The bedrock of labour legislation is essentially equity which runs as a golden thread consolidating industrial relations.
The concept of equity calls for an inclusive approach from all stakeholders at play in industrial-related practices. Despite the plethora of labour legislation Sri Lanka claims, how prepared are we as a nation towards achieving this very inclusiveness and flexibility, in tune with current economic realities and wants? The Nation strives to find answers.
By Randima Attygalle
A legacy of our colonial masters, the labour laws of Sri Lanka have hardly changed since gaining independence. The adversarial flavour of ‘archaic’ pieces of legislation which propagate an ‘us and them’ approach have been carried forward with little or no heed to dynamic industrial locale of the modern day. The age old cliché ‘prevention is better than cure’ is interestingly applicable in the case of industrial relations, but alas absent, when realising the lacuna in local legislation – The Industrial Disputes Act (No. 43 of 1950) being a fine illustration.
Despite the preamble to the Act endorsing that it is in force for the prevention, investigation and settlement of industrial disputes, the provisions stipulated in the Act do not spell out ‘effective’ mechanism for the ‘prevention’ of such disputes. The lacuna of ‘interest based’ problem solving tools in relation to industrial disputes, as adopted by many countries, is compounded by the absence of provisions to promote a positive dialogue, that would have otherwise facilitated consensus and strengthened cooperation between the ‘social partners.’ In fact this has led an array of socio-economic repercussions, hindering the business equilibrium and welfare of the working classes in the country.
Meeting modern needs
“The strong urge to formulate a system which is quite adept in dealing with industrial issues we are facing today as a nation is felt more than ever before, especially in a post-conflict context, when we are placed on the threshold of a new development era. In that sense, the window of peace has created many opportunities which, if made use of appropriately, could propel our country to achieve rapid economic development and the much cherished newly developed country status. However, such objectives cannot be achieved if we are not realistic and reform present labour laws and industrial relations practices to facilitate the creation of productive employment, industrial harmony and social justice,” explained Kanishka Weerasinghe, Deputy Director General, Employers’ Federation of Ceylon.
Cordial industrial relations
As Weerasinghe cited, the Employers’ Federation of Ceylon has been continuously lobbying the forums concerned in reforming labour legislation in the best interests of the business community, conducive to a more competitive business environment, mindful of the equitable considerations that cater to the interest of other stakeholders.
“International labour laws are operative on a tri-partite mechanism encompassing employers, employees and their representative bodies such as trade unions and the State. Employers’ Federation of Ceylon (EFC) which is the voice of business on Labour Law and industrial relations – issues in the country for over eighty years, abides by these tri-partite principles in relation to its dealings,” explained Weerasinghe.
The EFC is the Sri Lankan employer – constituent of the International Labour Organisation (ILO) and a member of the International Organisation of Employers (IOE) and the Confederation of Asia Pacific Employers (CAPE). “Though being the Union of the employers, the EFC is not solely confined to looking after the interests of the employer, but is also concerned with the interests of all stakeholders concerned, especially employee wellbeing, because when we promote the interests of the employer, we simply cannot be oblivious to the rights and obligations of those who virtually ‘sit on the other side of the table,’ – our own employees,” elaborated Weerasinghe. He further added that since its inception, EFC has been engaged in facilitating better employer-employee/trade union relations, thereby ‘bridging the gap’ borne out of an otherwise adversarial mechanism.
Promoting social dialogue
An ‘all embracing’ forum drawing membership from blue chip giants to state-owned companies – both large and small-scale, EFC endorses the employment policies of government’s Ten-Year Horizon Development Framework which seeks to promote flexible labour laws and productivity enhancement as tools channelled towards development. Endorsing employment creation, productivity and social justice stipulated by the Ten-Year Horizon Development Framework EFC seeks to promote a healthy social dialogue between employers and employees, abiding by the national legal legislation and full compliance of obligations in terms of international labour standards.
As Weerasinghe observes, within this legal framework, we need to develop ‘systems of our own’ and move away from the remnants of the adversarial system enabling our country to better compete globally. “The provisions of international law do provide this flexibility for employers whilst looking after the interests of employees. Sadly our local legislation has failed to encompass these principles by striking a balance that is paramount, thereby embarking on a common objective of respecting the rights and obligations of each party,” he opined.
A common dais
Emphasising on the need to arrive at a common dais, the Commissioner General of Labour, Ms. Pearl Weerasinghe told The Nation, “In achieving industrial peace at work place, the cardinal norms are transparency and equity. They are made a reality only upon arriving at a common dais and the role of the Department of Labour is to facilitate this compromise respecting and recognising the rights and obligations of each other. The National Labour Advisory Council, (chaired by the Minister of Labour) is an ambitious forum initiated in this regard with tri-fold representation – employer, employee and the state representatives with the objective of aiding in formulation of topical labour legislation.”
Legal reforms
Among the present legislation which demands for flexible and equitable reforms, are certain provisions in the Industrial Disputes Act, such as those that were incorporated through the Amendment – Act No. 56 of 1999, The Shop and Office Employees Act No. 15 of 1954, Payment of Gratuity Act No. 12 of 1983, the Wages Boards Ordinance and Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 are noteworthy. Many question the relevance of provisions contained in them in today’s context as it appears to be a hindrance in achieving developments goals, including employee welfare, of this country.
Offering flexibility, thereby enhancing productivity and creating employment opportunities are what the reforms seek to champion. The provisions which relate to the termination of employment, temporary lay-off, compensation, holidays, working hours fail to reflect the modern day business dynamics, which most other developing nations have come to grips with today.
The procedural delays which are associated when making an application under Section 2 of the Termination Act is an added burden on employers, particularly when seeking speedy implementation of restructuring strategies. As opposed to a ‘hire-and-fire’ mechanism, a system that would ensure mutually beneficial outcomes would enable businesses to sustain themselves even during a tough financial crisis, whilst ensuring job security of most employees. “By accommodating such short-term sacrifices by both parties through reformed legislation, employment security can be promoted,” elaborated Kanishka Weerasinghe. He cited that the present compensation formula (reported to be the fifth highest retrenchment compensation formula in the world) as being incompatible in meeting the socio-economic policies of the country.
The EFC’s proposal to seek a five-day work week, by spreading over working hours of a weekly half-holiday over five days of the week without having to pay overtime, has to be understood in the proper context, explains Weerasinghe adding that, the EFC’s proposal is not to have a uniform rule with regard to a five-day week for all industries in the private sector. “The rationale behind the proposal is to enable employers who require such flexibility of spreading over working hours over the five-day week to do so without having to make additional payments,” he said.
He further emphasised that it is not practical to have a five-day working arrangement across all industries and that what is required is to give the flexibility and the discretion to the employers and the workers in each establishment to decide on it. He also pointed out on the need to have flexibility in relation deciding on the weekly holiday/s as a similar requirement that needs urgent attention.
Female work force
The female work force constitutes a crucial segment of country’s work force and driven by social and family commitments, more and more women see part-time employment for which no legal provisions apply. “In many of the developed countries, employment is heavily generated through part-time employment and what we perceive today is that a considerable percentage of females, particularly professionals, seek flexible employment. So why not create opportunities to reap the best potential of such skills, preserving the competitive edge,” questioned Weerasinghe elaborating on the need to reform present rigid labour laws of the
country to be more accommodative.
Employee-awareness
Legal literacy to which the average employee cannot easily relate is also hampering healthy industrial relations, explained Weerasinghe who emphasised on the need to create awareness among the workers of their rights and obligations. “When perusing employee legislation that exists in relation to our labour law, it’s evident that the average employee finds the legal jargon hard to fathom,” he added.
Productive working environment
Expressing his concerns on certain legislative provisions which are discriminative, General Secretary, Nidahas Sevaka Sangamaya, Lesley Devendra told The Nation, “What matters is not the existence of laws in numbers but the effectiveness and practicality of them in catering to modern day industrial requirements which will benefit both the employer and the employee alike. The provisions related to the quantum of compensation which is at present found in a formula, investigative procedure following the termination of an employee and working hours related to female employees (in an office environment) are some of the impractical and cumbersome legislative provisions.”
As Devendra observes, it is imperative that no termination of services occurs without the due process of law being followed and equally important is to ensure that the procedure is less time-consuming.
“The prolonged investigation which we often witness further penalizes the employee,” he adds. According to Devendra, relaxing the provisions related to employment of women during night hours (stipulated in The Shop and Office Employees Act No. 15 of 1954) can help them earn an ‘extra income’, employees of the Free Trade Zone being a classic illustration. “As the voice of workers, we have always been accommodative and flexible in coming to terms with legal reforms which are in tune with productive needs of the time because a healthy dialogue free of antagonism is vital in ensuring a transparent working environment,” he concluded.
