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DateLine Friday, 2 November 2007

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Questions and answers

Problems with meters at petrol filling stations

Question: As a businessman I travel a lot. During these long distance travel mostly outstation, I have to top at various petrol sheds. It is my experience that some of these petrol sheds cheat their customers by setting the meter to their advantage. I too have been cheated on several occasions.

Please let me know what steps I can take against such filling stations.

B. Anura, Bangadeniya.

Answer: You can bring this matter to the attention of the Department of Measurements Units, Standard and Services, to Ceylon Petroleum Corporation and also to the Consumer Affairs Authority.

Legal Aid Commission has set up a Consumer Protection Desk at its Head Office. You can either lodge a complaint direct to the Consumer Affairs Authority, CWE Secretariat Building, Vauxhall Street, Colombo 2. Tel. No. 2393577, 2445897 or 2399148.

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Provision to ask for maintenance for disabled child?

Question: I know of a family who has a disabled child. The father of the child is a businessman and he is neglecting this child. The mother and the child are helpless. I want to know whether there is any provision to ask for maintenance for this child.

P. Kusuma, Battaramulla.

Answer: Under the Maintenance Ordinance Amended Act No. 37 of 1999, there is provision to ask for maintenance to a disabled child from their parents. Under this Act the Court will look at the circumstances of the case. In this regard the paternity has to be established. Today the DNA tests provide such facility.

An application for maintenance may be made - (a) where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring.

The application for maintenance may be made to the Magistrate’s Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made resides. If you wish to file a maintenance case you can visit one of our Legal Aid Commission Centres islandwide or our Disabled Unit at the Head Office at Colombo.

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Law circles in schools

Question: We are made to understand that the Legal Aid Commission has organised several awareness programmes among schoolchildren. It is useful in our day to day life. We are keen to become lawyers in the future. Therefore we would like to have law circles in our school. Please let me know the procedure to create a law circle in our school.

Duminda, Mawila.

Answer: You have to discuss your need with your school principal. Thereafter you have to get together and form a society in your school. At the same time you have to send a letter to the Head of the School Programme Desk, Legal Aid Commission requesting for a Law Circle to be formed in your school.

On receipt of your letter, one of our Legal Aid lawyers in your area will guide you to form a law circle in your school.

The main objective of forming law circles in schools is to create awareness among the school children regarding day to day law including humanitarian laws, such as Elders’ Law, Human Rights Law, Consumer Protection Law, Disabled Law, Children’s Law, Domestic Violence Law, etc.

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Possibility of bringing business partner to courts?

Question: I am a Sri Lankan working in Qatar. I have got a problem and willing to have some legal advice as I have no way of meeting. I was running a garment factory about three years before with a friend of mine.

Due to some misunderstanding with my friend, I pulled out from the business. I submitted a letter to my friend mentioning my unhappiness and gave notice to release me from the partnership. The building we were occupying was a leased one and I spoke to the owner of the building and also gave me a copy of letter.

My business partner agreed verbally to settle all the dues to the owner of the building. Recently the owner of the building through his lawyer sent a letter asking huge amount as arrears of rent and other utility charges. My problem is:

(a) As at present I am not in Sri Lanka, how can I handle this problem.

(b) What will happen if he files a case.

(d) Any chance if I could not settle this payment will this go to my

wife to settle.

(e) Is there any possibility of bringing my partner to courts.

(f) Can I ask the landlord to keep my land as a full settlement and release me from this problem. If so what step I have to take?

Niyas Uvaiz. Sent by email.

Answer: You refer to a partnership business where you are a partner. It is not possible to advise you without examining the partnership agreement.

If you are not in Sri Lanka, you will have to appoint a Power of Attorney to handle your matters. You have stated that you have received a letter from a lawyer asking you to pay a huge amount as arrears of rent, damage to machinery, etc.

You will have to seek the assistance of a lawyer to reply the letter you have received. When a case is filed, your partner can be noticed to be present in court. If a case is filed you will have to retain a lawyer to appear on your behalf.

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Special salary increment

Question : I am an employee of a semi-Government Board (B) serving from 1981 August. I joined this Board after resigning from a semi-government Corporation (A) where I worked from 1977 to 1981 July.

In August 1981 the Government granted a special salary increment to the employees who did not take part in the July 1980 General strike.

As the trade union to which I was attached at the Corporation (A) did not take part in this strike I also did not strike work. But when this increment was granted I was attached to the Board (B) and the increment was not given to me saying that during the strike (July 1980) I was not serving at B.

Although I forwarded a letter from A certifying my not taking part in the strike, B did not consider it. Due to this my fellow workers at B went up by one increment and from that day onwards I am adversely affected at every promotion and every salary revision. My parallel workers are now getting around Rs. 2,000 more than me.

Am I entitled for redress and if so what should I do? My appeals to B at all levels just fell into deaf ears.

Attanayake, Battaramulla

Answer: Your complaint is in relation to non-payment of the special salary increment to the employees who did not participate in the July 1980 general strike. This is not a statutory payment. You are advised to make a complaint to the Assistant Commissioner of Labour who has jurisdiction of the area where you are employed.

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How many days of medical leave is available per annum

Question: I am working as HRM in a Private Limited Company with 20 employees. Please let me know how many medical leave is available per annum.

Also please let me know for employees to get annual or casual leave, how many days notice should they give to the HRM.

A.F. Hussain, Dehiwela

Answer: The Law does not make any provision for medical leave. The law does not stipulate any period of notice for availing of casual or annual leave. Casual leave can be availed of any time depending on the circumstances for which leave is required. Annual leave is availed of by mutual agreement with the Employer.

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Claim of EPF/ETF contributions

Question: I am 35 years of age, married and not employed at present. Please advise me through your valuable Legal Aid Page on the following matter:-

For the last 15 years I have been in employment at four different firms for short periods, such as 2 years, 2 1/2 years, 1 year and 4 years respectively. At all these places contributions to EPF/ETF had been deducted from my salary and remitted to the relevant authorities. I have 3 different EPF numbers issued while employed at these firms. I have never combined my earlier number with that of the subsequent employers.

My problem is -

(a) Is there any way to get all the contribution made in my name as I am a housewife and not employed now?

(b) If I happen to get employed again, how can I get all these contributions recorded under my new EPF/ETF number?

I would prefer an early reply through your Legal Aid Page.

A.S. Elvin, Nugegoda

Answer: You have worked in four different firms for short periods. Accordingly to you, EPF contributions have been made by the firms.

You will have to perfect the Form ‘G’ under the EPF Act and connect all your accounts. Similarly you will have to write to ETF Board, Nawala giving details of your periods of employment and name of Company, EPF numbers and ask them to connect your accounts.

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Non-payment of EPF/ETF

Question: I joined a press (Offset-printing) at Kadawata on 03.11.2005 on an initial salary of Rs. 5,000 all inclusive as a clerk.

On 01st February 2006 I was granted a salary increment of Rs. 1,500 totalling Rs. 6,500 from then. In January 2007 an increase of Rs. 500 was given thus totalling to Rs. 7,000. The allowance granted to private sector employees, Rs. 1,000 from May 2007 was not granted to me (by Gaxette Notification). If the allowance had been granted, my salary from May 2007 would have been Rs. 8,000.

1. Appointment was oral. It is same to all other employees.

2. No attendance register was signed. This was introduced in January 2007 to press workers.

3. Salaries were prepared in an unofficial pay sheet to all employees including me and paid the actual salaries without acknowledgements. But in the wages books, Wages Board scales were shown and signatures from others excluding me.

4. My EPF/ETF contributions were not recorded. Employer did not contribute despite repeated appeals.

5. My services were terminated by them from 09.07.2007. The last day I worked was on 07.07.2007.

Please advise me on the above matters.

L.A.W. L. Arachchi. Kadawatha.

Answer: You are advised to make a complaint to the Assistant Commissioner of Labour who has jurisdiction over the area where the Printing Press in which you were employed is situated in relation to non-payment of EPF. Time-bar does not operate for recovery of EPF. You are entitled to EPF from 03.11.2005, the date you commenced employment.

Regarding non-payment of ETF, you may make a complaint to Enforcement officer ETF Board, Nawala Road, Nawala.

Regarding your termination of employment, you will have to make an application to the Labour Tribunal which has jurisdiction over the area where the Printing Press in which you were employed is situated at the time your services were terminated.

This application should be made within (03) three months of the date of termination of your employment according to the Industrial Disputes (Amendment) Act No. 11 of 2003. According to your letter, your services were terminated on 07.07.2007. You should have filed action in the Labour Tribunal on or before 06.10.2007.

In January 2007, you were in receipt of a salary of Rs. 7,000. You are therefore not entitled to the allowance of Rs. 1,000 granted to private sector employees from 01.05.2007 by a gazette Notification.

You are entitled to the Budgetary relief Allowance of Rs. 1,000 from 01.08.2005 according to the Budgetary relief Allowance of Workers’ Act No. 36 of 2005. You can complain to the Asst. Commissioner of Labour of the area where you were employed if you were not paid this allowance of Rs. 1,000.

Introduction - Victims of trafficking

US Ambassador in Sri Lanka Robert O’ Blake’s reported announcement to support an anti-trafficking programme in Sri Lanka should be considered a welcome initiative.

The law enforcement officials who are to undergo training in counter trafficking would function as a bulwark against this menace which has brought Sri Lanka a notorious name among the countries who produce comparatively large number of victims of trafficking consisting of women and children.

The trafficking in Sri Lankan law was defined only in 2006 in the amendment No. 16 of 2006 Penal Code. According to the definition (S360C) whoever buys, sell or barters any other person for money or other consideration or instigate, promote, facilitate or induce any other to buy, sell or barter persons is guilty of trafficking.

The offence of trafficking also includes recruitment, transportation, transferring, harbouring or receiving victims of trafficking by threat, fraud or force or deception.

The exploitation of vulnerable persons for forced compulsory labour, salvery, servitude, removal of organs, prostitution or sexual exploitation or for any illegal act would be guilty of the offence of trafficking.

Any person who perpetrate any of the above acts on a child (under 18 years of age) with or without consent would be changed for the offence of trafficking and if convicted by a court of law the perpetrator could be sentenced to imprisonment from 2 to 20 years.

Eventhough belated the Legal Aid Commission welcomes this new amendment as observed from the complaints received by the Commission, the trafficking of children and women have increased exponentially during the last few decades.

Un bating armed conflict and breakdown of the rule of law in certain parts of the country, general decline of law and order in other parts, consequent to the increase in acts of impunity has created a fear psychosis to permeate less powerful sectors of the society.

This in turn has created fertile backdrop for the increase in the incidents of trafficking in this country.

As we have seen in the past, mere enactment of laudable laws by Parliament alone is insufficient unless law enforcement agencies implement the anti-trafficking laws without delay.

The training given by USAID in this respect would be a crucial factor. The trafficking of children and persons are also related to another unique Sri Lanka phenomenon, disappearances.

There is no penal law for punishment of perpetrators of forced disappearances except under the penal offences of abduction and kidnapping in which the victims of offences would be found.

The persons who are forced to disappear may often be trafficked. The Law fails to extend trafficking overseas. This would be an imperative amendment as many young victims of paedophile are trafficked abroad under the guise of adoption.

Sri Lanka ranks as a leading destination for paedophile tourism. Ten years ago London telegraph reported that 10-15 thousand children are trafficked to the tourists resorts in this country.

These numbers would have at least doubled by now after 10 years. If one were to visit beach resorts in the South West coastal areas, one can have a visual observation of this epidemic.

Powerful organized crime groups receiving political patronage are behind these trafficking and hoteliers and the police are powerless.

Sri Lanka regularly boasts about the US$ 2.8 Billion earned by our estimated 1.5 migrant workers abroad of whom 85% are female domestic workers.

According to complaints received by Migrant Workers Desk of the LAC, many of these hapless women are trafficked to servitude and sexual exploitation. Horror stories about the fate of these women including organ transplant attempts abroad have been reported. No one wants to kill the hens that lay the golden eggs.

The United Nations enacted a Convention in 1990 on Migrant Rights but it took 12 years until July 2003 to collect the 20 signatories needed to implement the Act.

By virtue of the size of the case load of domestic workers, Sri Lanka has been elected to chair the Committee of the Convention since 2003, but Sri Lanka has even ignored the treaty obligation to educate Migrant Workers about their Rights. Among the victims of trafficking are ill-founded asylum seekers.

The theme of trafficking asylum and illegal immigrants would be a topic of a separate note.

S.S. Wijeratne
Email:[email protected]

Essay contest awards ceremony

The Legal Aid Commission would be awarding cash prizes and certificates to the winners of the islandwide LAC essay competition in Sinhala, Tamil and English on November 16 at 2.30 p.m. at the Central Bank Auditorium, Rajagiriya.

The subject of this year’s essay is ‘Law and eradication of harmful drugs’ and over 1,000 Advanced Level students from schools islandwide participated in the competition.

The chief guest at the awards ceremony would be Minister of Education Susil Premjayantha and the guests of honour would be Minister of Justice Dilan Perera and the Chairman of Sri Lanka Telecom Asoka de Silva, Attorney-at-Law. Over 40 awards and prizes would be presented amidst musical events conducted by various schools.

November 16th is also celebrated as the International Day of Tolerance and to commemorate this day, an art competition will be conducted by the LAC. Schools islandwide will participate with their artistic creations on the theme ‘Prevention of violence against women’.

The winners of the art competition would also be awarded prizes and certificates while their creations would be displayed at the foyer of the Central Bank Auditorium.