In honour of Women’s Day 2022, the Advocata Institute decided to dedicate this year’s Women’s Day to bring awareness to women’s economic freedom

 A sample survey conducted by the Sri Lankan Medical Association (SLMA) in 2011 points out that out of 1,344 female Free Trade Zone workers, 57% has faced sexual harassment

Thalatha Atukorale, Member of Parliament and Women Parliamentarians Caucus explained that our laws were presented about fifty years ago and it’s high time we adapt

Sri Lanka’s female labour force participation oscillated between 30% to 37% for the past few decades. While there are many contributory factors for this low female labour force participation, the role of labour laws that discourage women from entering and remaining in the labour force is a topic rarely discussed. 

 
In honour of Women’s Day 2022, the Advocata Institute decided to dedicate this year’s Women’s Day to bring awareness to women’s economic freedom. Regarding this issue, their research identified four legal constraints to be easier to tackle in terms of legal reforms in Sri Lanka.   

Sexual harassment in the workplace in Sri Lanka
Tiffany Hooley, a former research intern, began the presentation by explaining that the problem existing in Sri Lanka’s legal framework is that sexual harassment in the workplace isn’t addressing any existing labour laws.   
Sexual harassment in a workplace is addressed in a criminal context in Sri Lanka. This means that complaints need to be made to the Police and are potentially followed by lengthy court proceedings and require a higher burden of proof in order for the victim to access justice.   

Because of this, many cases go unreported. A sample survey conducted by the Sri Lankan Medical Association (SLMA) in 2011 points out that out of 1,344 female Free Trade Zone workers, 57% has faced sexual harassment.
The same survey reveals that out of 321 female industrial workers, 62.3% has faced some form of unwanted sexual advance. Lastly, the International Labour Organisation administered a questionnaire among 500 women in 2016, of which the majority were unemployed at the time, where three-fifth of them pointed out that they would be willing to work if their protection is assured in the workplace.   

This would mean that no Police involvement is required to make a complaint and could be resolved through alternative means such as conciliation and arbitration. She explained that in order to make meaningful change with legal reform, there needs to be a compliance mechanism.   

Accordingly, their research proposed that the Industrial Disputes Act in Sri Lanka be amended to expand the definition of work-related disputes to include sexual harassment. 

Further, the Industrial Disputes Act needs to introduce a regulation within their Statute, through which an office can be appointed within the Labour Department to specifically handle sexual harassment complaints. 

 
Additionally, they also proposed supplementary reforms within the existing employment statutes including the Shop and Office Employees Act, the Factories Ordinance, the Employment of Women, Young Persons and Children Act and the Wages Board Ordinance to specifically address sexual harassment in the workplace.   

Part-time work for women in Sri Lanka
The 2019 World Bank data illustrates that women are twice more likely to engage in part-time work than men.   
That is 33.82% of women engaged in part-time work whilst 19.87% of men engaged in the same. The existing labour laws in Sri Lanka fail to recognize the concept of part-time work. 

 
A part-time worker is considered a full-time worker with meaningless working hours for the same entitlements. This inhibits employers from hiring women who prefer flexible and part-time working arrangements. As an alternative, women are then pushed to the informal sector, becoming more susceptible to job loss and insecurity, and unable to approach formal banking institutions to obtain loans.   

This research also identified that women bear a greater burden of unpaid care work. The 2017 department of census and statistics data points out that the female participation rate for unpaid domestic services for household and family members is at 86.4% whilst the same for unpaid caregiving services for household and family members amounts to 38.4% in 2016.   

Upon understanding the detrimental impacts of non-recognition of part-time work, this research urges part-time work to be recognized in the existing labour laws in Sri Lanka.   

As such, the Shop and Office Act and the Wages Board Ordinance should be amended to entitle employees who work less than the maximum hours of a full-time worker to annual and casual leave in proportion to the number of hours they work. Secondly, they suggested amending the calculations of social security under the Payment of Gratuity Act to consider an employee’s last drawn salary as a full-time worker and as a part-time worker individually.   

In terms of the long run, this research proposes that a separate statute be introduced specifically governing and recognizing part-time and flexible working arrangements.   

Night work restrictions on women in Sri Lanka
Thiloka Yapa, a former research analyst, explained that these laws were initially drafted to protect women.   
However, now they’re indirectly discriminating.   

“The restriction that applies to women in the IT and the BPM (Business Process Management) Sector is that women under the Shop and Office Employees Act are not allowed to work past 8 p.m. with several exceptions. Despite this law, women in the industry currently work past 8 p.m,” she said.   

“Firms in this sector operate later hours by the concept of administrative relaxations which is outside the formal law. The Department of Labour does not officially recognize this concept.”   

“Generally this restricts women from working after 8 p.m. while on the other hand, firms in the sector already employ women after eight. So there’s a clear ambiguity in the law which could ultimately discourage investors because they invest in industries with a clear and enforceable legal framework,” she said.   

In 2018, women represented less than 10% of the tourism industry and limited flexible working options have been identified as a factor to its lower female engagement. The Factories Ordinance and the Employment of Women, Young Persons and Children act also restrict women from working more than 10 days at night with certain exceptions.   

There are two major reasons why reform is needed. Firstly, it curtails the choice of a woman to choose their preferred time to work. Secondly, it limits their earning capacity. When a woman is allowed to work at night, they’re paid 1.5 times the normal rate of payment. This violates two major conventions regarding international obligations. The discrimination (employment and occupation) convention and the fundamental principles of non-discriminatory and equality of opportunity and treatment in the United Nations Convention.   

“As for legislative reforms, research suggests that we remove night work restrictions on women imposed by the Shop and Office Employees Act, the Factories Ordinance and the Employment of Women, Young Persons and Children’s act. They suggested that lawmakers should comply with adequate safeguards, especially the need to obtain the consent of women to work at night,” she noted.   

Discriminatory laws on overtime work for women in Sri Lanka
Sumhiya Sallay, Programme’s Executive concluded the presentation saying that under the Shop and Office Employees Act, women were permitted to work for a maximum of nine hours per day and cannot work beyond this limit while men are permitted to work the standard nine hours and additionally 12 hours of overtime per week.   
Although this act does not permit overtime work, a large number of employees actually work overtime. According to the 2020 labour force survey, 56.2% of firms worked overtime. And according to the 2021 second quarterly labour force survey, 49.8% of firms worked overtime. Finally, a study done by the institute of policy studies in 2020, revealed that 70.91% of employees in private hospitals worked overtime. 

Upon the application of administrative relaxation, employees and employers would either enter into a written or verbal agreement. However, there are some issues when it comes to administrative relaxation where employees have had complaints of excessive overtime work. In addition to this employees who have worked overtime have not been compensated for the hours worked. In 2019, the draft employment act was presented to the national labour advisory council and this act proposed amendments to the restrictions on overtime work. However, this act was only taken up to the draft stage and was not passed by the parliament. Through this employment act 2019, it’s obvious that there has been a willingness to amend the laws on these restrictions previously.   

What they recommend is for there to be a new regulation that is introduced under section 313A of the Shop and Office Employees regulation of employment and remuneration act to allow women to work overtime and include guidelines to avoid the exploitation of excessive overtime work.   

Our laws are outdated
During the panel discussion, Thalatha Atukorale, Member of Parliament and Women Parliamentarians Caucus explained that our laws were presented about fifty years ago and it’s high time we adapt.   

She said that once we get to the relevant authorities and get them to do what has to be done, presenting it to the parliament is not a problem.   

Thanuja Jayawardene, General Manager, Women’s Empowerment, Advocacy and Code of Conduct, MAS joined in saying that the current laws are perpetuating a patriarchal framework that places the woman in the personal space. Ideally, if people of all genders had policies, frameworks and laws that give them choice and allow them to participate and support them, that would help businesses and communities.   

“It doesn’t help when the law perpetuates the same stereotypes that we’re trying hard to challenge and breakthrough,” she said.   

Ayomi Fernando, Industrial Relation Advisor, Employers Federation of Ceylon stated that if we look at the hours women are permitted to work, the certain limited categories and administrative relaxation are just cumbersome processes. Instead, we should change the law and give women and men an equal playing field.   

She explained that there had to be protections but we need to balance it so that everyone has the opportunity.   
“There’s a mindset change that’s necessary,” said Jayawardene.   

“There’s childcare support that’s really necessary. Law cannot perpetuate discrimination. That has to be a step we take.”   

Women workforce for economic growth
Jayawardene stated that the women coming into the workforce were smart, driven and capable.   
“They take the skill development work they do and run their own businesses. They’re employing their husbands, their in-laws and educating their children and their communities.”   

She mentioned that as a business they like to have the talent and the skill within their organisation if men or women want to move into part-time work.   

“It’s good for business to hold on to them rather than lose them from the workforce. Facilities, infrastructure services and policies are needed that support women.   

Dr. Ramani Gunatilaka, independent consultant and research associate at ICSE pointed out that the country was already facing a tight labour market.   

“Our population is growing old and the working-age cohorts share in the population is declining. If women don’t enter the paid workforce, wage costs will rise and we will not be able to grow economically.”   

We are in a situation of policy paralysis
Gunatilaka continued to explain that the government and taxpayers spend a lot on women’s education and now women are far more educated. With all this education, if women are not entering the workforce, society is not getting what it invested in their education which is a waste of resources. Also if the women who are growing old and outliving their men haven’t worked and earned, they’re going to remain dependent on their relatives in their old age.   

“Our economy is in a crisis of the kind we haven’t experienced before. We need to resuscitate growth and we need to resuscitate exports. We need to show the incomes which have collapsed during these last two years.   
“Reforming these labour laws is a low hanging fruit. This can be done if we get out of this swamp of policy paralysis,” she said.