Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Sri Lanka (Ratification: 1995)

The Committee notes the comments of the Ceylon Workers Congress in a communication of 8 July 2008, the comments submitted by Lanka Jathika Estate Workers’ Union (LJEWU) in a communication of 11 July 2008, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008, concerning issues previously raised by the Committee. Furthermore, the ITUC refers to the arrest of strikers in the education sector and also indicates that several trade unionists were abducted and interrogated by the Government on suspicion of collaborating with insurgent groups. The Committee requests the Government to provide its observations on the ITUC’s comments.

Article 2 of the Convention. Exclusion of certain workers. In its previous comments, the Committee had trusted that the Government would take the necessary measures to ensure that judicial officers are guaranteed the right to establish and join organizations of their own choosing, both under the law and in practice. The Committee notes the Government’s indication that judicial officers have their own associations and are satisfied with this arrangement, which grants them the right to deal with the Government, their ministries and their departments to resolve issues relating to conditions of employment. In respect of salaries, the Government further states that judicial officers and public service trade unions may make representations and submit claims for salary increases to the Salaries and Cadre Commission, which was established in 2005 to determine the salaries of public officers at all levels. The Committee notes this information.

Minimum age. The Committee recalls that in its previous comments, it had noted the discrepancy between the minimum age for admission to employment and the minimum age for trade union membership and had pointed out that the minimum age for trade union membership should be the same as the minimum age for admission to employment. The Committee notes the Government’s statement that a proposal initiated by the ILO–IPEC Sri Lanka programme to increase the minimum age for employment to 16 years – the same minimum age as for trade union membership – is being pursued. The Committee requests the Government to indicate any developments in this regard.

Organizing in export processing zones (EPZs). In its previous comments, the Committee had requested the Government to take the necessary measures to guarantee that trade union rights can be exercised in normal conditions in this sector. The Committee notes that according to the Government, organizations are not banned in EPZs and workers therein enjoy the right to organize and bargain collectively. The Committee further notes the Government’s indication that 11 trade unions are currently operating in EPZs, and that 10 per cent of the workforce in that sector are union members.

Articles 2 and 5. Public servants. Previously, the Committee had requested to be informed of the progress made on the amendments to the Trade Unions Ordinance mentioned by the Government to ensure that organizations of Government staff officers may join confederations of their own choosing, including organizations of workers in the private sector, and that first-level organizations of public employees may cover more than one ministry or department in the public service. The Committee notes that, the Government reiterates that: (1) the matter has been given priority under the overall labour law reforms by the subcommittee appointed by the National Labour Advisory Council (NLAC); and (2) the National Plan of Action for Decent Work in Sri Lanka, which has already been presented to the Cabinet of Ministers, gives priority to the amendments to the Trade Union Ordinance. The Government further states that the Labour Law Reform Committee has since examined the proposed amendment and made recommendations to the NLAC; the matter is now under serious consideration by the Ministry of Public Administration and Home Affairs, and follow-up action is being taken by the Ministry of Labour Relations and Manpower. The Committee expresses the hope that the amendments to the Trade Unions Ordinance mentioned by the Government will be adopted in the near future and requests the Government to indicate the progress made in this respect.

Article 3. Dispute settlement machinery in the public sector. In its previous comments the Committee had noted that the Industrial Disputes Act, which provides for conciliation, arbitration, industrial court and labour tribunal procedures, did not apply to the public service. The Committee notes the Government’s indication that a mechanism for dispute prevention and settlement in the public sector was being developed by the Ministry of Labour Relations and Manpower and the Ministry of Public Administration and Home Affairs, and that technical assistance from the ILO had been sought in this regard. A draft document concerning the dispute settlement mechanism had also been drafted, but an English version of the said document was not yet available. Recalling that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State, the Committee trusts that the public service dispute settlement mechanism referred to by the Government will be developed in conformity with this principle. It requests the Government to indicate the progress made in this respect, and to transmit a copy of the draft mechanism document once an English version is available.

Compulsory arbitration. In its previous comments, the Committee recalled that it had expressed concern at the broad authority of the minister to refer disputes to compulsory arbitration and had requested the Government to indicate the measures taken to ensure that workers’ organizations can organize their programmes and activities without interference by the public authorities. Furthermore, it had noted that under section 4(1) of the Industrial Disputes Act, the minister may, if he or she is of the opinion that an industrial dispute is a minor dispute, refer it by an order in writing for settlement by arbitration to an arbitrator appointed by the minister or to a labour tribunal, notwithstanding that the parties to such dispute or their representatives do not consent to such reference, and under section 4(2), the minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement. The Committee notes that the Government indicates, in this regard, that sections 4(1) and 4(2) were intended to provide safeguards against strikes that are likely to seriously affect the operation of the industry concerned, and hence production and productivity and, in consequence, the national economy. The Government adds that in practice, however, compulsory arbitration is seldom imposed without the consent of the trade union. While noting the Government’s indications, the Committee recalls that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure, make it possible to prohibit virtually all strikes, or to end them quickly; such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). In these circumstances, the Committee once again requests the Government to amend sections 4(1) and 4(2) of the Industrial Disputes Act, so as to ensure that any reference of labour disputes to compulsory arbitration may only occur: (1) at the request of both parties to the dispute; (2) in the case of essential services in the strict sense of the term; and (3) in the case of public servants exercising authority in the name of the State. The Committee requests the Government to indicate all developments in this regard.

Article 4. Dissolution of organizations. The Committee had previously requested the Government to take the necessary measures to ensure that, in all cases where an administrative decision of dissolution of a trade union is appealed to the courts, the administrative decision will not take effect until the final decision is handed down. The Committee notes the Government’s indication that this matter has been referred to the Labour Law Reform Committee for review. The Committee trusts that the Trade Unions Ordinance will soon be amended so as to ensure that administrative decisions of dissolution are suspended pending their appeal in court. It requests the Government to indicate any progress made in this respect.