Contented labour force can boost nation's economy - Attorney-at-Law

Only a contented labour force could increase production to boost a nation's economy. The term Labour Tribunal has created a misnomer in the minds of the people on the importance of the role played by Labour Tribunals in the economy of a country, said Attorney-at-Law Suren Peiris at a seminar on practical matters encountered in labour laws pertaining to organisations'.

The seminar was held on Tuesday at the Trans Asia Hotel organised by the William Tell organisation.

Following are excerpts of Senior Counsel Suren Peiris's address.

To many people Labour Law or Industrial Law is insignificant. Unfortunately the importance of what Labour Law or Industrial Law plays in the economy has not been understood by many. It is obvious that if there is only a contented labour force that there could be production which would indeed help the economy.

The word Labour Tribunal has created a misnomer in the minds of the people regarding the importance the Labour Tribunals play in the economy of the country. It is only if there is a contented labour force that production could be obtained without any hindrance. Similarly the labour force has to be managed in a manner, which would not create an 'unharmonious' atmosphere. As Pope Leo X111 stated "Each needs the other:Capital cannot do without labour, nor Labour without capital".

Invariably in a Letter of Appointment one finds a clause, which gives the right for the employer to transfer the employee to any other department and/or factory. I may state at the outset that merely because this clause is imbedded in a letter of appointment that would not mean that the said clause could be exercised with a sense of unreasonableness or irrationally.

While the Management has a right to transfer an employee from one post, job or section it has to be compatible with the post that the employee was working prior to the transfer. This would not mean that the employee would have the right to disobey or refuse the transfer if there are minor variations in his job functions or departmental operations.

The employer does not enjoy a privilege to exercise the right unfairly. The right to transfer would not mean that the employer could exercise the right to transfer the employee to a job, which the employee is not familiar with or transfer the employee to an unfamiliar job quite far from his original place of work. The transfer of an employee should be bona-fide in keeping with the needs of the company.

Problems faced particulary in the plantation sector is whereby employees protest if transferred from one estate to another . There are instances when the estate to which the employee has been transferred is located adjacent to the estate where he has been working.

There are certain areas, which should be strictly observed in transferring an employee. Primarily the transfer should not violate the conditions in the contract of employment. The transfer must not be done mala-fide to harass the employee.

A transfer should not involve a change in the condition of service of the employee so transferred. An employee cannot be transferred from one employer to another and there should not be a reduction in the employee's salary. There had been instances that Courts in Sri Lanka held that transfers should not be carried out arbitrarily or unjustly.

Fixed Term Contract

Many misconceptions have been drawn in relation to Fixed Term Contracts. Fixed Term itself clearly demonstrates that the employment itself is for a particular period whereby the employer and the employee agree that employment is provided for a particular period. Employment under a Fixed Term Contract would not necessarily mean that one could arbitrarily go on giving Fixed Term Contracts to an employee.

There are many issues, which arise in respect of Fixed Term Contracts. There are times when the employer who gives a Fixed Term Contract to an employee makes use of Letters of Appointment given to permanent employees. There have been instances though the period is fixed as far as the contract is concerned a clause is included to state that the employee could continue to work till say 55 or 60 depending on the age of retirement of the company.

This would in spite of the fact of the terminology Fixed Term give right for the employee concerned to contest the fact that though the period of employment has been clearly set out that he was for a fixed period that by his letter of appointment itself that he has a right to be employed till the age of retirement given in the letter of appointment.

Thus a separate Fixed Term contract should be drafted and given. Further in an instance when an employer wants to continue the Fixed Term Contract for a further specific period it is always in the interest and the safety of the employer to obtain a new EPF No., when the fresh Fixed Term Contract is given to the employee.

For example if an employee is initially taken in for a specific period the employer has to provide an EPF No. to the employee even if the employee has been taken for a specific period.

At the end of the specific period if the employer feels that the services of the employee would be required for a further specific period, then it is always in the interest of the employer to obtain a fresh EPF No. at the time the new Fixed Term Contract is given.

In the absence of this through the contract would specify a specific period the employee could always go on the basis that his employment was on a continuous process of employment. Hence when continuous Fixed Term Contracts are given with a break in service a new EPF number should be given to the employee. It is in the interest of the employer to have a clause in the said Fixed Term Contract that the said letter would not guarantee any form of permanent Employment.

A Fixed Term Contract exceeding two occasions could necessarily bring about a situation of this nature.

With all respect to all former Chief Justices one must be grateful and thankful for the practical approach of the incumbent Chief Justice wherein even computers, copies of legislative enactments and Law reports have been given to the Presidents.

There remains only one aspect which has to be carried out and that is as we all know a proper building to house the Labour Tribunals be provided with the practical thinking of the Chief Justice as he has done to uplift Courts in the outstations I am sure the Labour Tribunals would be housed at a building with all facilities and others that go with a proper Court House.