Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments made by the Employers’ Federation of Ceylon (EFC) and the International Organisation of Employers (IOE) in a communication dated 18 August 2011.

The Committee also notes the Government’s response to the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011. The Committee further notes the comments submitted by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 6 June 2012, and by the ITUC dated 31 July 2012, which relate to a number of matters already raised by the Committee, as well as violations of the Convention, in particular serious allegations relating to acts of intimidation against trade union activists and leaders, arrests and detention of workers following a strike, as well as police violence during workers’ demonstrations, including in one case recourse to firing that led to the death of a worker and hundreds injured. Recalling that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of workers’ organizations, the Committee requests the Government to provide its observations on the abovementioned allegations, and to take the necessary measures to ensure that the use of excessive violence in trying to control demonstrations is prohibited, that arrests are made only where serious violence or other criminal acts have been committed, and that the police are called in a strike situation only where there is a genuine and imminent threat to public order.

The Committee further notes that the Government indicates in its report that a special meeting of the National Labour Advisory Council took place on 1 February 2011 to discuss the implementation of the National Workers’ Charter of 1995 (the national labour policy of Sri Lanka) and reflect on how laws and practice should be developed, in particular in relation to freedom of association issues. The Government adds in its report that this meeting aimed at reaching consensus among the social partners to effectively address the issues related to the implementation of the Convention, as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135). Taking note of the summary of the proceedings of this meeting which the Government attaches to its report and of the indication that a tripartite subcommittee was formed for further discussions, the Committee expresses the hope that this process will bring positive results, including progress towards the amendment of the labour legislation, and that the comments made by the Committee for a number of years will be fully taken into account in this regard. It requests the Government to provide information on the progress made in its next report.

Article 2 of the Convention. Minimum age. In its previous observation, noting that the minimum age for admission to employment was 14 years and that the minimum age for trade union membership was 16 years (section 31 of the Trade Unions Ordinance), the Committee recalled that the minimum age for trade union membership should be the same as the minimum age for admission to employment. The Committee notes that the Government reiterates that it is seeking to increase the minimum age for employment to 16 years. The Committee requests the Government to indicate in its next report any developments in this regard.

Articles 2 and 5. Public servants. Previously, the Committee had underlined the need to amend section 21 of the Trade Unions Ordinance in order to ensure that organizations of government staff officers may join confederations of their own choosing, including those which also group together organizations of workers from 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 indicates in its report that action will be initiated to negotiate with the ministry concerned to reach a consensus on this issue. The Committee reiterates its hope that amendments to section 21 of the Trade Unions Ordinance will be adopted in the near future, in order to ensure that trade unions in the public sector may join confederations of their own choosing, and that first-level organizations of public employees may cover more than one ministry or department in the public service, and requests the Government to indicate the progress made in this respect in its next report.

Article 3. Dispute settlement machinery in the public sector. In its previous observation, the Committee noted that the Industrial Disputes Act – which provides for conciliation, arbitration, industrial court and labour tribunal procedures – did not apply to the public service (section 49 of the Industrial Disputes Act), that a mechanism for dispute prevention and settlement in the public sector was being developed with technical assistance from the ILO, and that a document concerning the dispute settlement mechanism had been adopted. Noting the absence of any new information in this regard in the Government’s latest report, the Committee expresses the hope that progress will be made in the near future towards the establishment of a mechanism for dispute prevention and settlement in the public sector, which would fully respect the principles recalled in the Committee’s previous observations. It requests the Government to provide information in this regard in its next report.

Compulsory arbitration. In its previous observation, the Committee 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 once again reiterates in its report that sections 4(1) and 4(2) were intended to provide safeguards against strikes that are likely to seriously affect the national economy, and that in practice, however, arbitration was seldom imposed without the consent of the trade union. The Committee is bound to reiterate its request to the Government to amend sections 4(1) and 4(2) of the Industrial Disputes Act, so as to ensure that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only possible: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee requests the Government to indicate any developments in this regard in its next report.

Article 4. Dissolution of organizations. In its previous observation, the Committee had 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 (in accordance with sections 16 and 17 of the Trade Unions Ordinance), the administrative decision will not take effect until the final decision is handed down. The Committee notes that the Government reiterates its previous comments on the procedure for the withdrawal or cancellation of the registration of a trade union, including the appeal procedures against the decisions of the registrar, but does not confirm that the decision of the registrar will not take effect until the final decision of the appeal procedure is handed down. The Committee is therefore bound to reiterate its request to the Government to take the necessary measures to ensure that administrative decisions of dissolution are suspended pending their appeal in court, and to indicate any progress in this respect in its next report.

The Committee is raising other points in a request addressed directly to the Government.