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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Sri Lanka (Ratification: 1972)

The Committee 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 matters already raised by the Committee, as well as allegations of infringements of the Convention, in particular numerous allegations of acts of anti-union discrimination. The Committee requests the Government to provide its observations on these comments.

The Committee also 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, stating in particular that the Industrial Dispute Act provides for mandatory collective bargaining, which they consider is contrary to the essence of the Convention, and that this piece of legislation is discriminatory in that it only sets out unfair labour practices on the part of the employers and not on the part of the workers or their organizations. The Committee requests the Government to provide its observations on these comments.

The Committee 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 and collective bargaining 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 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), 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 tripartite 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.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government to take the necessary measures to ensure that legislation prohibiting acts of anti-union discrimination is coupled with effective and expeditious procedures and sufficiently dissuasive sanctions to ensure their application.

• -Sufficiently dissuasive sanctions. The Committee notes with interest that the Government indicates in its report that Industrial Disputes (Amendment) Act No. 39 of 2011 has increased the amount of the fine provided for in cases of anti-union discrimination from 20,000 (approximately US$367) to 100,000 rupees (approximately US$1,835).
• -Effective and expeditious procedures. Noting that in practice only the Department of Labour can bring cases concerning anti-union discrimination before the Magistrate’s Court and that there are no mandatory time limits within which complaints should be made to the Court, the Committee had previously requested the Government to indicate whether trade unions had the capacity to bring their grievances directly before the courts, and to take measures in consultation with the social partners to guarantee that short time periods for the examination of the anti-union discrimination cases by the authorities would be established. The Committee notes that the Government indicates in its report that: (i) the opportunity of granting trade unions the right to bring anti-union discrimination claims directly before the courts has been discussed on a tripartite basis on a number of occasions and that no consensus was reached on this matter; (ii) a circular dated 29 April 2011 was addressed by the Commissioner General of Labour to all officers of the Department of Labour, providing guidelines on the procedure to be respected when receiving a complaint of unfair labour practice, including deadlines, and, in particular, that complaints should be enquired within 14 days upon receipt; and (iii) delays in dealing with the complaints were due to time consumed in the collection of the necessary evidence for a case to be filed with the court. Stressing once again that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice, and observing that, according to the ITUC’s comments, numerous acts of anti-union discrimination occur in practice, the Committee requests the Government to take the necessary measures to ensure the effectiveness and expeditiousness of the procedures detailed in the new guidelines, and to provide information on the number of cases of anti-union discrimination examined by the courts and the results thereof. The Committee further requests the Government to take the necessary measures to ensure that workers who are victim of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also invites the Government to continue to discuss, on a tripartite basis, the possibility of granting trade unions the right to bring anti-union discrimination cases directly before the courts.

Article 4. Measures to promote collective bargaining. In its previous observation, the Committee requested the Government to indicate the measures taken by the Social Dialogue and Workplace Cooperation Unit (SDWC), as well as the measures taken under the auspices of the National Policy for Decent Work, to promote collective bargaining. The Committee notes with regret that the Government does not provide information on this matter in its report. The Committee is therefore bound to reiterate its request that the Government provide information on progress achieved to promote collective bargaining, including on the result of the measures taken by the SDWC and those taken in furtherance of the National Policy for Decent Work.

Export processing zones (EPZs). In its previous observation, as regards the need to promote collective bargaining within the EPZ sector, the Committee noted the information provided by the Government according to which 40 per cent of EPZ enterprises have employees’ councils that have bargaining rights, and that some of them were in the process of concluding collective agreements. The Committee also noted that, according to the ITUC, employees’ councils were bodies funded by the employer without workers’ contributions – thus giving them an advantage over trade unions which require membership dues – and that employees’ councils were promoted by the Board of Investment as a substitute for trade unions in EPZs. The Committee notes that the Government indicates in its report that Trade Unions’ Facilitation Centres have been established in three EPZs, with a view to facilitating private meetings between workers and their representatives. The Government further indicates that the Board of Investment is vigilant that the formation or functioning of employees’ councils does not undermine the formation or functioning of trade unions. The Government adds that complaints in this regard can be submitted to the Commissioner General of Labour, to the National Labour Advisory Council and to the Board of Investment. Given the apparent difficulties with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs, the Committee requests the Government to provide information in its next report on specific measures taken to address these difficulties. The Committee also requests the Government to ensure that employees’ councils do not undermine the position of trade unions, in particular in relation to their right to collective bargaining, and to indicate any developments in this regard in its next report.

Representativeness requirements for collective bargaining. In its previous observation, the Committee had noted that, under section 32A(g) of the Industrial Disputes Act, no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workmen on whose behalf the trade union seeks to bargain. It subsequently requested the Government to ensure that if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members. The Committee notes that, in their comments, the IOE and the EFC express the view that it is important that the bargaining agent on behalf of the workers has sufficient representative strength to bargain with the employer and indicate that all major trade unions of the country have no problem in keeping the 40 per cent threshold. The Committee notes, however, that the LJEWU states that due to the multiplicity of trade unions in the country it is extremely rare that the 40 per cent threshold is met. The Committee also notes that the Government indicates that there is no restriction for small trade unions to negotiate or intervene in matters relating to their members, and that there is no consensus amongst the trade unions on this issue. The Committee therefore requests the Government to continue to discuss, on a tripartite basis, the need to ensure in the legislation that, if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members, and to indicate the progress made in this regard in its next report.

Article 6. The right to collective bargaining in the public service. In its previous observation, the Committee noted that, as of 31 December 2008, there were 1,933 registered trade unions out of which 1,130 were public officers’ unions representing 1.2 million public employees. The Committee also noted that the procedures regarding the right to collective bargaining of public sector workers do not provide for genuine collective bargaining, but rather establish a consultative mechanism – with perhaps some elements of arbitration – under which the demands of public service trade unions are considered, while the final decision on salary determination rests with the Cabinet of Ministers. The Committee notes with regret that the Government does not provide information on this matter in its report. The Committee is therefore bound to reiterate its request that the Government take the necessary measures to recognize and promote civil servants’ right to collective bargaining, as long as they are not engaged in the administration of the State, and to indicate any developments in this regard in its next report.

Finally, as regards the establishment of a mechanism for dispute prevention and settlement in the public sector, the Committee refers to its comments made in its observation under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).