Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

Cas no 2419 (Sri Lanka) - Date de la plainte: 12-MAI -05 - Clos

Allegations: The complainant alleges that the management of the New Design Manufacturing Ltd. factory dismissed 250 workers for having participated in a strike and refused to reinstate them as advised by the Commissioner General of Labour. It therefore alleges failure of the Government to uphold workers’ right to strike and to ensure protection against anti-union discrimination

1276. The complaint is set out in a communication by the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 12 May 2005.

1. 1277. The Government forwarded its observations in a communication dated 31 August 2005.
2. 1278. Sri Lanka has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1279. In its communication dated 12 May 2005, the International Textile, Garment and Leather Workers’ Federation (ITGLWF), on behalf of its affiliate, the Free Trade Zone and General Services Employees’ Union, alleges failure of the Government to uphold workers’ right to strike and to ensure protection against anti-union discrimination.
2. 1280. The events that gave rise to the present complaint could be summarized as follows. On 11 January 2005, three workers employed as supervisors at the New Design Manufacturing Ltd. were dismissed without being given either prior notice or a valid reason. Protesting at what they felt was an unlawful and arbitrary decision on the part of the management, workers decided to take collective action and stopped work to demand the reinstatement of the three dismissed workers. As the management was showing no sign of its intention to open a dialogue, workers decided, on 13 January 2005, to file a complaint with the Commissioner General of Labour of the Department of Labour of Colombo. The Commissioner advised the workers to report for work the next day and informed them that he would call the management for a meeting on 17 January. However, when workers reported for work on Monday (17 January) they were told they would need to attend an interview with the management because the company had decided to employ them as new recruits. When the workers refused, management locked them out.
3. 1281. On the same day, workers approached the Free Trade Zone and General Services Employees’ Union’s office, seeking to become members of the Federation and asking that it represent them at the meeting convened by the Commissioner General of Labour. However, on 17 January, the management of the company failed to attend the meeting called by the labour authority and continued the illegal lockout.
4. 1282. On 18 January, the three dismissed workers received a letter, dated 6 January 2005, informing them that their services were terminated with immediate effect. The letter stated that they had been fired for instigating a strike a few weeks earlier. According to the workers, however, the management presented a plan to introduce a new piece-rate pay system, but workers had rejected the idea on the grounds that it was contrary to regulations prevailing in the industry, and that it would reduce their earnings. They therefore protested by stopping work.
5. 1283. During a meeting held on 19 January 2005, the Commissioner General of Labour suggested to the company that it put an end to the illegal lockout and reinstate workers immediately, including the three workers dismissed on 11 January, as the company had failed to comply with the disciplinary procedure laid down by the Board of Investment of Sri Lanka as regards the dismissal of workers.
6. 1284. The company did not comply. On 6 February 2005, it advertised vacancies in the local newspaper and started recruiting new employees. Some employees reported for work over the following days but were not reinstated. The workers reported that the management assigned two supervisors to determine whether those who showed up for work were trade union members.
7. 1285. During a discussion held on 11 February 2005, the management of the company informed the Commissioner General of Labour that it would not allow the workers to report for work unless they accepted to be rehired under new labour contracts, as newly recruited workers. The Commissioner General of Labour reiterated his advice to the management of the company to allow the whole workforce to report for work immediately without any conditions. On the date of the complaint, 250 of the 300 workers were still being locked out and unemployed.
8. B. The Government’s reply
9. 1286. In its communication of 31 August 2005, the Government does not dispute the merits of the complaint. It submits that the New Design Manufacturing Ltd. had served the notices of termination of employment by letters dated 6 January 2005 to three workers who were working as line supervisors. The workers of the factory had gone on strike on 11 January to protest against the termination the services of the three workers and on 12 January, complained to the Commissioner of Labour of the Department of Labour in Colombo.
10. 1287. On the instruction of the Commissioner of Labour, the workers had agreed to come back to work on the following day, i.e. 13 January 2005. On 20 January, the workers reported to the Commissioner that the employer had refused to offer them work when they reported for work, as instructed by the Commissioner. The employer had stated that the three workers who were terminated had instigated the disturbances on 3 December 2004 and therefore could not be reinstated on disciplinary grounds. The management was of the view that the strike held on 11 January 2005 was unreasonable and that it would be prepared to offer jobs to the dismissed workers only if they undertook in writing to not have recourse to such actions in the future. The workers insisted that the three terminations were unreasonable and the dismissed workers should be reinstated unconditionally.
11. 1288. On 1 February 2005, the Commissioner of Labour had requested the management to reinstate the workers but the management refused. At that point, the trade union had requested the management to offer work to the other workers until the dispute of the three workers concerned was settled. No positive response was received from the management.
12. 1289. Since the dispute could not be settled through conciliation, the Commissioner of Labour had recommended to the Minister of Labour Relations and Foreign Employment to refer the dispute for arbitration in terms of section 4(1) of the Industrial Disputes Act, with the agreement of either party. Accordingly, on 7 July 2005, the Minister of Labour Relations has referred the dispute for arbitration to inquire: (a) whether the termination of services with effect from 6 January 2005 of the three workers was justified and, if not, to what relief each of them was entitled; and (b) whether the refusal to offer work from 15 January 2005 by the New Design Manufacturing Ltd. to 179 employees was justified and if not, to what relief each of them was entitled. The Government assures that it will report the outcome of the arbitration proceedings on the above two matters.

C. The Committee’s conclusions

1. 1290. The Committee notes that the complainant in this case alleges failure of the Government to uphold workers’ right to strike and to ensure protection against anti-union discrimination. The Committee notes that the present complaint results from the refusal of the management of the New Design Manufacturing Ltd. to allow 250 workers to return to work following their participation in a strike.
2. 1291. The Committee notes that the Government does not dispute the facts of the case. It further notes the following events, which led to the present complaint. On 6 January 2005, the management of the company dismissed three workers, allegedly for having instigated a strike on 3 December 2004. According to the complainant, workers in fact protested against the new pay system the management was trying to introduce by stopping work. To protest against the dismissal of three workers, about 300 workers went on strike on 11 January 2005 and, on 12 January, lodged a complaint with the Commissioner of Labour who advised workers to report back to work. When the workers reported back to work, they were locked out. The management ignored the advice of the Commissioner of Labour to allow the workers to return to work and started hiring a new workforce. According to the workers, particular attention was paid to whether those who reported for work were members of a trade union.
3. 1292. The Committee further notes that the dispute was referred for arbitration and notes the Government’s assurance that it will report the outcome of the arbitration proceedings.
4. 1293. Considering that the dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 591 and 704], the Committee draws the attention of the Government to its responsibility to prevent all acts of anti-union discrimination and its obligation, under the Convention, to ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt and effective [see Digest, op. cit., paras. 738 and 739]. Noting that the workers were dismissed over a year ago, the Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., paras. 749 and 754].
5. 1294. The Committee notes that the complainant refers to 250 still unemployed workers while the arbitration procedure concerns 179 cases of dismissal. The Committee requests the Government to carry out an inquiry into the exact number of workers who remain locked out of their employment and the circumstances of the lock-out and to take the necessary measures to ensure that they are able to return to their posts with full compensation for lost wages and to ensure the application of the corresponding legal sanctions against the enterprise concerned. It requests the Government to keep it informed of the measures taken in this regard.
6. 1295. With regard to the allegation that, apparently, the enterprise would hire only non-unionized workers, the Committee recalls that such a policy constitutes a serious threat to the free exercise of trade union rights and requests the Government to take stringent measures to combat such practices if this allegation is confirmed following an independent inquiry.

The Committee's recommendations

1. 1296. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to carry out an inquiry into the exact number of workers who remain locked out of their employment and the circumstances of the lock-out and to take the necessary measures to ensure that they are able to return to their posts with full compensation for lost wages and to ensure the application of the corresponding legal sanctions against the enterprise concerned. It requests the Government to keep it informed of the measures taken in this regard.
   • (b) With regard to the allegation that, apparently, the enterprise would hire only non-unionized workers, the Committee recalls that such a policy constitutes a serious threat to the free exercise of trade union rights and requests the Government to take stringent measures to combat such practices if this allegation is confirmed following an independent inquiry. It requests the Government to keep it informed in this respect.