Comprehensive guide to labour laws

Reviewed by A. Gnanathasan

President's Counsel Additional Solicitor General

First of all my greatest thanks and praise go to the Almighty God for His abundance of blessings and mercies for He has given me the will to come for this launching of a book titled "A Practical Guide to Labour Law."

V. Vimalarajah, Attorney-at-Law has served as a President of the Labour Tribunal and also as an Arbitrator in the Industrial Courts. After his retirement he reverted to the unofficial bar and commenced practicing as a Counsel. However, I am not aware whether he appears mostly on behalf of the employer or the employee. V. Vimalarajah is a great exponent of the law and has always been willing to share his knowledge with others, which is indeed a praiseworthy quality.

I had the privilege of perusing the collection of articles published and/or presentations made by Vimalarajah that has been consolidated into the book titled "A Practical Guide to Labour Law." In his book he has included 11 chapters and two appendix relating to several aspects of Labour Law, and has almost covered the entirety of the Labour Law related issues. He has set down some important aspects and guidelines that are beneficial to legal practitioners as well as those who are interested in the basic principles and the legal concepts in their day-to-day affairs relating to Labour Law. Some articles could be referred to as an accurate checklist to those preparing to invoke the jurisdiction of the Labour Tribunals or seek any other legal remedy.

In the first chapter, in the presentation titled "Understanding Labour Law - Some grey areas" (pages 1-23) he has referred to some grey areas identified by him. This portrays his wealth of experience in the applications of the Labour Law. He has identified the grey areas and has made efforts to address the issues through his experience over four decades in the field of Labour Law. He has come across with such grey areas in the procedures adopted in the Labour Tribunals and in some other legislation.

He has commented at page 3 "the Tribunal President is helpless when there is no proper application before him." This demonstrates without doubt his keen interest to consider the grievance of a workman than having to dismiss an application for non compliance of the mandatory provisions of the Industrial Disputes Act on the so called technical grounds. I must emphasise that the just and equitable jurisdiction of the Labour Tribunal will not come into play in situations where the mandatory provisions laid down in the Industrial Disputes Act have not been complied with. His comment assures to me that he has given effect to these mandatory provisions and has not acted under the cover of the just and equitable jurisdiction conferred in the Labour Tribunal in such situations.

At page 8 of the said chapter, he has discussed the issues relating to enforcement. He has been mindful of the delay in enforcing the Labour Tribunal orders effectively and speedily.

When he commented that, "if there is a delay in amending the law, the Presidents of Labour Tribunals should try and formulate a workable method by which they could enforce their own orders." I would like to make a comment on this statement by the author. Undoubtedly there is a serious lacuna in the law with regard to enforcement.

If that be the case, the time is ripe for the Labour Tribunals and other related labour institutions, to draw the attention of the legislature to crying need for appropriate provision to be made with regard to enforcement of the own orders. To me, with due respect to the learned Author, the appropriate method would be for the legislature to make the necessary amendments or to formulate appropriate regulations as provided for in the Industrial Disputes Act. Separation of powers or separation of functions. This is enshrined in the Supreme Law of the country the Constitution.

In the second Chapter, in the presentation titled "Practical Guide to the Shop, Office Employees Act" (pages 24 to 45).

Generally, it may be stated that a much less recognition is given to the subject of holidays and leave by the private sector employers particularly in regard to manual workers. The question of holidays and leave should be necessarily bristling with problems inviting industrial adjudications. The Royal Commission of Labour in India (1929) observed that the employer should recognize the need and value of holidays and should actually encourage workers to apply for definite periods of leave.

The Commission said: "The mere grant of regular leave even when no allowance would attach to it would make a great advance in the present system. It would give the worker an increased sense of security and of attachment to a particular factory and general efficiency would follow".

The statute that deals with this area in Sri Lanka is the Shop and Office Employees' Act, which came in to operation on 9th August, 1954. The author has listed out the purposes of this Act. The regulation of employment and hours of work, remuneration of persons in shops and offices and other connected matters or incidental thereto are expected by this Act. Therefore, this is a very important area in the field of Labour Law and Mr. Vimalrajah has given a useful guide to the said Act. This practical guide will be useful for both employers as well as employees who always look forward for a better safeguard for their rights in their respective industries.

In the third Chapter, in the presentation titled "Law Relating to Women in Employment" (pages 46 to 54).

Necessity

It is a dire necessity in our country to strengthen the law relating to women in employment. Whilst paying heed to national and industrial economy, provisions must be made available concerning a better relationship among the employer and women employees for adequate leave and holidays. The author has highlighted the legislature that embodied special protective measures for women in various industries. The women working in a certain industry cannot be treated in the same way as other workmen in the same industry or any other industry. The author has well recognised the rights of such women and has emphasized the necessity of proper implementation of such laws available in Sri Lanka to safeguard the rights of women. The author has discussed even the fairness or the reasonability of having a special legislation for women in employment. The numerous problems such as sexual harassment have been considered and the author very correctly has concluded that the women in the work place should be protected by special legislation.

In the fourth Chapter, in the presentation titled "Jurisdiction of Labour Tribunal" (Pages 55 to 73).

An Act No. 62 of 1957 created the Labour Tribunals and it was established for the purpose of the Industrial Disputes Act. With the enactment of provisions in respect of Labour Tribunals under the Industrial Disputes Act, the legislature made use of this new creation for the purpose of voluntary or compulsory arbitration. In the said legislation,the Labour Tribunals were included as yet another industrial forum for the purpose of carrying out the objects of the said Act. Accordingly, the author has analyzed all the relevant sections of the Industrial Disputes Act concerning the jurisdiction of the Labour Tribunal. The author has not only analyzed the relevant provisions of the said Industrial Dispute Act, but also highlighted the salient features and made important comparisons with the respective sections of the Payment of Gratuity Act No. 12 of 1983, Termination of Employment of Workman (Special Provisions) Act No. 45 of 1971 and various other related legislations. The author has simplified the definition of "termination of services" and extensively explains the ways in which an employee's services could be considered as terminated.

Some of the vital areas in Industrial Adjudication such as the constructive termination, 'the resignation' and 'vacation of post' have been dealth with by the author in a manner that even a layman could easily understand.

The question of whether any gratuity or other benefits are due to an employee on termination of his services has been discussed by defining the words "are due". "On termination of services" and "other benefits". The author has observed that there is no judicial unanimity in relation to the award of Gratuity and that the decided cases do not reflect any consistency in relation to the award of gratuity.

The author has discussed the selection 31(B) (1) which gives powers to a Labour Tribunal. In addition he has extensively analyzed other important sections such as Sections 31 (4) and 31B (6).

The section 31B (2) has been observed as a limitation to the jurisdiction of a Labour Tribunal by the author and the said provision of the Industrial Disputes Act has been discussed with relevant authorities.

The authorities and references that are mentioned in the article can be considered as a practical guide for a busy labour lawyer or representative.

His article on the Jurisdiction of a Labour Tribunal provides a comprehensive analysis of the provisions of Sections 31B of the Industrial Disputes Act. The decisions of the Superior Courts have also been referred to by the author wherever it is necessary in a lucid manner and can easily be comprehended even by a layman.

In the fifth Chapter, in the presentation titled "Domestic and EPF" (page 74 to 78)

The author has dealt with an important practical issue. He has observed that there is contradictory opinion as to whether "domestics" are to be paid EPF or not. The observations he has made in this chapter are mainly a product of his experience and study of the case law. With this article the author has reproduced in a nutshell 15 orders that the relevant Minister has made under section 10 (3) of the EPF Act.

The author has pointed out that the relevant Minister has specifically exempted domestic service from EPF by virtue of his order 13 published in Government Gazette No. 14936 of 11.12.1970. However, the author has cleared the misapprehension and confusion in the minds of public on this issue by analyzing the legal position in this regard. He has expressed a clear view on the ambiguity, which had arisen due to certain decided cases delivered on this issue.

The proper legal position, in the opinion of the author, is that the EPF Act does not cover 'Domestics' and that they would not be entitled for EPF contributions.

In the sixth Chapter, is titled "Arbitration and its role in the settlement of Industrial Disputes" (pages 79 to 91)

The article represents a concise exposition of the law in Sri Lanka relating to Industrial Arbitration - an area that has seen little academic literature even though being part of our law for over 50 years. Therefore, Vimalarajah's effort is a welcome contribution and is of interest to the legal community, employers and the labour force alike.

Beginning by alluding to the nature of arbitration citing reference to the biblical story of Solomon he observes the attraction to arbitration being the unclouded, unpartisan and fresh approach by the arbitrator along with the active involvement of the parties in the settlement process. He also makes the important distinction between commercial and industrial arbitration, the latter being more liberal, informal and flexible. This is a point that needs further consideration in my opinion. He has missed an opportunity to impress upon the reader the importance of those qualities in settling industrial disputes and the underlying wide social and economic factors necessitating this difference in approach between commercial and industrial disputes.

Our attention is next drawn to the history of industrial arbitration in Sri Lanka beginning from its first incarnation under the Essential Services (Avoidance of strike and Lockouts) Order of 1942. Moving to the wider and voluntary scheme introduced by the peacetime Industrial Disputed Act No. 43 of 1950, the author proceeds to lay out the powers of settlement of the Commissioner, the Minister and the Arbitrators along with the nature of the awards laid down in the said Act. While the description of the powers of the Commissioner are limited to the provisions of the Act alone, the reference to landmark cases such as CBEU v Yatawara (the powers of the Minister being restricted to where there is an actual dispute), Piyadasa v Bata Shoe Co. (the Minister lacking the power to re-refer a dispute which he/she had previously referred) and State Bank of India v. Edirisinghe and others. (The Arbitrator's duty to make just and equitable orders) when discussing other areas, gives the reader a concise well-researched starting point for further research in each area.

Possibly the most important aspect of this paper is towards its conclusion. This is where a contrast is drawn between s4.(1) referrals for arbitration and s.4A referrals for adjudication by Labour Tribunals (LTs). Listing the time limit of 3 months prescribed at the time of publication of this article (c. 2003) along with the wider powers of the LT to hear evidence it considers necessary - the arbitrator is allowed only to hear evidence adduced.

Atractive option

This seems to suggest that Mr. Vimalarajah opines LT arbitrations as the more attractive option to realise the objectives of the arbitration machinery itself - speedy settlement, being inexpensive and being devoid of technicalities.

In this context the reader is left to draw his own conclusions on the place of s.4(1) referrals and industrial arbitration under the scheme and practical operation of the machinery more fully described. While this in itself is important, the article would have made a greater contribution to our legal literature if more space had been devoted to some of the obstacles faced by industrial arbitration referred to in general by the author in his conclusion to the piece. The complete overhaul of the system recommended by the author would thus have been placed on a sounder analytical base which in turn would allow the reader greater insight on the fundamentals of a more appropriate scheme.

Current system

As a starting point, the author may have looked to the challenges faced by the actors in the current system - the workman, the employer, the commissioner, the Minister and the Arbitrators themselves - in adapting the provisions of this Act drafted and devised over 5 decades ago to the sophistries of today's Sri Lankan economy. Arbitration, in the light of growing private ownership in ever-complex corporate and other forms, the presence of multinational investors and the burgeoning of subsidiaries operating under larger holding companies, requires to be fashioned in a manner that balances the rights of the workmen with the need for speedy, inexpensive and inherently flexible settlement of disputes that would facilitate the efficacious implementation of economic policy.

He has analyzed the provisions made in the Industrial Disputes Act in addition to the powers of the Labour Tribunal. That is the Arbitration and its role in settlement of Industrial Disputes, This gives a clear guidance and understanding to anyone who needs to know how his/her grievance could be addressed and to which forum he/she can have access to.

I would add that areas such as the jurisdiction of the Labour Tribunal to award cost, procedure in relation to purging default when an application is dismissed for want of appearance or when fixed for ex parte inquiry need consideration. I am sure my learned friend will give due thought to this as well.

He has adequately addressed the areas relating to Employment Provident Fund, Employees Trust Fund, Payment of Gratuity, Shop and Office Employment Act, Domestics and EPF.

V. Vimalarajah has encapsulated the whole law relating to labour in his book. He has made a deep analysis of the subject and included various aspects of this branch of law.

I am sure this book will be of immense help and use to Judges, Lawyers, Administrators and also help laymen to better understand the Labour Laws in the country.

In conclusion, I congratulate Wimalarajah for his achievement and believe that he would make way for his Corpus Juris to be published not only in the link language but also in the official languages, Sinhalese and Tamil so that his knowledge and experience set down in this book will reach a wider segment of our society.

I do hope the reader finds the book interesting instructive elevating, worthwhile and the time to read it, well spent.

I commend V. Vimalarajah for his thorough and comprehensive accomplishment.

I shall end with a quote by Winston Churchill on writing a book.

"Writing a book is an adventure; to begin with it is a toy, then an amusement, then it becomes a mistress, and then it becomes master, and then it becomes a tyrant, and the last phase is that just as you are about to be reconciled to your servitude you kill the monster and strew him about to the public."

Experiences of a government servant...

Reviewed by K. H. J. Wijedasa, Former Secretary to the President

An assessment about the book (Le Kiri Kandulu) by Ms. Anusha Gokula Fernando who is in the Sri Lanka Administrative Service

One will view “Lekiri Kandulu” as a collection of short stories while another will identify it as a narrative of interesting or painful experiences in Government Service.

I had been at the Executive levels of Government Service for about 4 decades. And also as a person who had been tempered there for such a long time. I comment on this as a book written for humanity and brotherhood with a great sense of national feeling by a Government servant who has got unlimited satisfaction. It is also a book based on a collection of experiences.

Experiences of real life in government service forms the basis for the book presented as a form of a work with a literal value. The theme of the book is that the government servant should not perform his duties with a sense of selfishness but with generosity.

If ever one works without fear or favour, nothing unjust will happen. That confidence and honour can be commanded from subordinate officers and also from the public is very clearly explained in the book. Government servants should work with a degree of patience when they deal with the public.

Those who work with a sense of dedication to duty are blessed by nature itself, the authoress believes.

Waste, inefficiency, loss of man hours, excess of staff etc, have been appropriately commented by the authoress.

Providing a healthy environment with basic facilities subordinate officers to work freely and creatively will average them to work with a sense of piety and commitment, the author maintains.

Raoul Wallenberg Author: Priyanvada Banduwardane A Sooriya Publication Price: Rs. 175

Man’s inhumanity to man

Raoul Wallenberg was a Swedish diplomat who worked relentlessly to save the Jews from impending death, at the hands of Nazis. The book describes in detail how the Jews were massacred in concentration camps. Hitler and his secret service men were all out to exterminate the Jews from Europe.

Wallenberg, unlike many of his ilk, did not think of his own comforts or safety. His only ambition was to save the Jews who were condemned to death for no fault of theirs.

The author’s descriptions of inhuman treatment meted out to the Jews are supported by black and white photographs. Even a casual look at them will be enough to remind the reader how Nazis went about in their ethnic cleansing in the most despicable manner.

The book also records how Wallenberg was arrested by the Russian authorities and imprisoned in one or more of their prisons. While he was in Russian custody, Wallenberg’s parents continued their struggle to secure his release. However, they were not satisfied with the explanations given by the Russian authorities. Finally, they committed suicide.

Raoul Wallenberg’s story reminds us of man’s inhumanity to man.

R.S. Karunaratne

Book Launch

‘Siri Gonamalaya Hevath Trikunamalaya’
 

P.L. Sirisena’s historical work ‘Siri Gonamalaya Hevath Trikunamalaya’ will be launched at Agrabodhi Maha Vidyalaya auditorium, Kantale on Friday, September 18 at 9 am. The book is a Dayawansa Jayakody publication.