Comparative Analysis of International and Sri Lankan Employment Law

This report provides a comprehensive overview of Sri Lankan employment law, comparing it with international labour law standards. It examines the rights and duties of employers and employees, the role of international labour organisations, and the application of various conventions and acts in Sri Lanka. The report also analyses a case study, *National State Service Union and Other vs. Bogawanthalawa Tea Estate PLC*, discussing the legal arguments, evidence presented, and the final judgement, focusing on issues such as constructive termination, accommodation for employees, and the applicability of labour laws. The report highlights the key aspects of employment law and its practical implications in the Sri Lankan context.

EMPLOYMENT LAW AND
PRACTCE-2

INTRODUCTION...........................................................................................................................1
TASK 1............................................................................................................................................1
a) International labour law and Sri Lankan labour law comparison............................................1
b) Sri Lankan Approaches and comparison of two standards.....................................................2
TASK 2............................................................................................................................................3
National State Service Union and Other vs. Bogawanthalawa Tea Estate PLC.........................3
CONCLUSION................................................................................................................................6
REFRENCES...................................................................................................................................7

INTRODUCTION
Employment laws are those types of laws which deals with the relationship of employer
and employee. Laws of this kind are very important from point of view that it helps in
identifying of those right and duties of both employee and employer that is important for them to
follow. These laws are related with tripartite relationship which exists between employee,
employer and union. Contract that exist between employer and employee is also covered under
this law only. Scope of employment law is that it checks over legal consideration about various
activities that can create barrier in smooth performance of employees. In this assignment
employment law of Sri Lanka and its relevancy with international labour law is seen. Also
employment law is going to be covered. In ending a case study is going to explain covering
issues, law applied in it is going to be covered.
TASK 1
a) International labour law and Sri Lankan labour law comparison
International labour law are those laws which deals with the rights and duties of both
employer, employees (Quinn. and Burke, 2016). It covers both public and private sector. In a
simpler manner it deals with problems which is faced by labour and issues accrued at place
where they are working. Laws of such kind also handles disputes existing between employer and
employee. Aim of these laws is to promote rights at work, encouraging decent opportunities of
employment. Also helps in enhancement of social protection and emphasises over issues related
to workplace. A international labour organisation help in emerging of the principals which
creates path for implementation of labour laws in an industry or company. It is an specialized
agency which is formed by United Nations. It deals with identification of labour rights and
uplifts social justice. These organisation is important to seek smoother and better environment
for labour to work (Rodgers, 2017).
Standards of these organisations are that legal instruments which are there to cover
matters for basic rights of workers, its conditions, wages to be paid and security of job comes
under these standards. All this is done in order to improve employment of labour in global or
international level. These are formed after attaining two-third majority of votes and its
acknowledgement is done upon universal basis. Standards are formed keeping in mind diverse
culture, legal system, historical background and development of economy in a country. Core
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standards are based upon four fundamental and universal human rights which are freedom from
forced labour, children are free from doing labour, no discrimination at work place, free to join
and quit a union. Power to bargain collectively. There are certain convention like Forced Labour
Convention, 1957, freedom of association, Protection of Rights to organise convention 1948 and
Right to organise and collective bargaining convention 1949 (Bekesi, 2016).
The standards are used for improving various administrative structures. This can also be a
source for improvement of relationship of employees. Sri Lanka has followed all fundamental
conventions which are prescribed under International Labour Organisation. Country has also
maintained its basic framework that is constitution. Various convention has been introduced by
government of Sri Lanka to keep standards of labour law alive and they are Labour Inspection
Convention 1947, Occupational safety and health convention 1981, Equal Remuneration
Convention 1951 and Minimum Age convention 1973 has been introduced by the Sri Lankan
government in order to improve its standards. All the acts are formed as per the guidance give by
International Labour Organisation. These standards has helped Sri Lanka in reduction off
exploitation of labours and has given them safety at workplace. It has also help in increasing of
sustainability of employees and employer relationship. Due to introduction of international
labour organisation in Sri Lanka lot of problems related to labour has been solved. So
International Labour Organisation has helped in development of certain conventions that has lead
to improvement in industrial labour conditions and has strengthen state of employer, employee.
b) Sri Lankan Approaches and comparison of two standards
Employment in labour law deals with relationship of employer and employee. These laws
are most important from point of view that it cover all aspects which can be dynamic in nature.
In Sri Lanka these laws has played an very important role in solving disputes and creating an
healthy environment. Due to the presence of International labour law standards various
convictions has occurred in Sri Lanka which are Labour Inspection Convention 1947, freedom of
Association and protection of Right to organise convention, 1948 and Right to organise and
collective Bargaining Convention, 1949 has been introduced under project on promoting
Fundamental principals and rights of work in Sri Lanka. Then Occupation Safety and Health
Convention, 1981 marks out amendments and drafting of required legislation on occupation
safety and health. This has been done in correlation with national Institute for occupational
safety and health. After this Equal Remuneration Convention, 1951, discrimination Convention
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of 1958 has been introduced (Blanchard. and Rojas, 2018). This has been done by working with
government of Sri Lanka and its social partners. Seafarers Identity Documents Convention, 1958
and Marintime Labour Convention, 2006 has been amended after working with government and
social partners within the limit of Merchant Shipping Act. Forced Labour Convention, 1930,
Abolition of forced labour Convention, 1957 and child labour abolition has been done. These
convention has brought into existence upon relation to trafficking of persons. Minimum Age
Convention, 1973 has come into existence after research, surveys and studies done upon child
labour activities. All these modification has taken place during the course of time in Sri Lankan
regarding laws of employment. In Sri Lanka the employment laws does not distinguish between
foreign and local employees. These laws are equally applicable upon them. Employment statues
that are in this laws are not applied over Sri Lankan working outside the country. Only regulation
formed for this purpose is foreign Employment Act 1985. Categories of employment given
under this is probationary employment, regular employment, casual employment, seasonal
employment, fixed employment. Then three test are there for determination of self employed
worker which is control test in which there is direction or a reporting mechanism, right of
dismissal, power selection and power of exclusivity of service is present in this test.
Then comes integral test in which there is work that is preformed to complete an core
activity by beneficiary of worker. In this services are rendered and frequency of provision is
checked. In economic reality test salaries that is to be paid is and payment has to be made to
employees are checked. Tools of ownership and equipment of goods and services are also taken
into consideration. In the employment law all these things are covered and upon basis of this
only a court has to act upon any issue related to employer and employee. Other laws which deals
with employees are workman compensation Act, protection of women against harassment is also
taken into consideration for dealing with problems at workplace. The parliament of Sri Lanka
has passed these regulations which has helped them in dealing with problems related to
employees and labour at workplace (Petrovna. and et. al. 2017).
TASK 2
National State Service Union and Other vs. Bogawanthalawa Tea Estate PLC
In this case appeal has been out of the judgement that has been passed by the Labour
Tribunal Hatton on 30th September 2104. Applicant has filed the appeal before Labour Tribunal
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Hatton stating that his services were terminated on constructive basis by the Respondent and
prayed of reinstated of back wages. This is the issued which has occurred with the appellant.
Respondent has denied about the termination of services of applicant and prayed for dismissal of
application of appellant (Kun, 2018). After doing full enquiry application of both the parties are
rejected. Grounds of appeal were Learned Presidents order is not justified and equitable. Then
conclusion of L.T President is against weight of evidence. So Learned president of the
organisation has not explained it is responsibility of employer to provide accommodation to its
employee. He has failed to follow this. The president has also misdirected himself over burden of
proof as it is to be proved by Respondent that force ability has been done by the applicant for
impugning line of room. Evidenced of the case is that Applicant has been working as an
employee at Central Worksop of Bagwaantalawa Tea Estate PCL as a mechanic. He is married
since 2002 and his marriage is also registered in 2007. In 2002 h used to live in shed in front of
his parent's line room. When Wanaraja Estate workers were given new block under housing
scheme of NHDA, their rooms were demolished and M3 block was given to him on verbal basis.
AS they wer empty. Lin of room was given to him in front of Bennet Welikala who was field
office at that time. The house was not legally registered to him. On 19th December 2008,
applicant was informed to handover vacant possession of the house . A letter was brought which
stated that applicant has possession over M3 block since 2002 and also mentioned that line room
has nothing to do with present employee. After seeing getting explanation about the scenario.
Applicant was suspended by the respondent from the work. The applicant got summoned for
domestic injury. At the conclusion of domestic injury the applicant is found guilty for forciable
occupation. Applicant was informed that the suspension is going to continue until the applicant
hand overs possession of line of room. Applicant says that allege suspension amounts for
constructive termination of his work. He plead for reinstatement with back wages. The evidences
were provided by applicant along with R. Parthiban and field officer Bennett Welikala. On
behalf of respondent former Assistant Superintendent of Wanarajah Estate. It is revealed by
respondent that applicant married to S Nanthini in 2007. also that the applicant has been
appointed as Post of Assistant Mechanic Bogawanthalawa, on 28th February 2006. respondent
version was that the applicant was suspended till he hands over vacant possession of that block.
Upon analysing documents presented as evidence the case it is observed that applicant has
agreed terms and conditions by signing the document. In it clear mention is there ' you will be
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subject to rules and regulations of the company and any other order which may be issued by the
management from time to time and makes known to you through appropriate means, you shall
obey the lawful orders and directions of the management or your duly authorised superior'. The
marriage was also registered in 2007 not in 2002. a child was born after 2007. though applicant
said that he was in de facto relationship and it was never proved. The question of responsibility
of employee(respondent ) to give accommodation to the employee ( applicant) who has married
under section 24(1) Estate labour, do not come to ply at this time. Applicant was a Mechanic not
an Estate Labour. So he is not entitled for accommodation. Applicant registered in Block N2 is
under his parents name (Chamallas, 2018). If he has been married then it was suppose to be in
his name and separate line room must be taken. Evidence present by applicant has admitted his
peers has also not got the separate line of rooms. It is admitted by the applicant that N2 block is
going to be given to him after demise of his parents. Further M3 block is not given to him under
legal agreement. Thus considering the judgement passed in International Science and
Technology Institute INC v ROSA AND ANOTHER. Application of appellant has been
refused. In this case Workmen Compensation Act is going to be applied as the appellant wants to
gain compensation for appeal made by him which states that he wants re instance for back wages
. This case revolves around house of lines in which was given to appellant( mechanic ) by
respondent ( Bogawanthalawa). This is not going to be given to him because of agreement which
he has signed and also he has not got the line of house M3 block legally registered under his
name. Instead court observed that his heir is going to be owner of N2 house after demise of there
parents. Court also observed that permission obtained through manger has not been proved by
the Applicant. Over that applicant does not comes with clean hands as he has done theft of
electricity. Despite of several request done by respondent, applicant has failed to follow lawful
orders of service contract. He is found guilty in domestic enquiry and magnet has asked him to
vacant the place. As the document marked shows that applicant has not been dismissed after
domestic enquiry. It says that 'you are herby requested to hand over the above line room No3 in
M block of lower division of Wanarajah back to them and report for duty'. Also appellant has
failed to proof a constructive termination on balance of probability. Therefore considering the
judgement of Sri Lankan State Plantations Corporation and Another v The National Union Of
Workers . The appeal was and parties shall bare their own cost.
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CONCLUSION
From the above file it is learned that employment laws are the laws which helps in
dealing with relationship between employer and employee. Also intentional labour law has been
covered which deals on setting up of standards which are necessary for building of labour law in
a country without disturbing its constitution. Further Sri Lankan labour law has been explained
and it comparison has been done with international law. Standards of international law has been
discussed which provides pillar for its formation. Types of convention which has been made by
Sri Lankan government for development of labour law in there country has been explained. In
the end a case has been explained in which the appellants appeal has been dismissed by the court
because he has failed to prove his point with relevant evidences.
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REFRENCES
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Rodgers, L., 2017. Race Discrimination and Migrant Domestic Workers: A Legal Loophole: Lisa
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Bekesi, L., 2016. Unequal Treatment in Certain Areas of Municipal Employment. Studia Iuridica
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Blanchard, J. and Rojas, F. A., 2018. Substance Abuse Policies on College Campuses: Is Practice in Line
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Petrovna, P.T. and et. al. 2017. Social Program Effectiveness and Employment: Evidence from
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Kun, A., 2018. The principle of ‘equitable assessment’in Hungarian labour law− How to make it
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Chamallas, M., 2018. Will Tort Law Have Its# Me Too Moment?. Journal of Tort Law. 11(1). pp.39-70.
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Ravichandran, S. And et. al. 2017. Hospitality managers' importance perceptions of human resource
practices related to employment of foreign workers in the United States. Journal of Human resources in
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Kilian, M., 2017. Germany: towards a legal profession of specialists?. Legal Ethics. 20(2). pp.271-277.
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