Informe definitivo - Informe núm. 197, Noviembre 1979

Caso núm. 913 (Sri Lanka) - Fecha de presentación de la queja:: 27-SEP-78 - Cerrado

1. 310. This case has been examined by the Committee in February 1979, when it submitted interim conclusions thereon, approved by the Governing Body at its 209th Session. By a communication dated 10 August 1979 the Government forwarded additional observations on the matter.
2. 311. Sri Lanka has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 312. On one of the aspects of the case, dealing with a general strike, the Committee had reached certain conclusions which it drew to the attention of the Government. As regards certain other aspects, concerning alleged measures of anti-union discrimination on the part of several employers and acts of violence against trade union leaders and members, as well as the alleged discrimination by the authorities in respect of trade unions, the Committee requested the Government to provide additional observations and information.
2. 313. It was alleged in the complaint, dated 27 September 1978, that since its assumption of office in 1977, the Government had adopted a policy calculated to weaken and destroy all trade unions except the National Employees Union (NEU) associated with the ruling political party, and the Ceylon Workers' Congress of which the leader is a government minister. The complainant made specific allegations concerning several enterprises according to which trade union leaders and members had been dismissed, locked out, or transferred and, in some cases, had been physically assaulted for participating in trade union activities. In particular, according to the complainant, there had been dismissals at the Puttalam factory of the Cement Corporation, the Thulhiriya and Pugoda factories of the National Textile Corporation and the Enderamulla factory of the Hardware Corporation. In some of these cases court action had been brought by the trade unions concerned and, in one case, by a former trade union leader (Mr. Chandrasena) who allegedly had been driven away from his workplace by political thugs, his salary being subsequently terminated by the Ceylon Petroleum Corporation, his employer. The complainant also alleged that, in some of the cases of physical violence, the police had taken no action against the assailants.
3. 314. In its reply of 18 December 1978, the Government had stressed that the Constitution of the Democratic Socialist Republic of Sri Lanka protects the freedom of every citizen to form and join a trade union and that any infringement of this freedom is justiciable in the courts. Furthermore, it had claimed, the Industrial Disputes Act entitles every worker employed in the private sector and in public corporations to make application to an independent judicial tribunal in respect of the termination of his employment and such tribunal is empowered to award such relief as the tribunal may consider to be just and equitable notwithstanding the terms of the contract of employment. It had pointed out that a considerable body of case law had developed over the years which effectively secured that any worker who establishes that his services have been terminated on the ground of trade union activity should be reinstated or be given ample compensation. An appeal lies from the decision of the tribunal to the court of appeal. Thus the existing legal framework more than effectively secures the right of association guaranteed by the Constitution.
4. 315. At the Committee's recommendation, the Governing Body asked the Government to provide its observations on the specific allegations made by the complainant as well as information on the outcome of the judicial proceedings initiated in the District Court of Colombo as regards the alleged harassment and dismissal of Mr. Chandrasena and the alleged acts of anti-union discrimination in the Thulhiriya and Pugoda factories of the National Textile Corporation and the Enderamulla factory of the Hardware Corporation.
5. 316. In its communication of 10 August 1979, the Government provides its additional observations and information on several of the instances of alleged anti-union discrimination to which the complainant had referred. In the cases of alleged violence at the Colpetty Petroleum Corporation and Oil installation at Kolonnawa, the Government states that although the complainant union alleged that the police prosecuted the victims for assaulting the assailants, no court action ensued as matters were dropped by the police; Mr. Chandrasena's case is still pending before the court. Regarding the strike at the Puttalam Cement Corporation, the Government states that there was no harassment or victimisation, but indiscipline was rampant and production had reached a low ebb. The management introduced a series of measures to reorganise the industry and make it economically viable. Contrary to the complainant's allegations, amenities like water and lights were never denied to workers. With the introduction of a bonus scheme, improved living conditions and the doubling of a special hardship allowance, production has increased and the factory is working satisfactorily. Court action is proceeding in the matter of the one-hour strike at the Enderamulla factory of the Hardware Corporation; the District Court of Colombo has dismissed the case concerning the National Textile Corporation at Thulhiriya and dismissed with costs the case concerning the Pugoda factory of the same corporation. The Government states that the transfers ordered by the Ceylon Transport Board are routine and claims that unions are inclined to attribute motives whenever transfers are effected.

B. B. The Committee's conclusions

1. 317. The Committee has always underlined the importance to be attached to the principle contained in Article 1 of Convention No. 98, ratified by Sri Lanka, which provides that workers shall enjoy adequate protection against acts of anti-union discrimination. The Committee has stated that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions.
2. 318. Also, in a number of cases' the Committee has recalled certain conclusions of the Fact-Finding and Conciliation Commission on Freedom of Association stressing the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination; the Commission had drawn attention to the desirability of settling grievances wherever possible by discussion without treating the process of determining grievances as a form of litigation, but, in cases where there will be honest differences of opinion or viewpoint, resort should be had to impartial tribunals or individuals representing the final step of the grievance procedure.
3. 319. The Committee notes that in its report for 1978, under Article 22 of the Constitution of the ILO, concerning the application of Convention No. 98, the Government stated that the introduction of special statutory provisions in regard to anti-union discrimination is actively engaging the attention of the present administration.
4. 320. From the information supplied by the Government in the present case it appears that in several of the incidents mentioned in the complaint the issues were brought before the national courts of law, which have dismissed some of the complaints while two others are still pending. There are no allegations suggesting that the national means of redress under the present legislation are inadequate. Therefore, while drawing attention to the principles mentioned above and expressing the hope that the Government will introduce special statutory provisions in regard to anti-union discrimination, the Committee notes the information provided by the Government and would request it to send further information in due course on the outcome of the proceedings concerning the case of Mr. Chandrasena and that of the Enderamulla factory of the Hardware Corporation.
5. 321. The complainant had also alleged that a minister of the Government who is a leader of one of the trade union organisations in the country was consulted by other authorities in matters relating to the activities of the other workers' organisations. The complainant had referred specifically to a letter from the Port Commissioner to the minister asking whether he had any objection to granting permission to a particular union to hold a meeting in a hall belonging to the Port Commission. It was stated in the letter that use of the hall for trade union meetings was authorised under normal circumstances but that on this occasion outside speakers had been invited. At its February 1979 meeting, the Committee requested the Government to provide its observations on this point.
6. 322. In its communication dated 10 August 1979, the Government states that reference to the minister had been only a matter of courtesy and that inquiries were made regarding any objections before permission was granted.
7. 323. In previous cases, the Committee has expressed the view that it would seem desirable that, if a government wishes to make available certain facilities to trade union organisations, these organisations enjoy equal treatment in this respect.,
8. 324. In the present case, the Committee notes the statement made by the Government. It also notes that the complainant has made no allegation that use of the hall by the union in question had in fact been refused. While drawing attention to the principle mentioned in the preceding paragraph, the Committee considers therefore that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 325. In these circumstances, concerning the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations of anti-union discrimination and violence against trade union leaders and members;
   • (i) to note the information provided by the Government according to which the courts have examined or are examining the cases which arose, and to request it to keep the Committee informed of the outcome of the proceedings in the pending cases concerning the dismissal of Mr. Chandrasena and of trade unionists at the Enderamulla factory of the Hardware Corporation;
   • (ii) with reference to the principles mentioned in paragraphs 317 and 318 above, to express the hope that in accordance with the Government's stated intention, special statutory provisions on anti-union discrimination will be incorporated in the legislation;
   • (b) as regards the alleged discrimination by the authorities in respect of the granting to trade unions of meeting facilities, while drawing attention to the principle mentioned in paragraph 323 above, to note that in the specific case mentioned by the complainant such facilities do not appear to have been refused;
   • (c) to draw these conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations.