Rapport définitif - Rapport No. 4, 1953

Cas no 34 (Sri Lanka) - Date de la plainte: 28-AOÛT -51 - Clos

1. 162. At its first meeting in January 1952, this complaint was submitted by the Director-General to the Committee for its opinion, prior to being communicated to the Government of Ceylon. The complaint consisted of two series of allegations, the first claiming that workers of Indian origin are subject to discriminatory treatment in contrast to the indigenous population and the second claiming that various trade union rights are infringed. On the recommendation of the Committee, the Governing Body decided, for the reasons stated in paragraphs 102-107 of the First Report of the Committee (G.B. 118/8/6) that the part of the complaint relating to alleged discrimination against workers of Indian origin should not be communicated to the Government of Ceylon. The following analysis, therefore, refers only to the part of the complaint concerning the infringement of trade union rights.

A. A. The complainants' allegations

• Analysis of the Complaint
  163. 163 The complainant makes the following allegations:
       • (a) Difficulties are placed in the way of trade union officials seeking to enter the estates to advise the workers and carry on trade union activities.
       • (b) If the estate workers attempt to organise themselves they run the risk of victimisation for trade union activities, the leaders not infrequently being dismissed without notice for such activities.
       • (c) Dismissal involves the loss not only of the estate worker's employment but also of his home, as he is required immediately to quit the accommodation provided on the estate. Failure to quit renders him liable to prosecution for trespass and, on conviction, to summary ejection. He may then be characterised as a " troublesome " person and find it difficult to obtain other employment. The effect of this is to deny freedom of association to the workers.
       • (d) The estate worker is denied freedom of movement for social activities and, entry to the estates being subject to the superintendents' permission, relatives of workers are, not infrequently, refused permission to visit them on the estates if it is felt that these visits may lead to trade union activities.
  164. Analysis of the Reply
  164. 164 Concerning the first allegation, the Government states that the claim by trade union officials of the right to enter the estates to carry on trade union work has been resisted by the employers on the ground that the estate is private property. In practice entry is not generally refused if prior notice is given or permission to enter obtained.
  165. 165 With regard to the second allegation, the Government admits that complaints of victimisation are sometimes made during proceedings under the Industrial Disputes Act, but states that it cannot comment further in the absence of any reference to specific cases by the complainant. The Government expresses the view that even if a case of such victimisation for trade union activity should be proved there would not appear to be any infringement of freedom of association since the same type of complaint arises in countries having trade unions.
  166. 166 With reference to the third allegation, the Government states that, in consequence of a recent decision of the Privy Council, a dismissed worker who fails to quit his accommodation on an estate is no longer liable to criminal prosecution for trespass, but can be evicted only by civil action in the courts.
  167. 167 Concerning the final allegation, the Government denies that estate workers are restricted in their movements to take part in social activities. But, as trade union officials may enter the estates to carry on trade union activities only by permission of the employers, visitors are questioned in order to ascertain whether they are trade union officials or relatives making social visits. The employers declare, in support of their attitude, that, where more than one union exists on an estate, unrestricted right of entry may lead, as in the past, to inter-union clashes.

B. B. The Committee's conclusions

1. 168. With reference to the first allegation, the Committee, while recognising fully that the estates are private property, considers that, as the workers not only work but also live on the estates, so that it is only by entering the estates that trade union officials can normally carry on any trade union activities among the workers, it is of special importance that the entry into the estates of trade union officials for the purpose of lawful trade union activities should be readily permitted, provided that there is no interference with the carrying on of the work during working hours and subject to any appropriate precautions for the protection of the estate. The Committee notes with satisfaction the statement of the Ceylon Government that in practice entry is not generally refused if prior notice is given or permission to enter obtained and therefore expresses the hope that this practice will become still more general and will be liberally applied. In this connection, the Committee also draws attention to the resolution adopted by the Plantations Committee at its First Session providing that employers should remove existing hindrances, if any, in the way of the organisation of free, independent and democratically controlled trade unions by plantation workers and should provide such unions with facilities for the conduct of their normal activities, including free office accommodation, freedom to hold meetings and freedom of entry. Subject to these observations, the Committee recommends the Governing Body to decide that this part of the complaint does not call for further examination at the present time.
2. 169. As the Government points out in its reply in respect to the second allegation, no specific cases of victimisation of workers for trade union activities have been cited by the complainant. The Committee, therefore, recommends the Governing Body to decide that the allegation made is too vague to permit a consideration of the case on its merits and that, accordingly, with respect to this allegation the case does not call for further examination. At the same time, in view of the fact that the Government has stated in its reply that a case of such victimisation, even if proved, would not appear to be an infringement of freedom of association, the Committee recommends that the Governing Body should draw the attention of the Government of Ceylon to the fact that victimisation for trade union activities is considered by the law or practice of the large majority of countries to constitute an infringement of freedom of association and is specifically referred to as such in the Right to Organise and Collective Bargaining Convention adopted by the International Labour Conference in 1949, which provides that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
3. 170. With regard to the penalties suffered by a worker who is dismissed, having regard to the Government's statement that by virtue of a recent decision of the Privy Council he can now be ejected from his home only by civil action, the Committee considers that, since it may be presumed that a civil law procedure of ejection will normally embody substantial guarantees against abuse and hardship, the question of ejection from accommodation under civil law is not appropriate for consideration by the Fact-Finding and Conciliation Commission. While recommending the Governing Body, for this reason, to decide that this part of the complaint does not call for further examination, the Committee draws attention to the resolution adopted by the Plantations Committee at its First Session providing that whenever a resident worker is discharged he should be allowed a reasonable time to vacate the house, such time being determined by negotiating machinery, and that when this procedure breaks down recourse should be had to the usual procedure of the civil courts. In view of the importance of the matter in cases where loss of employment involves the loss of the home as well as of the means of livelihood, the Committee also thinks it desirable that a comparative study of the law and practice of different countries on the subject should be prepared in order to permit the Governing Body to decide whether any further I.L.O action in regard to the problem is desirable and practicable.
4. 171. With regard to the allegation concerning freedom of movement for social activities and the freedom of relatives to visit estate workers, the Committee considers that, in so far as this allegation may bear upon trade union rights, it has been sufficiently dealt with in the preceding paragraphs and, accordingly, does not call for further examination.

172. The Committee, therefore, recommends the Governing Body to decide that, subject to the observations made in paragraphs 168 to 170 above, the case as a whole does not call for further examination.