of the closure of an institution, employees should be compensated. Employers may say that they would pay compensation. However, if there is no proper legal framework in that regard, employees have no way of being assured that the employer would provide fair compensation.”

She described another such proposal: “During the Covid-19 pandemic, due to pandemic-related reasons such as social distancing and lockdowns and also to protect the people’s jobs, an agreement has been reached between trade unions and the NLAC to keep employees at home while their employer pays them half of the basic wage. Now, employers are again seeking the opportunity to send employees home on temporary unemployment and to pay half of their wages during this period. The issue here is that even now, certain factories close for around two months to reduce production costs during which time they pay employees the basic wage. If this proposal is implemented, employers would be able to interpret such periods as temporary unemployment and pay only half of the basic wage.” 

She added that many Sri Lankan employers have shown a great tendency to place conditions on employees unilaterally and forcibly, emphasising that workplace regulations cannot be unilateral. She also pointed out the importance of employers admitting that employees have less bargaining power and that employers are less than fair when dealing with employees.

Female workers in the labour force

Meanwhile, Dr. Kottegoda spoke of several other labour law amendments that are currently being discussed. With regard to the legally stipulated maternity benefits, which are currently applicable to the formal sector, Dr. Kottegoda said that proposals have been presented to abolish the Maternity Benefits Ordinance.

The argument expressed by private sector employers to justify this suggestion is that they have to bear the full burden of such benefits without any support whatsoever from the Government: “What I gather from the (labour law reform-related) proposals that I have seen is that labour law reforms focus more on employers’ concerns. At the same time, there are suggestions to provide these benefits to those of the informal sector. However, there is no clear discussion as to how these suggestions would be implemented.”

She noted that even though various suggestions have been presented regarding how funds to provide maternity benefits would be sourced with some of them involving the establishment of a separate fund, no clear plan has been presented or agreed upon in this regard. The concept of providing flexible working hours has also attracted the attention of the ongoing labour law reform plans, according to Dr. Kottegoda, regarding which she pointed out that one of the alleged justifications for this suggestion is the need to increase female participation in the labour force which is currently at around 30-33% as opposed to 70-72% of men. 

She explained that one of the reasons for low female participation in the labour force is claimed to be unpaid care work which they have to perform at home and that flexible working hours are therefore expected to allow them to work from home while still performing unpaid care work in their homes. She stressed that without confining the discussion on unpaid care work to familial duties based on love and relationships, this discussion should be identified as a matter of labour. She questioned those presenting proposals for labour law reforms as to how female workers’ rights will be protected through the proposed reforms. Issues faced by female workers with children were also discussed during the event, where Dr. Kottegoda claimed that even though certain organisations have set up daycare centres for the children of working females, neither the Government nor employers have paid adequate attention to the matter, identifying it as an issue that requires solutions.

One issue that was noted in this regard is females still having to perform unpaid care work while also performing the duties of their jobs, regarding which Dr. Kottegoda said that more discourses are necessary.