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How our labour laws have limited our ladies

10 Mar 2022

  • Experts discuss legal and practical issues preventing female workforce participation
BY Sumudu Chamara Even though the world has moved forward considerably in terms of ensuring gender equality in the workforce through laws and policies, Sri Lanka is yet to improve and update its labour laws, most of which are archaic. Due to the unavailability or the lack of laws that match today’s society, females are greatly inconvenienced, and it is hindering them from achieving their full potential and contributing to the country’s economy and strengthening their own and their households’ economies. The need for law reforms and other practical issues that discourage females from playing their role in the country’s workforce were extensively discussed at an event held by the think tank Advocata Institute on 7 March, where the findings of a study about the existing labour laws and how those should be reformed were highlighted. Study on laws affecting the female workforce The report titled “Gender Discriminatory Labour Laws in Sri Lanka and Female Labour Force Participation” authored by T. Yapa, T. Hoole, G.S. Sallay, S. Bamaramannage, and J. Peerez – identifies the lack of reference to part time and flexible employment in the existing labour laws, time restrictions on employing females for duties at night, the dearth of legal provisions to prevent and address sexual harassment in employment, and restrictions on overtime (OT) work for females, as legal obstacles that discourage females from joining and actively participating in the workforce. The report focused on several laws that affect female employees directly and indirectly – they are, the Shop and Office Employees (the Regulation of Employment and Remuneration) Act, the Wages Board Ordinance, the Payment of Gratuity Act, the Industrial Disputes Act, the Factories Ordinance, and the Employment of Women, Young Persons, and Children Act. The study was based on existing local and international literature on labour laws, gender discriminatory labour laws and their impact on female labour force participation, laws and policy frameworks and other official government documents, a desk research-based survey of the evidence on laws, policies adopted by other countries to encourage female labour force participation, and key informant interviews with relevant government and private sector personnel. Among the four key areas of discrimination in the labour market that the report discussed were sexual harassment in the workplace, overtime work, work at night, and part-time work. The report highlighted that if the above issues are addressed, it is likely that female participation in the workforce would greatly improve which would in turn benefit the economy and attract investment, particularly in the context of Sri Lanka’s tight labour market and the cost of labour. The study, which focused on how the existing labour laws affect females, identified several such areas, including mobility, the workplace, pay, marriage, parenthood, entrepreneurship, assets, and pension. In terms of equal remuneration for work of equal value, the report said that there is no specific provision in the law that provides for equal pay for an equal role for males and females in Sri Lanka, although Article 12 of the Constitution states that all persons should be equal before the law, making both males and females eligible for equal pay for equal work.   Legal provisions pertaining to females working at night received special attention. In this regard, the study noted that the Shop and Office Employees (the Regulation of Employment and Remuneration) Act, the Factories Ordinance, and the Employment of Women, Young Persons, and Children Act restrict females’ ability to work at night, in most sectors in Sri Lanka, while no such restrictions are applicable to males.  In terms of criminal penalties and civil remedies for sexual harassment in employment, it added that sexual harassment is criminalised under the Penal Code (Amendment) Act No. 22 of 1995. Moreover, with regard to sexual harassment in the workplace, the study presented a number of legislative and institutional reforms to strengthen female labour force participation. Among the legislative reforms pertaining to the Industrial Disputes Act, which the report said could be used to address sexual harassment in the workplace in civil law, are: expanding the definition of “industrial disputes” to include sexual harassment in the workplace and defining “sexual harassment” under the said Act separately for which the definition provided in the draft of a proposed Employment Act (in 2019) may be considered. Furthermore, the study recommended that the reforms under the said Act be supplemented by introducing a clause within several statutes to ensure that sexual harassment within the workplace is addressed.  With regard to those statutes, it recommended to introduce a clause under the Shop and Office Employees (Regulation of Employment and Remuneration) Act and the Factories Ordinance, requiring employers to set up a policy and mechanism within the workplace in order to enable employees to report complaints of sexual harassment. It said that the policy should incorporate the definition of sexual harassment proposed under the draft “Employment Act of 2019” into both the statutes. Introducing a regulation under the Employment of Women, Young Persons, and Children Act, prohibiting sexual harassment in the workplace while ensuring that the regulation defines the offence based on the definition proposed under the draft “Employment Act of 2019”, was another recommendation. The other legislative reform the study recommended was mandating all operative Wages Boards governed under the Wages Boards Ordinance to declare that employees have a right to a workplace free of sexual harassment. With regard to this reform, the study added that this will bind employers to set up a mechanism through which complaints of sexual harassment can be reported in the workplace. Obligating employers to exhibit notices prohibiting sexual harassment in the workplace in all three languages, was another recommendation. Under institutional reforms, two recommendations were made. They are, introducing a regulation under the Industrial Disputes Act, through which an office within the Labour Department shall be appointed to specifically address sexual harassment complaints in an unbiased and sensitive manner and giving the mandate to the said office appointed to overlook mechanisms set up by private companies to address sexual harassment complaints internally, regarding which the report noted that stakeholder consultation is necessary in order to determine the proper degree of government oversight. Moreover, in order to address sexual harassment in the workplace, another issue raised by the workforce, the report recommended to expand the definition of work-related disputes under Section 48 of the Industrial Disputes Act in order to include sexual harassment in the workplace. Including a clause within the Shop and Office Employees (Regulation of Employment and Remuneration) Act, the Factories Ordinance, and the Wages Boards Ordinance, in order to address sexual harassment in the workplace, was another recommendation. The study also highlighted the importance of introducing a regulation in accordance with Section 31 of the Employment of Women, Young Persons, and Children Act, prohibiting sexual harassment in the workplace.  In conclusion, the report identified four legal constraints that are easier to tackle in terms of legal reforms in Sri Lanka.  Given the lack of reference to part-time and flexible work in the legal framework, it recommended amending Section 3 of the Shop and Office Employees (Regulation of Employment and Remuneration) Act and Section 24(3) of the Wages Boards Ordinance, in order to include part-time and flexible work. Amending the Payment of Gratuity Act to separately calculate social security based on an employee’s work as both a full-time and part-time employee, was another recommendation. In order to address overtime work restrictions on female employees, it recommended the removal of the restriction on overtime work under Regulation Seven of the Shop and Office Employees (Regulation of Employment and Remuneration) Act, and instead to introduce a new regulation under Section 3 (1)(3)(a) of the Shop and Office Employees (Regulation of Employment and Remuneration) Act to allow female employees to work overtime. To do this, the report further recommended introducing guidelines to avoid the exploitation of excessive overtime under the new regulation, such as those stated in Section 2A of the Employment of Women, Young Persons, and Children Act and Section 67A of the Factories Ordinance.  Removing restrictions on work at night for females under the Shop and Office Employees (Regulation of Employment and Remuneration) Act, the Factories Ordinance, and the Employment of Women, Young Persons, and Children Act, while ensuring the protection of women employed at night, was the third recommendation.  Law reforms  The event included a panel discussion, which was joined by Parliamentarian and Women MPs’ Caucus Member Thalatha Atukorale, independent consultant and International Centre for Ethnic Studies (ICES) Research Associate Dr. Ramani Gunatilaka, Employers’ Federation of Ceylon (EFC) Industrial Relations Adviser Ayomi Fernando, and MAS Holdings General Manager – Women’s Empowerment, Advocacy, and Code of Conduct Thanuja Jayawardene. All panellists agreed that urgent and properly planned law reforms are one of the key steps Sri Lanka must take in order to uplift the status of female employees. However, political, economic, and practical challenges that affect the process of changing laws are issues that need to be addressed first, according to the panellists. Existing laws being extremely old and not in step with today’s workforce requirements is one of the key challenges they pointed out. Emphasising this, MP Atukorale said: “Laws affecting female employees are quite old, and they were formed in a time when female labour was not at a very high level. Despite more sectors becoming part of the economy, we have not been able to amend these laws.” She noted that the process of reforming laws, even though a necessity, is not a simple one and requires the support of many parties including other MPs. Sharing the same opinion about existing labour laws including those affecting female employees being archaic, Dr. Gunatilaka, meanwhile, opined that even though Sri Lanka’s labour laws are gender discriminatory, they are so also owing to the method by which they are implemented.  She also noted that since the time these laws were formed, the society and the economy have changed.  “These laws were passed at a time when Sri Lanka was very different from today and the kinds of jobs that were available at that time were also different. We are already facing a tight labour market, the working population is growing old, and the working age cohort share in the population is declining, and if females do not enter the paid workforce, wage costs will rise and we will not be able to grow economically. When it comes to females, the Government and taxpayers have been spending a lot on female’s education, and now, females are far more educated than males. If with all this education they are going to stay at home looking after children, society will not get results for what it has invested in females’ education,” she explained. Dr. Gunatilaka further pointed out that studies have shown that there is a statistically significant negative effect on the labour demand for females, if employers think that the labour laws in Sri Lanka make it more costly to hire females. In addition, pointing out that Sri Lanka is a signatory to many international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women, Dr. Gunatilaka mentioned that despite these commitments, there are contradictions in the labour law. “Signing and implementing international commitments are different things,” she stressed. With regard to practical difficulties, some of which stem from the existing labour laws, Jayawardene noted the importance of bridging gaps regarding safe transport, the provision of meals, awareness and education, and child care facilities, and addressing workplace-related challenges faced by females. “We look at the way we work shifts, flexibility, benefits, and try to retain the talent,” she added. She noted that despite females’ capabilities and achievements, some laws state that females cannot choose the hours that they work, and that they are left with no choice. “If people of all genders had policy frameworks and laws that give them a choice and allow them to participate, that would help businesses and communities, and when the law perpetuates the same stereotypes we are trying to challenge, that will not help anyone.” Responding to a question raised during the panel discussion about what laws are most discriminatory, Fernando highlighted the laws that prevent females from working at night. She added that while protection for females is necessary, there is a need to balance the situation between the laws and the practical working environments, in order to ensure that everyone has opportunities. With regard to opportunities, Jayawardene added: “Making part-time work available for female employees is an important step in increasing labour force participation. From the business point of view, it is more beneficial to accommodate part-time work rather than lose employees, irrespective of their gender.” In this regard, Dr. Gunatilaka noted that if part-time work is allowed, young people and students can get experience, develop networks, and even start their own businesses, and that females can and want to do this.  Social, policy, and attitudinal changes Speaking of what sort of differences gender-inclusive laws would make, Jayawardene opined that law reforms, although important, will not make the changes Sri Lanka wants to see.    “Sri Lanka’s mindset should change for more females to come to work,” she stressed, adding that paternity leave must also receive adequate attention in this discussion, in order to change the notion that it is females who have the responsibility to look after children. “Changing this mindset is necessary. If the law changed and we communicated effectively and sensitively, it would influence social and cultural change. The law is just one part of this discussion; however, it is an essential part,” it was further stated. Panellists further underscored the importance of identifying the necessity of females’ participation in the labour force, given the present state of the country’s economy. Dr. Gunatilaka said: “Females’ participation is important because our economy is in a crisis. Reforming these labour laws is kind of a low-hanging fruit, and changing mindsets takes a long time. But, this is possible, and can be done if we get out of this swamp of decision paralysis and policy paralysis. If we change the laws and show investors that they can hire females for the kind of work that they would like females to do, it would help investments and expand employment.” With regard to increasing females’ willingness to work, Fernando said that even though in the prevailing economic situation it is difficult to incentivise female employees, other aspects such as protection can be ensured to encourage them. Moreover, responding to a question about where Sri Lanka should start when making law and policy reforms, Fernando opined that as a start, Sri Lanka must identify where the country went wrong, or why the country has moved in wrong directions when it comes to such changes. She also pointed out incidents where government changes and political differences affected law reforms.  Law reforms to ensure that workplaces are safe for females, and females being able to avail themselves of all opportunities in the workforce as males do, is now more important than ever, due to the prevailing economic situation. While ensuring equality for females in the workplace entails a plethora of practical and institutional challenges, as the experts who spoke at the event noted, law reforms and attitudinal changes are a great start, and will help address many other issues. Providing equal opportunities for females in the workplace is an investment that has the potential to lead to massive social, cultural, and economic changes.  


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