SHOP AND OFFICE EMPLOYEES (REGULATION OF EMPLOYMENT AND REMUNERATION) ACT

Arrangement of Sections

1. Short title.

PART I

Regulation of Hours of Employment in Shops and Offices and Health and
Comfort of Employees

2. Application of Part I of this Act.

3. Restriction of hours of employment.

4. Other employment to be taken into account.

5. Weekly holidays.

6. Annual holiday and leave.

7. Grant of holiday on public holidays.

7A. Grant of Holiday on the Full Moon Poya Day.

7B. Employment on Full Moon Poya Day.

8. Special provisions for persons employed during the period which includes midnight.

9. Intervals for meals.

10. Provisions relating to employment of women and persons under eighteen.

11. Provision of lighting and ventilation.

12. Provisions relating to residence and taking of meals.

13. Provision of sanitary conveniences and washing facilities.

14. Procedure for exemption of shops or offices from provisions of section 13.

15. Special provisions relating to prosecutions for breaches of section 13.

16. Provision of seats for female shop assistants.

17. Employer to furnish particulars of employment.

18. Records to be kept or exhibited.

PART IA

Maternity Benefits

18A. Application of this Part.

18B. Leave in consequence of pregnancy and confinement.

18C. Remuneration for period of leave in consequence of pregnancy or confinement.

18D. Work which is prohibited during and after pregnancy.

18E. Employment not to be terminated because of pregnancy or confinement or of illness in consequence thereof.

18F. No notice of dismissal to be given to female employee when she is on leave under this Part.

18G. Meaning of "confinement” "confined” and "viable foetus”.

18H. Leave under this part to be in addition to any holiday or leave under any other Part.

PART II

Payment of Remuneration

19. Time and manner of payment of remuneration.

PART III

Regulation of Remuneration

20. Definition of employee.

(A) DETERMINATION WITH CONSENT

21. Minister to direct Commissioner to endeavour to make a determination as to the minimum rate of remuneration for employees with consent of employers and employees.

22. Commissioner's determination as to the minimum rate of remuneration for employees.

23. Date on which Commissioner's determination shall come into force.

24. Repudiation of determination with consent.

(B) DETERMINATIONS BY TRIBUNALS

25. Constitution of Remuneration Tribunal.

26. Circumstances in which the Minister will authorise a Remuneration Tribunal to make a determination.

27. Duties and powers of a tribunal.

28. Publication of draft determination by tribunals.

29. Procedure for approval of determinations of tribunals by Minister.

30. Liability of employer to pay minimum remuneration.

30A. Employer liable to pay remuneration notwithstanding the change of name and ownership of business.

31. Method of calculation of minimum remuneration.

32. Employee performing two or more classes of employment.

33. Employee performing piece-work.

34. Employee waiting for employment on employer's premises.

35. Remuneration of employee who works for less than the normal working day or does not work at all on any day.

36. Non-able-bodied employee.

37. Non-application of determinations under this Part to persons employed in any trade or work to which Part II of the Wages Boards Ordinance has been applied.

38. Interpretation of determination of a tribunal.

39. Effect of tribunal's decision under section 38.

PART IV

Closing Orders for Shops

40. Closing orders.

41. Repealed.

42. Approval of closing orders.

42A. Closing order to prevail in case of conflict with other written law.

43. No shop to be opened in contravention of a closing order.

44. Application of closing order to shop where more than one business is carried on.

45. Restriction against carrying on trade or business after closing hour for shops.

PART V

General

46. Administration of Act.

47. Power of Commissioner to call for returns.

48. Power of a tribunal to summon witnesses.

49. Information given before a tribunal to be treated as confidential in certain cases.

50. Power of entry and inspection.

50A. Remuneration to be a first charge on assets of the business of a shop or office.

50B. Power of Commissioner or registered trade union to recover by suit money due to any employee.

50C. Recovery of remuneration where employer has failed to maintain any register or record.

OFFENCES

51. Offences.

52. Penalty for failure to pay remuneration.

53. Recovery of remuneration due to employees under this Act.

54. Obstruction of officers.

54A. Penalty for failure to maintain register, notice or record.

55. Offences in connection with notices or records under this Act.

56. Disclosure of information in breach of section 47(3) or section 49(2).

57. Dismissal of any person for giving information.

58. Immediate employer being himself in the employment of another person.

59. Liability of Manager and agent of employer for offences.

60. Where employer proves that some other person is guilty of the offence.

61. No offence committed by employer in certain cases where customer is served after closing hour.

62. Special provisions as to evidence.

63. Offences under this Act to be triable summarily.

64. Sanction of prosecutions.

65. Proof of order and determinations under Part III.

66. Regulations.

67. Expenses.

INTERPRETATION

68. Interpretation.

69. Exemption from application of Act.

70. Provisions of Act to be in addition to and not in substitution of other laws.

SCHEDULE.

7 of 1975,

19 of 1954,

60 of 1957,

28 of 1962,

18 of 1965,

5 of 1966,

26 of 1966,

12 of 1978,

53 of 1981,

36 of 1982,

32 of 1984,

44 of 1985.

AN ACT to provide for the regulation of employment, hours of work and remuneration of persons in shops and offices, and for matters connected therewith of incidental thereto.

[Date of Commencement: 9th August, 1954]

1. Short title.

This Act may be cited as the Shop and Office Employees (Regulation of Employment and Remuneration) Act.

PART I

Regulation of Hours of Employment in Shops and Offices and Health and Comfort of Employees

2. Application of Part I of this Act.

(1) The Minister may by Order declare that the provisions of this Part shall apply—

(a) to shops or to offices in such area or areas, as may be specified in the Order; or

(b) to all shops or to all offices in Sri Lanka.

(2) Every Order made under subsection (1) shall be brought before Parliament for approval. Every Order which is so approved shall be published in the Gazette and shall come into force on the date of such publication or on such later date as may be specified in such Order.

(3) Notwithstanding anything in any of the succeeding provisions of this Part, nothing in any such provision shall apply in relation to any shop or office situated in any area or to persons employed in any such shop or office, unless an Order is made as hereinbefore provided applying the provisions of this Part to shops in that area, or, as the case may be, to offices in that area.

3. Restriction of hours of employment.

(1) Subject to the provisions of any regulation referred to in subsection (3) and subject to the provisions of subsection (5), the normal period during which any person may be employed in or about the business of any shop or office—

(a) on any one day shall not exceed eight hours; and

(b) in any one week shall not exceed forty-five hours.

The period referred to in this subsection shall not include any interval allowed for rest or for a meal under any provision of this Act, or any interruption permitted by any regulation referred to in subsection (3).

[S 3(1) subs by s 2(1) of Law 7 of 1975.]

(2) Subject to the provisions of any regulation referred to in subsection (3), the period during which any person is employed in or about the business of any shop or office shall consist of one continuous period without any interruption other than such interval as may be allowed for rest or for a meal under any provision of this Act.

(3) Regulations may be made—

(a) prescribing the periods for which persons may be employed overtime in or about the business of any shop or office;

(b) varying any period mentioned in subsection (1) or prescribed under paragraph (a) of this subsection, as regards persons employed in or about the business of different classes of shops or offices or persons above or below a specified age or as regards different classes of such persons;

(c) prescribing the conditions subject to which persons may be employed overtime in or about the business of a shop or office;

(cc) prescribing the cases and the circumstances in which any employee who has been on leave or holiday on any day in any week shall be deemed, for the purpose of computing overtime, to have worked for the normal period for which he would have worked if he had not been on such leave or holiday;

[S 3(3)(cc) ins by s 2 of Act 60 of 1957.]

(d) prescribing the cases and the circumstances in which, and the conditions and restrictions subject to which, the continuity of the period mentioned in subsection (2) may be interrupted, otherwise than by, and in addition to, any interval for rest or a meal:

Provided, however, that no regulation shall be made authorising or permitting more than twelve hours to elapse between the time at which any person commences work on any day and the time at which he ceases work on that day.

In computing, for the purposes of the preceding proviso, the number of hours that have elapsed between the time at which any person commences work on any day and the time at which he ceases work on that day, no account shall be taken of any period of overtime work.

(4) No person shall be employed in or about the business of any shop or office in contravention of any provision of this section or of any regulation referred to therein which applies to that shop or office or to shops or offices of that class.

(5) The provisions of subsection (1) shall not apply to any person who holds an executive or Managerial position in a public institution and who is in receipt of a consolidated salary the initial of the scale of which is not less than Rs 6,720 per annum. Where any question arises as to whether any person holds an executive or Managerial position, such question shall be decided by the Commissioner and his decision shall be final and conclusive. (This scale has been subject to revision from time to time on the recommendations of the Salary Anomalies Committees.)

In this subsection, "public institution” shall have the same meaning as in section 24 of the Finance Act, No. 38 of 1971.

[S 3(5) ins by s 2(2) of Law 7 of 1975.]

4. Other employment to be taken into account.

No person who has, to the knowledge of any employer, 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.

5. Weekly holidays.

(1) Every person employed in or about the business of any shop or office shall, in respect of each week, be allowed one whole holiday and one half-holiday. Such holidays shall be so allowed with full remuneration if such person has worked for not less than twenty-eight hours, exclusive of any period of overtime work, during that week:

Provided that regulations may be made modifying the preceding provisions of this subsection in their application to persons employed in work of any specified class or description, by the substitution, for the period of twenty-eight hours or some shorter or longer period.

[S 5(1) subs see Gazette Entry No. 14,726/12 of 22.12.1966.]

(2) The holidays due under subsection (1) in respect of any week shall be allowed either in that week or in the week immediately succeeding:

Provided that the holidays so due in respect of any four consecutive weeks in any month may instead be, with the prior written sanction of the Commissioner, allowed in accumulation at any time in that month (one full holiday being so allowed in lieu of two half-holidays so due);

Provided further that the Commissioner shall not grant such sanction unless he is satisfied that it is necessary so to do by reason of the nature of the business or of unforeseen circumstances.

[S 5(2) am see Gazette Extra. 14,984/44 of 15.11.1971.]

(3) In respect of each day in any week on which a person has been on leave or on holiday with full remuneration allowed to him by the employer (whether in accordance with the requirements of section 6 or section 7 or Part IA or in excess of such requirements), that employee shall be deemed, for the purposes of subsection (1) of this section, to have worked for the normal period for which he would have worked if he had not been on such leave or holiday.

[S 5(3) am by s 3 of Act 60 of 1957.]

6. Annual holiday and leave.

(1) —

(a) In respect of the first year of employment during which any person has been continuously in employment in or about the business of any shop or office, that person shall be entitled to take and shall take—

(i) where his employment commences on or after the first day of January but before the first day of April, a holiday of fourteen days with full remuneration;

(ii) where his employment commences on or after the first day of April but before the first day of July, a holiday of ten days with full remuneration;

(iii) where his employment commences on or after the first day of July but before the first day of October, a holiday of seven days with full remuneration; and

(iv) where his employment commences on or after the first day of October, a holiday of four days with full remuneration,

and the employer shall allow such holiday and be liable to pay such remuneration.

(b) In respect of the second or any subsequent year of employment during which any person has been continuously in employment in or about the business of any shop or office, that person shall be entitled to take and shall take a holiday of fourteen days with full remuneration, of which not less than seven shall be consecutive days, and the employer shall allow such holiday and be liable to pay such remuneration.

(2) The holiday referred to in subsection (1) in respect of any year of employment shall be taken in the year immediately succeeding on days to be agreed upon by the employer and the employee.

(3) In respect of each year of employment during which any person has been continuously in employment in or about the business of any shop or office, that person shall, subject to the provisions of subsection (4) and to such conditions as may be prescribed, be entitled to take on account of private business, ill health or other reasonable cause, leave with full remuneration for a period or an aggregate of periods not exceeding seven days, and the employer shall allow such leave and be liable to pay such remuneration.

(4) —

(a) The leave to which a person is entitled under subsection (3) in respect of the first year of his employment may be taken in that year and shall be computed on the basis of one day for each complete period of two months' service.

(b) The leave to which a person is entitled under subsection (3) in respect of the second or any subsequent year of his employment may be taken in such year of employment.

(5) For the purposes of this section, the continuity of the employment of any person shall be deemed not to have been interrupted by reason of the absence of that person from work—

(a) on holiday or on leave, with full remuneration, in accordance with the provisions of this Act or of any other written law; or

[S 6(5)(a) am by s 4 of Act 60 of 1957.]

(b) with the permission or subsequent consent of the employer, whether with or without remuneration.

(6) Where the employment of any person employed in or about the business of a shop or office is terminated, such person shall be entitled to take and shall take before the date of such termination—

(a) the holiday with full remuneration, if any, to which he may be entitled in respect of the year of employment preceding that in which the termination occurs; and

(b) in respect of the period during which he has been continuously employed in the year of employment in which the termination occurs—

(i) a holiday, with full remuneration, of one day in respect of each complete month, if such period is less than ten months; and

(ii) a holiday of fourteen days with full remuneration, if such period is not less than ten months,

and such employer shall allow such holiday and be liable to pay such remuneration:

Provided, however, that where any such holiday cannot be allowed by reason that the period of notice of termination of employment is insufficient or the employment is terminated without notice, the employer shall pay full remuneration to such person in respect of each day on which a holiday should otherwise have been allowed.

(7) The fact that notice of termination of employment has been given by an employer or a person employed shall not prejudice the right of such person to take before the date of the termination of his service any leave to which such person may be entitled under the preceding subsections.

(7A) The Commissioner may, by notification published in the Gazette and in a Sinhala newspaper, a Tamil newspaper and an English newspaper circulating in Sri Lanka, fix, in respect of any class of shops or offices, a date to be the date of commencement of the year of employment for the purposes of this section; and

[S 6(7A) ins by s 4 of Act 60 of 1957.]

(8) In this section, the expression "year of employment”, with reference to any shop or office, shall—

(a) where that shop or office belongs to any class of shops or offices in respect of which the Commissioner has fixed a date under subsection (7A) mean the period of twelve months reckoned from that date, and

(b) in any other case, mean the period of twelve months reckoned from the first day of January of each year.

[S 6(8) subs by s 4 of Act 60 of 1957.]

7. Grant of holiday on public holidays.

(1) Every person employed in or, about the business of a shop or office shall be allowed a holiday with full remuneration on each of such days, being public holidays within the meaning of the Holidays Act, as are declared by the Minister, by Order published in the Gazette, to be holidays for the purposes of this section, so however that the number of days so declared shall not exceed nine.

[S 7(1) am by s 5 of Act 60 of 1957.]

(2) A person to whom the provisions of subsection (1) apply may, notwithstanding those provisions, be, with the prior sanction of the Commissioner, employed for a normal period of employment on any day declared to be a holiday for the purposes of this section, but in any such case that person shall instead be allowed a holiday with full remuneration on or before the thirty-first day of December next succeeding, or be paid remuneration for his employment on the day so declared to be a holiday at a rate which is double the rate at which such person is ordinarily remunerated for such employment on any day:

[S 7(2) am by s 5 of Act 60 of 1957.]

Provided, however, that the Commissioner shall not grant such sanction in relation to any person unless he is satisfied that a holiday cannot, without prejudice to the business in which he is employed, be allowed to him on the day so declared.

7A. Grant of Holiday on the Full Moon Poya Day.

Every person employed in or about the business of a shop or office shall be granted a holiday on a Full Moon Poya Day:

Provided however that in a case where a Full Moon Poya Day falls on a holiday allowed under section 7 of the Act or on a weekly holiday or on a weekly half holiday, no additional holiday shall be allowed to the employee in lieu of that Full Moon Poya Day.

[S 7A based on s 9 of Act 29 of 1971.]2

7B. Employment on Full Moon Poya Day.

Notwithstanding the provisions of section 7A a person employed in or about the business of a shop or office may be employed on a Full Moon Poya Day for a normal period of employment subject to the condition that he shall be paid not less than one and half times his normal daily rate of remuneration.

[S 7B based on s 9 of Act 29 of 1971.]3

8. Special provisions for persons employed during the period which includes midnight.

For the purposes of the application of the provisions of this Act in any case where a person is normally employed in or about the business of any shop or office for a period which continues from any time before midnight to any time after midnight—

(a) "day”, where it occurs in sections 3 and 4, and in the definition of "whole holiday”, shall be deemed to be the period of twenty-four hours reckoned from the time at which the period of the employment of that person normally commences;

(b) "half-holiday” means a day (as hereinbefore defined) on which that person is not employed for more than five hours, exclusive of any interval allowed for rest or a meal and any interruption permitted by any regulation referred to in section 3(3).

9. Intervals for meals.

(1) Every person employed in or about the business of any shop or office shall be allowed intervals for meals in accordance with the regulations in the Schedule.

(2) Regulations may be made varying all or any of the provisions in the Schedule as regards different classes of persons employed in or about the business of shops or offices or as regards persons employed in or about the business of different classes of shops or offices.

(3) Nothing in subsection (1) or subsection (2) or in the Schedule shall apply to any person employed in or about the business of a shop or office on any day on which the total period during which he is so employed does not exceed five continuous hours.

[S 9(3) subs by s 6 of Act 60 of 1957.]

10. Provisions relating to employment of women and persons under eighteen.

(1) A person who has not attained the age of fourteen years shall not be employed in or about the business of a shop or office.

(2) A person who has attained the age of fourteen years and who—

(a) being a male, has not attained the age of eighteen years, or

(b) is a female,

shall not be employed in or about the business of a shop or office before 6 am or after 6 pm on any day:

Provided, however, that—

(i) any female who has attained the age of eighteen years may be employed in or about the business of a hotel or restaurant for the period, or for any part of the period, between 6 pm and 10 pm;

(ii) any female who has attained the age of eighteen years may be employed in or about any prescribed work in a residential hotel before 6 am or after 6 pm on any day;

(iii) 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 or the period, between 6pm and 8 pm; and

[S 10(2) proviso para (iii) ins by s 9(1) of Act 32 of 1984.]

(iv) any male who has attained the age of sixteen years may be employed in or about the business of a hotel, restaurant or place of entertainment for the period, or for any part of the period, between 6 pm and 10 pm

[S 10(2) proviso para (iii) re-numbered as para (iv) by
s 9(2) of Act 32 of 1984.]

(3) Where in any prosecution for any alleged contravention of any provision of this section it is alleged that a person employed in, or about the business of a shop or office was under any specified age, and he appears to the court to be a person who, at the date of the Commission of the alleged contravention, was under the specified age. He shall, unless the contrary is proved, be presumed for the purposes of this Act to have been under that age at that date.

11. Provision of lighting and ventilation.

In every part of the premises of a shop or office in which persons are employed about the business of the shop or office, suitable and sufficient means of lighting and ventilation shall be provided and maintained the employer.

12. Provisions relating to residence and taking of meals.

(1) No person employed in or about the business of any shop or office shall be permitted or required by the employer to live or reside in the premises thereof:

Provided however that the preceding provisions of this section shall not apply—

(a) in the case of any person who is a member of the family of the employer and is maintained by him, or of any other person in respect of whom a permit in the prescribed form authorising such residence has been issued by the prescribed officer; or

(b) in the case of any person employed in or about the business of a residential hotel.

(2) Where any persons employed in or about the business of any shop or office take any meals in the premises of that shop or office, suitable and sufficient facilities for the taking of such meals shall be provided and maintained by the employer.

13. Provision of sanitary conveniences and washing facilities.

Save and except to the extent to which a certificate issued under section 14 is in force in respect of any shop or office, there shall be provided and maintained in the premises of every shop or office by the employer suitable and sufficient sanitary conveniences and washing facilities for the use of all persons employed in or about the business of that shop or office:

Provided that where persons of both sexes are so employed, separate conveniences and facilities as aforesaid shall be provided and maintained for the exclusive use of female employees.

14. Procedure for exemption of shops or offices from provisions of section 13.

(1) If any employer by whom persons are employed in or about the business of any shop or office furnishes to the satisfaction of the prescribed officer proof of—

(a) the fact that suitable and sufficient sanitary conveniences and washing facilities are available, within the prescribed distance from that shop or office, for the use of such persons; and

(b) such other circumstances or facts as may be prescribed,

such officer shall issue to such employer a certificate in the prescribed form exempting that shop or office from any or all of the provisions of section 13.

(2) Where the prescribed officer refuses to grant a certificate under this section, the refusal shall be communicated to the employer by notice in writing served on him.

(3) Every certificate issued under this section shall remain in force unless and until it is withdrawn under subsection (4), and where any such certificate is modified under that subsection, the certificate shall continue in force as so modified until it is so withdrawn.

(4) The prescribed officer may at any time by notice in writing served on any employer, and with effect from a date to be specified in such notice (which date shall not be less than three months from the date of service of the notice), withdraw any certificate issued under this section, or modify any such certificate in any manner specified by him in the notice.

(5) Any employer who is aggrieved by the refusal of the prescribed officer to issue a certificate under this section in respect of any shop or office or by the withdrawal or modification of any such certificate may appeal against such refusal, withdrawal or modification to the Magistrate's Court having jurisdiction over the place in which the shop or office is situated.

(6) Where any employer desires to appeal to the Magistrate's Court under the provisions of subsection (5), he shall, within ten days of the receipt by him of the notice refusing, withdrawing or modifying the certificate, file in such court a written statement of appeal setting out the grounds on which he is dissatisfied with such refusal, withdrawal or modification, and shall transmit a copy of such statement by registered post to the officer who refused, withdrew or modified the certificate; and the court shall, after giving the prescribed notice of the date of hearing to such officer, proceed to hear and determine the appeal and make such order thereon as to it may seem just and equitable in all the circumstances of the case.

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