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Gender discriminatory laws/policies: Experts say law reforms inadequate without fixing practical issues

08 Mar 2021

At a discussion held recently regarding the laws and conditions concerning women’s participation in Sri Lanka’s labour force, it was emphasised that law reforms alone cannot make tangible changes in improving working conditions for women, as practical issues in this connection should also be addressed. The discussion, held in the form of a webinar on 5 March, was attended by Justice Minister President’s Counsel (PC) M.U.M. Ali Sabry, Verité Research Deputy Head of Legal Research Attorney-at-Law Malsirini De Silva, former Commissioner of Labour (Women and Children Affairs) Madhavie Gunawardena, and Fonterra Human Resources Business Partner Kanishka Paternott. The discussion, titled “gender discriminatory labour laws in Sri Lanka”, was organised by Advocata Institute, an independent public policy think-tank.   Outdated laws   Speaking of how Sri Lanka’s existing laws become an obstacle to women joining the country’s labour force, Gunawardena said: “Some of Sri Lanka’s existing labour laws were enacted as far back as the 1950s and they came into existence when Indian migrant workers came to Sri Lanka to work in the plantation sector. Even though certain laws were suitable to the socioeconomic situations that prevailed in the 1950s, the conditions have now changed and new issues and concerns have arisen. At present, certain laws are in fact an obstacle to women when entering certain sectors, and there is a need for some kind of regulation.” She added that when people have to work in a regulation-less workplace, there is no limit as to what is required of them, and this situation can be disadvantageous to women. She noted that outdated laws or regulations are, however, neither the sole nor the main obstacle faced by women and there are a large number of other factors as well. Speaking further on this, De Silva added: “Sri Lanka has more than 50 laws concerning the country’s labour force, and what laws apply to a person varies depending on the profession or nature of his/her job. A significant portion of the labour force is employed in the informal sector, and when it comes to the informal sector, in some situations, labour laws may not apply at all. The informal sector includes but is not limited to self-employed persons, companies that have a staff of less than 10 members, and the companies that do not pay Employees’ Provident Fund (EPF)/Employees’ Trust Fund (ETF). The existing laws do not apply to a large number of workers, including women, in the informal sector.” According to De Silva, when it comes to the issue of legal constraints affecting working women, it is twofold. “First of all, sometimes, there are difficulties and differences in implementing the existing laws. Certain archaic laws include what are called protectionist laws, and some of these laws are there to protect women. However, when it comes to the implementation of the laws, it can affect women adversely. In the last three decades, Sri Lankan women’s contribution to the labour force did not increase over the 30-35% mark, and there is a problematic situation as to why Sri Lanka’s women cannot make a bigger contribution to the country’s labour force. These laws are not applicable to certain working women such as domestic workers, and the recent Minimum Wages Act specifically states that domestic workers do not come under it.” She added that real reform and change must go beyond amendments to laws. “There are a lot of practical issues and structural problems pertaining to this issue, and mere laws are not enough to address them. For example, when it comes to the said practical aspects, incidents of workplace sexual harassment come under the Penal Code, which means, if any such incident takes place in a workplace against a woman, she has to go to the Police and then go to the courts, and it takes a lot of time. Criminal cases sometimes take up to 20 years to be resolved.” De Silva said that the definition of what the informal sector is does not come from legislation. “We can, however, get an idea about it according to the definitions used by the Census and Statistics Department to collect data. Those in the informal sector are not protected by the social security net, and in the case of family businesses, laws hardly apply because the laws are mostly based on the employer-employee relationship.”   Law/regulation reforms   As the solution to the issues were discussed at the webinar, all speakers said that although law reforms are necessary, these alone will not bring about change. Sabry said that reforming laws for the sake of reform does little good, as the results could be short-lived and therefore, market forces should dictate which reforms are undertaken. “Laws are not the only cause of these issues. In fact, more than the laws, how those laws are implemented also affects this situation. In the 1950s, these laws were introduced to protect and give benefits to women. However, when implementing these laws, they may be disadvantages to women. When reforming certain other laws, those directly involved in the field in question were allowed to decide what reforms they need, and the same should be done in this case as well. There is also a need to change the way issues are looked at and a social discourse should be initiated. In this situation, we should allow market forces to dictate the decisions as much as possible. Maintaining the balance is important. Slogans cannot build a country, and going with the popular decision is not a long-term solution. We should get everyone concerned on board, and get a good decision acceptable to as many parties as possible.” The Minister also said that Sri Lankan women have made great strides over the years despite the obstacles. “With time, women have achieved certain progress also and they should not be very disappointed. For example, 65-70% of people in universities are women, and they are taking the lead. Of course, there are challenges, and they should be dealt with creatively. Without women, we cannot go forward. Women have other duties too in addition to their jobs, and these situations should be balanced. Issues should be addressed on a case by case basis, and more than law reforms, a paradigm shift should be adopted.” He went on to elaborate on the process of law reforms from his experience as a legislator. “When it comes to reforming laws, there is a huge process which involves the Cabinet, Legal Draftsman, and the Attorney General (AG). Also, it involves discussions in Parliament and going to the Supreme Court (SC) if people have concerns. Also, this process takes a long time. In reality, there are many issues and certain laws are stuck at some levels of this process.” Paternott focused on the requirements beyond the legal framework to create a good workplace environment. “Irrespective of the gender, it is necessary to ensure employees’ wellbeing beyond the legal framework. Laws are sometimes ambiguous. We have focused on both maternity and paternity benefits. Following the Covid-19 outbreak, new needs arose regarding workplace conditions such as maintaining social distancing. In this context, the private sector and lawmakers have to focus on how to incorporate flexibility in laws and regulations.” Gunawardena said that what could be achieved merely through legal reforms is limited and that a more holistic transformation is needed both socially and culturally. “Attempts were made to change the applicable laws for a long time. Since these attempts were futile, we tried to go for collective changes. However, trying to amend laws and regulations one by one is difficult. Many recommendations have been put forward; however, their implementation has a lot to do with social norms and people’s attitudes. These law reforms involve many interconnected factors and they have to be addressed, too. In fact, what can be done through the law is limited, and both employers and employees need to come to an agreement.”   Maternity benefits   Another topic that was raised during the webinar was maternity benefits and introducing paternal leave. In this regard, De Silva added that data has shown that there are cultural norms about the suitability of certain types of employment for women in the formal sector, and that most women can be seen in the education and health sectors, and less women can be seen in sectors such as tourism, hospitality, and construction. “When a woman applies for a job, the employer takes into consideration her age group. If the woman is between 20 and 40 years, the employers think twice about whether hiring her is as financially profitable as hiring a man of the same age group. Employers tend to think that if they hire a woman, the woman will make children and that they will have to give her maternity benefits. In Sri Lanka, all maternity benefits have to be borne by the employers, and it compels employers to think twice before hiring a woman.  The law alone cannot resolve these types of issues.” Sabry acknowledged that this was a real issue and that it could only be overcome through discussions and negotiations, and not simply by reforming the law. “When hiring women, there is a concern about benefits such as maternity benefits. Legal reforms do not necessarily put an end to these issues; in fact, it may worsen these issues and they might stop hiring women at all. To balance this situation, talks should also be held with employers to come to a middle ground.” He emphasised that rigid laws may result in counterproductive results, and all decisions should be based on proper research and studies. Meanwhile, De Silva added that Sri Lanka should take into account the social realities before attempting to directly transform the concept of maternity leave to paternity leave, as women perform chores even when they are on maternity leave, when compared to males (fathers). “Trying to do so might add a double burden. When it comes to the concept of parental leave, there are a lot of specific issues that need to be considered such as the number of days and who is getting leave and when. The laws and the structures around it are not fully there yet, but discussions need to happen. With the system we have in place currently, what needs to be considered is whether the burden will be on the employers and we also need to consider the role of the State in terms of financing this type of leave. Merely changing laws does not change social and cultural norms in this connection.”   Female migrant workers   Speaking of the hardships faced by female migrant workers, De Silva raised concerns about the Family Background Report (FBR) women are required to obtain when going abroad for employment. “If women do not have the FBR, introduced for women who have children younger than five years, they are not allowed to go abroad. Due to this policy, the number of female migrant workers has declined. The FBR needs to be obtained by women, not men. Even though this was initially introduced with good intentions such as preventing small children from being left behind and stopping the collapse of the family unit, this reinforced the notion that the mother should bear more burden. Certain policies such as these are brought to address situations that existed in a specific time. When the FBR does not get approved, women look for other informal ways to go abroad. When they do that, the protection granted by the Sri Lanka Bureau of Foreign Employment (SLBFE) does not apply. This situation also causes human trafficking, and consequently, women face various threats. What the FBR has caused is a negative impact, even though on paper, it has achieved the purpose. There is no data to show how many people go abroad through unofficial means.” She stressed that Sri Lanka has become a destination/origin country for human trafficking, and that Sri Lanka is on a watch list. Meanwhile, Sabry said that one of the major factors causing issues for female migrant workers is them not being trained workers. “I don’t personally like women going abroad for domestic work unless they are trained. They should get training, register with the SLBFE, and get insurance. Laws cannot address some practical issues. Having received training brings more opportunities and also higher income. We should have a mechanism to resolve their problems rather than having laws.”   Part-time employment, flexible working   The discussion also focused on part-time employment opportunities, where Gunawardena added: “According to the Intentional Labour Organisation (ILO), part-time employment is an opportunity that can be used to encourage those contributing less to the country’s labour force. Sri Lanka’s part-time employment laws are unclear, and due to this, it has affected women’s financial security and independence. There is no legal barrier to engaging in part-time employment. The issue lies in payments and benefits. A part-time employment opportunity offers flexibility in three ways, namely, the ability to work from home, less time constraints, and the freedom in how the work is done.” Paternott added: “Many are focusing on flexibility, especially after the Covid-19 pandemic, and there are companies adopting flexible working cultures. Those who do part-time jobs should not be considered low-skilled persons, and sometimes, they may have special skills. When a permanent employee shifts to a part-time position, there are no clear legal provisions regarding paying their benefits. This is a difficult situation because employers too have to make smooth decisions. The flexibility of a part-time job is very important to women, as in Sri Lanka women play a caregiver’s role. There is a need to build a culture of trust instead of strict regulations, and give freedom irrespective of gender. Part-time employment opportunities are important not only for women but for the entire labour force. However, regulations in that connection should be introduced based on an industry-specific approach.”


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