Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Sri Lanka (Ratification: 1972)

The Committee notes the observations from IndustriALL Global Union (IndustriALL) received on 31 August 2015, concerning cases of anti-union discrimination, interference and persecution of union members as well as other issues addressed by the Committee. The Committee requests the Government to provide its comments thereon. The Committee also notes the observations of the International Trade Union Confederation (ITUC) of 2014, which concern acts of anti-union discrimination, including dismissals in an export processing zone, as well as the Government’s comments thereon. The Committee further notes the Government’s comments on the observations of the Employers’ Federation of Ceylon (EFC) and the International Organisation of Employers (IOE) of 2011, as well as on the observations of the ITUC of 2012 and 2014. The Committee also notes that, in its report, the Government addresses the issues raised by the Lanka Jathika Estate Workers’ Union (LJEWU) in its 2012 observations.

In its previous comments, the Committee had noted the Government’s indication that the National Labour Advisory Council (NLAC) decided on 1 February 2011 to set up a tripartite subcommittee to further discuss the implementation of the national labour policy and reflect on how laws and practice should be developed, in particular in relation to freedom of association and collective bargaining issues. The Committee had expressed the hope that this tripartite process would bring positive results. The Committee notes that the Government states in its report that both the employer and the worker side have submitted proposals in respect of the amendment of the Industrial Disputes Act relating to the application of the Convention, that the proposals were discussed without any consensus being reached, and that discussions will be pursued at the subcommittee level and at the NLAC. It also notes the indication of IndustriALL that the decision of the NLAC on 7 March 2011 to set up a tripartite committee for the free trade zones has not been implemented so far. The Committee requests the Government to provide information on any developments with regard to the establishment and working of the abovementioned tripartite forums and expresses the strong hope that these tripartite mechanisms will contribute to achieve progress towards the amendment of the labour legislation, taking fully into account the comments made by the Committee for a number of years.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Effective and expeditious procedures. Noting that in practice only the Department of Labour can bring cases concerning anti-union discrimination before the Magistrate’s Court, and that there are no mandatory time limits within which complaints should be made to the Court, the Committee had previously requested the Government to ensure the effectiveness and expeditiousness of the procedures of unfair labour practices and to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also invited the Government to continue to discuss, on a tripartite basis, the possibility of granting trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee notes with interest the Government’s indication that it wishes to take measures to ensure that workers who are victims of anti-union discrimination can lodge complaints before the courts, and that it intends to amend the Industrial Disputes Act in order to also grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee also notes that the Government indicates that, even though the Department of Labour has taken a number of initiatives to expedite the processes against anti-union discrimination, it faces various practical difficulties, including lack of accurate information and unwillingness of workers to give evidence before the courts, which cause delays in the processes. Finally, in relation to the observations of the EFC and the IOE that the Industrial Disputes Act is discriminatory because it only sets out unfair labour practices on the part of the employers but not on the part of the workers or their organizations, the Committee notes the Government’s intention to address this issue. The Committee requests the Government once again to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. The Committee also expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee requests the Government to provide information on any developments as to its intention to address the observations of the EFC and the IOE. The Committee further requests the Government to provide information on the number of cases of anti-union discrimination examined by the courts, the duration of proceedings and the sanctions or remedies imposed.

Article 4. Measures to promote collective bargaining. The Committee had previously requested the Government to provide information on progress made to promote collective bargaining. The Committee notes the Government’s indication that the Social Dialogue and Workplace Cooperation Unit (SDWC), established under the Department of Labour, has implemented a number of programmes to enhance the awareness of collective bargaining among the general public and at workplaces. The Committee notes the information provided by the Government and observes with interest that more than 20,000 persons participated in approximately 400 workshops organized by the SDWC in the period 2014–15. The Committee requests the Government to continue to take measures to promote collective bargaining and to provide information in this regard.

Export processing zones (EPZs). In its previous comments, the Committee had noted that the ITUC referred to difficulties with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs. The Committee notes that, according to the most recent observations from the ITUC and IndustriALL, these difficulties continue to exist. With respect to the earlier ITUC allegation that labour inspectors are not allowed to carry out unannounced visits to EPZ factories, the Committee notes that the Government indicates that labour inspectors have the authority to enter into any factory in EPZs without getting permission of the employer or Board of Investment (BOI), and that trade union facilitation centres have been established in three EPZs, with a view to facilitating private meetings between workers and their representatives. The Committee notes that IndustriALL states that the way in which the facilitation centres are set up makes it difficult for workers to approach them. With respect to the earlier ITUC allegation that employee councils are promoted by the BOI as a substitute for trade unions in EPZs, the Committee notes that the Government indicates that three employee councils in EPZs have been converted and registered as trade unions, and that there are three entities that address employer manipulations of employee councils. The Committee notes, however, that IndustriALL submits that employee councils continue to be used to undermine trade unions. The Committee also notes that the Government indicates that 34 enterprises have recognized trade unions in EPZs and industrial processing zones, of which 18 enterprises have granted check-off facilities to trade unions and six enterprises have signed collective agreements. Furthermore, the Committee takes note that a total of 2,148 EPZ workers and employers attended the awareness-raising programmes on collective bargaining conducted by the ILO Colombo Office in the period 2014–15. Noting the divergence between the statements of the Government and of the workers’ organizations with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs, the Committee requests the Government to provide information on the difficulties encountered in the application of the Convention to EPZs and the specific measures taken to address these difficulties. The Committee reiterates its request to the Government to ensure that employee councils do not undermine the position of trade unions, in particular in relation to their right to collective bargaining. The Committee also requests the Government to provide further information on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had noted that, under section 32(A)(g) of the Industrial Disputes Act, no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee requested the Government to ensure that if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members. The Committee notes that the Government indicates that: (i) there is a multiplicity of trade unions in the country and it is difficult for a single employer to negotiate with more than one union; (ii) it considers important that the bargaining agent on behalf of the workers is sufficiently representative to bargain with the employer; (iii) all major trade unions of the country have no objections in keeping the threshold of 40 per cent; and (iv) this issue is to be discussed at the NLAC. The Committee also notes that the ITUC in its 2014 observations states that it is very difficult in practice for a union to attain the 40 per cent requirement due to the diversity of the trade union movement. The Committee reiterates the need to ensure that where, under a system for nominating an exclusive bargaining agent who is entitled to negotiate a collective agreement applicable to all workers in the unit, there is no union representing the required percentage to be so designated (in this case 40 per cent), trade unions should either be granted the possibility of forming a grouping with a view to achieving the required percentage or at least be given the possibility to negotiate on behalf of their own members. The Committee firmly trusts that the NLAC and the Government will take into account these principles when reviewing section 32(A)(g) of the Industrial Disputes Act in order to promote the full development and utilization of collective bargaining. The Committee requests the Government to indicate any progress in this regard and to provide information on the number of collective agreements in force, the sectors concerned and the percentage of workers covered.

Article 6. The right to collective bargaining in the public service. In its previous comments, the Committee noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism – with perhaps some elements of arbitration – under which the demands of public service trade unions were considered, while the final decision on salary determination rested with the Cabinet of Ministers. The Committee requested the Government to take the necessary measures to recognize and promote civil servants’ right to collective bargaining, as long as they are not engaged in the administration of the State. The Committee notes that the Government indicates that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers is engaged in; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. In light of section 49 of the Industrial Disputes Act, which excludes state and government employees from the Act’s scope of application, the Committee requests the Government to specify the provisions ensuring persons employed by public undertakings the right to collective bargaining. The Committee once again recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights with respect to salaries and other conditions of employment. The Committee requests the Government to take the necessary measures to guarantee the right to collective bargaining to public service workers, in accordance with this principle, and to indicate any progress made in this regard.

[The Government is asked to reply in detail to the present comments in 2016.]