LABOUR LAW

LWU 4323/ LLU 6715

Development of Labour
Law in Sri Lanka
 Before the advent of the British - Agricultural
economy based on paddy cultivation

After British advent - Export economy based

on plantation agriculture.

In 1828 and thereafter- immigration of the

Indian labourers to work on estate plantations

intervention of the State as a means of

Historical achieving social justice
Development
Beginning of the labour legislations
 ‘An Ordinance for the better
Regulation of Servants,
Labourers Journeymen and Contract of Hire and
Artificers under contracts of Service Ordinance No.
Hire and Service and of their 11 of the 1865.
Employers, No. 5 of 1841.

1845

Early 1841
1865
Labour
Legislations Ordinance No. 14 of 1845
relating to written contracts for
the Hire and Service of Pioneers
and others in the employment
of certain government
departments
Legislations to control and regulate Indian
labour

The Estate Ordinance No. Ordinance No. Indian Industrial

Labour (Indian) 9 of 1909 43 of 1921 Immigrant Disputes
Ordinance No. (amendment to Labour (Conciliation)
13 of 1889 the Estate Ordinance No. Ordinance No.
Labour (Indian) 1 of 1923 3 of 1931
Ordinance)

1889 1909 1921 1923 1931

 Industrial Disputes Act No. 43 of 1950

The Shop and Office Employees Act No. 66

of 1938
The Wages Boards Ordinance,

The Workmen’s Compensation Ordinance

New labour No. 19 of 1934
laws The Trade Unions Ordinance of 1935

The Employee’s Provident Fund Act,

The Termination of Employment (Special

Provisions) Act No. 45 of 1971
Contract Of
Employment
Employer and employee relationship
under the common law.

Developed in an era of laissez-faire.

Law would give effect to what the employer and

employee agreed unless their agreement was
illegal or contrary to public policy.

Considered the contract of employment as a

voluntary agreement entered into between parties
of equal bargaining strength
Reasons for the changes in the nature of
the contract

 Collective bargaining consequent upon the rise of

trade unionism .

 Replacement of the laissez-faire state with the modern

welfare state.

 Establishment of the special system of courts.

 The modification of the common law and its
consequent impact on the contract of employment

 legislative activity regarding safety, health in factories, hours

of work, holiday and remuneration, maternity benefits
superannuation and employment of women and children
and etc..
 Impact of labour law on termination of employment.

United Engineering Workers Union V. Devenayagam (1967) 69

NLR 289
“The common law of master and servants has fallen into
disuse” -Lord Devlin
  The common law and the terms of
contracts largely determine whether a
relationship of employer and employee
exists. This is subject to the statutorily
provisions which have been enacted from
time to time.

The relevance  Subject to statutorily and judicial

of the contract modifications, the contract of
of employment determines the terms and
employment conditions of employment between the
in the modern parties.
labour law
 In the area of termination the contract is
relevant though not conclusive.
Contract of Service and Contact for
Service
Contract of Service -
Master and Servant relationship
(A contract to serve another for wage)

Contract for Services -

Employer and Independent Contractor
relationship
(A contract to produce a thing or results for
an agreed price. )
Cont...

Servant/Employee -

• any person employed by another to do work for him on

the terms that he is to be subject to the control and
directions of his employer in respect of the manner in
which his work is to be done. - J.W Salmond

Independent Contractor

• person who is employed to do certain work but he has a

right to exercise his own discretion as to the time and
manner of doing the work; he is bound by the terms of
the contract and not by the orders of his employer.
Tests which determines the
existence of contract of
service

Control Test

Integral Test

Economic Reality Test

Multiple Test
 The Control Test
 The traditional common law test which distinguish a contract of service
from a contract for service.

 Mersey Dock and Harbour Board v. Coggins (1947) AC1

Lord Porter,
“ the ultimate question is not what specific orders , whether any
specific orders were given, but who is entitled to give the orders as to
how the work is to be done”

 Gibbs v. United Steel Co. Ltd (1957) 2 AER 100

What is important to determine who has the right of control at the
moment. The person who enjoys the right of control presently over the
employee shall be considered as the employer
 Cont..
 Closely linked to the principles of vicarious liability.

If a master was to be held liable for the acts of his

servants on the basis of vicarious liability , the master
should have the right to control the manner in which the
workman is to perform his duties.

Denham v. Midland Employers Mutual Assurance Ltd.

(1955)2 All ER 561
 Limitations of the Control Test
 Modern complexities of industry

 Where the employee exercises professional skills or perform work of a

highly technical nature
Eg: Hospital Cases
Cassidy v. Ministry of Health (1951) 1 AER 574
The Trustees of Frazer Home v. Olney
(1940) 45 NLR 73

 Statutory extensions of the meaning of ‘ workman’.

Eg; The Wages Board Ordinance (Sec. 64)
Shop and Office Employees’ Act (Sec. 68)