‘Incorporate flexi-work arrangements into labour law framework’

26 Feb 2021

‘Incorporate flexi-work arrangements into labour law framework’

26 Feb 2021

Sri Lanka lacks a legal framework that supports flexible working arrangements, despite the myriad benefits such arrangements provide women and mothers, notes an article published recently in the Junior Bar Journal. The article adds that flexible work practices can result in higher rates of employment (including boosting the number of productive hours), and more compatibility between qualifications and job skill levels (instead of working below the qualification grade) for women and mothers, whilst enabling them to balance work and life. The article, titled “Working Women and Tight Rope Walking: An Agenda to Reform Workplace Flexibility Laws”, was written by Attorney-at-Law Nadunie Wanigasinghe. According to the World Economic Forum’s 2018 Global Gender Gap Index, Sri Lanka was ranked 125th under the sub index of economic participation and opportunity gender gap, indicating thereby the low integration of women. Additionally, Wanigasinghe pointed out, it is women who are predominantly affected by the tensions arising due to the conflicting responsibilities of work and life due to the increase in the ageing population, dual-earners, female breadwinners, and care and related domestic responsibilities. Therefore, Wanigasinghe noted that flexible working options can play a significant role in addressing these adverse labour market outcomes and effectively reconciling commitments in their work and domestic lives. Flexible working arrangements can be defined as any type of working arrangement that allows work to be carried out outside the spatial and temporal limitations of a standard working day. With the advancement of technology, Wanigasinghe further notes, there is a spectrum of unstructured, structured, and autonomous work structures that alters the time and/or place that work gets done on a regular basis such as flexi-time, extended leave, part time work, compressed work week, telecommuting, work from home, and job share. Most of the International Labour Organisation (ILO) Conventions on working time, according to Wanigasinghe, are too restrictive to meet the modern realities of flexible working. With this impact and the prevailing cultural and gender ideologies and masculine norms, Sri Lanka still follows an outdated legal framework on working hours that is unfavourable to flexible working arrangements and work-life balance on the side of female employees. The ILO Hours of Work (Industry) Convention, No. 1 of 1919 accomplished the eight-hour workday, alongside a 48-hour weekly limit on working time. However, it allows for working for 56 hours in cases of processes which are required by reason of their nature to be carried out continuously by a succession of shifts. Similar rules were established by the Hours of Work (Commerce and Offices) Convention, No. 30 of 1930, the objective of which was to extend the hours of work standards prescribed to all those persons not covered by Convention No. 1 of 1919, except for those employed in agriculture, maritime or inland navigation, fisheries, and domestic service. Wanigasinghe, citing the “Working time in the 21st Century: Discussion report for the Tripartite Meeting of Experts on Working-time Arrangements” of the IL Office in Geneva, Switzerland in 2011, noted that it can be observed that the definitions of the exceptions to the normal scheme of working hours authorised by these Conventions are very restricted. Some of these exceptions are directly connoted to the form of work organisation. For instance, shift work is acceptable subject to the condition that the average number of working hours over a period of three weeks or less does not exceed eight per day and 48 per week. In addition, if shift work is rendered necessary by the continuous operation of an industrial plant, hours of work can reach 56 hours per week on average, without prejudice to the compensatory rest that may be provided for in national legislation. The same applies to flexible working arrangements such as staggered working time arrangements, variable daily shifts lengths, annualised working hours, on-call work, and the flexi-time system. The necessity of relaxing the working hours to meet the modern realities of working arrangements was also pinpointed by the Committee of Experts on the Application of Conventions and Recommendations. The Workers with Family Responsibilities Convention, No. 156 of 1981 was designed highlighting the necessity of enabling workers to engage in employment without conflicting employment with family responsibilities. The Committee of Experts envisioned designing measures to enable workers with family responsibilities to combine employment and family obligations without conflicting both work and social services. The Workers with Family Responsibilities Recommendation, No. 165 of 1981, recommended that particular attention should be given to general measures for improving working conditions and the quality of working life, including measures aimed at the progressive reduction of daily hours of work and the reduction of overtime, and more flexible arrangements with regard to working schedules, rest periods and holidays. It can be proposed, Wanigasinghe explained, that labour standards in the form of required procedures, rather than specified outcomes, would be more appropriate and practical in meeting the real world work requests. The UK introduced a right to request flexible working through the Employment Act of 2002 to limited categories of employees with parental or caring responsibilities. Later, this right was expanded to all employees with 26 weeks’ continuous employment by the Children and Families Act of 2014. In Sweden, parents have a legal entitlement to reduce their working hours up to 25% until the child’s eighth birthday, with a return to full hours guaranteed thereafter. In Sri Lanka, the labour legislations do not have any provision that expressly deals with flexible working arrangements. The Wages Board Ordinance, No. 24 of 1941, the Shop and Office Employees (Regulation of Employment and Remuneration) Act, No. 19 of 1954, and the Factories Ordinance, No. 45 of 1942, adhere to the outdated rigid working hours, rest intervals, and different types of holidays. The normal period during which any person may be employed in or about the business of any shop or office should not exceed eight hours and in any one week must not exceed 45 hours under the Shop and Office Employees Act of 1954. The total hours worked, exclusive of intervals for meals and rest, should not exceed nine hours in any day, and not exceed 48 hours in any week under the Factories Ordinance. Under the Employment of Women, Young Persons and Children Act, No. 47 of 1956, female workers cannot be employed for more than 10 days on night work, during any one month. Similar limitations and prohibitions on night work are imposed by the Factories Ordinance and the Shop and Office Employees’ Act. However, the Shop and Office Employees’ (Regulation of Employment and Remuneration) (Amendment) Act, No. 14 of 2018, and the Maternity Benefits Ordinance provided more opportunity for mothers to spend considerable time with the babies. The 2018 Amendments to the Shop and Office Employees Act provides maternity leave for 84 days for any number of children, and allows working mothers to take two nursing intervals at such times as she may require. The Maternity Benefits (Amendment) Act, No. 15 of 2018, provides maternity leave for 12 weeks for any number of children. Sri Lanka needs to therefore rethink, Wanigasinghe emphasised, providing access to flexibility as a part of protection against discrimination based on broader family care-giving responsibilities beyond caring for young children. Wanigasinghe added that the country also needs to further broaden this concept by incorporating paternity leave or parental leave in the legal framework. The common employer-oriented flexible working arrangements are often used in the Sri Lankan informal economic structure such as part time, seasonal employment, and shift work. But the non-regulation of these arrangements by the prevalent labour law structure provides leeway for the exploitation of the female employees in the informal economies and jeopardises the decent work norms of the workers of the above categories. Further, the flexible working arrangements being more concentrated on elementary, informal occupations, and less focused on professional and managerial roles, can lead to highly skilled mothers to shift to the informal economy, thereby pushing themselves to take up work of a lower level than what they are capable of. This, Wanigasinghe posits, is a suboptimal outcome for both employees and employers, as it represents a significant opportunity cost and a loss of potential output. Structuring international regulations in the form of procedures, rather than specified outcomes, would be more beneficial, leading them to be considered as fundamental social rights. Modifications of the prevalent outdated labour laws to cater to flexible working; thereby promoting a family-friendly employment policy is imperative in reducing the weak employment outcomes towards women and to utilise the full potential of women workers, Wanigasinghe observed, adding however that the efficacy of the modifications without an attitudinal change in the society concerning flexible working, is a moot point.

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‘Incorporate flexi-work arrangements into labour law framework’

‘Incorporate flexi-work arrangements into labour law framework’

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