Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Maternity Protection Convention (Revised), 1952 (No. 103) - Sri Lanka (Ratification: 1993)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

Referring to its previous comments, the Committee notes the discussion which took place in 2011 in the Conference Committee on the Application of Standards on the implementation by Sri Lanka of Convention No. 103. It observes that both the Worker and Employer members of the Conference Committee expressed the hope that the Government would give greater consideration to the aims and principles of the Convention within the framework of responsibility shared between the public authorities and society at large and amend its legislation in consultation with the social partners. The Government representative indicated that an intra-ministerial committee had been formed to study the discrepancies existing between the national legislation and the Convention and that its findings would be discussed by a high-level tripartite forum, the recommendations of which would then be tabled before the National Labour Advisory Council (NLAC) for endorsement. In its conclusions, the Conference Committee regretted that for a number of years no concrete action had been taken by the Government to advance effectively the solution of the numerous and long-standing problems in the application of the Convention. It expressed the firm hope that the Government would do all in its powers to undertake in the very near future legislative action with a view to ensure compliance of the national legislation with the Convention and advance effectively the solution of all outstanding issues. The Conference Committee also welcomed the Government’s decision to avail itself of the technical assistance of the ILO to achieve tangible progress in the application of the Convention and requested the Office to provide such assistance.

In its 2011 report, the Government manifested its commitment to engage in an inclusive process aimed at progressively bringing national law and practice in conformity with the requirements of the Convention. It approached the International Labour Standards Department of the ILO with a view to organizing a national tripartite workshop which will establish priorities for legislative and other action in the field of maternity protection necessary to overcome the difficulties in implementation and raise awareness among the tripartite constituents of the main principles underlying the Convention. The Committee expresses its support for the Government’s approach to engage in a constructive process aiming at ensuring full application of the Convention, in association with the social partners and with the technical assistance of the Office. The said tripartite workshop represents a good opportunity for elaborating a roadmap detailing the Government’s efforts aimed at addressing progressively all discrepancies between national legislation and practice and the Convention. The Committee therefore expresses the hope that the national tripartite workshop will take place in 2012 and expects the Government to specify in its next regular report due in 2013 the measures taken or contemplated with a view to ensuring compliance with the Convention with respect to the following points:

Article 3(3). Maternity leave. Compulsory post-natal leave of at least six weeks. For many years, the Committee has been stressing that, unlike the Convention, the national legislation does not establish a compulsory leave of at least six weeks after childbirth for all categories of workers covered by the Convention. The compulsory nature of part of the postnatal leave is aimed at preventing women, following pressures from their employer, from resuming work during the first six weeks following childbirth to the detriment of their health or that of their children. In its latest report, the Government states that maternity leave is regulated differently for the various categories of women workers. Shop and office employees are required to take 28 working days of maternity leave after childbirth (Section 18B, Shop and Office Employees Act No. 19 of 1954). Taking into account the weekly rest days and official holidays, the overall duration of postnatal maternity leave of this category of employees exceeds five weeks. Other private sector employees shall not be employed by their employer during a period of four weeks immediately following confinement (section 2, Maternity Benefits Ordinance of 1939) and public sector employees are granted 70 calendar days postnatal leave. The Government states that the need to raise the duration of the compulsory postnatal leave to at least six weeks necessitates a detailed discussion with trade unions and employers’ organizations and proposes to initiate such consultations in time to come. The Committee trusts that the Government’s next report will indicate the legislative measures taken to ensure compliance with this central provision of the Convention.

Article 3(2) and (3). Limitation on the length of maternity leave based on the number of children. Under section 3(1)(b) of the Maternity Benefits Ordinance a woman worker in the private sector having a third and subsequent child has reduced maternity leave entitlements (six weeks as opposed to 12) while the Convention provides for maternity leave of at least 12 weeks in each case, irrespective of the number of births. In its 2011 report, the Government indicates that the discussions within the Department of Labour and the Ministry of Labour and Labour Relations are taking place with a view to amending the national legislation so as to comply with the Convention and that the final decision will be forwarded to the tripartite NLAC to take suitable measures in the future. The Committee considers that, in order to secure the right to maternity leave to all women workers covered by the Convention, the measures taken by the Government should be based on the sound actuarial evaluations of the financial implications of the extension of maternity leave for third and subsequent child and reminds the Government of possibility to avail itself of the technical assistance of the Office in this regard.

Article 3(2) of the Convention. Minimum duration of maternity leave. In accordance with section 18B(2) of the Shop and Office Employees Act, women workers are entitled to 14 days prenatal and 28 days postnatal maternity leave whereas the minimum duration of maternity leave under the Convention is 12 weeks (or 84 calendar days). The Committee hopes that the discussions within the intra-ministerial committee and the NLAC will not fail to consider the concrete ways to bring the above legislation in line with the Convention.

Article 4(4) and (8). Cash and medical benefits. For many years, the Committee has been drawing the Government’s attention to the need to reform maternity protection with a view to providing benefits by means of a compulsory social insurance scheme or out of public funds. In Sri Lanka, contrary to Article 4(8) of the Convention, maternity benefits continue to be provided by the employer. During the Conference discussion in June 2011, both the employer and worker members pointed out to the Government that compulsory maternity insurance would improve the situation of women workers on the labour market and avoid their discrimination in the workplace resulting from protection mechanisms based on employer’s liability. The Conference Committee hoped that, notwithstanding the difficulties involved, the Government would undertake to replace progressively the direct employer liability system by a social insurance scheme and would initiate the necessary studies for this purpose, bearing in mind the need to avoid any adverse effect on the employment of women and on the enterprises with a high number of women workers. In its 2011 report, the Government stresses that all citizens, including women during pregnancy, up to childbirth and thereafter, are granted free medical services through special clinical arrangements. It would, however, be difficult, according to the Government, to provide cash benefits by means of public funds or government-sponsored social insurance. The Committee wishes to point out that the difficulties invoked by the Government would be largely outbalanced by the social and economic advantages brought by the establishment of a social insurance mechanism to cover maternity benefits. It therefore invites the Government to undertake an actuarial feasibility study necessary for setting up a maternity insurance scheme and to report on the results of such a study and the measures envisaged in this respect.

Article 4(1) (in conjunction with Article 3(4), (5) and (6)). Entitlement to cash benefits during supplementary leave. Neither the Shop and Office Employees Act nor the Maternity Benefits Ordinance contain provisions extending the period of maternity leave in case of illness medically certified arising out of pregnancy or confinement. The Government indicates in its report that, for the employees in the private sector, the Maternity Benefits Ordinance provides security of employment during the prenatal and postnatal stages (section 10A), while public employees are entitled to an extension of maternity leave on a half paid or unpaid basis. The Government agrees however that, with a view to covering any situation of illness arising out of pregnancy or childbirth, the national legislation needs to be amended and hopes to discuss this matter within the NLAC taking into account the implications on the employment of women. The Committee hopes that the discussions within the intra-ministerial committee and the NLAC will permit it to determine the most adequate ways to guarantee cash benefits during any extensions of maternity leave due to delayed childbirth (Article 3(4)) and during a supplementary leave period (to be decided nationally) in case of pregnancy- or childbirth-related complications (Article 3(5) and (6)). The Committee considers that such measures should be based on the sound actuarial evaluations of the financial implications of the extension of maternity leave in these cases.

Article 1. Application of the Convention to women workers in plantations and to domestic workers. The Government indicates that Sri Lanka adequately covers workers in agricultural occupations where a labour relationship exists, stressing at the same time that in practice most rural agricultural workers are self employed. Action needs however to be taken with a view to repealing redundant provisions relating to alternative maternity benefits in the Maternity Benefits Ordinance, in consultation with the social partners. Discussions on this respect between the Department of Labour and the Ministry of Labour and Labour Relations are currently taking place and the final decision will be forwarded to the NLAC so as to take suitable measures in the future. The Committee trusts that the Government will ensure that the said redundant provisions in the Maternity Benefits Ordinance are repealed in the very near future.

With regard to domestic workers, the Government indicates that, as Sri Lanka remains a developing country, the application of the Convention to domestic workers seems rather difficult. It will however forward this issue to the tripartite NLAC and suitable measures will be taken in the future. The Committee hopes that the roadmap, which the Government intends to establish with a view to ensuring compliance with the Convention, will include concrete steps towards extending maternity protection measures to domestic workers.

Article 5. Nursing. The Government indicates that the issue of ensuring nursing breaks to shop and offices employees will be discussed by the NLAC so as to reach a compromise. The Committee trusts that the Government, in consultation with the NLAC, will put forward proposals for amending the relevant legislation in order to guarantee breaks from work for the purpose of nursing, counted as working hours and remunerated accordingly, in accordance with this provision of the Convention.

Article 6. Protection against dismissal during maternity leave in the public sector. The Committee recalls that the Establishment Code does not protect public employees against dismissal or a notice of dismissal during maternity leave. The Government indicates that there are no reported incidents of government sector employees being dismissed during the maternity period. This issue will however be discussed further with line ministries to get detailed information on the manner in which this provision is applied in practice. The Committee points out that, to apply Article 6 of the Convention, the Establishment Code must ensure that public employees may not be dismissed during maternity leave nor receive notice of dismissal expiring during such leave and requests the Government to keep it informed of measures taken or envisaged to ensure conformity with this provision of the Convention.

In view of the numerous questions raised by the application of the Convention in Sri Lanka, the Committee welcomes the initiative of the Government to seek tripartite agreement aimed at ensuring better implementation of the Convention. The Committee hopes that the Government will undertake without further delay a thorough study of the state of maternity protection in Sri Lanka and to elaborate a legislative agenda ensuring that women workers could really enjoy the rights and benefits guaranteed to them by the Convention. The Committee notes in this respect that Sri Lanka’s Decent Work Country Programme (DWCP) for the period 2008–12 sets the objective of enhancing labour administration and promoting equitable employment practices and specifically requests ILO’s assistance to focus on elaborating strategies to expand the outreach of social security schemes. The Committee strongly advises the Government to integrate maternity protection into this Programme as an essential component of a comprehensive strategy focusing on the extension of social security.