By Justice Suresh Chandra
Much development has been seen in Sri Lanka with regard to the recognition of labour rights commencing from the 19th Century. Legislation has been enacted from time to time encompassing the core labour standards. In fact there is a wide range of legislative instruments which deal with different aspects of worker’s rights.
Freedom of Association and the right to form Trade Unions is recognized by the Constitution and also by the Trade Unions Ordinance No.14 of 1935. There are many registered Trade Unions and the Trade Union Movement is fairly strong which have strived to safeguard the interests and welfare of workers. In certain sectors, such as the free Trade Zones, Employees Councils are seen to be operative which though not as strong as trade Union provide a form of recognizing freedom of association.
With the recognition of Trade Unions, the concept of Collective Bargaining too is recognized and the law specially the Industrial Disputes Act No.43 of 1950 provides for the entering of Collective Agreements between Employers and Trade Unions on various issues relating to employment. This Act also provides that the refusal to allow Collective Bargaining as an instance of unfair labour practice. There are many Collective Agreements which are in operation which cover various aspects relating to the terms and conditions of employment.
The Industrial Disputes Act provides safeguards against unjust terminations of employment by establishing Labour Tribunals which are empowered to inquire into such terminations. The Labour Tribunals have the power of ordering reinstatement or granting compensation in lieu of reinstatement in the course of making just and equitable orders thus ensuring security of employment.
Some of the other statutes which guards against arbitrary terminations is the Termination of Employment (Special Provisions) Act No.45 of 1971, both of which safeguard employment from the application of the concept of ‘hire and fire’, Wages Boards Ordinance No.27 of 1941, the Shop and Office Employees’ Act No.19 of 1954 and the Workmens’ Compensation Ordinance No.19 of 1934. The quantum of compensation has been varied from time to time .
The interests of women and children in employment have been safeguarded to a certain extent by the Employment of Women, Young Persons and Children Act No.47 of l956 which provides for the regulation working hours of women and young persons and children, prevention of their employment in conditions harmful to their health, mental condition and education. Child Labour is at a minimum and the reasons for this is the mandatory provision that all children above 5 years have to be sent to school, and the literary rate in Sri Lanka which is over 90% being one of the highest in the world, and also the fact the Child Protection Authority being very vigilant regarding child labour.
It is also significant that a Sri Lankan Company won the International Award for “Garments without Guilt” as Sri Lanka has been adopting very high Labour Standards in the garment factories. Also in the tea industry the Tea Sourcing Partnership comprising of the major tea buyers in London after carrying out a survey regarding the standards in tea estates and factories was satisfied with the labour standards adopted.
The Industrial Disputes Act referred to above also provides for the settlement of industrial disputes, reference to an arbitrator, reference to an industrial court, etc.
Thus it is seen that Labour Law has developed very much in Sri Lanka where the interests of the workers are safeguarded to a great extent. However, it must also be stated that although these different Statutes apply to the private sector, there is a noticeable division in the privateer sector of a ‘formal’ sector’ and an ‘informal’ sector. The formal sector is where the business ventures are carried on in an organized which forms the majority of the corporate sector. On the other hand the informal sector is the sector where there are small time business ventures very often, sole proprietorships and small partnerships where there is no strict compliance with the various statutory provisions. This is an area which needs improvement to be brought in line with the formal sector as the employees in the informal sector do not have adequate protection under the various statutes.
BONDED LABOUR AND MODERN SLAVERY
Bonded labour is still said to exist in certain countries in the world. It is a form of forced labour tied up with the payment of debts. When people in poor circumstances borrow money and when they are unable to pay up become liable to work for the creditor which becomes a never ending process as the Creditor exploits them to the maximum. These certainly are violations of human rights.
In ancient history dating down to the Greek and Roman times, slavery was rampant as they though being human were treated as chattels. In fact one’s worth was sometimes assessed in terms of the number of slaves one owned. The powers of the master extended to the power of life and death and the slaves were at the mercy of their masters. However slavery came to be abolished in many countries and the scourge of slavery does not exist as it were in ancient times in the modern world.
In Sri Lanka, there has been evidence of slavery in the ancient King’s regimes. The more significant type of bonded labour appears to have been in practice during such times in the caste system that was prevalent. Persons belonging to a particular caste had a particular task to perform and was thus a form of bonded labour. All born into such caste had to follow their parents and forefathers. The system of “Rajakariya” in ancient times was the doing of service to the King and different groups of people were assigned distinct types of tasks as performing services to the King. These practices fell into disuse with foreign domination of Sri Lanka firstly by the Portugese, then the Dutch and finally the British after which Independence was regained.
In the agricultural sector, vestiges of bonded labour were seen until recent times, where Landlords of paddy 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 interests of the Tenant Cultivator while maintaining the relationship between the two.
Migrants, both legal and illegal are sometimes heard to be the subject of inhuman treatment and constitute another area where there is bonded labour and forced slavery.
Forms of bonded Labour have been guarded against by the Constitution itself. Article 27(7) 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) provides that the State shall promote with special care the interests of children and youth, so as to ensure their full development, physical, mental, moral, religious and social, and to protect them from exploitation and discrimination. These provisions ensure the freedom of exploitation in Sri Lankas Human rights environment.
The amendment to the Penal Code in 2006 also envisages the prevention of forced labour. S.358A (1) provides that any person who (a) subjects of clauses any person to be subjected to debt bondage or serfdom; (b) subjects or causes any person to be subjected to forced or compulsory labour; (c) subject or causes any person to be subjected to slavery; or (d) engages or recruits a child for use in armed conflict, shall be guilty of an offence.
The punishment for such an offence is by imprisonment for a period not exceeding twenty years and a fine and in relation to a child imprisonment for a period not exceeding thirty years and a fine.
Sri Lanka has also adopted Conventions relating to abolition of Slavery, forced Labour and Child Labour. Eg. The UN slavery Convention of 1926; UN Supplementary Convention on the Abolition of Slavery , the Slave Trade and Institutions and Practices Similar to Slavery 1956; Abolition of Forced Labour Convention of ILO ; ILO Convention to eliminate the Worst Forms of Child Labour.
Thus it would be seen that Sri Lanka has taken meaningful steps to prevent forced labour, bonded labour and slavery which in turn is a recognition of labour rights as human rights.
Source: The Daily Mirror – 26.02.2011