IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for mandates in the nature of Writs of Certiorari and/or Mandamus under Article 140 of the Constitution.

The Insurance Association of Sri Lanka Secretariat Office, CA/WRIT/628/2021 No. 143 A, Vajira Road, Colombo 5.

Petitioner Vs.

1. Assistant Commissioner of Labour (The Registrar of Trade Unions)

Trade Unions Divisions, Department of Labour, Labour Secretariat, No. 41, Kirula Road, Colombo 5.

2. Life Insurance Agents Association C/o W. C. T. A. Weerasinghe, 2^nd Floor, Gasnawa Road, Tholangamuwa.

3. Insurance Regulatory Commission of Sri Lanka Level 11, East Tower, World Trade Center, Echelon Square, Colombo 01. Respondents Before : Sobhitha Rajakaruna J.

Dhammika Ganepola J.

Counsel : Nigel Hatch PC with Siroshni Illangage for the Petitioner.

Chaya Sri Nammuni DSG with M. Fernando SC for the 1st Respondent.

Nagananda Kodithuwakku for the 2nd Respondent.

Malaka Palliyaguru with Sanjeewa Ranaweera for the 3rd Respondent.

Argued on : 11.01.2023 Written Submissions: Petitioner - 22.02.2023

1st Respondent - 09.03.2023 2nd Respondent- 22.02.2023 3rd Respondent- 22.02.2023 Decided on : 29.05.2023 Sobhitha Rajakaruna J.

The primary issue which needs to be resolved in the instant Application is whether the determination of the Assistant Commissioner of Labour-1^st Respondent registering the 2^nd Respondent Association as a Trade Union is lawful. The said Association is comprised with life insurance agents as its members. The Petitioner is seeking, inter alia, for a writ of Certiorari quashing the decision contained in letter dated 28.10.2021, marked ’P5’, by which the 1^st Respondent has refused to cancel his determination to register the above Trade Union.

The 1^st Respondent affirming an affidavit submits that she has decided to register the 2^nd Respondent Association as a Trade Union as per the provisions of the Trade Union Ordinance No. 14 of 1935 (’Ordinance’). She alleges that;

a) she was satisfied that the 2^nd Respondent Trade Union was ’an Association or a combination of workmen’ falling within the meaning of the said Ordinance, b) the interpretation of the term ’workmen’ in the Ordinance is wide enough to encompass the members of the 2^nd Respondent Trade Union, i.e. Insurance Agents, c) there is no statutory provision which outright prohibits and/or prevents her from recognizing insurance agents as ’workmen’ under the Ordinance.

The Petitioner’s main contention is that there is a stringent and separate statutory legal regime that governs insurance agents to that of workmen/employees and insurance agents are prohibited in law from being workmen/employees. The Petitioner asserts that under the law a trade union can only be formed and registered by workmen/employees and thus, the insurance agents being independent contractors cannot in law form and/or join and/or register a trade union under the Ordinance as they are not ’workmen’ under the said Ordinance.

The 3^rd Respondent who associates with the submissions made on behalf of the Petitioner contends that the insurance agents are independent contractors and not workmen/employees of the insurers or brokers with whom they are registered, in terms of the Regulations of Insurance Industry Act No. 43 of 2000 (as amended) and Rules and Determinations made thereunder.

Initially, the Court needs to examine whether the members of the 2^nd Respondent Association come within the definition of ’workman’ in the said Ordinance. It can be seen that various verbal or written contracts exist between employers and employees but all such employees/workmen cannot fall into the category of the ’workman’ defined in different statutes. If the workman fall into such definition, generally he/she may be entitled to the benefits under the respective statutes as well as under other Acts which provide statutory benefits in the labour law regime. Similarly, it needs consideration whether the ’insurance agents’ collectively can