Sri Lanka - Maternity protection - 2011

11 November 2011

Act to Regulate the Employment of Women, Young Persons and Children No. 47 dated 7 November 1956, as amended up to Act No. 24 of August 2006(Consolidated version)

Ordinance to Prohibit the Employment of Females on Underground Work in Mines No. 13 dated 16 April 1937

Maternity Benefits Regulations, the Maternity Benefits Ordinance No. 32 of 1939 as amended up to Act No. 43 of 1985.

Maternity Benefits Ordinance, dated 28 July 1941. Consolidated text amended up to Act No 43 of 1985

Shop and Offices Employees Act No. 19, dated 9 August 1954, as amended up to act No. 44 of 1985

CONSTITUTION

Ordinance to Make Provisions for the Safety and Welfare of Workers in Factories

Health Services Statute N8. 8 of 2000

(Approved by the Government of Sri Lanka 1993). Office of the Minister of State of Women’s Affairs. Colombo, Sri Lanka.
This is an annex to the draft bill on the National Commission for women.
It was impossible to have access to the draft bill or to the women’s charter in any of the official websites of the Government of Sri Lanka.

Ministry of Employment

Official Website of the Government of Sri Lanka

Parliament of Sri Lanka

ISSA

National Institute of Labour Studies

Chulani Kodikara, The National Machinery for the Protection and
Promotion of Women¿s Rights in Sri Lanka

Ministry of Child Development and Women’s Empowerment

Family Health Bureau

Maternity protection under the Maternity Benefits Ordinance covers women workers (other than women employed in or about the business of a shop or an office or a woman whose employment is of casual nature) employed with wages in any trade, whether such wages are calculated by time or by work done or otherwise and whether the contract of employment or service is expressed or implied, oral or in writing.

According to the previous legal provisions, further workers implicitly excluded are: domestic workers, as well as agricultural workers.

Women employed in or about the business of a shop or office are covered for maternity protection by the Shops and Offices Employees Act.

A woman worker may, prior to her confinement, give notice to her employer that she expects to be confined within a month from the date of such notice.

A woman worker who has been confined shall, within one week of her confinement, give notice to her employer of the date on which she was confined and, for the purpose of ascertaining the number of days she will be permitted to absent herself from the employment, specify the number of children she has.

An employee in a shop or an office is entitled to maternity leave upon giving notice to her employer that she expects to be confined within 14 days from the date specified in the notice.

2 weeks up to including the day of her confinement and 10 weeks immediately following that day, if the confinement results in the issue of a live child, and such woman has, at the date of such confinement no child or has one child.
6 weeks, that is to say two weeks up to and including the day of her confinement and four weeks immediately following that day if the confinement results in the issue of a child, and such woman has, at the date of such confinement, two or more than two children;
if the confinement does not result in the issue of live child.(Maternity Benefits Act)

28 days commencing on the date of her confinement(Shops Act)

Twelve weeks.

For employees in shops or offices, the length of maternity leave is 42 days, of which 14 days before and 28 days after confinement.

There is not extension provided neither in case of sickness due to confinement nor in case of multiple births.

Not provided

Not provided.

Not provided.

Not provided.

Maternity benefits under the Maternity Benefits Ordinance is an entitlement for women workers (other than women employed in or about the business of a shop or an office or a woman whose employment is of casual nature) employed with wages in any trade, whether such wages are calculated by time or by work done or otherwise and whether the contract of employment or service is expressed or implied, oral or in writing.

According to these legal provisions, domestic workers and agricultural workers are categories of workers further excluded.

A woman may nominate another person to whom maternity benefits are to be paid on her behalf. Women employed in or about the business of a shop or office are entitled to maternity benefits by the Shops and Offices Employees Act.

No woman shall be entitled to maternity benefit unless she has worked under the employer from whom she claims such benefit for not less than one hundred and fifty days within the period of one year immediately preceding the date of the notice that women may give to the employer before confinement.
A woman worker who has been confined shall, within one week of her confinement give notice to her employer of the date on which she was confined and for the purpose of ascertaining the number of days she will permitted to absent from the employment specify the number of children she has on such date on which she was confined.

The employer of a worker covered by the Maternity Benefits Ordinance shall pay maternity benefits to the worker for the period of maternity leave (twelve weeks, of which two weeks before and ten after confinement for the first and second surviving child, or six weeks of which two before and four after confinement for the third and each subsequent surviving child and in case the child is stillborn). If the woman has worked any number of days during the two weeks before confinement, she is entitled to maternity benefits for that number of days after the ten or four weeks of postnatal leave.

Employees covered by the Maternity Benefits Ordinance:
Six-sevenths of the wages that a worker would have been entitled to if she had worked (for workers entitled to be paid at a time-rate), or six-sevenths of the average daily wages earned by a worker during the period of six months immediately preceding her confinement (for workers entitled to be paid at a piece-rate). Where the rate of maternity benefit for any day is less than one rupee, such rate shall be one rupee.

Employees covered by the Shop and Offices Employees Act:
100 per cent of the remuneration.

The employer.

Where the Commissioner has issued to any employer a written certificate which states that such employer is an employer who has made arrangements for providing for alternative benefits for women workers employed on the employer’s estate, such employer shall provide, in lieu of the maternity benefits described above, those alternative maternity benefits to every woman worker who is resident on such estate, and to every woman worker who is not resident on the estate and who has, prior to her confinement, given notice to the employer that she wants to recieve those alternative maternity benefits. The alternative benefits to be provided by an employer on his/her estate shall be: (a) the use, for the confinement, for a period of not less than ten days of a maternity ward or a lying-in-room, approved by the Commissioner; (b) the services of a mid-wife at the confinement; (c) food for the labourer during the period she remains in the maternity ward or the lying-in-room; and (d) the payment of cash benefits to the labourer. A worker who refuses to accept the alternative benefits shall not be entitled to the "normal" maternity benefits.

Not provided neither for workers in shops nor for workers in factories.

Not provided neither for workers in shops nor for workers in factories.

Not provided neither for workers in shops nor for workers in factories.

The Provincial Department of Health services shall:
*establish(except teaching hospitals, and hospitals established for special purpose)General Hospitals. District Hospitals, Peripheral Units. Rural Hospitals, Maternity Homes, Central Dispensaries. Ancillary to Maternity Homes, Central dispensaries. Branch dispensaries and Health Centers.
* establish and maintain offices of the medical officers of health and institutions required for the purposes of providing Maternity and Child Care.

In the website of the Family Health Bureau are establish as objectives of the program ensuring care during pregnancy, delivery and post partum period.
1. Provision of comprehensive pre-pregnancy care.
2. Provide quality domiciliary and institution based maternal care.
3. Improve nutritional status of pregnant and post-partum women.
4. Ensure skilled attendance at delivery
5. Improve the quality of domiciliary post natal care.

Unless otherwise advise by the Secretary, all essential treatment for the people in the province, provincial health services, prevention of diseases and ail health services shall be provided free of charge.

The employer of a woman in any trade (covered by the Maternity Benefits Ordinance) shall, if she is nursing a child under one year of age, allow her, in any period of nine hours, two nursing breaks at such times as she may require. Each break shall, where creche or other suitable place is provided by the employer to the worker for the purpose of nursing her child, be not less than 30 minutes, and, where no creche or other suitable place is provided, be not less than one hour. The nursing breaks shall be in addition to any break provided for meals or rest under any written law. The nursing breaks shall be regarded, for the purposes of the worker’s employment, as time during which she has worked in her employment.

The nursing breaks shall be regarded, for the purposes of the worker’s employment, as time during which she has worked in her employment.

Not provided.

The employer of more than a prescribed number of women workers in any trade shall establish and maintain, in accordance with regulations made in that behalf, a creche for children under five years of age, and shall allow any woman worker who has in her care a child or children under the age of five years of age, to leave such child or children in the creche during the hours when she is required to work for her employer.
It has been impossible to have access to further regulations regarding the number of workers needed in a working place to establish this creche.

Employment of women at night in industrial undertakings is subject to the following conditions: no woman shall be compelled to work at night against her will; a prior written sanction of the Commissioner of Labour should be obtained; no woman who has been employed during the hours of 6 a.m. and 6 p.m. shall be employed after 10 p.m.

Industrial undertakings are:
undertakings engaged in working mines or quarries, or in extraction of minerals from the earth.
undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed;
undertakings engaged in ship building or related to electricity power:
undertakings engaged in building and civil engineering work, constructional repair, maintenance, alteration or demolition work.

Every woman who works at night shall receive not less than one and half times her normal payment; female wardens shall be appointed to see to the welfare of women workers working at night; every woman worker working at night shall be provided with rest rooms and refreshments by the employer; no woman shall be employed for more than ten days on night work, during one month.

However, these provisions do not apply to women holding responsible positions of a managerial or technical character; to women employed in health and welfare services who are not ordinarily engaged in manual work; and to an industrial undertaking in which only members of the same family are employed. With reference to the employment of women, "night" means at least 11 consecutive hours including the period between 10 p.m. and 5 a.m.

Any female who has attained the age of eighteen years may be employed in or about the business of a shop or office for the period, or for any part of the period, between 6 p.m and 8 p.m

In factories, the overtime employment of a woman or young person shall be subject to the following conditions:
a. the total hours worked by the woman or young person, exclusive of intervals allowed for meals and rest, shall not exceed ten on any day.
b. the period of employment for the woman or young person shall not exceed twelve hours in any day and shall not in the case of young persons extent outside the hours specified in this part for the beginning and end of the period of employment.
The provisions of this part relating to continuous employment and intervals for meals or rest shall apply to overtime employment in like manner as they apply to overtime employment in like manner as they apply to other employment.

In shops, no person who has, to the knowledge of any employer , has been previously employed on any day in or about the business of the shop or office of any other employer or in a factory, shall be employed in or about the business of the shop or office of the first mentioned employer on that day for a period longer than will, together with the time during which he has been so previously employed on that day, complete the number of hours provided by or prescribed under section 3 as the maximum period during which that person shall be employed on any one day.

A young person shall not be employed in a factory on a Sunday or on such other week day as may be prescribed in lieu of Sunday, nor shall a young person employed in any factory on any other day of the week, be employed on Sunday or such prescribed week-day about business of the factory or in any other business carried on by the occupier.
There are not provisions for pregnant workers.
The foregoing provisions shall not apply to women holding responsible positions of management who are not engaged in manual work.

Not provided.

Not provided.

A pregnant worker (covered by the Maternity Benefits Ordinance or the Shop and Office Employees Act) must not be employed or be caused or permitted to be employed on any such work that may be injurious to her or her child during the three months before the expected date of confinement, as specified in a notice to the employer. Such employment is also prohibited during the three months following confinement.
No person under the age of 18 years shall be employed in any hazardous occupation.

Not provided specially provided to evaluate risks of work for pregnant women, the chief factory inspecting engineer may assess if all necessary measures to guarantee the safety and health of workers in the working place have been adopted.
Where a Factory Inspecting Engineer is of opinion that the employment of any young person(>14-<18) in a factory or in any particular process or kind of work in a factory is prejudicial to his health or the health of other persons, he may serve written notice thereof on the occupier of the factory requiring that the employment of that young person in the factory or in the process or kind of work, as the case may be, be discontinued after the period named therein, not being less than one day nor more than seven days after the service of the notice;and the occupier shall not continue after the period named in the notice to employ that young person, unless the authorized factory doctor has, after the service of the notice, personally examined the young person and certified that he is fit for employment.

Not provided specially provided to evaluate risks of work for pregnant women, the chief factory inspecting engineer may assess if all necessary measures to guarantee the safety and health of workers in the working place have been adopted.

Not especially provided for pregnant workers.

Not provided.

No woman, of any age, shall at any time perform or be employed on any underground work in any mine, or enter or remain in the underground parts of any mine for the performance of any work therein. However, the Minister may, by regulation, exempt from this prohibition all or any of the following groups: women holding position of management who do not perform manual work; women employed in health and welfare services; women who in the course of their studies spend a period of training in the underground parts of a mine; or any other women who may occasionally have to enter the underground parts of a mine for the purpose of a non-manual occupation.

A woman or young person shall not clean any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, and shall not clean any part of any machine if the cleaning thereof would expose the woman or young person to risk of injury from any moving part either of that machine or of any adjacent machinery.

General provisions are established to guarantee health and safety in working places in work involving arduous work, these measures are applicable to all workers and not only to pregnant or female workers.

General provisions are established to guarantee health and safety in working places in work involving exposure to chemical, biological or physical agents, these measures are applicable to all workers and not only to pregnant or female workers.

In every room in which female persons are employed in the serving of customers in any shop, there shall be provided for the use of such persons seats behind the counter, or in such other position as may be suitable for the purpose, in the proportion of not less than one seat every three female persons employed in that room.

Chapter III of the Constitution establishes the right to equality.
All persons are equal before the law and are entitled to the equal protection of the law.
No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds:
Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any public corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office:
Provided further that it shall be lawful to require a person to have sufficient knowledge of any language as a qualification for any such employment of office where no function of that employment or office can be discharged otherwise than with a knowledge of that language.
No person shall, on the grounds of race, religion, language, caste, sex or any one such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion.
Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons.


The State shall in all fields of society take appropriate measures, including the promulgation of legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

The State shall take all appropriate measures to ensure the same rights and the same opportunities in employment in the public, private and informal sectors at all levels of employment without gender based discrimination.

In addition, in order to prevent discrimination against women on grounds of marriage or maternity and to ensure their effective right to work, the State shall take appropriate measures to ensure that the granting and enjoyment of maternity leave and benefits shall be considered a fulfillment of parental and community responsibilities and to work towards the granting of parental leave and to prohibit and impose sanctions for dismissal on the grounds of marriage, pregnancy or of maternity leave.

Not prohibited

The employment of a woman worker (covered by the Maternity Benefits Ordinance or the Shop and Office Employees Act) shall not be terminated by reason only of her pregnancy or of any illness consequent on her pregnancy or confinement.

Where an employer is prosecuted for the offence of acting in contravention of the provisions on discriminatory dismissal due to pregnancy or confinement, the burden of proving that the employment of the woman was terminated by reason of some fact other than her pregnancy or confinement or any illness consequent on her pregnancy or confinement shall be upon the employer.

When a woman worker (covered by the Maternity Benefits Ordinance or the Shop and Office Employees Act) absents herself from work in accordance with the provisions on maternity protection, it is unlawful for her employer to give her notice of dismissal during such absence or on such a day that the notice will expire during the absence.