Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Sri Lanka (Ratification: 1972)

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.