New Labour Law: Women’s Gain?

Female labour force participation (FLFP) is a topic which has unfortunately generated a lot of ‘talk’ but close to zero actionable change.   
For decades, Sri Lanka’s FLFP has been limited between 30-37%, despite 52% of our population comprising women. This disconcerting statistic can be attributed towards certain socio-economic norms as well as deficits in policy and infrastructure that restrain women’s ability to enter, remain and progress in the workforce.  

Ramaaya Salgado, the UN Women Country Focal Point for Sri Lanka said that women’s active participation in the economy is crucial for long-term economic prosperity.  
“It is central to realising women’s rights and gender equality,” she said.  

Given Sri Lanka’s economic vulnerability in the current context as well as the pressure to meet the IMF loan requirements, the country is at a crucial juncture concerning labour law reform and policy change.  

Earlier this year, Labour Minister Manusha Nanayakkara announced intentions to revise Sri Lankan labour laws to create an updated, integrated legal framework in what has been named the New Employment Act.   

The proposed Act was recently submitted for approval to the National Labour Advisory Council (NLAC). This presents an opportunity for the country’s labour laws to be representative of society and promote inclusion in the labour market.

However, the Ministry of Labour has been scrutinised by the members of the working population, trade unions and lawyers for politicising labour law reform and taking a rushed, ill-motivated approach to policymaking. Accordingly, it is of immense importance to consider what these legal changes will stipulate, if and how they will address the core of the issues at hand, and whether the infrastructural support required to ensure the practicality of any policy change will be provided.   

The care economy

The disproportionate burden of care work on women continues to be a key barrier to female labour force participation.

“It is very clear that the patriarchal ideas of gender roles and the notion that care work should primarily be performed by women are the basis upon which our economy and our political landscape are built and run every day,” development practitioner and researcher Sarala Emmanuel told the Daily Mirror.

“If employers are concerned about productivity, there should be measures that will enable women to contribute to their workplace without being burdened by the socio-cultural, gendered norm of being the only provider of care in the home,” said Dr Sepali Kottegoda, Founder and Director of Programmes, Women’s Economic Rights and Media at the Women and Media Collective (WMC).  

Misconceptions concerning “women’s roles”

According to the report published by UN Women last year, three-fourths of male respondents in Sri Lanka were unconsciously prejudiced against women workers and were less likely to hire women. This highlights the role of mindset in this regard. In some lower-skilled jobs, women seem to be preferred, while the number of women in the executive cadre and above is low. Currently, Sri Lanka does not have a law prohibiting gender-based discrimination in hiring.  

“The reasons why employers prefer or don’t prefer women are largely based on sexist assumptions about women, their bodies and their capabilities, said Swasthika Arulingam, President of the Commercial and Industrial Workers Union” (CIWU), a human rights lawyer and women’s rights activist. 
“In some sectors like the manufacturing sector, women are preferred because they are considered cheaper in terms of labour cost and easier to control in terms of workers agitating for better working conditions. Plantation workers are also largely women,” she said.  

The importance of working towards gender parity in management

Sri Lanka shows progressive indicators for women’s rights in terms of educational achievement, literacy and social mobility. Despite this, the disproportionate number of women in managerial and decision-making positions is striking.

"Gender parity in decision-making is essential if the economy is to reflect the concerns, needs and inputs of both women and men," Dr. Kottegoda emphasised.

A more balanced number of men and women in these roles could bring about multiple benefits in terms of women's empowerment as well as overall economic growth. Working towards gender parity in management would encourage more diverse ideas and solutions, while improving the prospect of formal employment for women as they will see potential for growth and promotion. An improvement in the number of women in decision-making positions also has the potential to curb the trivialisation of issues such as harassment, intimidation and disrespect in the workplace, which workers, particularly women, experience.

What can we expect in terms of law reform?

The Labour Ministry’s New Employment Act outlines multiple changes and introductions to the labour law framework that would have an impact on the participation of women in the workforce.  

The discourse surrounding maternity leave has been circulating throughout the timespan of labour law reform discussions. The proposed New Employment Act stipulates the establishment of a dedicated social security insurance fund set up in collaboration with the public and private sectors for maternity benefits as well as unemployment benefits up to 3 months after leaving employment.  

“The private sector has stated that the cost of funding maternity leave without government support has been difficult. The proposed collaborative fund has received a positive response from both sectors,” the Media Secretary to the Minister of Labour stated, during the discussion stage of the proposal.    
This alleviation of cost has the potential to make employers more willing to hire women.  

Paternity leave has also been a topic of discussion by activists and professionals for years. The proposed reforms would mandate the provision of two days of paternity leave. The reasoning provided by the Ministry for granting these two days was to support the mother after childbirth. However, only providing two days of paternal leave seems to defeat the aim of redistributing the burden of childcare between both parents, rather than being borne solely by the mother.  

The New Employment Act also sets forth the introduction of diversity and inclusion policies in the workplace, which would be a positive addition to the country’s labour law framework. At present, Sri Lanka is one of the only five countries in the Indian Ocean Rim that do not already have policies that stipulate non-discrimination based on gender in hiring. Laws against the prevention of all forms of violence and sexual abuse in the workplace, which are currently only addressed in criminal law, would also be introduced under labour law. 

Other aspects that could improve the prospect of formal employment for women include policies addressing working times, such as relaxing the laws on nightwork for women in certain industries, as well as legislating part-time and flexible work arrangements. According to the reforms, domestic work, which is currently considered part of the informal economy and predominantly comprises women, will also come under the scope of the labour law. It is important to note, however, that corresponding policies to protect workers’ rights need to be enacted as well.  

Counterproductive law reform: workers’ rights at risk

While there are positive elements of the proposed reforms, some aspects are causes for concern in terms of protecting the rights of workers.

According to Swasthika Arulingam, “The New Employment Act seems to operate under the assumption that employers and employees are equal. This is not the case and it is internationally recognised that, in a workplace, an employer and employee are not equal. That is why we have labour laws in place in order to level out the inequalities between the employer and employee”.   

Aspects of the New Employment Act have been criticised as exploitative, unfair for the worker and “a violation of the fundamental tenets of why the labour law exists”.

Arulingam cited the Act’s encouragement of a 12-hour workday over the current locally and internationally recognised eight hour workday as one such exploitative reform. The termination of employment would also be made easier and faster when jobs are deemed redundant provided that compensation is provided.   

The short-term termination of employment owing to “reasons outside the control of the employer” would also come into the labour law. These vague thresholds could put employees at risk in this aspect as well. Last Tuesday (July 25), over 2000 free trade zone (FTZ) workers protested against what they called “the new slave labour laws”.

Moreover, the suggested reforms place multiple restrictions on trade unions. These include increasing the minimum number required to form a trade union and complicating the right to strike. “These unfair requirements as well as the increased ease at which employees could be terminated from work would make it very difficult for workers to stand up for their rights and against workplace abuses,” Arulingam further stated.  

How can we bring about progress?

According to Ramaaya Salgado, “What is needed is a legal framework that promotes gender equality so that women have equal opportunities and resources”. 

“Retaining women employees who get married, and supporting the return to work of those who leave after marriage, is an area that needs supportive policy interventions. Policies that support affordable childcare, wage subsidies and opportunities for retraining or reskilling are likely to enable more married women to undertake paid work,” Salgado stated.  

Dr Kottegoda, Swasthika Arulingam and Sarala Emmanuel also expressed this emphasis on the need to introduce affordable childcare, redistributing care work amongst men and women, plus more stringent policies against workplace harassment and discrimination.
Arulingam also addressed the right of unionisation.   

“The right to form Trade Union must be protected and promoted by the State. Workers are illegally dismissed regularly for joining unions, which is a legal right. When women can’t unionise inside workplaces they have no base to protect themselves from workplace abuses,” she stated. 

Ultimately, reforms to the labour law will need to address the key issues faced by women which bar them from entering and remaining in the workforce, while maintaining workers’ fundamental rights. Solutions for these challenges are imperative to warrant that formal employment is a viable option for women to pursue to improve the country’s FLFP in the coming years.