Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see Article 4 below), as well as on the basis of the information at its disposal in 2019.

The Committee notes the Government’s reply to the 2018 observations of the International Trade Union Confederation (ITUC) and the Free Trade Zones and General Services Employees Union (FTZ and GSEU) which referred to allegations of anti-union dismissals in export processing zones (EPZs) as well as the refusal to recognize the right of unions to bargain collectively in the EPZs. The Committee notes that the Government indicates that labour inspectors have the right to enter workplaces in EPZs at any time and without prior notice and that the Labour Offices have not received any complaints in this regard.

The Committee also notes the observations of the ITUC received on 1 September 2019 alleging anti-union dismissals in a company and denouncing that anti-union discrimination and union-busting remain a major problem in the country. The Committee requests the Government to send its reply thereon.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. For many years, the Committee has referred to the fact 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 for bringing cases before the Court. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee had urged the Government 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 had also expressed the hope that the Industrial Disputes Act be amended to grant trade unions the right to bring anti-union discrimination cases directly before the courts. In this respect, the Committee notes that the Government indicates once again that the possibility for workers and for trade unions to lodge complaints with the judicial courts has been discussed for years at the National Labour Advisory Council (NLAC) but that no consensus has been reached on this matter. The Government expresses the view that, as an impartial institution, the Department of Labour is in a better position than the victims are to carry out investigations and collect evidence in relation to anti-union discrimination complaints. The Government reports that, by the end of 2018, 311 cases of anti-union discrimination were pending and eight had concluded. Recalling that anti-union discrimination is one of the most serious violations of freedom of association, and observing that, according to the ITUC, anti-union discrimination and union-busting remain a major problem in the country, the Committee once again: (i) 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 courts and (ii) 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 also requests the Government to continue to provide information on the number of cases of anti-union discrimination examined by the courts as well as to indicate the duration of proceedings and the sanctions or remedies imposed.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee notes the information provided by the Government on measures taken to promote collective bargaining in the EPZs and welcomes the Government’s indication that in 2018 and 2019 the Department of Labour conducted 12 awareness-raising programmes in the EPZs reaching approximately 1,000 workers and covering more than 50 work places. The Committee also notes the Government’s indication that the fact that only trade unions can engage in collective bargaining discourages the establishment of employee councils in the EPZ’s. The Committee takes note that in its supplementary report the Government reiterates the information provided in previous years that seven collective agreements are currently in force in EPZs. The Committee notes, however, that the Government does not indicate the number of trade unions and employees’ councils established in the EPZs, as requested by the Committee. The Committee therefore requests the Government to provide such information and to continue to inform on the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered by them in comparison with the total number of workers employed in this sector. Recalling previous ITUC observations regarding the refusal to recognize the right of unions to bargain collectively in the EPZs, the Committee encourages the Government to continue to take measures to promote collective bargaining in the EPZs and requests it to provide information in that regard.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government 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 this matter was discussed within the NLAC but that both the employers and major trade unions do not agree to reduce the threshold, as it would create more divisions in the work place and dilute the trade union representation and bargaining power. The Government also reiterates that unions who do not meet the required threshold of representativity can merge and operate as one and indicates that some employers have accepted to bargain with trade unions without considering the threshold of 40 per cent. Recalling that the ITUC had previously referred to cases where companies had refused to bargain collectively with unions that did not reach the 40 per cent threshold, the Committee wishes to recall that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements, which are designed to be applied to all workers in a sector or establishment, is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee considers however that, if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee therefore reiterates that it 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 ensure that, if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. The Committee had previously 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. In its last report, the Government had indicated that it was going to take measures with a view to addressing this issue. In that respect, the Committee notes that the Government once again 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 are 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 Government also indicates that the public sector of Sri Lanka constitutes 14 per cent of all employees and that trade unions with significant bargaining power have bargained specific allowances which have led to disproportionate disparities in the public sector with respect to net salaries. The Government expresses the view that legally allowing collective bargaining rights to the public sector employees would be unfavourable to the sustainability of the Government. In that connection, the Committee wishes to reiterate once again that there are arrangements that allow for the conciliation of the balance of public budgets and the protection of the principle of equal remuneration for work of equal value in the public sector, on the one hand, and the recognition of the right to collective bargaining, on the other. It also recalls once again that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between, on the one hand, public servants engaged in the administration of the State, who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 172). In view of the above and considering that section 49 of the Industrial Disputes Act excludes state and government employees from the Act’s scope of application, the Committee reiterates its previous request to the Government to take the necessary measures to guarantee the right to collective bargaining of the public sector workers covered by the Convention with respect to salaries and other conditions of employment. The Committee also reminds the Government that it may have recourse to the technical assistance of the Office.

[The Government is asked to reply in full to the present comments in 2021.]