By Nabiya Vaffoor
The labour force is the main part of any prestigious project, but the lives of labourers aren’t as prestigious as the projects they work on, to earn a living. With daily basic minimum wage and higher risk of injuries and diseases such as asthma, a labourer’s life is not easy. But none of this compares to signing up for a contract which clearly puts their life at risk just to earn extra money.
Bandara’s story
Janaka Bandara is a 40-year-old labourer from Galle who worked at a famous residential project site in Colombo. He met with an accident on site on 31 May when a concrete beam fell on one of his legs causing serious injuries. Bandara was immediately rushed to the nearest hospital. Getting discharged on 2 June, Bandara visited the site the next day to get compensation for his injuries and request medical leave following his doctor’s orders to rest his leg for at least for two weeks.
Reporting to his immediate supervisor, the site’s safety manager, Bandara was shocked to find out that he was not entitled to any compensation for his injury. Looking for justice, Bandara lodged a complaint at the nearest Police station on 4 June. After negotiations with the Police the construction site supervisors agreed to sign for 15-days of paid leave as the least they can do, since Bandara was appointed under a sub-contractor.
However, after returning to his hometown Bandara was informed not to report to the site again as he had been laid off.
Probing further into this incident we found that the main contractor of this site gets employees for the project through a Sri Lankan agency and through a Chinese sub-contractor, those employed through the sub-contractor didn’t have a specific agreement. But after Bandara’s injury, the sub-contractor informed all employees hired under the sub-contract to sign an employee agreement with the main contractor.
The ones who did not sign the said contract were laid off and had to find their own way back home during the COVID-19 travel restrictions since their accommodations at the work site had been withdrawn.
Dubious Contract
The terms and conditions on the said confidential contract follow as:
1. All health safety and environment measures and site rules should be followed on site.
2. Main contractor will not be responsible for the monthly salary, daily wages, and daily food expenses paid by the sub-contractor.
3. In case an accident/incident happen due to unavoidable situation, no local supervisor will take responsibility; the employee itself bares the responsibility.
4. The above mentioned sub-contractor pay’s the employee the full salary paid for the said designation/job done. Therefore, the sub-contractor does not take responsibility for PPE, hospital fees and daily food expense.
5. If there is any issue the employee should solve it with the sub-contractor company and get a solution, the main contractor will not intervene.
After speaking to some labourers from this site, Ceylon Today also found out that none of those who work under the sub-contractor knows the exact name of the company that hired them.
They weren’t provided any agreement or a letters of appointment when they were hired. Besides, even the national identity copy that was taken as proof was submitted to the main contractor’s safety officer on site and the work identity card only had the name of the main contracting company.
Even to solve or negotiate any problem on site they do not have a representative who can speak the local language. Only one representative of the sub-contractor was appointed per site who is also a foreign national who does not speak the local language. The employees who weren’t informed of any of these terms and conditions when they were hired were suddenly forced to sign such contract. Those who didn’t were laid off and the ones who did had no choice.
To find out the actual necessity of such agreement we also contacted the main contractor’s safety manager of this site.
“These labourers get hired by the sub-contractor in unofficial ways. The representatives of the sub-contractor rarely visit the site, it is always us who have to negotiate or deal with whatever that goes on at this site. Either they were appointed officially by the agency under the main contractor or unofficially by the sub-contractors representatives. Though we supervise them the main contractors aren’t bound to take responsibility pay compensation or what-so-ever. But some of these labourers do not understand this and take it too far; to the Police and such, that’s why we had to have them sign such contracts. These labourers aren’t aware that the sub-contractor pays them a few hundreds more just to get rid of all the employers’ responsibilities. They risk their own safety and comforts looking for a few hundreds of raise in their daily wage. Even these foreign sub-contractors supervisors/representatives are sly. They unofficially appoint labourers so that they can refrain from paying the local agency who supplies manpower to the construction site as we do. They do not even appoint a local supervisor to take care of their labourers,” he added.
Legality
To find solutions according to Sri Lankan Law, Ceylon Today contacted Attorney-At-Law Swasthika Arulingam.
“There is no labour law preventing the worker from entering into an employment contract with either the main contractor or the sub-contractor. Once you enter into an employment contract it may appear on the face of the contract that the contracting party is the employer. But Sri Lankan Courts have considered other factors in the past such as who pays the salaries, the statutory deductions, who controls the work and who the worker is reporting to etc. when determining who the employer is,” said Arulingam responding to our question whether the main contractor or the sub contractor may exclude such liability when it comes to a construction project.
Further, Arulingam also confirmed that employment contracts can have clauses limiting the liability of one or the other party. “However, when a workplace injury happens whoever is considered an employer by Courts or the Labour Department will be ultimately held liable for the injury,” she said.
When we inquired who is responsible for ensuring the safety of local employees if the sub-contractor that they work for is a foreign entity, Arulingam mentioned that it doesn’t matter whether the employer is a Sri Lankan or a foreign entity, under the labour laws of Sri Lanka an employer whether local or foreign can be held liable for labour law violation.
When asked whether the Labour Department has any specific mechanism to inspect the safety of local labourers who work under foreign companies, Arulingam confirmed that the Labour Department has a huge role to play.
“If the employer refuses to pay compensation to the employee as per the law, the employee can notify the Labour Commission who can commence an inquiry and determine the compensation to be paid. The Law pertaining to injuries at a Construction site is covered under the Workmen’s Compensation Ordinance (No:19 of 1946, An ordinance to provide for the payment of the compensation to workmen who are injured in the course of their employment),” she added.
Explaining the recent incident mentioned in the article Ceylon Today also inquired whether the employee will be left clueless since they aren’t aware of their actual employer and it might be a problem when requesting compensation or whatsoever regarding their safety.
“It doesn’t matter, according to labour laws once the complaint is lodged under the Labour Department or at the Labour Tribunal Sri Lanka, the inquiries will focus on facts such as who supervises the employee, who pays their monthly salary officially and furthermore relatable facts and which exact employer is in charge,” she added.
We also spoke with Commissioner General Labour B.K. Prabath Chandrakeerthi, to learn the Labour Department’s role in such situations. Chandrakeerthi confirmed that there is almost nothing that they can do if the labourer has already signed the employer’s inequitable contract.
“It is indeed illegal to try to get rid of the liability towards an employee’s life. If such cases on inequitable contracts/agreements we have the power to probe it if the employee or any individual complaints about it before signing, but it is off our limits if the employee has signed the contract already,” he added.
However, speaking with Arulingam on Chandrakeerthis’s response, she noted that there is still a possibility for the labourer to file a complaint if the employer terminating them for disagreeing on inequitable contracts/agreements.
“If the labourer was terminated for unfair reasons they can file a complaint at the Labour Department or at the Sri Lanka Labour Tribunal within six months and it will be inquired. If they were in a situation where the employer neglects paying compensation for their injuries or medical expenses the labourer should make sure to file the complaint immediately within one month,” she added.
Colombo is where half of Sri Lankan population earns their living. With upcoming development projects most of them are labourers who work for minimal daily wage. But it’s still questionable whether we have a proper system to confirm the safety for the most of them.
