Occupational health, safety overlooked?

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Although Sri Lanka is ahead of other South Asian countries in terms of human and social development, when it comes to female labour force participation (FLFP) it surprisingly ranks at the same level as other South Asian countries, which is 35 per cent at present. The FLFP rate is very low, even though the necessary conditions that stimulate female labour force participation have gradually improved over the past two-three decades. In this context, Cabinet approved the proposal submitted by the Minister of Labour and Foreign Employment Manusha Nanayakkara to amend the Employment of Women, Young Persons and Children (Amendment) Act, No. 2 of 2021. The amendment aims to enable women in IT-based jobs to work international hours and work at night.

Many business institutions such as Knowledge Process Outsourcing institutions, Business Process Outsourcing institutions, Back Office and ICT-enabled Services have emerged in the country around major cities. According to the nature of those institutions, the employees working there have to work according to the time of other countries.

However, according to the Act, women can be employed after 6:00 p.m. only in a limited number of employments. Therefore, it has been identified that the existing restrictive legal provisions on night work of women should be amended.

Under the existing law, a woman over the age of 18 was allowed to work until 8:00 p.m., and there was a limited space to work at night only in a limited range such as airports, hotels, restaurants, and clubs.

Accordingly, the legal restrictions for female employees on working at night will be removed to allow the employees in IT-based businesses, knowledge and business process outsourcing organisations, offices that conduct accounts, administrative and technical work of business organisations located abroad to work according to the employer’s time.

Thereby, female workers who are above 18 years in those fields can be employed before 6:00 a.m. or after 6:00 p.m.

This amendment will remove the legal obstacles in the labour law to the employment of women workers at night, and it is also expected that the participation of women in the workforce in this country will further grow.

Employment of Women, Young Persons and Children (Amendment) Act, No. 2 of 2021

Amendment:

7. Section 34 of the principal enactment is hereby amended as follows:

(c) by the substitution for the definition of the expression “night” of the following definition: “night”— (a) with reference to the employment of women, means at least eleven consecutive hours including the period between 10:00 p.m. and 5:00 a.m.

Wasantha Samarasinghe

To discuss how this decision may affect the country’s female workforce, if implemented, Ceylon Today spoke to Co-Convener of the National Trade Union Centre (NTUC), Wasantha Samarasinghe, who pointed out several practical issues in that regard including the necessity of providing transport services and also adequate remuneration for women who work at night.

“There are certain sectors that involve working from Sri Lanka for a company based in another country. If employees of such a company work from home, there is no issue. However, when they are required to be present in a workplace, transport services should definitely be provided. Sanitation services and services pertaining to women’s safety are also crucial. Even if they work until late at night, there are no transport services to go home after work. Regardless of the time they finish work, if there are no transport services, they will be rendered helpless.”

Samarasinghe stressed that transport services is a major issue, as the country is facing an acute fuel shortage, which has affected both public and private transport.

He further expressed concerns as to whether the said decision may pave the way for exploitation of women’s labour. He opined that this decision, if implemented, may be misused by employers to require female workers to work more without hiring more workers or paying more for additional work.

He explained: “In our country, regardless of the gender, workers are required to work eight hours a day, and 45 hours a week. There is a question as to why we make them work more than that. They would be required to work more, so that there is no need (for companies) to hire more workers or operate on Saturdays and Sundays.”

He further said the proposed legal reforms regarding women’s working hours should not be used as grounds to sack workers without providing proper compensation, and that this should not result in job insecurity among female workers. His argument was based mainly on his claims that it has been proposed to review the Termination of Employment of Workmen Act, as amended, during the recent Interim Budget, and that it may allow employers to sack workers without providing proper compensation.

“If new working hours for women are made mandatory, not optional/consensual, it may create more social issues,” he added.

Moreover, these practical issues may even affect female workers’ personal lives, according to Samarasinghe. He was of the opinion that taking measures to create proper social, economic and professional backgrounds, in which the new laws could be implemented properly, is essential. Failure to do so, he cautioned, would weaken social and family lives of female workers.

He added that when forming certain laws, they should be formed on the basis of social and economic backgrounds existing in Sri Lanka, not on the basis of the situation in the world.

“If a person is working from home, they can manage their family affairs. However, if they work till around 10:00 p.m. in a workplace, have to rush home after that, and have to go to the workplace again the next day, they would not be able to take care of family affairs including their children’s work. In this context, amending laws to make people work more without changing the economic and social backgrounds in our country first, would pave the way for exploitation of labour, and is not for workers.”

These reforms should ideally take place in a way that creates a workforce that can compete with the world and can build the country’s economy, according to Samarasinghe.

Anton Marcus

To discuss the potential advantages and disadvantages of this proposal, Ceylon Today spoke to trade unionist, Anton Marcus, Joint Secretary, Free Trade Zones and General Services Employees’ Union, who expressed concerns about transparency in the process of making this proposal, and also about this proposal’s impacts on the female labour force if implemented.

He explained: “We learnt that Labour Minister Manusha Nanayakkara has instructed the Labour Ministry to increase the number of overtime hours female employees are entitled to, from 60 hours per month to 75 hours. In addition, the media had reported that instructions have been issued to increase the number of days female employees are permitted to work after 10:00 p.m. – which, according to the existing laws, is limited to 10 days per month – to 15 days. These reports have not been denied by the Ministry. In this regard, 12 trade unions representing the National Labour Advisory Council (NLAC) wrote to the Minister expressing that such a proposal should first be referred to the NLAC, in order for it to be discussed before being finalised. However, there was no discussion (about the above-mentioned proposals).”

Expressing displeasure of the said situation, Marcus said it is vital to discuss the said proposal at the NLAC – which is a tripartite body representing the Government, trade unions and employers – in order to assess this proposal’s benefits and harms. He added that the Government should have also consulted both trade unions and female employees to get their opinions about the said proposal, and questioned what the underlying factors that have led to this decision are.

What is more, he expressed concerns as to whether this is an attempt to encourage more people to go abroad seeking employment opportunities, and stressed that this decision may be used by employers to exploit the labour of female employees and to thereby maximise profits.

“The Government is not willing to increase worker’s basic salary. We have requested that the basic salary be increased to Rs 1,000 a day. However, employers opposed that. The Employees’ Provident Fund (EPF), Employees’ Trust Fund (ETF), and the gratuity payment get calculated based on the basic salary. However, without increasing the basic salary, employers provide overtime payments, incentives, and attendance payments. In fact, the national minimum wage is just Rs 16,000 (per month) which includes a budgetary relief allowance of Rs 3,500. How do people manage expenses with this minimum salary?” he added.

In response to a question about the alleged plans by the Government to abolish the laws pertaining to terminating the service of employees, Marcus said there is a law called the Termination of Employment Act, which stipulates that even though any institution can be closed down, it is not allowed to terminate the service of employees merely because of the closure.

He added that there is a systematic and transparent process which involves the employers taking permission from the Commissioner General of Labour Department to terminate the service of employees (in the event employees do not consent to be removed upon the closure of an institution) with compensation. If the said Act was abolished, Marcus noted it will create huge job insecurity, as employers may be authorised to hire and fire employees freely. If such a decision was taken, he said, it may even be used to get rid of union activists.

Moreover, speaking of the history of the existing laws pertaining to working hours specified for women, Marcus said before 1984, working at night (after 10:00 p.m.) was prohibited for women, and that these laws were relaxed in order to provide a better environment for investors as far as employees’ working hours are concerned. He added that these amendments, however, came in a context where female employees had expressed opposition against working after 10:00 p.m.

Elaborating, he said: “A survey was conducted by the Women’s Bureau in the Katunayake Free Trade Zone (FTZ) seeking female employees’ opinion (regarding expanding working hours). More than 60 per cent of the respondents said that they do not wish to work after 10:00 p.m. But, the then Government went on to amend the pertinent laws, allowing employers to employ female employees to work even after 10:00 p.m. However, there were some conditions, one of them being that female employees have to express consent. Without consent, employing females to work such working hours was not possible. At the same time, it was stipulated that they are allowed to work (after 10:00 p.m.) only 10 days a month. That is how the laws were amended.”

Manusha Nanayakkara

Ceylon Today spoke to Minister of Labour and Foreign Employment Manusha Nanayakkara about the amendments made in Employment of Women, Young Persons and Children (Amendment) Act, No. 2 of 2021.

“The modern world of work is different and we as the regulator should take these into consideration. The purpose of labour law is to facilitate employer-employee relations to carry out business operations smoothly. The changes of labour law should be to promote efficiency and competitiveness of a business. I think the changes done are timely and absolutely necessary. IT and ICT enabled services are offered around the clock all over the world. Sri Lanka has been recognised as a fast-growing destination and has potential to grow into a multibillion-rupee industry. What was taken into consideration was the industry growth and future employment it can create. We discussed the same with multiple industry stakeholders to facilitate the industry growth by having flexible labour laws. Act amendment is already done to include IT and ICT enabled services as a night working category such as hotels, airlines and hospitals,” he added.

When Ceylon Today queried whether such amendments can be construed as permission for labour exploitation, Nanayakkara denied, saying that, “There is no such exploitation at all. As mentioned above, there are certain industries where women working at night are required. What we did was including IT and ICT enabled services to the list of industries that can employ women at night.”

When it was inquired whether the working women’s consent was obtained by conducting a survey, to take this decision, Nanayakkara said “IT and ICT enabled service industries have been around for a considerable period of time in Sri Lanka. At the time of entering into a contract with an employer, they are made aware of the working hours and they consent. All we did was formally acknowledge the same.”

When Ceylon Today inquired about the transportation facilities to ensure the safety of night shift working women, Nanayakkara added that, “According to the Act, there are certain prerequisites if an organisation is to have female night workers and they remain unchanged. Therefore, companies that are employing female workers at night are responsible regardless of economic conditions.”

When queried about how the Government expects working women to take care of their children and their family when working extended hours, Nanayakkara responded that there are certain industries that have unique working requirements and arrangements.

“Take hospitals as an example. Both doctors and nurses regardless of their gender have to work on shift basis. That is the nature of healthcare industry. When one decides on a career, they should have a clear idea as to what it entails,” he added.

When inquired about increase of basic salary or overtime payments, Nanayakkara said Employment of Women, Young Persons and Children (Amendment) Act, No. 2 of 2021 is about female employees in IT and ICT enabled service industry working at night due to international client requirements and the rest of the regulations on overtime etc remain unchanged.

“This is something that has been discussed at length by key stakeholders of IT and ICT enabled service industry. As I mentioned earlier, in the modern world, labour laws in addition should be relevant and congruent with the working environment. What we did was recognising the need and supporting an industry that can be the next game changer in the Sri Lankan Economy. If we are growing as a country, our labour laws should be progressive and proactive,” he further said. 

As an outcome of the Government’s plan to boost the economy, steps were taken to amend the Employment of Women, Young Persons and Children Act, which is about female employees in IT and ICT enabled service industry working at night due to international client requirements. But have the Government and the responsible authorities ever considered that this amendment endangers many women? We cannot view this amendment from an angle of feminism or women empowerment, as we live in a world where even shops with CCTV security systems are robbed, where we have unsolved murders and the culprits are still at large, and sex offenders are yet to be brought to book, while victims suffer in silence.

If a country expects the female labour force to contribute to its economy, wouldn’t it be great if it provided the security they need as a first step, by resolving issues such as lack of public transport, being mindful that “she” has to get home on time after her night shift, to serve her family? There are plenty of companies which pay a transport allowance to compensate for the loss of office transport brought on by the fuel crisis and this is a noble initiative. 

By Nabiya Vaffoor