Tuesday, 21st September 2021

Women Workers’ Rights -Legal framework

HT Agency

Sri Lanka: Industrial relations systems are founded on a framework of labour laws which exert an influence on the nature of the industrial relations system. Employment is a matter vital importance to a worker. Not just employment they seek but employment commensurate with his or her education, training and experience.

Sri Lanka acceded to the International Covenant on Civil and Political Rights (ICCPR), that inter alia recognizes the right of peaceful assembly (Article 21) and right to freedom of association including the right to form and join trade unions (Article 22) in June 1980. At the same time it also acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR), that recognizes inter alia the right to work (Article 6) right to just and favourable conditions of work (Article 7), trade unions rights including the right to strike (Article 8), and the right to social security (Article 9).

Sri Lanka has been a member of the International Labour Organization (ILO) since Independence in 1948 and has ratified the eight core conventions, in addition to several others. The core conventions are C29 (Concerning Forced Labour), C87 (Concerning Freedom of Association and Protection of the Right to Organize), C98 (Concerning Right to Organize and Collective Bargaining), C100 (Concerning Equal Remuneration), C105 (Concerning Abolishing of Forced Labour), C111 (Concerning Discrimination in Employment and Occupation), C138 (Concerning Minimum Age for Admission for Employment) and C182 (Concerning Prohibitions and Elimination of Worst Forms of Child Labour).

Women Workers’ Rights

Several international instruments and mechanisms have contributed to the progressive conceptualization of women’s rights. Article 1 of the UDHR recognizes and affirms that ‘all human beings are born free and equal in dignity and rights,’ while Article 2 goes on to state that everyone is entitled to all the rights and freedoms set forth in the Declaration. Sri Lanka has ratified ICCPR and ICESCR in 1980 and ratified the ICCPR Optional Protocol in 1997.

Article 2 of the respective Covenants call for non-discrimination based on sex while Article 3 specifically stipulates that ‘State parties to the present Covenant undertake to ensure the equal rights of men and women to the enjoyment of all rights set forth therein.’ While certain provisions contained in the ICCPR have been incorporated into Chapter III of the 1978 Constitution as fundamental rights, provisions contained in the ICESCR are in the main incorporated into Chapter VI of the 1978 Constitution as Directive Principles of State Policy and Fundamental Duties which are not enforceable by law. One important international instrument contributing to the realization of women’s right is the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Sri Lanka ratified CEDAW in 1981 and the Optional Protocol in 2002.

Several national mechanisms have also been established to promote and monitor progress in achieving equality for women. The first of such institutions was the Womens’ Bureau established in 1979 with the aim of providing necessary skills and training to promote income generating activities for rural women. Thereafter in 1983 the Ministry of Women’ Affairs was established to ensure women participation in national policy and laws as well as to ensure sufficient resource allocation to meet the State’s commitments towards achieving gender equality.

In 1993 Women’s Charter was formulated as the Government’s principal policy document related to women’s empowerment and provided for the establishment of the National Committee on Women (NCW). At present the NCW and Women’s Bureau are the main implementing bodies functioning under the Ministry of Women’s Affairs. While laws relating to labour rights are generally gender neutral and apply equally to men and women this often applies to the formal sector. Women in the informal sectors continue to experience discrimination. For example, women engaged in the informal agricultural sector appear to be paid less than men for similar work.

Sri Lanka has over 1.8 million migrant workers with nearly half being women the majority of whom migrate as domestic workers to the Middle-East. The majority of the workers in the Free Trade Zones or Export Processing Zones (EPZs) are women from rural areas between the ages of 18-30.

Many human rights and labour activists have highlighted the deplorable working and living conditions that EPZ workers face. The Board of Investment (BOI) arbitrates in labour disputes within the Zones in the first instance and is perceived as a pro employer. In any case, it has certain powers in the settlement of disputes which authority is vested mainly in the Labour Department. Historically workers in the tea plantation, particularly women workers have experienced discrimination. Women constitute nearly 60% of the estate labour force and mostly employed as unskilled labour. The issues of adequate wages, better living conditions, welfare facilities and stronger representation have been raised over the years.

An emerging issue globally and Sri Lanka is the movement calling for greater recognition of domestic workers. The law governing domestic work in Sri Lanka is contained in an old law, the Domestic Servants Ordinance No.28 of 1871 which defines a domestic worker ‘as a servant’ and provides for registration books by a government appointed servant. Moreover, the laws which provide the legal framework for the recognition and protection of workers in the private employment sector do not recognize domestic workers as part of the formal work force thereby not providing them any framework of protection and rights for them.

Child labour

Sri Lanka ratified the UN Convention on the Rights of the Child in 1991. In pursuance of its international obligations, Sri Lanka adopted the Charter on the Rights of the Child in 1992 and a National Monitoring Committee (NMC) was established for monitoring and implementation of the Charter on the Rights of the child in 1992. The Charter which was based on the UN Convention, is not legally enforceable. It provides a frame of reference for organisations which are responsible for or concerned with the implementation of plans and programmes for the protection of children and promotion of their interests. The establishment of the NMC and the 1995 Amendments to the Penal Code were not sufficient in themselves to control the incidence of child abuse.

A Presidential Tasks Force appointed in 1996 which also studied child labour made several recommendations including amendments to the enactments and the establishment of a National Child Protection Authority (NCPA). In November 1998 the NCPA Act No. 50 of 1998 was passed by Parliament.

It may be noted that Sri Lanka has already ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts in September 2000. According to Article 1 of the Optional Protocol, persons below the age of 18 years should not be recruited into the armed forces. The Employment of Women, Young Persons and Children Act of 1956 as amended in 1999 sets a minimum age for the employment of children. Accordingly the employment of children under 12 years of age in all spheres is prohibited and estate workers must be at least 14 years. The restrictions on the employment of children are spelled out in various other legislations such as Estate Labour (Indian Ordinance), the Factories Ordinance, the Mines and Minerals Law and Shops and Office Employees Act.

The ILO Conventions and the UN Convention on the Rights of the Child (CRC), are the two international instruments relevant to child labour in Sri Lanka. In 1973, the ILO adopted Convention No. 138 Minimum Age for Admission to Employment. This Convention applies to minimum age for hazardous work, light work and effective enforcement of obligations under the Convention. The 1999 session of the ILO Conference adopted the Convention on Worse or Extreme Forms of Child Labour. The Convention identifies as all forms of slavery, engaging children in illegal activities and other types of work likely to jeopardize health, safety and morals of children.

National Workers’ Charter

The National Workers Charter was presented to the then President in September 1995 by then Minister of Labour and Vocational Training in keeping with the 1994 election pledge of the People’s Alliance. However, it had not been still enacted largely because of the opposition from employers and particularly from the Employers’ Federation of Ceylon. The Employers Federation opposed the Bill on the ground that the Charter did not safeguard the public servants rights and for the reason that it had no balanced approach to the employee obligations. Opponents of the Charter see it as being hostile to employers’ interest and fear a reduction in the flow of foreign direct investment in the event that the Charter becomes law.

Equal Opportunity Bill and Workers’ Rights

In 1999, the Government attempted to introduce new legislation on equal opportunity which would have enhanced protection against discrimination in the work place. At present constitutional provisions relating to non-discrimination are directed toward providing relief for violation by ‘executive or administrative action’ and thus do not apply to works in the private sector. One of the primary objectives of the new legislation was to make the private sector accountable for rights violation of this kind. Part I of the Bill dealt with discrimination against persons and included protection against sexual harassment and discrimination in the work place. Article 3 provided for the protection of workers from sexual harassment in the work place and Article 5, discrimination on grounds inter alia of race, religion, gender in offering employment, promotion, transfer and training were made an offence.

After 42 petitions challenging the Bill had been filed in the Supreme Court, the government withdrew the Bill altogether. However, the objections were mainly directed at the provisions relating to education and many were without foundation. The withdrawal of the Bill in its totality thus deprive private sector employees of a unique opportunity to go before the proposed Equal Opportunity Commission in case of their rights being violated by their employers. Therefore it is submitted that the Equal Opportunity Bill should be adopted at least in relation to employment.

Several other statutory rights of workers

The Wages Board Ordinance No.27 of 1941 provides for the establishment and constitution of Wages Boards and regulates wages and other emoluments of any persons employed to perform any work in any trade. The Factories Ordinance No.45 of 1942 as amended makes provisions to ensure the safety, health and welfare of workers in factories. Shop and Office Employees Act No.19 of 1954 covers the terms and conditions of employment in shops and offices and provides for the regulation of employment, hours of works and remuneration of persons employed therein. The Act also deals with health and comfort of employees’ maternity benefits, weekly and annual holidays as well as leave. Trade Unions Ordinance No.44 of 1935 provides for the registration and control of trade unions. The State has taken steps to safeguard the rights of workers through its institutions. Besides formulating labour policy, training officers of the Department of Labour and conducting research, the Ministry of Labour handles matters pertaining to the international Labour Organization. The Workmens’ Compensation Department, the Employees Trust Fund, Foreign Employment Bureau are among the institutions under the Ministry.

Reforms

While laws relating to workers’ rights are generally gender neutral and apply equally to men and women, this often applies to the formal sector. Women in the informal sector including those in the tea plantations and informal agricultural sector continue to experience discrimination. Many of the needs of the migrant women workers and workers in the FTZ still remain to be addressed. The Domestic Servants Ordinance needs to be reviewed and reformed. There should be a consistent minimum age for the employment of children irrespective of the type of labour that they do.

The judicial process in Sri Lanka is slow and needs to be reformed to make it more efficient and more sensitive to the needs of children. Considering the Sri Lanka’s largely pro-worker domestic labour law regime and its impressive record of ratification of ILO Conventions and treaties, the most pressing issue for labour rights activists is that of implementation and scrupulous enforcement.

 

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