Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee takes note of the observations received from the International Trade Union Confederation (ITUC) and the Free Trade Zones and General Services Employees Union (FTZ & GSEU) on 1 and 14 September 2018, respectively.

The Committee notes the Government’s comments on the 2012 observations of the ITUC alleging 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. It notes, in particular, the Government’s indication that it respects and takes remedial measures to ensure freedom of association in both EPZs and other parts of the country, including in the framework of the National Human Rights Action Plan 2017–2021. The Government indicates that only a single occurrence, which took place in 2011, caused the death of a worker in the context of a riot, but that measures were taken with regard to this incident and that there were no other reported cases of intimidation, arrests, detention and/or suspension of trade union activists and workers in the course of a strike. The Committee, however, notes with concern the observations of the ITUC according to which several peaceful strikes were violently suppressed by the police and the army in 2016 and 2017, leaving many workers injured, and alleging incidences of intimidation and threats of physical attacks, in particular against workers in Free Trade Zones (FTZs). Once again 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.

With regard to the tripartite processes previously noted by the Committee, the Committee notes the Government’s indication that the setting up of a tripartite committee for the FTZs was discussed at the National Labour Advisory Council (NLAC) but ultimately dismissed because the social partners were not in agreement. The Government states that, rather than establishing this committee, the scope of the NLAC should be expanded and that it should be reformed in order to take decisions related to labour policies. In this regard, the work relating to the reconstitution/reinvigoration of the NLAC was initiated in July 2018 with the technical assistance of the ILO, in the framework of the Decent Work Country Programme (DWCP) 2018–22. The Committee also notes the Government’s indication that a study on labour law reforms was undertaken with ILO technical assistance, and that some of the gaps identified by the study are being addressed with a view to making the necessary legislative amendments. The Committee notes that the process of the labour law reform is ongoing and is featured in the DWCP 2018–22 as an area of priority. Expressing its hope that the labour legislation will be amended in the near future in full consultation with the social partners and taking into account the comments made by the Committee, the Committee requests the Government to provide information on any progress made in this respect. It also requests the Government to provide information on the progress made in reforming the NLAC, in particular with regard to how it will address the issues of application of the Convention with respect to workers in the FTZs.

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 the Government’s indication that the Ministry of Labour and Trade Union Relations (MoLTUR) is in the process of amending existing legislation to raise the minimum age of employment from 14 to 16 years, thus eliminating the discrepancy. According to the information communicated by the Government under the Minimum Age Convention, 1973 (No. 138), the laws that the MoLTUR is in the process of amending in this regard include the Employment of Women, Young Persons and Children Act No. 47 of 1956, the Shop and Office Employees Act No. 15 of 1954, the Factory Ordinance No. 45 of 1942, and the Employees’ Provident Fund Act No. 15 of 1958. The Committee requests the Government to provide information on the progress made in this respect, and pending any such changes in the minimum age of employment, the Committee expresses the hope that section 31 of the Trade Union Ordinance will be amended 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 previously requested the amendment of section 21 of the Trade Unions Ordinance so as 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. The Committee notes with regret that the Government reiterates that only staff officers of the public sector are restricted from forming federations, and makes no reference to the possibility of amending the Trade Unions Ordinance, as previously contemplated. The Committee once again emphasizes 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 therefore urges the Government to take the necessary measures to amend section 21 of the Trade Unions Ordinance and to inform it of developments in this respect.

Article 3. Dispute settlement machinery in the public sector. In its previous comments, 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), and that a mechanism for dispute prevention and settlement in the public sector was being developed with technical assistance from the ILO. The Committee notes the Government’s indication that work on the mechanism for dispute prevention and settlement in the public sector will continue, with the support of the Ministry of Public Administration, and that it would communicate information on further progress in due course. The Committee expresses the hope that the appropriate mechanism will soon be developed and requests the Government to continue providing information on all progress made in this regard.

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 did 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 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 the Government’s indication that 2.5 per cent of the total of industrial disputes received by the Department of Labour are referred to compulsory arbitration, and that 95 per cent of these cases are disputes relating to such matters as discrimination, bonus payments, promotions, etc. The Government specifies that no cases referred to compulsory arbitration in the recent past related to strike action. In addition, the Government indicates that the majority of trade union and employer representatives of the NLAC do not consider the amendment to the Industrial Disputes Act requested by the Committee to be necessary, and that compulsory arbitration is necessary as a last resort to protect both the employment of workers and the industry. The Committee underlines once again that section 4 of the Industrial Disputes Act affords a broad power to the Minister to refer industrial disputes to compulsory arbitration, in that this provision makes it possible for the Minister to prohibit strikes or end them quickly in cases that are not in line with the Convention. Notwithstanding that no industrial disputes related to strikes have been referred to arbitration in the recent past, the Committee is bound to reiterate that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is admissible only 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 therefore once again requests the Government 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 comments, the Committee 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 would not take effect until the final decision is handed down. The Committee notes that while the Government provides information on the possibility for dissolved trade unions to appeal the decision and ask for re-registration, it does not indicate whether the appeal has the effect of a stay of execution. The Committee therefore once again requests the Government 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) does 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.