Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

In its previous comments, the Committee had noted that in the absence of tripartite consensus towards the amendment of the Industrial Disputes Act, discussions would be pursued at the level of the National Labour Advisory Council (NLAC) and its subcommittee. The Committee notes that the Ministry of Labour and Trade Unions Relations has now initiated a study on labour law reforms undertaken by a local expert (a former Justice of the Supreme Court) and that a workshop was held in November 2015 to discuss the proposed reforms, with the support of the ILO Office in Colombo. According to the Government, the Ministry is in the process of examining the proposed amendments to the existing labour legislation. Considering the comments made for a number of years, the Committee expects that progress towards the amendment of the labour legislation will be achieved in the near future along the lines indicated below, and that the Government will provide information on any developments in this respect.

Article 1 of the Convention. Adequate 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: (i) to ensure the effectiveness and expeditiousness of the procedures of unfair labour practices (which englobe the acts of anti-union discrimination); and (ii) to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. With regard to delays in holding inquiries and prosecution of unfair labour practices, the Committee notes from the Government that according to a circular dated 29 April 2011, each District Labour Office or Sub-Office is required to open a register for complaints on unfair labour practices within 14 days. The Government reiterates that, even though the Department of Labour has taken a number of initiatives to expedite the processes against anti-union discrimination, it still faces various practical difficulties, including a lack of accurate information and the unwillingness of workers to give evidence before the courts, which cause delays in the processes. With respect to the possibility for the workers who are victims of anti-union discrimination to lodge a complaint before the judicial courts, the Committee notes from the Government that this matter was taken up on various occasions during NLAC meetings but that the majority of trade unions were not willing to assume such a role and responsibility, further discussion with the social partners being therefore necessary. The Committee also takes note of the information provided by the Government as to the number of cases examined or pending before the courts. The Committee finally notes from the Government’s report that fines and offences arising out of unfair labour practices increased from 20,000 to 100,000 Sri Lankan rupees (LKR). Recalling that anti-union discrimination is one of the most serious violations of freedom of association and that adequate remedies should be granted to the persons concerned, the Committee urges the Government 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. In addition, the Committee requests the Government to provide further 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 notes the information provided by the Government on progress made to promote collective bargaining to keep enhancing the awareness of collective bargaining among the general public and at workplaces. 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 difficulties with regard to the exercise of workers’ rights to organize and collective bargaining in EPZs, and in particular that labour inspectors are not allowed to carry out unannounced visits to EPZ factories. The Committee notes that the Government firmly reiterates that labour inspectors have the authority to enter any factory in EPZs without getting the permission of the employer or Board of Investment (BOI). The Government indicates that in 2014, 410 inspections were carried out at the EPZs, as against 386 in 2015. It also emphasized that 35 enterprises have recognized trade unions in EPZs and import processing zones (IPZs), of which 18 have granted check-off facilities to trade unions, and that seven enterprises have signed collective agreements. It also reiterates that trade union facilitation centres have been established in three EPZs, with a view to facilitating private meetings between workers and their representatives, and that the BOI is vigilant that the existence of employees’ councils does not undermine the position of trade unions. The Committee requests the Government to continue to provide information on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered. It also requests the Government to indicate the respective numbers of trade unions and employees’ councils in EPZs, as well as the measures taken to ensure that employees’ councils do not undermine the position of trade unions.

Representativeness requirements for collective bargaining. In its previous comments, the Committee requested the Government to take the necessary steps to review section 32(A)(g) of the Industrial Disputes Act, according to which 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 notes that the Government reiterates that it considers it important that the bargaining agent on behalf of the workers is sufficiently representative to bargain with the employer, and that all major trade unions of the country have no objections in keeping the threshold of 40 per cent. However, the Committee recalls 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 be given the possibility to negotiate on behalf of their own members. The Committee expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to promote the full development and utilization of collective bargaining. The Committee requests the Government to indicate any progress in this regard.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. In its previous comments, the Committee had 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. The Committee notes that the Government reiterates 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; 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. The Committee also notes from the Government that a study on collective bargaining in the public service has been undertaken with the technical support of the Office, and that its recommendations will be brought to the attention of the Committee. 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 that all public service workers other than those engaged in the administration of the State enjoy collective bargaining rights with respect to salaries and other conditions of employment. The Committee requests the Government to indicate any progress made in this regard.