Klibel5 law 35

Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4.
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4
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DISCRIMINATION IN EMPLOYMENT IN THE PRIVATE SECTOR OF SRI LANKA:
A CRITIQUE IN THE LIGHT OF INTERNATIONAL CONVENTIONS
M.P.S. Kaushani Pathirana
Department of Private and Comparative Law, Faculty of Law
University of Colombo, Colombo 03, Sri Lanka
Email: kaushipathirana@gmail.com
ABSTRACT
Discrimination in employment can take place in various forms. Although, the international instruments such as United Nations and International Labour Conventions adequately protect the rights of the workers in the world, the conflicts and violence on discrimination in employment has been arisen not only from the surface, as it seems but also from the bottom of the law in Sri Lanka. This research is mainly focused on the discrimination in employment in the private sector with the objectives to explore and comment on the current labour laws and practices and make reforms for a best mechanism to eliminate the discrimination in employment. The paper drives to identify the different types of discrimination in employment, relevant international standards and its impact on the Sri Lankan law with a critical evaluation on the current Sri Lankan legal responses. Further, the author purported to make recommendations on how to reduce or eradicate discrimination in employment in the private sector. The elements of employment discrimination together with gender inequality shall also be examined vis-à-vis its major consequences. The evaluation shall be made sometimes with comparing the public sector of employment in the light of international standards.
Keywords: Types of Discrimination, International Standards, Private Sector, Sri Lankan Context

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1. INTRODUCTION TO DISCRIMINATION IN EMPLOYMENT
Discrimination in employment can occur at various stages in the working life of a person, from the recruitment and until the termination or retirement. Discrimination takes various forms such as gender, age, disability, religious, race, pregnancy, national origin, and job description. It can take place between individual – individual, individual- group or individual-institution as inequality in or violating the rights or unfair treatment. Discrimination at work can affect a large variety of workers, workplaces and work practices as well.1
In the case of Baker v. California Land Title Co2, the word ‘discrimination’ has been defined as,
“the effect of statute or established practice which confers particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges, or a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between whom and those not favoured no reasonable distinction can be found. Unfair treatment or denial of normal privileges to persons because of race, age nationality or religion (emphasis are mine) a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured ”.
The Universal Declaration of Human Rights (hereinafter mentioned as UDHR) of 1948 in its preamble states ‘Where as recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world”3. In accordance with this statement, labour rights should be considered as human rights without any ground of discrimination.4 The features of the UDHR are secured by the long-standing conventions of the International Labour Organization (ILO) such as Equal Remuneration Convention5 and Discrimination (Employment and Occupation) Convention6. As well as by the more recent United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights (1966). Moreover, they are enforced by the reporting systems of the ILO and the United Nations, are also very often repeated in state constitutions, and labour laws with the result of the legal protection at the national level as well.7
Employment discrimination has been described as an inferior treatment in hiring, promotions, work assignments and such for a particular group of employees.8Thus, an economy, society or nation that allows
1Sankaran K., Discrimination and the World of Work in South Asia, http://www.southasia.ox.ac.uk/sites/sias/files/documents/Oxford%20University%20CSASP%20Work%20in%20Progress%20Kamala%20Sankaran.pdf, 01/06/2012, p.01
2Baker v. California Land Title Co,D.C. Cal, 349 F Supp. 235, cited in Black’s Law Dictionary 5th edition, further reference, Bamiwola K. H. Human Right and Employment Discrimination: A Comparative Examination of Equal Job Opportunities, http://www.ilo.org/public/english/iira/documents/congresses/regional/lagos2011/3rdparallel/session3a/discrimination.pdf, 08/11/2012, p. 03
3 Preamble of UDHR
4 Alston, P. ‘Labour Rights as Human Rights: The Not So Happy State of the Art’, Alston.P, Labour Rights as Human Rights, Vol. XIV/1, [Oxford University Press, 2005], p. 02 5No. 100 of 1951 6No. 111 of 1958
7Woodiwiss. A, Globalization, Human Rights and Labour Law in Pacific Asia, [Cambridge University Press, 1998], p.10
8McConnell & Brue, Economics, [Irwin McGraw-Hill, 1999], Glossary, G: 8, further reference, infra. 09, Bamiwola K. H., p. 03

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discrimination of any form in its socio-economic struggles or political development may be ridden by poverty, chaos, injustice, inequality disutility, disunity and conflict of its political will.9
Discrimination in employment based on personal characteristics such as sex, race, religion, national origin or disability occurs in all the continents of the world.10 Discrimination in the workplace may take various forms. From the advertisement for job vacancies till the selection of the candidate and from the selection till termination or retirement, discrimination can be take place. This may take place most of the times when the employer refuses an employee training or promotion, or dismisses an employee for reasons unrelated to his work record or skill. Discrimination is not confined to the workplace and it can be at different stages in life. Discrimination based on sex, race or disabilities are the most common forms. However, a person can also be discriminated against on the grounds of age, religious beliefs, political persuasion, trade union membership, sexual orientation or for having a criminal record11.
Discrimination can be further categorized into three areas; direct discrimination, indirect discrimination, and victimization. Direct discrimination occurs when a person is treated less favourably because, for example, of that person’s sex, marital status, race or disability. Indirect discrimination is hidden or covert discrimination. An action that may appear at first not to discriminate, but might on reflection be said to indirectly discriminate against a group of people.12 Victimization means a person is discriminated because of some previous or current involvement in a complaint made against his employer.13
2. THE PRINCIPLES ON DISCRIMINATION IN EMPLOYMENT IN INTERNATIONAL CONVENTIONS
International labour standards consist of the rights and responsibilities of employers, employees and the State parties. Historically, the International Labour Organization (hereinafter mentioned as ‘ILO’) has promulgated the most influential of these instruments. This is an organization, established by the Treaty of Versailles in 1919, which has survived to exert a measure of influence today as a United Nations (hereinafter mentioned as ‘UN’) agency.14 The ILO is the competent body to set and deal with International Labour standards, but the substance of ILO constitutional norms, conventions and recommendations have long been reflected in instruments adopted by the UN, such as the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social, and Cultural Rights 1966.15
There are many international instruments, which have addressed discrimination in employment expressly and impliedly in its contexts. This section focuses, in particular, on those international instruments which addresses the discrimination in employment and its applicability in the Sri Lankan context.
9Bamiwola K. H. ‘Human Right and Employment Discrimination: A Comparative Examination of Equal Job Opportunities’, http://www.ilo.org/public/english/iira/documents/congresses/regional/lagos2011/3rdparallel/session3a/discrimination.pdf , accessed on 08/11/2012, p. 03
10Ibid, p. 04
11 __, ‘Discrimination in Employment’, http://catalogue.pearsoned.co.uk/assets/hip/gb/uploads/M02_NAIR5417_04_SE_C02.pdf , accessed on 26/01/2013, p. 34
12Ibid, p. 36-37
13Op.cit
14Novitz, T. ‘The European Union and International Labour Standards: The Dynamics of Dialogue between the EU and the ILO’, Chapter 07, Alston. P , Labour Rights as Human Rights, Vol. XIV/1, [Oxford University Press, 2005], p. 214
15Ibid. p. 215

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2.1 The Universal Declaration on Human Rights of 1948 The Universal Declaration of Human Rights (UDHR) of 1948 in its preamble states, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”16. In accordance with this statement, labour rights should be considered as human rights without any ground of discrimination. This was recognized under the UDHR with the inclusion of the “right to be free from slavery17; the right to non-discrimination and equal protection of the law18; the right to freedom of association19; the right to social security20; the right to work, to free choice of employment, to just and favourable condition of work, and to protection against unemployment21; the right to equal pay for equal work22; and the right to reasonable limitation of working hours”.23 However, this formal recognition is only one part of the overall picture of discrimination in employment.’24
2.2. The International Covenant on Civil and Political Rights – 1966 (ICCPR)
The ICCPR describes in Article 26, the principle in equality before the law and equal protection of the law without any discrimination on any ground. Further, Article 07 and 17 prohibits torture, cruel, inhuman, or degrading treatment, prohibits discrimination on any ground including sex, and protects the right to privacy.
2.3. The International Covenant on Economic, Social and Cultural Rights – 1966 (ICESCR)
The ICESCR from its Article 6, 7 and 8 demonstrated the right to work, right of everyone to the enjoyment of just and favourable conditions of work including equal remuneration, safe and healthy working conditions, and the right of everyone to form and join trade unions of his choice.
2.4. Convention on the Elimination of All forms of Discrimination against Women (CEDAW)
In considering the situation of the discrimination in employment, CEDAW has adopted provisions to eliminate discrimination against women in the field of employment in order to ensure right to work and right to health and safety in working conditions. Article 11 (1) mentioned that, “States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular, right to work; right to the same employment opportunities; right to free choice of employment, promotion and job security; right to equal remuneration; right to social security; right to protection of health and safety”.
Article 11 (2) mentioned that state parties shall take appropriate measures in order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work.
2.5. International Convention of All forms of Racial Discrimination - 1969
According to the Article 01 of the Convention, ‘racial discrimination’ means any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin…’ Article 05 (e) of the convention has mainly focused on the elimination racial discrimination in all its forms to guarantee the rights to work, to free choice of employment, to just and favourable condition of work, to equal pay for equal work, the right to form and join trade unions.
16 Preamble of UDHR
17 Article 05 of UDHR
18 Article 07 of UDHR
19 Article 20 of UDHR 20Article 22 of UDHR 21Article 23 of UDHR 22Article 23 of UDHR 23Article 24 of UDHR
24 Alston, P. ‘Labour Rights as Human Rights: The Not So Happy State of the Art’, Alston.P, Labour Rights as Human Rights, Vol. XIV/1, [Oxford University Press, 2005], p. 02

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2.6. UN Convention on the Rights of Persons with Disabilities – 2007
The purpose of this convention is to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.25 Article 05 is the equality and non-discrimination clause and it describes state parties shall prohibit all discrimination based on disability and guarantee to persons with disabilities, equal and effective legal protection against discrimination on all grounds. Article 27 recognized the rights of persons with disabilities to work on an equal basis with others and prohibit discrimination based on disability with regard to all matters concerning all forms of employment. 2.7 International Labour Organization; Labour Standards The features in the UDHR are reinforced by the long-standing conventions of the International Labour Organization (ILO) such as Equal Remuneration Convention, No. 100 of 1951 and Discrimination (Employment and Occupation) Convention, No. 111 of 1958 as well as by the more recent United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights (1966). Moreover, they are enforced by the reporting systems of the ILO and the United Nations, and are also repeated in state constitutions and labour laws with the result of the legal protection at the national level.26
International labour organizations have adopted 189 ILO conventions to date. Among these conventions eight are core labour conventions. They are;
1. Freedom of Association and Protection of the Right to Organize Convention27;
2. Right to Organize and Collective Bargaining Convention28;
3. Forced Labour Convention29;
4. Abolition of Forced Labour Convention30;
5. Equal Remuneration Convention31;
6. Discrimination (Employment and Occupation) Convention32;
7. Minimum Age Convention33;
8. Worst Forms of Child Labour Convention34.
There are important provisions in the above-mentioned core labour conventions, which highlight the elimination of discrimination in employment. In addition, these core conventions embody the principles relating to human rights standards of employment. Sri Lanka has ratified all core conventions while many other countries in the South Asian region have not ratified them yet.35
2.7.1 Freedom of Association & Collective Bargaining
Article 02 of the ILO Convention No. 87 on Freedom of Association and protection of right to Organize mentions that, “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to
25 Article 01 of UN Convention on the Rights of Persons with Disabilities
26Woodiwiss. A, Globalization, Human Rights and Labour Law in Pacific Asia, [Cambridge University Press, 1998], p.10
27 No. 87 of 1948
28 No. 98 of 1949
29 No. 29 of 1930
30 No. 105 of 1957
31 No. 100 of 1951
32 No. 111 of 1958
33 No. 138 of 1973
34 No. 182 of 1999
35Sarveswaran, A. ‘An Evaluation of Sri Lankan Labour Standards in the light of the Core Conventions of the International Labour Organization’, Proceedings, [Annual Research Symposium, 2010], University of Colombo, p. 62

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the rules of the organization concerned, to join organizations of their own choosing without previous authorization”. Article 3(1), 3(2) and Article 05 emphasize right of workers and employers to form and join organizations of their own choosing without prior authorization, right of organizations to draw up constitutions, programmes, activities and elect officers free from government interference and right to federate and confederate. Convention 87 applicable to public sector employment as well and Sri Lanka has ratified this Convention on 15th of September 1995.
ILO Convention 98 on Right to Organize and Collective Bargaining mentioned that ‘Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment’.36 This convention protects workers including some categories of public sector workers against anti-union discrimination. Article 04 of the Convention promotes collective bargaining and Convention 135 on Protection of Workers Representatives37 in its Article 01 mentioned, “workers representatives… shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities , in so far as they act conformity with existing laws or collective agreements or other jointly agreed arrangements.”
2.7.2. The Abolition of Forced Labour
Sri Lanka has ratified Forced Labour Convention No. 29 on 05th of April 1950. Article 2(1) of the Convention mentioned that, ‘For the purposes of this convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered him voluntary’. In addition, according to the Convention any employer cannot force or compulsory labour in all its forms within the shortest possible period.38
Abolition of Forced Labour Convention No. 105 was ratified by Sri Lanka on 07th of January 2003 and Article 01 of the convention mentioned that, “Each Member of the International Labour Organization which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour:
a) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
(b) As a method of mobilising and using labour for purposes of economic development;
(c) As a means of labour discipline;
(d) As a punishment for having participated in strikes;
(e) As a means of racial, social, national, or religious discrimination.”
2.7.3. Equality & Non – discrimination
ILO convention 100 on Equal Remuneration set out the principle of equal pay for work of equal value.39 The Convention mainly focuses on wage discrimination and applies to all workers40 and to all elements of remuneration41. Under the ILO Recommendation 90, States should take appropriate action to ensure equal remuneration for all employees in government departments, encourage its application to employees in provincial and local government level, and provide legal enactments of the principle of equal remuneration.
The Discrimination (Employment and Occupation) Convention ratified by Sri Lanka on 27th November 1998 prohibits discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction, or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or
36 Article 1(1) of Convention No. 98
37 Complement to Convention No. 98
38Article 3(1) of the Convention No. 29
39 Article 2(1) of Convention No. 100
40 Ibid, Article 02
41 op cit, Article 01

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occupation.42 Discrimination could be intentional or non-intentional and direct or indirect. This convention applies to all persons including public and private sectors and to all stages of employment, vocational training and education, terms and conditions of work.
According to the Article 02 of the Convention No. 111, “Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminate any discrimination in respect thereof.”
2.7.4. The Elimination of Child Labour
There are two core conventions; Minimum Age Convention 138 and Worst Forms of Child Labour Convention 182. Article 2(3) of the convention, 138 mentioned that, ‘the minimum age specified in .. shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years’ and Article 2(4) mentioned,’ a member whose economy and educational facilities are insufficiently developed may, after consultation with the organization of employers and workers concerned , where such exist, initially specify a minimum age of 14 years.’ In addition, according to the convention, the minimum age for admission to any type of employment or work, which by its nature or the circumstances in which it is carried out, is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years.43
Under the Convention 182, each member state shall take immediate effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.44 The term of worst forms of child labour comprises; all forms of slavery such as sale and trafficking of children, forced and compulsory labour including children in armed conflict, prostitution, pornography, work which harm the health, safety and morals of children.
Further, the protection from child labour has identified in UN Convention on the Rights of the Child of 1989 and its two optional protocols; they are optional protocol on the involvement of children in armed conflict and optional protocol on the sale of children, child prostitution, and child pornography.
Sri Lanka has ratified these all eight core labour conventions and therefore Sri Lanka has an obligation to give effect to the principles embodied especially in the core convention No. 111. However, there is no specific policy in Sri Lanka, which mentions the policies of discrimination in employment.
2.8. ILO Declaration on Fundamental Principles and Rights at Work of 1998
The ILO Declaration on fundamental principles and rights at work of 1998 has recognized the principle of discrimination in employment as one of its fundamental principles. They are;
1. Freedom of association and the effective recognition of the right to collective bargaining;
2. The elimination of all forms of forced or compulsory labour;
3. The effective elimination of child labour;
4. The elimination of discrimination in respect of employment and occupation.
There are many international instruments, which contains provisions to eliminate discrimination in employment. Among those conventions, it should be given the priority to the ILO core labour conventions, which has mainly emphasized the rights and responsibilities at the employment. Other international conventions which adopted by United Nations should be also considered as it included some provisions on discrimination in employment. Sri Lanka has ratified all eight core labour conventions and some of other international conventions. Though Sri Lanka ratified those conventions, the lack of provisions in the national legislation to prevent discrimination is still remains.
42 Article 01 of Convention No. 111
43Article 3(1) of Convention No. 138
44Article 01 of Convention No. 182

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In addition, there is no specific national policy, to implement the principles in ILO Convention No. 111 on discrimination in employment.
3. THE SRI LANKAN LEGAL RESPONSE FOR DISCRIMINATION IN EMPLOYMENT IN THE PRIVATE SECTOR
In Sri Lanka, employment avenues can be classified into two groups, those in the public sector and the private sector. Government sector employment is in keeping with the Constitution of Democratic Socialist Republic of Sri Lanka, which recognizes fundamental rights and the provisions in the Establishment Code generally govern their terms and conditions. Many statutes dealing with various aspects cover the private sector employment and the remedies available are contained in the Industrial Disputes Act, the Termination of Employees Act, the Wages Boards Ordinance, the Shop and Office Employees Act and other similar Acts of parliament.
In terms of the forums to which private sector employees may go to in seeking relief, the labour tribunals have become extremely popular forums for seeking redress. Once the decision of the labour tribunal has been given, the parties are then free to appeal from this decision to the Supreme Court. However, the jurisdiction of the Supreme Court is in terms of its appellate jurisdiction and not the fundamental rights jurisdiction.45
In the event of the discrimination in employment, the Constitutional provisions on the right of equality and non- discrimination are applicable only to the public sector and equivalent provisions for non-discrimination is not found in the legislation which is applicable to the private sector. Therefore, this paper mainly focuses on the salient features in the labour legislation which are applicable in the private sector of employment in Sri Lanka and how its application in the event of the prevention of discrimination in employment in the light of international labour standards.
Private sector employees, unlike employees in the public sector, do not have the privilege of invoking the fundamental rights jurisdiction of the Supreme Court for violations of their rights. The writ jurisdiction of the court of Appeal is also amenable only in so far as the cause of action is traceable to a statutory right or duty. Therefore, in most instances the rights available to private sector employees is limited to the special laws enacted specifically to deal with this sector.46 Although the Constitutional provisions are not applicable to the private sector, the provisions in the other labour legislation could be creatively applied to the promotion of non-discrimination in employment in the private sector.
3.1. Industrial Disputes Act47
The Industrial Disputes Act (IDA) defines ‘industrial dispute’ as,
“Any dispute or difference between an employer and a workman or between employers and workman or between workmen and workmen connected with the employment or non-employment, or the terms of employment, or with the conditions of labour, or the termination of services, or the reinstatement in service, of any person, and for the purpose of this definition, ‘workmen’ includes a trade union consisting of the workman;’’48
Accordingly, a dispute that arises from discrimination in employment could be interpreted as an industrial dispute under the IDA and such dispute can refer to the commissioner or the minister for settlement.49 The IDA empowers
45 Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace, [International Labour Organization, 2006], p. 511
46Ibid.
47No. 43 of 1950 (as amended)
48 Section 48 of IDA
49 Section 3(1)(d), 4(1), 4(2) of IDA

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the labour courts to make just and equitable decisions on industrial disputes under Sections 17(1), 24(1), 31C (1) of IDA. The labour courts can make just and equitable decisions to promote non-discrimination in employment. For instance, in the case of Jayasuriya v. Sri Lanka State Plantations Corporation50, the court stated that the tribunal must make an order in equity and good conscience, acting judicially, based on legal evidence rather than on beliefs that are fanciful or irrationally imagined notions or whims.’
In Elmo Rex Lord v. Eksath Kamkaru Samithiya51made a salutary approach to courts to consider the provisions of the other relevant statutes and conventions as guidelines in making creative judgment. In this case, Amarasinghe J. cited the Article 28 (C) of the Constitution which provides; ‘the exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri Lanka to work conscientiously in his chosen occupation. In this case to decide an appeal from IDA, a provision form the directive principles of the Constitution have been cited.
Section 4(1) of IDA mentioned that, ‘Minister may, if he is of the opinion that an industrial dispute is a minor dispute, refer it by an order in writing for settlement by arbitration to an arbitrator appointed by the minister or to a labour tribunal, notwithstanding that the parties to such dispute or their representatives do not consent to such reference.’ And also, Section 4 (2) stated that, the Minister may by an order in writing; refer any industrial dispute to an industrial court for settlement. This power granted to the Minister for compulsory arbitration contrary to the Article 03 of the ILO Core Convention 87 on Freedom of Association.
According to the IDA the collective agreements has legal status in Sri Lanka under section 5-10 of IDA. Section 40 (1) (a) and (b) mentioned that violation of a collective agreement is an offence under the IDA. In this manner, parties could promote non-discrimination in employment by including provisions to the collective agreement. However, in practice employers in the Free Trade Zones have consistently refused to conclude collective agreements with representative trade unions of these zones. Employers frequently argue that they do have a legal obligation to bargain but not to reach agreement.52
Sri Lanka’s labour law system traditionally recognizes worker’s right to strike. For example, in the case of Rubberite Company v. Labour Department,53 Court of Appeal held that, ‘the basic right of worker to strike is not only consistent with the international obligations in ratifying the ICESCR, but also consistent with the accepted standards in other national and regional jurisdictions.’ However, the extent of the practical exercises of this right and its precise limitations are yet to be defined in law. The Supreme Court of Sri Lanka has held principles of ILO conventions No.87 and 98 on the right to strike are inadmissible in Sri Lanka.54
3.2. Termination of Employment
In the public sector, the employee can challenge the discriminatory decisions of the employer regarding the termination of employment under Article 12 of the Constitution. The private sector employees cannot challenge the decisions of the employer on such a right based ground. In Sri Lanka, non-disciplinary terminations are strictly regulated under the Termination of Employment of Workmen Act55 (TEWA) and require the approval of the Commissioner of Labour unless the employee consents to the termination.56 The Act provides that the commissioner
50Jayasuriya v. Sri Lanka State Plantations Corporation(1995) 2 SLR 379 at p. 392, further reference, Sarweswaran. A, ‘The Creative Role of The Appellate Courts in The Development of Industrial Law Under The Industrial Disputes Act’, [The Bar Association Law Journal, 2001] Vol. IX Part I, p. 108 at p. 111
51 S.C. Appeal No. 37/99, further, ibid, Sarvewaran, A.
52ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on core labour standards in Sri Lanka, October 2005, p. 67-71
53Rubberite Company v. Labour Department (1990) 2 SLR 2
54Abeywickrama v. Pathirana [1986] 1 SLR 120, Further, Egalahewa, U. ‘Contract of Employment and Unfair Dismissals’, http://www.lawnet.lk/docs/articles/sri_lankan/HTML/CV22.html , accessed on 04/02/2013, p. 38-40
55 Termination of Employment of Workmen (special provisions) Act No. 45 of 1971 (as amended)
56 Sharenguivel S., ‘Terminating Relationships- Husband and Wife, Employer and Employee: A Critique of Sri Lankan Law’, Proceedings, [Annual Research Symposium -2012], University of Colombo, p.144

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may order to continue employment of the workman with back wages for illegal termination.57 However, there are some cases58 which have interpreted this provision to permit the commissioner to pay compensation in lieu of reinstatement.59
In addition, the TEWA expressly provides that the inquiries should be conducted in accordance with the principles of natural justice.60 However, since it does not provide to give reasons for decisions of the commissioner it can lead to make discriminatory and conflicting decisions under the Act.61
3.3 Trade Union Ordinance62
Freedom of association and the right to form trade unions is recognized by the Article 14(1) (d) of the Constitution and the Trade Union Ordinance. All workers have right to form trade unions including public sector workers. However, in practice forming a trade union requires the trade union to ask for recognition, which requires a threshold of 40% of workers in a workplace. The commissioner of labour then conducts a referendum, but these referenda are usually time consuming and often do not achieve their intended objectives, as the employers in many cases keep on changing their work so that the 40% requirement is never achieved.63
No. 56 of 1999 IDA (amendment) providing the recognition of unions for the purpose of collective bargaining upon the showing of a sufficient minimum representation at a workplace, but this provision remains unenforced. Currently the law only provides for the requirement of a membership not less than 40% of workers on whose behalf such trade union seeks to bargain. However, the vote must be conducted base on a list of employees furnished by the employer.64 Therefore, collective bargaining rights should be granted to all the unions so that they may negotiate at least on behalf of their own members. Otherwise this can be discrimination in employments’ rights.
In its 2005 observation, the ILO Committee of Experts on the Application of Conventions and Recommendations notes that the government of Sri Lanka has not yet taken legal actions in order to penalize employers on the ground of anti-union discrimination. At present, a complaint can be made to the Magistrate Courts only by the Department of Labour. There are no time limits imposed on Labour Department within which such complaints should be made to the Magistrate Courts. This gives wide discretion to labour authorities to delay issues until the Union is made defunct. Therefore, the IDA should be amended so as to enable workers and trade unions to be given the right to file a complaint directly to the Magistrate Courts in the instances of anti-union discrimination or there should be a maximum time period for the filing complaints by labour authorities.65
3.4. Wages Boards Ordinance 66
57 Section 06 of TEWA,
58 Lanka Multi Moulds (Pvt) Ltd v. Commissioner of Labour [2003] 1 SLR 143, Samyang Lanka (Pvt) Ltd. v. Commissioner of Labour C.A 1837/2004
59 Sarveswaran A., ‘A Critical Evaluation of the Termination of Employment of Workmen (Special Provisions) Act in light of balancing the interests of Employers, Workmen and the State’, Proceedings, [Annual Research symposium, 2011] University of Colombo, p. 138
60 Section 17 of TEWA
61 Samalanka Ltd. v. Commissioner of Labour [1994] 1 SLR 405, Kundanmal Industries Ltd. v. Commissioner of Labour [2001] 3 SLR 229, Liyanage Case [2004] 2 SLR 23, Srimasri Hapuarrchchi v. Commissioner of Elections [2009] B.L.R. 34
63ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on core labour standards in Sri Lanka, October 2005, p. 67-71
64Ibid.
65Abeywickrama v. Pathirana [1986] 1 SLR 120, Further, Egalahewa, U. ‘Contract of Employment and Unfair Dismissals’, http://www.lawnet.lk/docs/articles/sri_lankan/HTML/CV22.html, accessed on 04/02/2013, p. 38-40
66No. 27 of 1941(as amended)

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The Wages Boards Ordinance provide the decisions of the wages boards such as, minimum rates of wages, liability of employer to pay minimum wages, wages of worker who works for less than normal working day or does not work of all on any day, intervals at which wages shall be paid, hours of work and weekly holidays, annual holidays, computation of service for purpose of holidays, determination of different rates of wages etc. Thus, wages boards could decide the terms and conditions which promote non-discrimination in employment with regards to the employees governed by waged boards.
3.5. Women Workers Rights in the Private Sector
Protection against Discrimination in employment based on gender has recognized in Article 12 (2) of the Constitution, however it is only applicable to the public sector workers. Women in the private sector have no legal protection against discrimination in employment under the Constitution. However, there are number of gender related labour regulatory frameworks that apply to Sri Lanka women workers employed in the private sector. Sri Lanka ratified the CEDAW in 1981 and the principles of this instrument, which ensures equality in access to employment, were translated into the Sri Lanka Women’s Charter adopted in 1993 as state policy. However, women’s charter has yet to be integrated into national policy and legislative frameworks through appropriate legislative enactments.67
The Maternity Benefits Ordinance68 (MBO) and the Shop and Office Employees Act69 are the main legislation, which covers maternity protection and other employment and remuneration in the private sector. These laws allow an entitlement of 84 working days fully paid leave for the first two live births of all pregnant workers working in all sectors, irrespective of length of service and marital status. For children born thereafter, women are entitled to only 42 days paid leave and these clearly discouraging further pregnancies.70 Moreover, it still does not address the importance of bringing men into the scene as carers and parents; nor does it include parental leave or provide for day care for private sector.71
Further, MBO provides expectant women with legal protection from dismissal for any illness connected with pregnancy and confinement, and from engaging in work that is deemed injurious to the health of the pregnant worker or the unborn child.72 Furthermore, the controversial provision in MBO that enables husbands to collect the maternity allowances due to women workers, still remains in the law and still used in some plantations.73
Employment of Women, Young Persons and Children’s Act74is another legislation which strengthens its coverage with regard to compensation, working times, working conditions, and prohibition of employing children less than 14 years etc. however, there is an unfortunate tendency in the Sri Lankan legal system, as seen by the title of this legislation, that the women put into group along with children. This is including in the Article 12 (4) of the Constitution as well.
Workmen’s Compensation Ordinance75 has no reforms so far on occupational health and the provisions in the Factories Ordinance76 and Shop and Office Employee’s Act77 permitting night work for women are not being monitored to ensure that employers provide the necessary facilities for night workers even today.
67Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace, [International Labour Organization, 2006], p.01
69No. 19 of 1954
70 Shop and Office Employee’s Act amended by No.44 of 1985, Sections 18B(1),(2)
71Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace, [International Labour Organization, 2006], p. 02
72 Shop and Office Employee’s Act section 18D (1), 18D(2), 18(E) and MBO, section 10A(1), 10B(1) and (2), 12B
73Wickramasinghe M., Jayatilake W., Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace, [International Labour Organization, 2006], p.03
75No. 19 of 1934 (amended by 15of 1990)

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Sexual harassment in the workplace is a burning issue in the aspect of women’s rights. There are many international standards to prevent sexual harassment in the workplace and all of these instruments are ratified by Sri Lanka. For instance, Article 02 and 23(1) of UDHR, Article 07, 17 and 26 of ICCPR, Article 7(b) of ICESCR, Article 11 (1) (f) of CEDAW and ILO convention No. 111 are the important provisions.
In considering the national standards on sexual harassment, Section 345 of the Penal Code (amended by No.22 of 1995) is the main protection for victims. It is mentioned that, ‘whoever, by assault or use of criminal force, sexually harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment...’ In explaining it further, the Act states that ‘unwelcome’ sexual advances by words or action used by a person in authority, in a working place or any other place, shall constitute the offence of sexual harassment.78 To establish a case of sexual harassment, the prosecution would have to conform to criminal standard of proof beyond a reasonable doubt.
In the landmark case of India, Vishaka v. State of Rajasthan79, the Indian Supreme Court, for the first time, drawn upon an international instrument i.e. CEDAW, to pass a set of guidelines known as Vishaka guidelines.80 Further, the Supreme Court mentioned that the right to life means life with dignity and it includes the safe working environment as well.
It is difficult to balance family responsibilities with the working responsibilities and many female workers have faced this complexity due to inflexible labour legislation. Therefore, due to the considerable women workforce in the country, this is the time to Sri Lanka to decide whether it should ratify the ILO Convention No.156 and Recommendation No. 165 on the Workers with Family Responsibilities and incorporate the principles into the legislation of Sri Lanka. This can be promoting the principles relating to non-discrimination in employment by balancing the work and family responsibilities.
3.6. Disabilities Rights
Sri Lanka lacks behind in the rehabilitation and in the integration of the disadvantaged persons. The government should lay down strong national policies and take active interest in the welfare of the disadvantaged. Sri Lanka is still a signatory country to the UN Convention on the Rights of Persons with Disabilities in 2007 and yet to be ratified. The current law to protect disabilities rights is Protection of the Rights of Persons with Disabilities Act81. There exists in Sri Lanka a strong stigma against those disadvantaged by disability. The government should take active steps to change these attitudes and to remove the stigma by educating the public, by awareness campaigns throughout the island.82
3.7. Superannuation Benefits
Employees are provided superannuation benefits by legislation in the form of the Employee’s Provident Fund Act 83(EPF), Employee’s Trust Fund Act84 (ETF) and Payment of Gratuities Act85 (PGA). In assessing the existing
76 Factories Ordinance No. 45 of 1942, Section 67A
77 Shop and Office Employee’s Act, section 10(2)
78Haspels N, Kasim Z.M, Thomas C,McCann D, Action against Sexual Harassment at work in Asia and the Pacific, International labour office, ILO Bangkok area office and East Asia Multidisciplinary Advisory Team, 2001, p.72
79Vishaka v. State of Rajasthan (1997) 6 SCC 247
80Haspels N, Kasim Z.M, Thomas C,McCann D, Action against Sexual Harassment at work in Asia and the Pacific, International labour office, ILO Bangkok area office and East Asia Multidisciplinary Advisory Team, 2001, p.70
81No. 28 of 1996
82Wijayaratnam, K. The Differently Able and their Social Integration, Sri Lanka Labour Gazette, vol.62, No.01 (Jan- March) 2011, p.05
83No. 15 of 1958
84No. 46 of 1980
85No. 12 of 1983

243
system, though Sri Lanka has a well-established social security system, there are several important reasons to reform the current retirement benefit scheme for the private sector.
In the entire process of EPF, it is well connected with the employers, but does not have any contact with employees who are benefited by the scheme. As a result, the beneficiaries become conscious about the failure of their employers only at the time of retirement.86 Because of this process, the employer can work out his discretion regarding the matters of the employee and they have obvious reasons to avoid the registration of their employees with provident funds. Therefore, the workers in small-scale firms of private sector have missed the opportunity to receive an income security.87
Currently, the majority of Sri Lankan aging population in the private sector has no access to a pension or any other supportive income. Though the EPF has mandatory contributions it does not provide regular cash benefits and only as a lump sum. The public service pension scheme only covers a small percentage of the population and therefore the superannuation schemes in Sri Lanka are not adequately covered the whole aging population in other sectors.88
According to the PGA, it is applicable to the employer who employs fifteen or more workmen in his place.89 However, the employer who employs less than fifteen workmen, the employee has to make an application to the labour tribunal for gratuity.90 Therefore it can be suggested that PGA should be amended to make it applicable even to the employer who employs only one workman.91
3.8. Discrimination on the Rights of the Workers in other Working Sectors
Although, Sri Lanka has ratified all eight ILO core labour conventions there some discriminations in employment among the other working sectors such as agricultural sector, plantation sector, industrial sector, migrant workers, domestic workers etc.
In the agricultural sector, vestiges of bonded labour were seen until recent times, where proprietors of paddy fields employed persons to cultivate their fields employed persons to cultivate their fields, which later grew into a concept of tenant cultivation. Tenant cultivator would work the field and give the major share to the owner. Legislation has now been brought in to safeguard the interest of tenant cultivator while maintaining the relationship between the two.92In addition, in the situation of migrant workers, both legal and illegal migrant workers are sometimes heard to be the subject of inhuman treatment and constitute another area where there is bonded labour and forced labour.
Sri Lanka has adopted the Conventions relating to forced labour, abolition of slavery and child labour; those are, the UN Slavery Convention of 1926, ILO Core Conventions on Abolition of Forced Labour and Compulsory Labour93 and Conventions on Elimination of the Worst Forms of Child Labour94.
In considering the legal protection from the forced labour in Sri Lanka, Article 27 (7) of the Constitution provides that the ‘State shall eliminate economic and social privilege and disparity and the exploitation of man by man or by the State’. Article 27 (13) mentioned that ‘the State shall promote with special care the interests of children and
86__, Review of Superannuation Benefit Programs in Sri Lanka, May 19, 2000, Finance and PSD Sector Unit, South Asia Region, p. 16, http://www1.worldbank.org/finance/assets/images/fssd0014.pdf, accessed on 12/04/2012
87Karunaratne P.D.L.W, Reforming the formal Social Security System in Sri Lanka, National University of Singapore, 2005, p.147
88 Tackling Poverty in Old Age; A Universal Pension for Sri Lanka, published by Helpage International, London, p. 08 , http://www.helpagesl.org/images/Universal%20Age%20%2013%20Nov%202008.pdf, accessed on 24/06/2012
89 Section 5(1) of PGA
90 Section 31B(1)(b) of the Industrial Disputes Act No.43 of 1950
91 Sarveswaran, A. A Critique of the Industrial Law of Sri Lanka in the Context of Foreign Investment Description, http://www.lawnet.lk/docs/articles/sri_lanka/HTML/CV17.html, accessed on 30/01/2013
92Chandra, S. (Justice), ‘Labour Rights as Human rights, Bonded Labour and Modern Slavery’, p. 08
93 Conventions No. 29 and 105
94 Conventions No. 138 and 182

244
youth, so as to ensure their full development, physical, mental, moral, religious and social and to protect them from exploitation and discrimination.’ these are the provisions which ensure the freedom of exploitation in Sri Lanka’s Human rights environment. In addition the amendment in 2006 to the penal code also envisages the prevention of forced labour.
In the situation of women worker’s rights, women are under-represented in many disciplines and mainly employed in low-wage and low skilled work. Most are concentrated in plantation sector, local traditional industries, garment industries, health services and domestic services.95
According to the 2001 study by ILO Colombo describes the problems of sexual harassment in tea plantation sector where hundreds of thousands of workers are employed and 90% of tea-pluckers are women. They work in groups of 20 to 40 workers under a male supervisor. A report by the American Centre for International Labour Solidarity entitled ‘The struggle for workers’ rights in Sri Lanka’ gives a description of working conditions in the Free Trade Zones (FTZ), based on interviews with FTZ workers, mentioned that their work involves, ‘strong use of hands and eyes for hours of unremitting work each day leading to chronic physical and visual aliments; unknown working hours; they have sharp restrictions on bathroom use, conversation, rest breaks and other rights; some discrimination in employment in employment against persons with disabilities exists in practice’.96
The private sector of the employment recognized as the “engine of growth” in the development process of the country together with the Government sector. However, Constitutional provisions on equality and non- discrimination are applicable only to the public sector and not for private sector of employment. Therefore, private sector employees cannot seek relief under fundamental rights jurisdiction and the rights of private sector are limited to other labour legislation in Sri Lanka. The disputes under private sector, which arises from discrimination in employment, can be construed under IDA. In addition, labour courts can make just and equitable decisions to promote non-discrimination in employment. Moreover, parties could promote non-discrimination by including provisions to the collective agreements under IDA. However, the Minister’s power for compulsory arbitration is contrary to the ILO convention No.87.
Trade union rights of the private sector are adequately protected but with few amendments. Women workers rights in the private sector have not adequately protected by national legislation. Only main legislation is the Penal Code. Disabilities rights should be protected satisfactorily and there should be an effective mechanism in the process of the current superannuation benefits schemes for private sector. Discrimination in other working sectors also still remains.
95 ICFTU/WCL/ETUC, Reports on Core Labour Standards in the countries applying for the GSP-PLUS, Report on core labour standards in Sri Lanka, October 2005, p. 69
96Ibid, p.70

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4. CONCLUSIONS AND RECOMMENDATIONS
The plethora of labour legislation and other legislation in Sri Lanka expressly and implicitly represent most of the principles embodied in ILO core conventions. However, in the situation of the discrimination in employment there are some contradictory provisions in law and practices in Sri Lanka, which should be amended as soon as possible to enhance the protection of the rights and interests of the employees in Sri Lanka without compromising the wider interests of investors, society and the state. The legal framework provided by the constitutional provisions relation to equality and other legislation satisfactorily eliminates discrimination in the public sector and semi government sector. However, it fails to eliminate the discrimination in employment in the private sector. Therefore, the private sector should be included in the fundamental rights jurisdiction. In addition, there should be some amendments in the TEWA regarding the powers of the Commissioner on termination of employment of private sector.
Conversely, the constitutional protection has not applied to women workers in the private sector. Though Sri Lanka has the Women’s Charter, which ensures the rights in the CEDAW, it has yet to be integrated into national policy. Therefore, these policies should be incorporated in order to protect the rights of the women workers in the private sector. Further, there are disparities in the maternity benefits between the public sector and private sector. There are restrictive provisions in the Maternity Benefits Ordinance and the Shop and Office Employee’s Act on maternity leave for the private sector than the public sector. This discrimination should be eliminated and also the facility for paternity leave should be granted for private sector. While the Factories Ordinance and the Shop and Office Employee’s Ordinance permitted to night for women, the employers have not provided necessary facilities for night workers. Further, labour legislation should be revised to address the rights of domestic workers, since most of the workers are women. Although, Sri Lanka has ratified many international instruments to prevent sexual harassment at workplace, this critical problem has still remains in Sri Lanka. The only protection is the penal code and there are no any other mechanisms to prevent sexual harassment in the private sector. Many female workers have faced complexities on balancing family responsibilities with working responsibilities. Sri Lanka should ratify the ILO Convention No. 156 to incorporate the principles on workers with family responsibilities to eliminate discrimination.Private sector employees have legal protection against discrimination in employment under the Industrial Disputes Act, primarily because of the just and equitable jurisdiction and enforcing collective agreements. However, the Minister’s power for compulsory arbitration is contrary to the ILO convention No. 87.
Freedom of association and the right to form trade unions of the private sector workers are sufficiently recognized under the Trade Union Ordinance. Nevertheless, the 40% threshold of workers to fulfil the requirement of recognition and for collective bargaining should be amended in favour of employees’ rights. Further, the government should take legal actions in order to penalize employers on the ground of anti-union discrimination.Wages boards could decide the terms and conditions, which promote non-discrimination in employment. However, there is a different in the wage rates in the different working sectors especially in the domestic working sector there is no minimum wage rate. Therefore, there should be a universal national minimum wage rate to protect the workers’ rights from discrimination. The government should integrate strong national policies to protect the rights of disabilities in both sectors by ratifying the UN Convention on Rights of Persons with Disability of 2007.There are many practical problems in the superannuation benefit schemes applicable in the private sector. Hence, there should be a special supervisory mechanism to protect the rights of private sector workers to enhance social security.The concept of ‘mutual trusts and confidence’ should be included to the contract of employment as other requirements in favour of employer and the employee. Mutual trust and confidence is a phrase used in English law, particularly with reference to contracts in labour law in United Kingdom to refer to the obligations owed in an employment relationship between the employer and the worker. This concept relates to a new but highly important concept in employment law, and constitutes a term that is implied into all employment contracts.97
97 See, Mahmud and Malik v Bank of Credit and Commerce International SA [1998] AC 20, Eastwood v Magnox Electric plc. [2004] UKHL 35

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REFERENCES
Alston, P. (2005) Labour Rights as Human Rights: The Not So Happy State of the Art, Alston. P, Labour Rights as Human Rights, Vol. XIV/1, Oxford University Press
Arunathalam, J. and Dissanayake, D.(2010) Contract of Employment: Cases and Commentaries, Case Book on Labour Law, Vol.01, Law &Society Trust
Haspels N, Kasim Z.M, Thomas C., McCann D. (2001) Action against Sexual Harassment at work in Asia and the Pacific, international labour office, ILO Bangkok area office and East Asia Multidisciplinary Advisory Team
Karunaratne P.D.L.W. (2005) Refroming the Formal Social Security System in Sri Lanka, National University of Singapore
Lord Denning, (1980) The Due Process of Law, London, Butterworths
Wickramasinghe M., Jayatilake W. (2006) Beyond Glass Ceilings and the Brick Walls, Gender at the Workplace, International Labour Organization
Woodiwiss A. (1998) Globalization, Human Rights and Labour Law in Pacific Asia, Cambridge University Press, 1998

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