Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations from IndustriALL Global Union (IndustriALL) received on 31 August 2015, concerning matters being raised by the Committee. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014, which concern matters addressed by the Committee, as well as the Government’s comments thereon. The Committee further notes that, in its report, the Government addresses the issues raised by the Lanka Jathika Estate Workers’ Union (LJEWU) in its 2012 observations. The Committee notes the Government’s comments on the observations of the Employers’ Federation of Ceylon (EFC) and the International Organisation of Employers (IOE) of 2011. The Committee also notes the observations of the IOE received on 1 September 2015, which are of a general nature.

The Committee notes the Government’s comments on the observations of the ITUC of 2012, which do not respond to the serious allegations of intimidation, arrest, detention and suspension of trade union activists and workers following a strike in an export processing zone (EPZ), as well as police violence during a workers’ demonstration in an EPZ, including 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 comments on the above 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.

In its previous comment, the Committee had noted the Government’s indication that the National Labour Advisory Council (NLAC) decided, on 1 February 2011, to set up a tripartite subcommittee to further discuss the implementation of the national labour policy and reflect on how laws and practice should be developed, in particular in relation to freedom of association and collective bargaining issues. The Committee had expressed the hope that this tripartite process would bring positive results. The Committee notes that the Government states that both the employer and the worker side have submitted proposals in respect of the amendment of the Industrial Disputes Act relating to the application of the Convention, that the proposals were discussed without any consensus being reached, and that discussions will be pursued at the subcommittee level and at the NLAC. It also notes the indication of IndustriALL that the decision of the NLAC on 7 March 2011 to set up a tripartite committee for the Free Trade Zones has not been implemented so far. The Committee requests the Government to provide information on any developments with regard to the establishment or working of the abovementioned tripartite forums and firmly hopes that these tripartite mechanisms will contribute to achieve progress towards the amendment of labour legislation, taking fully into account the comments made by the Committee for a number of years.

Article 2 of the Convention. Minimum age for trade union membership. 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 with interest that the Government indicates in its report that, in principle, the Ministry of Labour has decided to amend the Trade Unions Ordinance accordingly, and that the procedures in this regard will be started soon. The Committee hopes that the minimum age for trade union membership will be aligned with the minimum age for admission to employment in the near future, and requests the Government to provide information on any developments in this regard.

Articles 2 and 5. Right of public servants’ organizations to establish and join federations and confederations. The Committee had previously reiterated its hope that amendments to section 21 of the Trade Unions Ordinance would 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 requested the Government to indicate the progress made in this respect in its next report. The Committee notes that the Government indicates that: (i) the prohibition to federate or amalgamate does not apply to all trade unions of public officers but only to trade unions of peace officers and Government staff officers; (ii) an example of a vertically federated trade union is the Health Services Trade Unions Alliance (HSTUA); (iii) there are public service federations operating openly that are not registered and not recognized as federations; and (iv) this matter has been and will be further discussed to explore the possibility of amending the Trade Unions Ordinance to allow public sector trade unions to federate among themselves or with private sector trade unions. The Committee underlines once again the need to ensure that organizations of government staff officers may join federations and 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 firmly hopes that the discussions mentioned by the Government will have a positive outcome and that the Government will soon take the necessary measures to amend section 21 of the Trade Unions Ordinance 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 (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. The Committee expressed the hope that progress would be made in the near future in this regard and requested the Government to provide information on any developments. The Committee notes with interest the Government’s indication that: (i) action was initiated to implement the dispute settlement and social dialogue mechanism developed with the assistance of the ILO; (ii) it was decided to implement a pilot project in the health sector with a view to implementing the mechanism in the Ministry of Health and developing a strategy to extend it to the entire public sector; (iii) the report on the implementation of the pilot phase was submitted to the Cabinet of Ministers, which approved extending the mechanism to the entire public sector; and (iv) further steps are envisioned, including: the engagement of the Ministry of Public Administration to extend the mechanism; the establishment of new structures such as mediation and arbitration, determining their jurisdiction and developing procedures; the training of managerial staff and trade union leaders; and the development of a monitoring mechanism. The Committee trusts that progress will continue to be made for the establishment in the near future of a mechanism for dispute prevention and settlement in the public sector, giving full effect to the principles recalled in the Committee’s previous comments. The Committee requests the Government to continue to provide information on any developments in this regard.

Compulsory arbitration. In its previous observation, the Committee 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 that, under section 4(2), the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement. The Committee had requested the Government to take the necessary measures to amend these provisions so as to bring them into line with the Convention. The Committee notes that the Government states that there are several stages of handling industrial disputes before referring to compulsory arbitration, that very few industrial disputes are referred to compulsory arbitration taking into account national interest and the importance of the continuous operation of an industry, and that the Minister attempts to refer cases to compulsory arbitration with the consent of trade unions. The Committee notes the statistics supplied by the Government, according to which in 2013, 49 out of 3,371 disputes were referred to arbitration (in 2012, 43 out of 3,702). While noting the low proportion of industrial disputes referred to arbitration in practice, the Committee observes that section 4 of the Industrial Disputes Act affords a broad power to the Minister to refer industrial disputes to compulsory arbitration. In this regard, the Committee reiterates that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is admissible when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in essential services in the strict sense of the term; or (iii) in situations of acute national or local crisis. The Committee requests the Government once again to take measures to amend section 4(1) and (2) of the Industrial Disputes Act, so as to guarantee respect for the abovementioned principle.

Article 4. Dissolution of organizations by the administrative authority. In its previous observation, the Committee had reiterated its request to the Government to take the necessary measures to ensure that administrative decisions concerning the dissolution of a trade union were suspended pending their appeal in court. The Government indicates that no progress has been made in this regard during the reporting period. The Committee requests the Government once again to take the necessary measures without delay to ensure that in all cases where the decision of the Registrar to withdraw or cancel the registration of a trade union is appealed to the courts (in accordance with sections 16 and 17 of the Trade Unions Ordinance), the withdrawal or cancellation of the trade union registration ordered by the Registrar (administrative authority) will not take effect until the final judicial decision is handed down.

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