497. The Committee already examined these cases, presented by several trade union organisations, at its may 1981 session when it presented an interim report to the Governing Body. Since then, the Government has sent supplementary observations in a communication dated 12 January 1982.
- 497. The Committee already examined these cases, presented by several trade union organisations, at its may 1981 session when it presented an interim report to the Governing Body. Since then, the Government has sent supplementary observations in a communication dated 12 January 1982.
- 498. Sri Lanka has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (NO. 98).
A. Previous examination of the cases
A. Previous examination of the cases
- 499. The allegations referred to victimisation of workers during and after a general strike in July/August 1980, in particular the passing of state of emergency regulations outlawing strikes, mass dismissal of strikers, arrests of workers and named union leaders, closure of union offices, refusal to negotiate with the public employees' unions and the death of a trade union leader.
- 500. The Committee requested the Government to send its observations on the allegations concerning which it had made no comment, namely the death of the trade union leader, Mr. D. Somapala, the mass dismissal of strikers and refusal to re-employ over 40,000 of them, the withholding of wages and other benefits due and the removal of the check-off facility.
- 501. Regarding the Government's passage of state of emergency regulations prohibiting the recourse to strikes, the Committee, whilst noting that, according to one complainant, the state of emergency was lifted in September 1980, wished to recall that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests, and drew the Government's attention to the principle that restriction as regards the right to strike in essential services should be limited to essential services in the strict sense of the term, i.e. those whose interruption would endanger the existence or well-being of the whole or part of the population.
- 502. As concerns the allegation of arrests of workers, in particular the trade union leaders, Messrs. Gunasena Mahanama, Alavi Moulana, Vasudeva Nanayakkara, Karunaratna Bandara and I.G.D. Dharmasekara, in view of the conflicting nature of the reasons given for the arrests, the Committee asked the Government to inform it of the outcome of these court cases, providing copies of the judgements handed down. The Committee, noting that the right to protection of trade union property is one of those civil liberties which is essential for the normal exercise of trade union rights, asked the Government to consider reopening the union offices previously housed in government premises for use by trade unions, in particular the 18 unions listed by one of the complainants which had been sealed since 18 July 1980. While noting the Government's statements that it would not negotiate with various employees because they had vacated their posts during the general strike and were mostly public servants who are not covered by Convention No. 98, the Committee asked the Government to reconsider its position in this respect, having regard both to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and to the fact that Convention No. 98 does apply both to the private sector and to nationalised undertakings and public bodies, it being possible to exclude from such application only public servants engaged in the administration of the State, that is those acting as agents of the public authority.
B. The Government's reply
B. The Government's reply
- 503. In its communication of 12 January 1982, the Government states that the emergency regulations were invoked to maintain services essential to the well-being of the community in face of a politically motivated agitation and there was no mass dismissal of strikers. It reiterates that workers who deliberately kept away from work during the period that emergency regulations were in force were deemed to have vacated their posts under the legislation in force. Those workers deemed to have vacated their posts, but who subsequently explained the circumstances of their absence from work to the satisfaction of the authorities, have all been taken back. The Government adds that appeals made on the ground that the loss of employment by the operation of law has caused hardship in individual cases have been, and continue to be, considered for relief such as reinstatement, re-employment and retirement with superannuation benefits. It concludes that many appellants have already been granted relief in this manner.
- 504. The Government states that all trade union property found in offices located within state premises was taken over by the officials of the respective unions and that the offices of these trade unions continue to function.
- 505. lastly, the Government explains that a judicial inquiry was held into the death of the trade unionist, Mr. D. Somapala, and the court held that the death was accidental. As for the persons arrested, it states that the matters are still sub judice.
C. The Committee's conclusions
C. The Committee's conclusions
- 506. The Committee notes the Government's reply concerning the outstanding allegations in this case, in particular to the effect that a judicial inquiry into the death of the trade unionist, Mr. D. Somapala, found that death was accidental and that the offices of the trade unions housed in state premises continue to function. In these circumstances, the Committee considers that these aspects of the case do not call for further examination.
- 507. As regards the alleged mass dismissal of strikers and refusal to re-employ thousands of them, the Committee notes the Government's statement that many appeals - based on hardship caused to individuals by the legislation - have resulted in relief such as reinstatement, re-employment and retirement with superannuation benefits. While welcoming these measures which redress the situation of a certain number of individuals, the Committee would nevertheless draw the Government's attention to the fact that the imposition of excessively severe sanctions, such as mass dismissals of workers on account of their participation in a strike, cannot be conducive to the development of harmonious industrial relations. When, moreover, trade union members or leaders are dismissed for strike action, which is normally one of the essential means through which workers and their organisations may promote and defend their occupational interests, the Committee cannot escape the conclusion that they are being victimised on account of their trade union action and are subject to anti-union discrimination in contravention of Article 1 of Convention No. 98. Where a worker feels that he is the subject of such anti-union practices, he should be able to appeal to a court or to some other authority independent of the parties concerned. Accordingly, the Committee would point out that those employees dismissed under the operation of the legislation in question who cannot prove hardship caused should also enjoy the right of judicial appeal when the dismissals are allegedly due to anti-union discrimination. It urges the Government to keep it informed of any further reinstatements nr relief which might be granted in the framework of independent judicial appeals against the dismissals.
- 508. As regards the Committee's request for information from the Government concerning the outcome of the court cases pending against the arrested trade union leaders, Messrs. Gunasena Mahanama, Alavi Moulana, Vasudeva Nanayakkara, Karunaratha Bandara and I.G.D. Dharmasekara, it notes that the matters are still sub judice. Recalling that the allegation of arrests for participating in trade union activities was directly denied by the Government, which stated that the arrests were carried out under the normal criminal law, the Committee notes that apparently the trade unionists concerned have been in detention awaiting the law courts' ruling since late 1980. It must recall in this connection that in all cases where trade union leaders are preventively detained, such measures may involve a serious interference with the exercise of trade union rights. The Committee has therefore always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment. It urges the Government to inform it as soon as the decisions are handed down in the five cases mentioned above, providing copies of the courts' judgements.
- 509. Lastly, the Committee notes that the Government does not specifically reply to the allegations made by one of the complainants that many private employers had not paid certain gratuities due annually and that the check-off facility was removed as punishment for the July 1980 strike. It does observe however that the Government reiterates its stance that workers who deliberately kept away from work during the period that emergency regulations were in force were deemed under the legislation in force to have vacated their pests. The Committee would generally recall that the development of harmonious labour relations could be impaired by an inflexible attitude being adopted in the application of sanctions to workers who participate in strikes. Secondly, the Committee has stated in the past that where deductions of union contributions and other forms of union protection were instituted, not by virtue of the legislation in force but as a result of collective contracts or established practice existing between both parties, it would not examine any allegations concerning them, basing its reasoning on the statement of the Committee on Industrial Relations appointed by the International Labour Conference in 1949, according to which the ILO Conventions can in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice. Accordingly, the Committee considers that this aspect of the case does not call for further examination.
The Committee's recommendations
The Committee's recommendations
- The recommendations of the Committee
- 510 In these circumstances, the Committee recommends the Governing Body to approve this interim report, in particular the following conclusions:
- (a) As regards the allegations relating to the death of a trade unionist, the removal of the check-off facility and the closure of trade union offices housed in government premises during and after the July 1980 general strike, the Committee considers that these aspects of the case do not call for further examination.
- (b) As regards the alleged mass dismissal of strikers and refusal to re-employ thousands of them, while noting that many appeals obtained relief in this connection, the Committee draws the Government's attention to the fact that the imposition of excessively severe sanctions, such as mass dismissals of workers on account of their participation in a strike, cannot be conducive to the development of harmonious industrial relations and urges it to keep the Committee informed of any further reinstatements or relief which might be granted to the dismissed workers in the framework of independent judicial appeals.
- (c) As regards the court cases pending against five named trade union leaders since late 1980, the Committee would recall the right of all detained persons to receive a fair trial at the earliest possible moment and requests the Government to inform it as soon as the courts' decisions are handed down, providing copies of the judgements.
- (d) As regards the alleged withholding of annual benefits which were due to the strikers, the Committee would generally recall that the development of harmonious labour relations could be impaired by an inflexible attitude being adopted in the application of sanctions to workers who participate in strike action.
