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

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

Despite the political unrest which has been prevailing in Sri Lanka since the Government's last communication to the Office in this connection, the Ministry of Labour has been preoccupied with socially urgent and sensitive issues affecting labour such as the employment of Sri Lankans abroad, social security benefits, enhanced wages to cushion them against rapidly rising costs of living to over one-and-a-half million workers covered by Wages Boards and the like. At the same time, the Government was not unmindful of the need to bring its national law into conformity with the provisions of Articles 1 and 2 of the Convention, as observed by the Committee of Experts.

The Ministry of Labour has, since the information supplied to the Conference Committee in 1985, been occupied with the preparation of the documentation to be placed before the Cabinet of Ministers for their consideration. This documentation is expected to be finalised shortly.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes with regret the absence of reply from the Government regarding the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019, alleging anti-union dismissals in a company during the pendency of arbitration proceedings and denouncing that anti-union discrimination and union-busting remain a major problem in the country. The Committee is therefore bound to reiterate its request and urges the Government to provide its comments to the ITUC observations.

Article 1. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures.In its previous comments, Committee urged the Government to take the necessary measures to amend the Industrial Disputes Act to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee takes note of the Government’s indication that the courts examined a total of 9 discrimination cases (unfair labour practices) in the last five years that are still pending before them. The Government adds that it adopted an administrative measure, intended to protect workers, to transfer all complaints related to anti-union discrimination to the “Special Investigation Division” of the Department of Labour. The Committee notes with concern that, despite the time that has elapsed, none of the referred cases submitted to the court in the last five years have yet resulted in a decision. The Committee also observes that the Government remains silent on the request to allow trade unions direct recourse to courts in anti-discrimination cases. The Committee therefore urges the Government once again to amend the Industrial Disputes Act to grant Trade Unions the right to bring anti-union discrimination cases directly before courts and to ensure that these cases are subject to swift and responsive judicial proceedings. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee previously requested the Government to provide information on the measures taken to ensure that employees’ councils do not undermine trade unions. The Committee also requested the Government to continue to promote collective bargaining in EPZs and provide statistics in this regard, particularly on the clothing and textile sectors. The Committee notes the Government’s indication that the Industrial Disputes Act allows trade unions, not employees’ councils, to collectively bargain and establish collective agreements with the employer. The Government further states that section 10.3.2 of the Sri Lanka Board of Investment (BOI) Manual: (i) grants the BOI the authority to cancel employees’ councils that undermine trade unions; and (ii) provides that in organizations with both functioning trade unions and employees’ councils, only the former has the right to collective bargaining. The Government adds that: (i) five worker facilitation centres were established and are operational in Katunayake, Biyagama, Koggala and Wathupitiwala Export Processing Zones and in Kandy Industrial Park for trade union officials and members to meet privately and freely; (ii) BOI enterprises operating both within and outside EPZs must observe the principles in the Labour Standards and Employment Relations Manual which enumerates the right to collective bargaining and other facilities offered to trade union representatives of BOI enterprises. The Committee also takes note of the statistics provided by the Government with respect to EPZs, indicating that: (i) there are 14 EPZs in total as of 30 April,2022 with 275 enterprises employing 147,683 workers; (ii) there are 107 operational employees’ councils and 40 trade unions (of which 19 enjoy check-off facilities); (iii) as of 30 April 2022, 5 collective agreements were concluded by trade unions covering 2098 workers (1.4 per cent of the EPZs workers) from 5 enterprises (1.2 per cent of the enterprises); and (iv) the number of employees in the clothing and textile sectors total 88,480 as of 31 March 2022. The Committee takes due note of these elements and, in particular, of the BOI’s authority to cancel employees’ councils that undermine trade unions and of the creation of five workers’ facilitation centres. However, the Committee observes once again that the number of employees’ councils in operation in EPZs are significantly higher than the number of trade unions and that there is no substantial increase in the number of collective agreements concluded. With regards to the clothing and textile sectors, the Committee observes that the Government does not specify the number of collective agreements concluded by trade unions; and the workers covered by them. Based on the above, the Committee requests the Government to intensify its efforts to promote collective bargaining in EPZs, including by establishing worker facilitation centres in all EPZs. The Committee further requests the Government to provide information on: (i) instances that section 10.3.2 of the BOI Manual was successfully invoked, with relief consequently granted to the unions concerned; (ii) the number of collective agreements concluded in entities having both employees’ councils and trade unions; and (iii) the number of collective agreements concluded in the EPZs, with detailed sector specific information, particularly on the clothing and textile sector, including the number of workers covered by them in each sector in comparison with the total number of workers in the respective sectors.

Representativeness requirements for collective bargaining. For many years, the Committee has requested the Government to take the necessary measures to review section 32(A) (g) of the Industrial Disputes Act so as to ensure that the membership requirement imposed on a union to bargain collectively does not undermine the effective access to this right. The Government reiterates in this regard that there is no bar on trade unions that fail to individually meet the requirement for representativeness prescribed by section 32(A)(g) of the Industrial Disputes Act, which sets the threshold at 40 per cent, to involve in the collective bargaining process by federating with other minority trade unions. While taking due note of this element, the Committee recalls that the threshold for representativeness should be designated to facilitate and promote the development of free and voluntary collective bargaining. In this respect, it considers that the very low number and coverage of collective agreements previously noted in its comments on EPZs could appear to be related to the restrictive representativeness requirement, prescribed by the Industrial Disputes Act, to engage in collective bargaining. The Committee therefore emphasises the need to ensure that the absence of unions that meet the requirements for representativeness to be designated as a bargaining agent, doesnot impede the right of the existing unions to negotiate, either jointly or at least on behalf of their own members. The Committee requestsonce againthe Government to take the necessary action to review section 32(A)(g) of the Industrial Disputes Act accordingly. The Committee additionally requests information regarding the total number of collective agreements concluded in the country as a whole, the sectors and the number of workers concerned.

Article 6. Right to collective bargaining for public service workers not engaged in the administration of the State. Having observed that section 49 of the Industrial Disputes Act does not apply to State and Government employees and that existing Government structures did not require a collective bargaining system for public sector unions, the Committee previously requested the Government to take measures to guarantee public servants not engaged in the administration of the state the right to collective bargaining. The Committee notes the Government’s indication that public servants not involved in the administration of the state are not barred from entering into collective agreements and that there are existing collective agreements in public enterprises which cover such public servants. While taking note of these elements the Committee recalls that the public employees not engaged in the administration of the State and who are therefore covered by the Convention not only includes employees in public enterprises but also other categories such as, for instance, municipal employees and those in decentralized entities, public sector teachers, public hospital workers etc. The Committee once again requests the Government to take the necessary measures, including of a legislative nature, to recognize for all public servants not engaged in the administration of the state the right to collective bargaining, and to provide information on all progress made in this respect. The Committee also requests the Government to provide information on the number of collective agreements covering public enterprises.

Request for technical assistance. The Committee welcomes the request for technical assistance by the Government to the Office in relation to following up on the observations and recommendations formulated by the ILO supervisory bodies. While being aware of the recent difficulties faced by the country, the Committee hopes that the technical cooperation will help address all pending comments and contribute to fostering a sound industrial relations system that will in turn contribute to address the mentioned challenges in a peaceful manner.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee had noted the observations of the ITUC received on 1 September 2019 alleging anti-union dismissals in a company and denouncing that anti-union discrimination and union-busting remain a major problem in the country, and had requested the Government to send its reply thereon. In the absence of information from the Government in this regard, the Committee reiterates its request.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. For many years, the Committee has referred to the fact 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 for bringing cases before the Court. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee had urged the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts and had expressed the hope that the Industrial Disputes Act would be amended accordingly. The Committee notes that the Government once again indicates that the possibility for workers and trade unions to lodge complaints before the courts have been discussed for years at the National Labour Advisory Council (NLAC). Nevertheless, no consensus has been reached on this matter. The Government adds, on the other hand, that during the NLAC meeting held on 24 August 2021, the trade unions were requested by the Government to submit an alternate proposal in this regard and that once they submit a proposal, the Government will initiate a discussion on how to build consensus among stakeholders. The Committee takes due note of these elements. However, while highlighting that legislative reforms on labour issues should be done in consultation with the social partners and, as far as possible, be based on a tripartite consensus, the Committee underlines that it is ultimately the Government’s responsibility to take the decisions necessary for the fulfilment of the State's international commitments undertaken through the ratification of international labour Conventions. The Committee therefore urges the Government to take the necessary measures to amend the Industrial Disputes Act to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee additionally requests the Government to provide information on the number of cases of anti-union discrimination examined by the courts as well as to indicate the duration of proceedings and the sanctions or remedies imposed.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee had previously requested the Government to indicate the respective number of trade unions and employees’ councils established in the EPZs and to continue informing on the number of collective agreements concluded by trade unions in the EPZs and on the number of workers covered by them in comparison with the total number of workers employed in the sectors covered. Recalling previous ITUC observations regarding the refusal to recognise the right of unions to bargain collectively in the EPZs, the Committee had also encouraged the Government to continue to take measures to promote collective bargaining in the EPZs and requested it to provide information in this regard. The Committee notes the Government’s indication that with the start of the COVID-19 pandemic, the Government established a tripartite Task Force to find amicable solutions to the issues faced by workers and employers. The Government states that major trade unions representing workers in the EPZs were included in the Task Force that contributed to sort out many labour issues. The Committee had also noted the Government’s indication that the fact that only trade unions can engage in collective bargaining discourages the establishment of employee councils in the EPZs. In this regard, the Committee notes the Government’s indication that there are 35 trade unions and 123 employees’ councils in the EPZs. The Committee notes that the Government also indicates that since 2019 five collective agreements were concluded in the EPZs in the sectors of printing, rubber tires and tubes, personal care products and toiletries, and glassware products. These collective agreements cover respectively, 646 workers out of 2,577 workers employed in the sector of printing (25 per cent), 100 workers out of 1,663 workers in the sector of rubber tires and tubes (6 per cent), 515 out of 983 workers in the sector of personal care products and toiletries (52.3 per cent), and 480 out of 842 workers in the sector of glassware products (57 per cent). While taking due note of this information, the Committee observes that the number of employees’ councils is significantly higher than that of trade unions and that there is a limited number of collective agreements in force in EPZs. The Committee therefore requests the Government to intensify the measures taken to promote collective bargaining in the EPZs and to inform about the measures taken to ensure that employees’ councils do not undermine the position of trade unions. The Committee additionally requests the Government to continue to inform on the number of collective agreements concluded by trade unions in the EPZs, particularly in the clothing and textile sectors, and the number of workers covered by them in comparison with the total number of workers employed in this sector.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union that has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes that the Government reiterates that this matter was discussed within the NLAC and that both the employers and major trade unions do not agree to reduce the threshold, as it would create more divisions in the workplace and dilute the trade union representation and bargaining power. The Government also reiterates that the 40 per cent threshold does not prohibit any unions from participating in collective bargaining as it is possible for trade unions to enter into collective agreements by federating with other minority trade unions. On the other hand, the Committee notes the Government’s indication that it is willing to consider the matter, but it cannot proceed due to the lack of consensus among stakeholders. Recalling that the ITUC had previously referred to cases where companies had refused to bargain collectively with unions that did not reach the 40 per cent threshold, the Committee emphasizes that the representativeness requirements set by legislation to be designated as a bargaining agent may bear a substantial influence on the number of collective agreements concluded and that the mentioned requirements should be designed in such a manner that they effectively promote the development of free and voluntary collective bargaining. Highlighting again that it is ultimately the Government’s responsibility to take the decisions necessary for the fulfilment of the State’s international commitments undertaken through the ratification of international labour Conventions, the Committee reiterates that it expects that the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act in accordance with Article 4 of the Convention, in order to ensure that, if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect and reminds the Government that it may avail itself of the technical assistance of the Office.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. For many years, the Committee has referred to the fact 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. In this respect, the Committee notes that the Government reiterates that: (i) existing government structures do not require a collective bargaining system for public sector unions as trade unions have many venues to get their request fulfilled; (ii) there have been no requests from public sector trade unions to bargain collectively; and (iii) public sector workers are covered by a different set of laws which are more protective and they enjoy more benefits when compared to workers in the private sector. In this regard, the Committee recalls that to give effect to Article 6 of the Convention a distinction should be drawn between, on the one hand, public servants engaged in the administration of the State, who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 172). The Committee notes the Government’s indication that it welcomes any ILO technical study on this matter as proposed by the Office to determine the necessity of such a proposal. Given the above and considering that section 49 of the Industrial Disputes Act excludes state and government employees from the Act’s scope of application, the Committee reiterates its previous request to the Government to take the necessary measures to guarantee the right to collective bargaining of the public servants not engaged in the administration of the State so they can negotiate their conditions of work and employment. The Committee also trusts that the Government will avail itself of the technical assistance of the Office for this purpose.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see Article 4 below), as well as on the basis of the information at its disposal in 2019.

The Committee notes the Government’s reply to the 2018 observations of the International Trade Union Confederation (ITUC) and the Free Trade Zones and General Services Employees Union (FTZ and GSEU) which referred to allegations of anti-union dismissals in export processing zones (EPZs) as well as the refusal to recognize the right of unions to bargain collectively in the EPZs. The Committee notes that the Government indicates that labour inspectors have the right to enter workplaces in EPZs at any time and without prior notice and that the Labour Offices have not received any complaints in this regard.

The Committee also notes the observations of the ITUC received on 1 September 2019 alleging anti-union dismissals in a company and denouncing that anti-union discrimination and union-busting remain a major problem in the country. The Committee requests the Government to send its reply thereon.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. For many years, the Committee has referred to the fact 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 for bringing cases before the Court. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee had urged the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee had also expressed the hope that the Industrial Disputes Act be amended to grant trade unions the right to bring anti-union discrimination cases directly before the courts. In this respect, the Committee notes that the Government indicates once again that the possibility for workers and for trade unions to lodge complaints with the judicial courts has been discussed for years at the National Labour Advisory Council (NLAC) but that no consensus has been reached on this matter. The Government expresses the view that, as an impartial institution, the Department of Labour is in a better position than the victims are to carry out investigations and collect evidence in relation to anti-union discrimination complaints. The Government reports that, by the end of 2018, 311 cases of anti-union discrimination were pending and eight had concluded. Recalling that anti-union discrimination is one of the most serious violations of freedom of association, and observing that, according to the ITUC, anti-union discrimination and union-busting remain a major problem in the country, the Committee once again: (i) urges the Government to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the courts and (ii) expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee also requests the Government to continue to provide information on the number of cases of anti-union discrimination examined by the courts as well as to indicate the duration of proceedings and the sanctions or remedies imposed.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee notes the information provided by the Government on measures taken to promote collective bargaining in the EPZs and welcomes the Government’s indication that in 2018 and 2019 the Department of Labour conducted 12 awareness-raising programmes in the EPZs reaching approximately 1,000 workers and covering more than 50 work places. The Committee also notes the Government’s indication that the fact that only trade unions can engage in collective bargaining discourages the establishment of employee councils in the EPZ’s. The Committee takes note that in its supplementary report the Government reiterates the information provided in previous years that seven collective agreements are currently in force in EPZs. The Committee notes, however, that the Government does not indicate the number of trade unions and employees’ councils established in the EPZs, as requested by the Committee. The Committee therefore requests the Government to provide such information and to continue to inform on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered by them in comparison with the total number of workers employed in this sector. Recalling previous ITUC observations regarding the refusal to recognize the right of unions to bargain collectively in the EPZs, the Committee encourages the Government to continue to take measures to promote collective bargaining in the EPZs and requests it to provide information in that regard.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes that the Government reiterates that this matter was discussed within the NLAC but that both the employers and major trade unions do not agree to reduce the threshold, as it would create more divisions in the work place and dilute the trade union representation and bargaining power. The Government also reiterates that unions who do not meet the required threshold of representativity can merge and operate as one and indicates that some employers have accepted to bargain with trade unions without considering the threshold of 40 per cent. Recalling that the ITUC had previously referred to cases where companies had refused to bargain collectively with unions that did not reach the 40 per cent threshold, the Committee wishes to recall that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements, which are designed to be applied to all workers in a sector or establishment, is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee considers however that, if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee therefore reiterates that it expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to ensure that, if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. The Committee had previously noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism. In its last report, the Government had indicated that it was going to take measures with a view to addressing this issue. In that respect, the Committee notes that the Government once again indicates that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers are engaged; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. The Government also indicates that the public sector of Sri Lanka constitutes 14 per cent of all employees and that trade unions with significant bargaining power have bargained specific allowances which have led to disproportionate disparities in the public sector with respect to net salaries. The Government expresses the view that legally allowing collective bargaining rights to the public sector employees would be unfavourable to the sustainability of the Government. In that connection, the Committee wishes to reiterate once again that there are arrangements that allow for the conciliation of the balance of public budgets and the protection of the principle of equal remuneration for work of equal value in the public sector, on the one hand, and the recognition of the right to collective bargaining, on the other. It also recalls once again that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between, on the one hand, public servants engaged in the administration of the State, who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 172). In view of the above and considering that section 49 of the Industrial Disputes Act excludes state and government employees from the Act’s scope of application, the Committee reiterates its previous request to the Government to take the necessary measures to guarantee the right to collective bargaining of the public sector workers covered by the Convention with respect to salaries and other conditions of employment. The Committee also reminds the Government that it may have recourse to the technical assistance of the Office.

[The Government is asked to reply in full to the present comments in 2021.]

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s reply to the 2018 observations of the International Trade Union Confederation (ITUC) and the Free Trade Zones and General Services Employees Union (FTZ and GSEU) which referred to allegations of anti-union dismissals in export processing zones (EPZs) as well as the refusal to recognize the right of unions to bargain collectively in the EPZs. The Committee notes that the Government indicates that labour inspectors have the right to enter workplaces in EPZs at any time and without prior notice and that the Labour Offices have not received any complaints in this regard.

The Committee also notes the observations of the ITUC received on 1 September 2019 alleging anti-union dismissals in a company and denouncing that anti-union discrimination and union-busting remain a major problem in the country. The Committee requests the Government to send its reply thereon.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. For many years, the Committee has referred to the fact 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. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee had urged the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee had also expressed the hope that the Industrial Disputes Act be amended to grant trade unions the right to bring anti-union discrimination cases directly before the courts. In this respect, the Committee notes that the Government indicates once again that the possibility for workers and for trade unions to lodge complaints before the judicial courts has been discussed for years at the National Labour Advisory Council (NLAC) but that no consensus has been reached on this matter. The Government expresses the view that, as an impartial institution, the Department of Labour is in a better position than the victims are to carry out investigations and collect evidence in relation to anti-union discrimination complaints. The Government reports that, by the end of 2018, 311 cases of anti-union discrimination were pending and eight had concluded. Recalling that anti-union discrimination is one of the most serious violations of freedom of association, and observing that, according to the ITUC, anti-union discrimination and union-busting remain a major problem in the country, the Committee once again: (i) urges the Government to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the courts and (ii) expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee also requests the Government to continue to provide information on the number of cases of anti-union discrimination examined by the courts as well as to indicate the duration of proceedings and the sanctions or remedies imposed.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee notes the information provided by the Government on measures taken to promote collective bargaining in the EPZs and welcomes the Government’s indication that in 2018 and 2019 the Department of Labour conducted 12 awareness-raising programmes in the EPZs reaching approximately 1,000 workers and covering more than 50 work places. The Committee also notes the Government’s indication that the fact that only trade unions can engage in collective bargaining discourages the establishment of employee councils in the EPZ’s. The Committee notes, however, that the Government has not provided information on the number of collective agreements concluded by trade unions in the EPZs and has not indicated the number of trade unions and employees’ councils in the EPZs, as requested by the Committee. The Committee therefore requests the Government to provide such information. Recalling previous ITUC observations regarding the refusal to recognize the right of unions to bargain collectively in the EPZs, the Committee encourages the Government to continue to take measures to promote collective bargaining in the EPZs and requests it to provide information in that regard.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes that the Government reiterates that this matter was discussed within the NLAC but that both the employers and major trade unions do not agree to reduce the threshold, as it would create more divisions in the work place and dilute the trade union representation and bargaining power. The Government also reiterates that unions who do not meet the required threshold of representativity can merge and operate as one and indicates that some employers have accepted to bargain with trade unions without considering the threshold of 40 per cent. Recalling that the ITUC had previously referred to cases where companies had refused to bargain collectively with unions that did not reach the 40 per cent threshold, the Committee wishes to recall that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements, which are designed to be applied to all workers in a sector or establishment, is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee considers however that, if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee therefore reiterates that it expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to ensure that, if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. The Committee had previously noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism. In its last report, the Government had indicated that it was going to take measures with a view to addressing this issue. In that respect, the Committee notes that the Government once again indicates that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers are engaged; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. The Government also indicates that the public sector of Sri Lanka constitutes 14 per cent of all employees and that trade unions with significant bargaining power have bargained specific allowances which have led to disproportionate disparities in the public sector with respect to net salaries. The Government expresses the view that legally allowing collective bargaining rights to the public sector employees would be unfavourable to the sustainability of the Government. In that connection, the Committee wishes to reiterate once again that there are arrangements that allow for the conciliation of the balance of public budgets and the protection of the principle of equal remuneration for work of equal value in the public sector, on the one hand, and the recognition of the right to collective bargaining, on the other. It also recalls once again that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (such as, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 172). In view of the above, and considering that section 49 of the Industrial Disputes Act excludes state and government employees from the Act’s scope of application, the Committee reiterates its previous request to the Government to take the necessary measures to guarantee the right to collective bargaining of the public sector workers covered by the Convention with respect to salaries and other conditions of employment. The Committee also reminds the Government that it may have recourse to the technical assistance of the Office.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Free Trade Zones and General Services Employees Union (FTZ and GSEU), received on 1 and 14 September 2018 respectively, concerning allegations of anti-union dismissals in export processing zones, acts of interference in union activities including the creation of parallel workers’ organizations controlled by the employers and the refusal to recognize unions and bargain collectively. The Committee requests the Government to provide its comments in this regard.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. Having noted on several occasions 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 urged the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. It also expressed the hope that the Industrial Disputes Act be amended so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. With respect to the possibility for the workers to lodge a complaint before the judicial courts, the Committee notes from the Government that it acknowledges the fact that the matter has been discussed for years but that the majority of trade unions and the employers represented at the National Labour Advisory Council (NLAC) still dissent to amend the legislation in this regard. Taking note of the observations of the ITUC and the FTZ and GSEU, which allege acts of anti-union discrimination and highlighting that anti-union discrimination, being one of the most serious violations of freedom of association, affects both the fundamental rights of the victims and the rights of the organizations they are affiliated to, the Committee once again: (i) urges the Government to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts; (ii) expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts; and (iii) requests the Government to provide further information on the number of cases of anti-union discrimination examined by the courts, the duration of proceedings and the sanctions or remedies imposed.

Article 4. Measures to promote collective bargaining. Export processing zones (EPZs). The Committee notes from the Government that in 2017, 622 inspections were carried out in the EPZs, as against 422 in 2016, and that up to June 2018, 378 inspections have taken place. The Government also emphasizes that 20 trade unions have check-off facilities; seven enterprises have signed collective agreements, and five trade union facilitation centres are now operating in the EPZs, with a view to facilitating private meetings between workers and their representatives. The Committee requests the Government to continue to provide information on the measures taken to promote collective bargaining in the EPZs, as well as the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered. In addition, the Committee requests the Government to indicate the respective numbers of trade unions and employees’ councils in the EPZs, as well as the measures taken to ensure that employees’ councils do not undermine the position of trade unions.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary steps to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes from the Government that the matter was discussed within the NLAC but that the majority of trade unions do not want to change the threshold of 40 per cent. The Government indicates that the employer’s representatives also have objections to this amendment as they have to deal with multiple trade unions and that in these circumstances the Department of Labour has taken the initiative to explain to unions who do not reach the required threshold that they could organize in order to operate as one. The Committee recalls that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. In its 2012 General Survey on fundamental Conventions, paragraph 233, the Committee considered that the requirement of too high a percentage for representativity to be authorized to engage in collective bargaining may hamper the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. The Committee nevertheless considers that if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to ensure that if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. In its previous comments, the Committee had noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism. The Committee had noted from the Government that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers are engaged; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. The Committee observes from the Government that, although it considers that facilitating collective bargaining in the public sector could generate an uneven playing field, it is taking measures with a view to addressing this issue and will bring further information with its next report. In this respect, the Committee wishes to recall that there are mechanisms to allow the protection of the principle of equal remuneration for work of equal value in the public sector to be reconciled with the recognition of the right to collective bargaining. It also wishes to recall that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (such as, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see 2012 General Survey, paragraph 172). In view of the above, and in light of section 49 of the Industrial Disputes Act, which excludes state and government employees from the Act’s scope of application, the Committee once again requests the Government to take the necessary measures to guarantee the right to collective bargaining of the public sector workers covered by the Convention with respect to salaries and other conditions of employment. Recalling that the Government may have recourse to the technical assistance of the Office, the Committee requests the Government to indicate any progress made in this regard.

[The Government is asked to reply in full to the present comments in 2019.]

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

In its previous comments, the Committee had noted that in the absence of tripartite consensus towards the amendment of the Industrial Disputes Act, discussions would be pursued at the level of the National Labour Advisory Council (NLAC) and its subcommittee. The Committee notes that the Ministry of Labour and Trade Unions Relations has now initiated a study on labour law reforms undertaken by a local expert (a former Justice of the Supreme Court) and that a workshop was held in November 2015 to discuss the proposed reforms, with the support of the ILO Office in Colombo. According to the Government, the Ministry is in the process of examining the proposed amendments to the existing labour legislation. Considering the comments made for a number of years, the Committee expects that progress towards the amendment of the labour legislation will be achieved in the near future along the lines indicated below, and that the Government will provide information on any developments in this respect.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. 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: (i) to ensure the effectiveness and expeditiousness of the procedures of unfair labour practices (which englobe the acts of anti-union discrimination); and (ii) to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. With regard to delays in holding inquiries and prosecution of unfair labour practices, the Committee notes from the Government that according to a circular dated 29 April 2011, each District Labour Office or Sub-Office is required to open a register for complaints on unfair labour practices within 14 days. The Government reiterates that, even though the Department of Labour has taken a number of initiatives to expedite the processes against anti-union discrimination, it still faces various practical difficulties, including a lack of accurate information and the unwillingness of workers to give evidence before the courts, which cause delays in the processes. With respect to the possibility for the workers who are victims of anti-union discrimination to lodge a complaint before the judicial courts, the Committee notes from the Government that this matter was taken up on various occasions during NLAC meetings but that the majority of trade unions were not willing to assume such a role and responsibility, further discussion with the social partners being therefore necessary. The Committee also takes note of the information provided by the Government as to the number of cases examined or pending before the courts. The Committee finally notes from the Government’s report that fines and offences arising out of unfair labour practices increased from 20,000 to 100,000 Sri Lankan rupees (LKR). Recalling that anti-union discrimination is one of the most serious violations of freedom of association and that adequate remedies should be granted to the persons concerned, the Committee urges the Government to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. In addition, the Committee requests the Government to provide further information on the number of cases of anti-union discrimination examined by the courts, the duration of proceedings and the sanctions or remedies imposed.

Article 4. Measures to promote collective bargaining. The Committee notes the information provided by the Government on progress made to promote collective bargaining to keep enhancing the awareness of collective bargaining among the general public and at workplaces. The Committee requests the Government to continue to take measures to promote collective bargaining and to provide information in this regard.

Export processing zones (EPZs). In its previous comments, the Committee had noted difficulties with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs, and in particular that labour inspectors are not allowed to carry out unannounced visits to EPZ factories. The Committee notes that the Government firmly reiterates that labour inspectors have the authority to enter any factory in EPZs without getting the permission of the employer or Board of Investment (BOI). The Government indicates that in 2014, 410 inspections were carried out at the EPZs, as against 386 in 2015. It also emphasized that 35 enterprises have recognized trade unions in EPZs and import processing zones (IPZs), of which 18 have granted check-off facilities to trade unions, and that seven enterprises have signed collective agreements. It also reiterates that trade union facilitation centres have been established in three EPZs, with a view to facilitating private meetings between workers and their representatives, and that the BOI is vigilant that the existence of employees’ councils does not undermine the position of trade unions. The Committee requests the Government to continue to provide information on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered. It also requests the Government to indicate the respective numbers of trade unions and employees’ councils in EPZs, as well as the measures taken to ensure that employees’ councils do not undermine the position of trade unions.

Representativeness requirements for collective bargaining. In its previous comments, the Committee requested the Government to take the necessary steps to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes that the Government reiterates that it considers it important that the bargaining agent on behalf of the workers is sufficiently representative to bargain with the employer, and that all major trade unions of the country have no objections in keeping the threshold of 40 per cent. However, the Committee recalls the need to ensure that where, under a system for nominating an exclusive bargaining agent who is entitled to negotiate a collective agreement applicable to all workers in the unit, there is no union representing the required percentage to be so designated (in this case 40 per cent), trade unions should either be granted the possibility of forming a grouping with a view to achieving the required percentage or be given the possibility to negotiate on behalf of their own members. The Committee expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to promote the full development and utilization of collective bargaining. The Committee requests the Government to indicate any progress in this regard.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. In its previous comments, the Committee had noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism. The Committee notes that the Government reiterates that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers is engaged; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. The Committee also notes from the Government that a study on collective bargaining in the public service has been undertaken with the technical support of the Office, and that its recommendations will be brought to the attention of the Committee. In light of section 49 of the Industrial Disputes Act, which excludes state and government employees from the Act’s scope of application, the Committee requests the Government to specify the provisions ensuring that all public service workers other than those engaged in the administration of the State enjoy collective bargaining rights with respect to salaries and other conditions of employment. The Committee requests the Government to indicate any progress made in this regard.

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

The Committee notes the observations from IndustriALL Global Union (IndustriALL) received on 31 August 2015, concerning cases of anti-union discrimination, interference and persecution of union members as well as other issues addressed by the Committee. The Committee requests the Government to provide its comments thereon. The Committee also notes the observations of the International Trade Union Confederation (ITUC) of 2014, which concern acts of anti-union discrimination, including dismissals in an export processing zone, as well as the Government’s comments thereon. The Committee further notes the Government’s comments on the observations of the Employers’ Federation of Ceylon (EFC) and the International Organisation of Employers (IOE) of 2011, as well as on the observations of the ITUC of 2012 and 2014. The Committee also notes that, in its report, the Government addresses the issues raised by the Lanka Jathika Estate Workers’ Union (LJEWU) in its 2012 observations.

In its previous comments, 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 in its report 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 and working of the abovementioned tripartite forums and expresses the strong hope that these tripartite mechanisms will contribute to achieve progress towards the amendment of the labour legislation, taking fully into account the comments made by the Committee for a number of years.

Article 1 of the Convention. Protection against acts of anti-union discrimination. 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 ensure the effectiveness and expeditiousness of the procedures of unfair labour practices and to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also invited 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. The Committee notes with interest the Government’s indication that it wishes to take measures to ensure that workers who are victims of anti-union discrimination can lodge complaints before the courts, and that it intends to amend the Industrial Disputes Act in order to also grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee also notes that the Government indicates that, even though the Department of Labour has taken a number of initiatives to expedite the processes against anti-union discrimination, it faces various practical difficulties, including lack of accurate information and unwillingness of workers to give evidence before the courts, which cause delays in the processes. Finally, in relation to the observations of the EFC and the IOE that the Industrial Disputes Act is discriminatory because it only sets out unfair labour practices on the part of the employers but not on the part of the workers or their organizations, the Committee notes the Government’s intention to address this issue. The Committee requests the Government once again to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee requests the Government to provide information on any developments as to its intention to address the observations of the EFC and the IOE. The Committee further requests the Government to provide information on the number of cases of anti-union discrimination examined by the courts, the duration of proceedings and the sanctions or remedies imposed.

Article 4. Measures to promote collective bargaining. The Committee had previously requested the Government to provide information on progress made to promote collective bargaining. The Committee notes the Government’s indication that the Social Dialogue and Workplace Cooperation Unit (SDWC), established under the Department of Labour, has implemented a number of programmes to enhance the awareness of collective bargaining among the general public and at workplaces. The Committee notes the information provided by the Government and observes with interest that more than 20,000 persons participated in approximately 400 workshops organized by the SDWC in the period 2014–15. The Committee requests the Government to continue to take measures to promote collective bargaining and to provide information in this regard.

Export processing zones (EPZs). In its previous comments, the Committee had noted that the ITUC referred to difficulties with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs. The Committee notes that, according to the most recent observations from the ITUC and IndustriALL, these difficulties continue to exist. With respect to the earlier ITUC allegation that labour inspectors are not allowed to carry out unannounced visits to EPZ factories, the Committee notes that the Government indicates that labour inspectors have the authority to enter into any factory in EPZs without getting permission of the employer or Board of Investment (BOI), and that trade union facilitation centres have been established in three EPZs, with a view to facilitating private meetings between workers and their representatives. The Committee notes that IndustriALL states that the way in which the facilitation centres are set up makes it difficult for workers to approach them. With respect to the earlier ITUC allegation that employee councils are promoted by the BOI as a substitute for trade unions in EPZs, the Committee notes that the Government indicates that three employee councils in EPZs have been converted and registered as trade unions, and that there are three entities that address employer manipulations of employee councils. The Committee notes, however, that IndustriALL submits that employee councils continue to be used to undermine trade unions. The Committee also notes that the Government indicates that 34 enterprises have recognized trade unions in EPZs and industrial processing zones, of which 18 enterprises have granted check-off facilities to trade unions and six enterprises have signed collective agreements. Furthermore, the Committee takes note that a total of 2,148 EPZ workers and employers attended the awareness-raising programmes on collective bargaining conducted by the ILO Colombo Office in the period 2014–15. Noting the divergence between the statements of the Government and of the workers’ organizations with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs, the Committee requests the Government to provide information on the difficulties encountered in the application of the Convention to EPZs and the specific measures taken to address these difficulties. The Committee reiterates its request to the Government to ensure that employee councils do not undermine the position of trade unions, in particular in relation to their right to collective bargaining. The Committee also requests the Government to provide further information on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had noted that, under section 32(A)(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 workers on whose behalf the trade union seeks to bargain. The Committee 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 the Government indicates that: (i) there is a multiplicity of trade unions in the country and it is difficult for a single employer to negotiate with more than one union; (ii) it considers important that the bargaining agent on behalf of the workers is sufficiently representative to bargain with the employer; (iii) all major trade unions of the country have no objections in keeping the threshold of 40 per cent; and (iv) this issue is to be discussed at the NLAC. The Committee also notes that the ITUC in its 2014 observations states that it is very difficult in practice for a union to attain the 40 per cent requirement due to the diversity of the trade union movement. The Committee reiterates the need to ensure that where, under a system for nominating an exclusive bargaining agent who is entitled to negotiate a collective agreement applicable to all workers in the unit, there is no union representing the required percentage to be so designated (in this case 40 per cent), trade unions should either be granted the possibility of forming a grouping with a view to achieving the required percentage or at least be given the possibility to negotiate on behalf of their own members. The Committee firmly trusts that the NLAC and the Government will take into account these principles when reviewing section 32(A)(g) of the Industrial Disputes Act in order to promote the full development and utilization of collective bargaining. The Committee requests the Government to indicate any progress in this regard and to provide information on the number of collective agreements in force, the sectors concerned and the percentage of workers covered.

Article 6. The right to collective bargaining in the public service. In its previous comments, the Committee noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism – with perhaps some elements of arbitration – under which the demands of public service trade unions were considered, while the final decision on salary determination rested with the Cabinet of Ministers. The Committee requested the Government to 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. The Committee notes that the Government indicates that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers is engaged in; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. In light of section 49 of the Industrial Disputes Act, which excludes state and government employees from the Act’s scope of application, the Committee requests the Government to specify the provisions ensuring persons employed by public undertakings the right to collective bargaining. The Committee once again recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights with respect to salaries and other conditions of employment. The Committee requests the Government to take the necessary measures to guarantee the right to collective bargaining to public service workers, in accordance with this principle, and to indicate any progress made in this regard.

[The Government is asked to reply in detail to the present comments in 2016.]

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

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).

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the Ceylon Bank Employees’ Union (CBEU) dated 16 February 2009 as well as by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 2 August 2010 and by the International Trade Union Confederation (ITUC) in a communication dated
24 August 2010.

The Committee notes that the Government indicates in its report that a project entitled “Promotion of Principles and Fundamental Rights at Work” is being implemented by the Ministry of Labour Relations and Productivity Promotion in collaboration with the ILO and that a Special National Labour Advisory Council Meeting would take place in this framework in September 2010, in order to reach consensus among the social partners to effectively address the deficits in the implementation of ILO Convention No. 98, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Workers’ Representatives Convention, 1971 (No. 135).

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous observation, the Committee noted that under section 43(1A) of the 1999 Industrial Disputes (Amendment) Act, any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees (approximately US$175) and requested the Government to provide information on the dissuasive character of this provision, in particular as regards the relationship of the amount of the fine with the average wage. The Committee noted the Government’s indication that there was no relationship between the amount of the fine and the average wage, that a proposal had been initiated to revise and update penalties, surcharges and stamp duties under existing labour legislation and that this matter had been referred to the National Labour Advisory Council (NLAC) in order to obtain the views of the social partners. The Committee notes that the Government indicates in its report that, on the recommendations of the Labour Law Reform Committee, it has decided to increase the fine up to 100,000 rupees and that a Bill was drafted in this sense, which will be presented to the Parliament in the next few months. The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination and that legislation prohibiting acts of discrimination is inadequate if it is not coupled with effective, expeditious procedures and sufficiently dissuasive sanctions to ensure their application (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 223 and 224). The Committee requests the Government to take the necessary measures to ensure that the views of the social partners are fully taken into consideration in the drafting process of updating penalties, to indicate any progress made in this respect in its next report, and to provide a copy of the Bill once adopted.

Furthermore, the Committee had previously noted allegations according to which adequate protection against anti-union discrimination was not provided in practice, as only the Department of Labour could bring cases before the Magistrate’s Court and that there were no mandatory time limits within which complaints should be made to the Court. The Committee had requested the Government to take measures in consultation with the social partners to guarantee a more expeditious and adequate procedure which, in particular, would establish short time periods for the examination of the cases by the authorities, and to indicate whether trade unions had the capacity to bring their grievances concerning anti-union discrimination directly before the courts. The Committee notes that the Government indicates in its report that: (i) the courts always try to conclude cases as expeditiously as possible while accommodating the concerns of all parties and the principles of law; (ii) the opportunity of granting trade unions the right to bring anti-union discrimination claims directly before the courts will be closely examined, taking into account the difficulties which may arise in relation to the collection of the requested evidences by the unions; (iii) concern should also be given to the possibility for employers to bring claims before the courts in cases of unfair labour practices by the trade unions; and that (iv) the Government wishes to further negotiate the issue with the social partners in the framework of the Special National Labour Advisory Council Meeting of September 2010 and inquire from the Attorney General the feasibility of granting such rights. The Committee requests the Government to take the necessary measures, in consultation with the social partners, to guarantee a more expeditious and adequate procedure which would, in particular, establish short time periods for the examination of cases by the judicial authorities, and to provide information in this regard in its next report.

Finally, the Committee notes the communication submitted by the Government dated 26 January 2009 in response to the petition submitted by the CBEU dated 17 October 2008 concerning alleged acts of discrimination against trade union members, in particular retrenchment measures adopted by the employer which lead to the termination of employment of 97 employees members of the CBEU, in violation of a collective agreement in force. The Committee notes the comments submitted by the employer involved. The Committee also notes that the Government indicates in its report that the conflict arose as a result of a merger of two financial institutions and that the Court of Appeal, in this case, rejected the requests of the CBEU.

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 noted that 29 Provincial Labour Advisory Councils (PLACs) were established in order to promote collective bargaining and tripartite consultations in a decentralized manner, and that their activities were coordinated by the SDWC Unit. The Committee notes that the Government indicates that the most representative trade unions’ and employers’ organizations are consulted by the PLACs on labour matters and that it provides, with its report, a list of collective agreements concluded between 2008 and 2010. The Committee requests the Government to keep it informed of any progress achieved by the measures taken by the Social Dialogue and Workplace Cooperation Unit and those taken in furtherance of the National Policy for Decent Work to promote collective bargaining.

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 (BOI) as a substitute for trade unions in EPZs. The Committee notes that the Government indicates in its report that around ten trade unions operate in EPZs and provides statistical information showing that out of 260 enterprises operating in EPZs, 25 enterprises negotiate with trade unions, 13 enterprises have granted “check‑off” facility to trade unions and five have signed collective agreements. The Government’s report adds that neither the Ministry of Labour, nor the BOI, promote the establishment of employees’ councils or trade unions, that the BOI’s role in establishing employees’ councils is strictly restricted to that of a facilitator, and that registered employees’ councils are entitled to bargain collectively and conclude agreements on behalf of workers where there is no trade union with bargaining status. Finally, it adds that the “Promotion of Principles and Fundamental Rights at Work” project (referred to above) has a special focus on EPZs. Given the low number of collective agreements in EPZs indicated by the Government, the Committee requests it to provide information in its next report on measures taken to promote collective bargaining in the EPZ sector, as well as information concerning complaints made by trade unions against non‑independent employees’ councils.

Provisions on trade union recognition. In its previous observation, the Committee had requested the Government to indicate the measures taken so as to ensure that the recognition provisions for collective bargaining purposes were effectively implemented in practice. The Committee had requested the Government in particular to comment upon the allegations made by the ITUC – reiterated this year – that the recognition of unions for collective bargaining purposes is hampered by excessive delays, and that employers tend to delay the holding of union certification polls to identify, victimize and on occasion dismiss the union activists concerned and that as a result, workers are afraid of being identified with the union, and the union loses the poll. The Committee notes that the ITUC indicates that the unions should be able to hold their elections within four weeks of sending their application for recognition. The Committee further notes that the Government indicates in its report, that a Circular adopted on 19 September 2000 sets the guidelines for the conduct of the referendum, referred to in section 32A of the Industrial Dispute Act, in order to ascertain whether a trade union possesses at least 40 per cent of the workers on whose behalf it seeks to bargain. Section 1 of the Circular provides that the relevant officer should hold a referendum (poll) within 30 days of the trade union’s request. The Government’s report adds that experience has shown that in the majority of the cases these time limits have been adhered to by the labour officers.

Representativeness requirements for collective bargaining. In its previous observation, the Committee had noted that, under section 32A(g) of the 1999 Industrial Disputes (Amendment) 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, and to indicate the measures taken in this regard. The Committee noted the Government’s indication that this matter was placed before the Labour Law Reform Committee appointed by the NLAC and that the Ministry, for its part, was of the view that reducing the percentage requirement might lead to inter-union rivalry. The Committee notes that the Government indicates in its report that the issue has been taken up several times in 2010, including before the NLAC and the Labour Law Reform Committee, but that in both these forums there were no consensus amongst the trade unions themselves. The Government’s report adds that the majority of trade unions therefore collectively agreed to retain the present threshold and viewed that trade unions with different views would weaken the collective bargaining power of the unions. The Committee also notes that the ITUC indicates that certain employers change their staffing figures to ensure that the 40 per cent representation target is hard to meet, for instance by including middle and top managers in the calculation of the total staff. The Committee recalls that if no union covers more than 40 per cent of the workers’ collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members. The Committee therefore requests the Government to pursue its efforts in this respect, to take the necessary measures to give effect to this principle, and to indicate the progress made in this regard in its next report.

Article 6. Denial of the right to collective bargaining in the public service. In its previous observation, the Committee considered, on the basis of the information provided by the Government, 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 that the Government recalls in its report that while a National Salaries and Cadre Commission was appointed in 2005 to restructure and determine salaries of public officers at all levels, it is difficult for the public administration to have different wage systems and terms and conditions for each profession, occupation and service. The Government’s report adds that there is however no obstacle for trade unions in the public services to bargain with authorities on issues specific to certain professions, occupations and services. The Committee once again recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, should enjoy the right to collective bargaining with respect to salaries and other conditions of employment (see General Survey, op. cit., paragraph 262). Noting that, as at 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 once again requests the Government to take the necessary measures to ensure and promote civil servants’ right to collective bargaining in accordance with this principle, and to indicate any developments in this regard in its next report.

Furthermore, the Committee notes that a draft report on the ILO Project for the Prevention and Solution of Disputes in the Public Sector is attached to the Government’s report. The draft report provides, in particular, that efforts should be made to improve industrial relations in the public sector, which should be based on the improvement of social dialogue mechanisms at different levels of decision-making and on the creation of a sound system for collective dispute settlement. More specifically, the draft report indicates that the setting up of a National Arbitration Board is high in the agenda of both trade unions and Ministry officials, and that it is conceived rather as a mechanism to regulate industrial relations, than as a last resort to settle disputes. As regards conflicts in the public sector, the Committee recalls that compulsory arbitration may only occur at the request of both parties to the dispute (i.e. voluntary arbitration), or if the conflict relates to essential services in the strict sense of the term, or if the conflict involves public servants engaged in the administration of the State. The Committee requests the Government to take the necessary measures to ensure that the abovementioned principle is taken into account in the discussions on the mechanism for collective dispute settlement, and to provide a copy of the report once adopted.

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

The Committee notes the comments submitted by the Ceylon Bank Employees’ Union and the Lanka Jathika Estate Workers’ Union (LJEWU), in communications of 18 August 2008, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that under section 43(1A) of the Industrial Disputes (Amendment) Act of 1999, any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees (LKR) and requested the Government to provide information on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators. The Committee notes the Government’s indication that the penalty amount of 20,000 rupees protects workers from unfair labour practices, and that there is no relationship of the amount of the fine to the average wage. The Government further states that a proposal has been initiated to revise and update penalties, surcharges and stamp duties under existing labour legislation. This matter has been referred to the National Labour Advisory Council (NLAC) in order to obtain the views of the social partners; although trade unions are free to express their opinions on the existing penalties to the NLAC, thus far none have yet to do so. The Committee notes this information. Further noting that the ITUC reiterates that the existing penalties are too low to provide sufficient deterrence, and that the LJEWU alleges the same, the Committee requests the Government to ensure that the views of the social partners are fully taken into consideration in the process of updating penalties under the existing labour laws. It requests the Government to indicate the progress made in this regard.

The Committee had previously noted the ITUC’s indication that adequate protection against anti-union discrimination was not provided in practice, as only the Department of Labour could bring cases before the Magistrate’s Court and there were no mandatory time limits within which complaints should be made to the Court. Subsequently, the Committee, recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, had requested the Government to take measures in consultation with the social partners to guarantee a more expeditious and adequate procedure which, in particular, establishes short time periods for the examination of cases by the authorities. It also requested the Government to indicate whether trade unions had the capacity to bring their grievances concerning anti-union discrimination directly before the courts. The Committee notes with regret that the Government has provided no information concerning this matter. It once again requests the Government: (1) to take measures, in consultation with the social partners, to guarantee a more expeditious and adequate procedure which, in particular, establishes short time periods for the examination of cases by the authorities; and (2) to indicate whether trade unions had the capacity to bring anti-union discrimination claims directly before the courts.

Article 4. Measures to promote collective bargaining. The Committee had previously requested the Government to indicate the measures taken by the Social Dialogue and Workplace Cooperation Unit, as well as the measures taken under the auspices of the National Policy for Decent Work, to promote collective bargaining. The Committee notes that according to the Government, 29 Provincial Labour Advisory Councils (PLACs) were established in order to promote collective bargaining and tripartite consultations in a decentralized manner; their activities are coordinated by the Social Dialogue and Workplace Unit. As of July 2008, a total of 1,057 participants from 23 organizations had participated in awareness-raising programmes organized by the PLACs. The Committee requests the Government to provide information on the progress achieved by the measures taken by the Social Dialogue and Workplace Cooperation Unit and those taken in furtherance of the National Policy for Decent Work to promote collective bargaining, including information on the number of collective agreements concluded.

EPZs. The Committee recalls that it had previously commented upon the need to promote collective bargaining specifically within the export processing zone (EPZ) sector. From the information provided by the Government, it further notes that six new collective agreements had been concluded since the last reporting period. The Government also indicates that 11 trade unions are currently operating in EPZs, that 10 per cent of the total workforce in that sector belong to trade unions, and that 40 per cent of EPZ enterprises have employees’ councils; the employees’ councils have bargaining rights and a few of them are in the process of concluding collective agreements. While taking due note of this information, the Committee nevertheless notes that according to the ITUC, employees’ councils are bodies funded by the employer without workers’ contributions, thus giving them an advantage over trade unions, which require membership dues. The ITUC further alleges that employees’ councils have been promoted by the Board of Investment (BOI) as a substitute for trade unions in EPZs. Recalling that Article 2 of the Convention establishes the total independence of workers’ organizations from employers in organizing their activities, the Committee requests the Government to provide its observations with respect to the ITUC’s comments concerning this matter. It further requests the Government to indicate the developments concerning the promotion of collective bargaining in the EPZ sector, including the number of collective agreements concluded by trade unions.

Provisions on trade union recognition. Previously, the Committee had requested the Government to indicate the measures taken so as to ensure that the recognition provisions for collective bargaining purposes were effectively implemented in practice. The Committee regrets that the Government provides no information in this regard. Noting the ITUC’s comment that the recognition of unions for collective bargaining purposes is hampered by excessive delays, and that employers tend to delay the holding of union certification polls to identify, victimize and on occasion dismiss the union activists concerned, the Committee once again requests the Government to indicate the measures taken to ensure that recognition provisions are effectively implemented in practice and to indicate any developments in this regard.

Representativeness requirements for collective bargaining. The Committee had previously noted that under section 32A(g) of the Industrial Disputes (Amendment) Act of 1999, 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, and to indicate the measures taken in this regard. The Committee notes the Government’s indication that this matter was placed before the Labour Law Reform Committee appointed by the NLAC, and that in the ensuing deliberations the employer organizations did not favour a reduction in the 40 per cent requirement while the trade unions were not unanimous in their opinions. The Ministry, for its part, was of the view that reducing the percentage requirement might lead to inter-union rivalry. The Government further states that the matter had been raised by the trade union members at the NLAC meeting held in August 2008, and that no consensus had been reached with respect to the issue. The Committee further notes that the ITUC reiterates that, in practice, it has been difficult for trade unions to meet the 40 per cent requirement, partially as a result of tactics initiated by employers to frustrate such efforts. In these circumstances the Committee, once again recalling that if no union covers more than 40 per cent of the workers collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members, requests the Government to take the necessary measures to give effect to this principle and to indicate the progress made in this regard.

Article 6. Denial of the right to collective bargaining in the public service. Previously, the Committee had requested the Government to send its observations to the ITUC comment indicating that the right to collective bargaining is denied to public sector workers. In this respect, the Government indicates that in 2005 a National Salaries and Cadre Commission – comprising 15 members, of which 13 are independent persons and two are from national trade union centres – was appointed to restructure and determine salaries of public officers at all levels. Collective bargaining is provided for under the Commission’s auspices, in so far as unions may make representations and submit claims to the Commission, and arbitration is also provided for by the Commission in areas where there are disagreements. The Government further indicates that the Commission, following the receipt of representations and claims from unions, then issues salary recommendations that are implemented subject to the approval of the Cabinet of Ministers. The recommendations made by the Commission in 2006 were approved by the Cabinet of Ministers and adopted and implemented; the trade unions had also accepted the recommendations of the Commission. While noting this information, the Committee considers that the procedures indicated by the Government 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. In this regard, the Committee once again recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, should possess the right to collective bargaining with respect to salaries and other conditions of employment. The Committee requests the Government to take the necessary measures to ensure the right of collective bargaining for public service workers, in accordance with this principle, and to indicate any developments in this regard.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006.

Article 1 of the Convention. Protection against acts of anti-union discrimination. 1. In its previous comments, after having noted the provisions providing protection against anti-union discrimination, the Committee noted that section 4(2) of the Industrial Disputes (Amendment) Act of December 1999 provides that any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees. According to the ICFTU, maximum penalties for unfair labour practices are too low to provide sufficient deterrence. The Committee requests once again the Government to provide information in its next report on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators.

The Committee notes that the ICFTU refers again to several cases of anti-union discrimination aimed at preventing the establishment or recognition of trade unions. In its 2004 report, the Committee had noted that, according to the ICFTU, these cases have been reported to the authorities since the adoption of the Industrial Disputes Act of December 1999 (which affords protection to workers against acts of anti-union discrimination in taking up employment and in the course of employment), without an appropriate response. The ICFTU added that adequate protection is not provided in practice, as there are no time limits required of labour authorities within which complaints should be made to the Magistrate’s Court (after a complaint has been brought to the Department of Labour).

The Committee notes from the Government’s report that the Department of Labour has not yet taken any legal action in order to penalize employers in individual cases on the ground of anti-union discrimination or interference and that the matter has been brought before the National Labour Advisory Council (NLAC) by one trade union for discussion; the Commissioner General of Labour advised the union to bring the individual cases before him with a view to taking legal action. According to the Government, so far no cases have been referred to the Commissioner.

The Committee notes that trade unions should be able to have direct access to the courts in order to have their complaints examined by the judicial authorities if they so wish. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee requests the Government to take measures in consultation with the social partners in order to guarantee a more expeditious and adequate procedure, in particular establishing short delays for the examination of cases by the authority. It requests once again that the Government indicate whether trade unions have the capacity to bring their grievances concerning anti-union discrimination directly before the courts.

Article 4. Measures to promote collective bargaining. The Committee notes from the Government’s report that under the Future Directions Programme of the Ministry of Labour Relations and Employment, a Social Dialogue and Collective Bargaining Unit (SD&CBU) has been set up in order to promote and facilitate an environment conducive to collective bargaining, especially at the enterprise level. The SD&CBU carried out a survey, published in 2005, to ascertain the existing practices of workplace cooperation. According to this report, collective agreements are not widely used as a method of settling or avoiding disputes, but the situation is changing. There were collective agreements in force in 27 enterprises in the sample of 76 establishments studied in this survey (35.5 per cent of the total establishments). The report adds that this situation may be merely accidental and does not reflect the general picture of the situation, as collective agreements are not so widely accepted in regulating the labour relations in Sri Lanka. The report gives some positive examples of social dialogue in Sri Lanka and identifies strengths, weaknesses, opportunities and threats as they relate to social dialogue. The SD&CBU will be responsible for creating conducive national conditions to encourage and promote voluntary negotiation between employers’ and workers’ organizations. The Government indicates that the progress made will be included in future reports.

Furthermore, the Committee takes note of the National Policy for Decent Work in Sri Lanka, annexed to the Government’s report, and notes that it developed a national plan of action for decent work, including ensuring freedom of association and the promotion of collective bargaining as a dispute resolution mechanism.

In its previous comments the Committee had requested the Government to provide detailed and concrete information concerning collective bargaining in export processing zones. The Committee notes that the ICFTU is still referring to several cases of refusal to recognize a representative trade union by employers both inside and outside the export processing zones, without any effective enforcement action being taken. The Committee notes that, according to the Government, there are no legal provisions to restrict the trade unions and the employers in BOI Enterprises from entering in collective agreements. The Industrial Disputes Act No. 43 of 1950 applies to all enterprises in the export processing zones (EPZs) without any restrictions and trade unions or workers and employers of the enterprises within the EPZs can enter into collective agreements if they desire. Furthermore, the Government indicates that section 9A of the Labour Standards and Employment Relations Manual of the Board of Investment (BOI), which is the overseeing authority of the EPZs, contains provisions to facilitate the conclusion of collective agreements. The Committee notes that this provision relates to union committee meetings and to the right of access of trade union representatives to BOI Enterprises, and that this amendment was made following a recommendation of the Committee on Freedom of Association (CFA) that trade unions enjoy the same facilities in the undertaking as employees’ councils without discrimination [see 332nd Report, para. 956(a)(iv)]. The Committee notes from the Government’s report that two collective agreements were signed in 2004, two in 2005, and six enterprises are in the process of negotiating collective agreements. The Government had added that there is a trend towards unionization in EPZs with nine trade unions covering approximately 10 per cent of the EPZ workforce.

Taking into account the statistics provided by the Government, the Committee considers that collective bargaining in the country still needs to be promoted in EPZs and other sectors. The Committee requests the Government to indicate in its next report the precise measures taken or contemplated for this purpose so as to ensure that the recognition provisions for collective bargaining purposes are effectively implemented in practice. The Committee requests to be kept informed of: (1) steps taken by the Social Dialogue and Collective Bargaining Unit for the further promotion of collective bargaining; and (2) measures taken to implement the National Policy for Decent Work in relation to collective bargaining.

Article 6. Denial of the right to collective bargaining to public service workers. According to the ICFTU, the law provides for the right to collective bargaining but this right is denied to public service workers. Recalling that the Convention excludes only public servants engaged in the administration of the State, the Committee requests the Government to send its observations to the ICFTU comment.

Article 4. Representative requirements for collective bargaining. In its previous comments, the Committee had noted that, according to section 32A(g) of the Industrial Disputes (Amendment) Act No. 56 of 1999, 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 such trade union seeks to bargain. The ICFTU added that the 40 per cent threshold established in the law for the recognition of trade unions leads to employers tactics in order to avoid such recognition (in particular, changing the lists of employees, as the vote carried out to determine the representativeness is based on a list furnished by the employer). In its next report, the Government states that the national consultations so far conducted with the NLAC showed mixed opinion, but the majority of the members are in favour of retaining the threshold. This matter is now being looked into by the tripartite committee appointed by the NLAC to review the national legislation. Appropriate action will be taken on the recommendations of the tripartite committee reviewing the legislation, and after national tripartite consultations. The Committee considers 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 so that they may negotiate at least on behalf of their own members. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to promote collective bargaining in accordance with the above observation.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments submitted by the World Confederation of Labour (WCL), as well as the recent government response thereto. The Committee observes that the WCL comments concern issues which have been raised in the Committee’s previous comments. Noting also the comments submitted by the International Confederation of Free Trade Unions (ICFTU), the Committee requests the Government to send its observations thereon.

The Committee will examine these comments, the Government’s reply, as well as the questions raised in its 2004 direct request (see direct request 2004, 75th Session) under the regular reporting cycle in 2006.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 20 February 2004.

Article 1 of the Convention. The Committee notes that the ICFTU refers to several cases of anti-union discrimination aimed to prevent the establishment or recognition of trade unions. According to the ICFTU, these cases have been reported to the authorities since the adoption of the Industrial Disputes Act of December 1999 (which affords protection to workers against acts of anti-union discrimination in taking up employment and in the course of employment), without an appropriate response. The ICFTU adds that adequate protection is not provided in practice, as there are no time limits required of labour authorities within which complaints should be made to the Magistrate’s Court (after a complaint has been brought to the Department of Labour) and maximum penalties for unfair labour practices are too low to provide sufficient deterrence.

The Committee notes from the Government’s report that the Department of Labour has not yet taken any legal action in order to penalize employers on the ground of anti-union discrimination or interference. The matter has been brought before the National Labour Advisory Council (NLAC) by one trade union for discussion and the Commissioner General of Labour advised the union to bring the individual cases before him with a view to taking legal action.

The Committee notes that section 4(2) of the Industrial Disputes (Amendment) Act of December 1999 provides that any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees. The Committee requests the Government to provide information in its next report on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators.

The Committee also notes that trade unions should be able to have direct access to the courts in order to have their complaints examined by the judicial authorities if they so wish. It therefore requests the Government to indicate whether trade unions have the capacity to bring their grievances concerning anti-union discrimination before the courts in addition to the labour authorities.

Article 4. In its previous comments the Committee had requested the Government to provide detailed and concrete information concerning collective bargaining in free trade zones. The Committee notes that the ICFTU refers to several cases of refusal to recognize a representative trade union by employers both inside and outside the free trade zones, without any effective enforcement action being taken. The ICFTU adds that the 40 per cent threshold established in the law for the compulsory recognition of trade unions constitutes in practice the threshold required for a trade union to be established at the workplace with employers engaging in various tactics in order to avoid such recognition (in particular, changing the lists of employees, as the vote carried out to determine the representativeness is based on a list furnished by the employer).

The Committee notes from the Government’s report that under the Future Directions Programme of the Ministry of Labour Relations and Employment, a Social Dialogue and Collective Bargaining Unit (SD&CBU) has been set up in order to promote and facilitate an environment conducive to collective bargaining, especially at the enterprise level. The SD&CBU has decided to conduct a research of existing systems of workplace cooperation with a view to promoting collective bargaining and collective agreements at enterprise level. In the future, this unit will be responsible for creating appropriate national conditions to encourage and promote voluntary negotiations. With regard to collective bargaining in EPZs in particular, the Committee notes that according to the information provided by the Government, sections 9 and 15 of the Labour Standards and Employment Relations Manual of the Board of Investment (BOI), which is the overseeing authority of the EPZs, contain provisions to facilitate the conclusion of collective agreements. Two collective agreements were registered in the Biyagama and Koggala EPZs in 2004 (another two were already in force), while negotiations are in progress in three enterprises. In addition to this, two Memoranda of Understanding on dispute settlement procedure have been signed in the Katunayake EPZ. The Government adds that there is a trend towards unionization in EPZs with nine trade unions covering approximately 10 per cent of the EPZ workforce.

The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that the compulsory recognition provisions are effectively implemented in practice and to keep it informed of steps taken by the Social Dialogue and Collective Bargaining Unit for the further promotion of collective bargaining.

The Committee notes that according to section 32A(g) of the Industrial Disputes (Amendment) Act No. 56 of 1999 no employer shall refuse to bargain with a trade union, which has in its membership not less than forty per cent of the workmen on whose behalf such trade union seeks to bargain. The Committee considers 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 so that they may negotiate at least on behalf of their own members. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to promote collective bargaining in accordance with the above observation.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the comments made by the Lanka Jathika Estate Workers’ Union and the Employers’ Federation of Ceylon (EFC).

Articles 1 and 2 of the Convention. In its previous comments, the Committee had requested the Government to ensure that the draft bill on employment and industrial relations ensured the full protection of workers against acts of anti-union discrimination, and of workers’ organizations against acts of interference by employers and their organizations, accompanied by effective and sufficiently dissuasive sanctions. The Committee notes with satisfaction that by virtue of section 32A of the Industrial Disputes Amendment Act, No. 56 of 1999, workers are protected against acts of anti-union discrimination in taking up employment and in the course of employment. The Committee also notes that section 32A(e) of the Act prohibits employers from interfering in the activities of a trade union. Furthermore, under section 40(1)(1A) of the Act, any person who commits an act of anti-union discrimination or an act of interference may be imposed a fine of up to 20,000 rupees.

Regarding collective bargaining in the free trade zones, the Committee had previously noted the Government’s indication to the effect that collective agreements had been signed between the members of the employees’ councils in enterprises and the management but that these agreements had not been registered with the Department of Labour. The Committee once again requests the Government to provide more detailed and concrete information in this respect.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Noting the comments of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) concerning the Public Security Ordinance, adopted 3 May 2000, the Committee will address this issue in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

With respect to the pending comments concerning Convention No. 98, the Committee will treat these matters when it receives the Government’s report which is due in 2001.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

1. Further to its previous comments on the need to adopt legislative provisions in order to ensure full conformity with the requirements of Articles 1 and 2 of the Convention, the Committee notes the Government's statement that a draft bill on employment and industrial relations ensuring full conformity with Articles 1 and 2 is under consideration. The Committee trusts that the future legislation will ensure the full protection of workers against acts of anti-union discrimination and of workers' organizations against acts of interference by employers and their organizations accompanied by effective and sufficiently dissuasive sanctions, in accordance with the requirements of the Convention. It requests the Government to supply a copy of this legislation as soon as it is adopted.

2. Further to its previous request for information on any progress made in collective bargaining in the free trade zones, the Committee notes that the Government indicates that collective agreements have been signed between the members of the employees' councils in enterprises and the management but that these agreements have not been registered with the Department of Labour. The Committee requests the Government to provide more detailed and concrete information in this respect.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its report.

1. Further to its previous comments on the need to adopt legislative provisions in order to ensure full conformity with the requirements of Articles 1 and 2 of the Convention, the Committee notes the Government's statement that amendments to the Industrial Disputes Act are under consideration. The Committee trusts that these amendments to the Industrial Disputes Act will ensure the full protection of workers against acts of anti-union discrimination and of workers' organizations against acts of interference by employers and their organizations accompanied by effective and sufficiently dissuasive sanctions, in accordance with the requirements of the Convention. It requests the Government to supply a copy of these amendments as soon as they are adopted.

2. With reference to a previous observation made by the Lanka Jathika Estate Workers' Union that a draft collective agreement in the plantation sector was being discussed, the Committee had asked the Government to keep it informed of developments. The Committee notes that the Government points out that the draft collective agreement as well as five others had been signed in the plantation sector.

3. Further to its previous request for information on any progress made in collective bargaining in the free trade zones, the Committee notes that the Government indicates that Article 4 is applied in all sectors of the economy including free trade zones and the industrial establishments within the purview of the Sri Lanka Board of Investments and that details on collective agreements are not available at the moment. The Committee urges the Government to provide more detailed and concrete information in this respect including the number of collective agreements concluded, the number of workers covered, etc., in these free trade zones and industrial establishments.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided by the Government in its report.

1. Further to its previous comments on the need to adopt legislative provisions in order to ensure full conformity with the requirements of Articles 1 and 2 of the Convention, the Committee notes the Government's statement that the final draft of the amendments to the Industrial Disputes Act has been prepared in this respect. This draft will be submitted to Parliament on Cabinet approval. The Committee trusts that these amendments to the Industrial Disputes Act will ensure the full protection of workers against acts of anti-union discrimination and of workers' organizations against acts of interference by employers accompanied by effective and sufficiently dissuasive sanctions, in accordance with the requirements of the Convention. It requests the Government to supply a copy of these amendments as soon as they are adopted.

2. With reference to previous observations from workers' organizations in relation to collective bargaining in the plantation sector (Article 4), the Committee notes the information provided by the Government to the effect that two collective agreements have been concluded in the plantation sector for the period ending 30 July 1995. The Committee further notes that 27 collective agreements have been concluded in other sectors during the same period. The Committee also notes that the Lanka Jathika Estate Workers' Union has stated in a communication dated 3 November 1997 that a draft collective agreement in the plantation sector is being discussed. The Committee would ask the Government to provide information in its next report on any progress made in collective bargaining in the plantation sector and to provide the texts of any new collective agreements which may be concluded in this sector during the relevant reporting period.

3. Further to its previous comments, the Committee would moreover ask the Government to provide information on any progress made in collective bargaining in the free trade zones and in several other industrial establishments within the purview of the Greater Colombo Economic Commission (renamed the Board of Investments).

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes with regret that the Government's report has not been received.

It has nevertheless taken note of the comments of several workers' organizations on the inadequate application of the Convention.

The Committee recalls that its previous comments related to:

- the necessity to strengthen or adopt legislative provisions in order to ensure full protection of workers against acts of anti-union discrimination and of workers' organizations against acts of interference by employers accompanied by effective and sufficiently dissuasive measures, in accordance with the requirements of Articles 1 and 2 of the Convention;

- the necessity to promote the development and use of procedures for voluntary negotiation of collective agreements between employers and/or employers' organizations and workers' organizations with a view to regulating conditions of employment by this means, in accordance with Article 4.

The Committee notes that the Ceylon Mercantile, Industrial and General Workers' Union (CMU) and the Lanka Jathika Estate Workers' Union (LJEWU) stress that the Convention is not applied in the free trade zones and in several other industrial establishments within the purview of the Greater Colombo Economic Commission (renamed the Board of Investments), as well as at the Lanka Jathika plantation. The Ceylon Workers' Congress (CWC) for its part regrets the lack of provisions applying Articles 1 and 2 of the Convention and states that for ten years the Government has restricted itself to indicating that it envisages amending the legislation to bring it into conformity with the Convention. The CWC hopes that the necessary legislation will be adopted in the framework of the revision of the labour laws of Sri Lanka which is presently in process.

The Committee stresses firmly to the Government that measures should be adopted, in legislation and in practice, with a view to ensuring the application of the Convention which was ratified over 20 years ago and recalls that the ILO is available for any technical assistance in these fields; it requests the Government to supply in its next report detailed information on any progress made in this respect.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

1. With reference to various communications from the Lanka Jathika Estate Workers' Union, in relation to collective bargaining in the plantations sector (Article 4 of the Convention), the Committee notes the information supplied by the Government in its report to the effect that management of estates which were in the hands of the Government has been transferred to the private sector and that this change created the opportunity for negotiation and for the conclusion of collective agreements in the plantations. The Committee further notes with interest that four collective agreements have already been entered into and that according to the Government at present no other obstacles exist to encourage and promote the full development and utilization of machinery for voluntary negotiation of terms and conditions of employment by means of collective agreements.

The Committee would ask the Government to continue to provide in its next reports information on any progress made in collective bargaining in the plantations, including the text of any collective agreements as well as on any new collective agreements which might have been concluded during the reporting period.

2. Further to its previous comments on the necessity to adopt legislative provisions to ensure full conformity with the requirements of Articles 1 and 2 of the Convention, the Committee takes due note of the Government's indication in its report that action is being taken to amend the Industrial Disputes Act No. 43 of 1950 and that a special chapter on unfair labour practices will be introduced in the Act in order to ensure that unfair labour practices are deemed to be an offence under the Act.

The Committee also notes the Government's explanations on the trade union rights maintained notwithstanding the state of emergency, and the indication of a possible amendment to the emergency regulations to exempt industrial disputes from the application of these regulations.

The Committee expresses the firm hope that the Government will do everything in its power to ensure that the amendments to the Industrial Disputes Act currently being prepared are adopted in order to ensure full protection of workers against acts of anti-union discrimination and of workers' organizations against acts of interference accompanied by effective and sufficiently dissuasive measures, and asks the Government to indicate any progress made in this respect in its next report.

The Committee notes the Government's interest for the technical services of the Office available to it in relation to the preparation of these measures.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the Government's report, and the observations of the Ceylon Workers' Congress, and the Employers' Federation of Ceylon. It also notes the observations of the Lanka Jathika Estate Workers' Union. Certain of these latter observations referred to the application of Convention No. 135, but they raise a number of matters which appear to bear upon the application of Convention No. 98.

2. In particular, the Lanka Jathika Estate Workers' Union claims that since the nationalisation of plantations in Sri Lanka no collective agreements have been entered into between representatives of workers and management.

The Committee recalls that Article 4 of the Convention requires that measures appropriate to national conditions must be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations with a view to the regulation of terms and conditions of employment by means of collective agreements. The situation described by the Lanka Jathika Estate Workers' Union raises some question as to the practical application of these guarantees in Sri Lanka. Accordingly, the Government is asked to provide all relevant information on the extent of collective bargaining in the plantation sector. This information should include the number and dates of all agreements currently in force.

3. For several years the Committee has been asking the Government to adopt legislative provisions to ensure full conformity with the requirements of Articles 1 and 2 of the Convention. In its report the Government indicates that such legislation cannot be introduced in the present context of the ongoing war in the north and east of the country.

The Committee is not unmindful of the difficult internal situation in the country. It must, however, point out that on a number of occasions the Government has stated that draft legislation to guarantee the application of these Articles was in an advanced state of preparation. Despite this, no such legislation has been introduced. The Committee can only express its regret at this continuing failure to bring law and practice into conformity with the Convention, and once again call upon the Government to introduce the necessary measures. It also takes this opportunity to remind the Government that the technical services of the Office are available to it in relation to the preparation of these measures.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

With reference to Act No. 43 of 16 December 1950 to provide for the prevention, investigation and settlement of industrial disputes, the Committee notes that the provisions of this Act do not apply to the Crown or the Government in its capacity as employer, or to a workman in the employment of the Crown or the Government.

The Committee asks the Government to provide information on the scope of this provision and on the way in which the application of Articles 1, 2, 3 and 4 of the Convention is ensured in respect of workers in the public sector (teachers, employees of state enterprises).

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes note of the Government's report and the information supplied to the Conference Committee in 1987. It recalls that, for several years, its comments have addressed the following points:

- the need to adopt legislative provisions accompanied by civil remedies and penal sanctions to ensure the protection of workers against acts of anti-union discrimination both at the recruitment stage and during the course of employment (Article 1 of the Convention);

- the need to adopt legislative provisions accompanied by civil remedies and penal sanctions to ensure the protection of workers' organisations against acts of interference by employers or employers' organisations (Article 2).

The Committee takes note of the Government's statement to the Conference Committee in 1987, to the effect that, despite the difficult political, economic and social situation, it was aware of the need to bring the national law into conformity with the Convention. In this connection, the Minister of Labour was to finalise, in the near future, the preparation of the documentation to be placed before the Cabinet of Ministers for its consideration.

The Committee points out that, for several years, the Government has been referring to draft legislation to guarantee the application of Articles 1 and 2 of the Convention, but that no progress has yet been made.

The Committee recalls that the rights set forth in Articles 1 and 2 must be guaranteed by appropriate measures accompanied by civil remedies and penal sanctions, in particular through legislative means.

The Committee requests the Government in its next report to provide information on measures taken to guarantee adequate protection of workers against acts of anti-union discrimination both at the recruitment stage and in the course of employment, and protection of workers' organisations against acts of interference by employers or employers' organisations, accompanied by civil remedies and penal sanctions.

The Committee also requests the Government to provide the draft prepared by the Minister of Labour so that it may examine it.