Report in which the committee requests to be kept informed of development - Report No 230, November 1983

Case No 1003 (Sri Lanka) - Complaint date: 17-SEP-80 - Closed

COMPLAINTS PRESENTED BY THE CEYLON FEDERATION OF LABOUR, THE WORLD FEDERATION OF TRADE UNIONS AND SEVERAL OTHER TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF SRI LANKA

• COMPLAINTS PRESENTED BY THE CEYLON FEDERATION OF LABOUR, THE WORLD FEDERATION OF TRADE UNIONS AND SEVERAL OTHER TRADE UNION ORGANISATIONS AGAINST THE GOVERNMENT OF SRI LANKA
  351. 351 The Committee has examined these cases on three occasions since the complaints were first presented in July 1980. On each occasion it presented an interim report to the Governing Body.
  352. 352 Since its most recent examination of the complaints, the Government supplied information which was noted in paragraph 8 of the Committee's 222nd Report, approved by the Governing Body at its 222nd Session (March 1983). Since then the following further communications have been received from the Public Service Trade Union Federation dated 26 April 1983; from 11 national federations (Ceylon Federation of Trade Unions, Sri Lanka Independent Trade Union Federation, Democratic Workers' Congress, Public Service Trade Union Federation, Sri Lanka Independent Government Trade Union Federation, All Ceylon Government Clerks Union, United Corporations and Mercantile Union, Central Council of Ceylon Trade Unions, Sri Lanka National Teachers, Union, Post and Telecommunication Clerical Services Union and the Local Government Clerks Union) dated 16 June 1983. The Government sent its observations in communications dated 24 August and 22 September 1983.
  353. 353 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

1. 354. The complainants referred to the victimisation of workers during and after a general strike which lasted from 11 July to 9 August 1980, in particular the passing of state of emergency regulations outlawing strikes, the mass dismissal of several thousand strikers, the arrest without trial of workers, including five named trade union leaders, the closure of trade union premises, and the death of a trade union official.
2. 355. After taking note of the replies, observations and information communicated by the Government on the various aspects of the case, the Committee, at its November 1982 meeting, recommended the Governing Body to approve the following interim conclusions:
   • (a) Generally speaking, the Committee notes the discrepancies between the complainants' and the Government's comments on the various aspects still outstanding in this case. s (b) As regards the closure of trade union premises in particular, the Committee, noting that by the Government's own admission the government premises where union offices were located have not been given back to the respective unions, can only reiterate its previous requests and conclusions concerning the occupation of trade union premises. It recalls that the right to protection of trade union property is one of those civil liberties which is essential to the normal exercise of trade union rights and requests the Government to consider reopening the premises of the 18 unions to which the complainants have referred.
   • (c) As regards the death of the trade unionist, Mr. D. Somapala, in the absence of more accurate information, the Committee can only deplore this loss of human life in the context of a labour dispute.
   • (d) As regards the reinstatement of the many strikers dismissed following a strike outlawed by the proclamation of the state of emergency, the Committee recalls the great importance which it attaches to the right to strike as a legitimate means of defending the occupational interests of workers. It again invites the Government to re-examine the situation of the persons concerned in order to try to improve the climate of industrial relations.
   • (e) Finally, concerning the five trade union leaders who had been arrested, the Committee notes that, according to the Government, they have been released. Since, according to the Government, judicial proceedings have been instituted against them at the High Court in Colombia, the Committee trusts that it will receive a copy of the judgements concerning them as soon as they are handed down. It also requests the Government to indicate whether the released persons have been able to return to their trade union activities.

B. Further developments

1. 356. The Committee noted at its February 1983 meeting that the Government had supplied information on the five trade union leaders to the effect that their cases were still pending before the High Court in Colombia, and in particular that they have returned to their trade union activities.
2. 357. On 26 April 1983, the Public Service Trade Union Federation supplied details of 25 trade unions, itself included, whose premises remain sealed allegedly as a result of their participation in the July 1980 strike. It furthermore repeats that nearly 13,000 workers who were dismissed after the strike remain out of work and are only being recruited at a very slow pace.
3. 358. In their joint communication of 16 June 1983, 11 national trade unions alleged that two pieces of 1979 legislation - the Essential Public Services Act and the Prevention of Terrorism Act - oppress trade union rights. The first Act allegedly makes it possible to declare strikes illegal in a number of public services even in non-emergency situations and imposes large penalties for the mere act of encouraging an employee to stay away from his work. The second Act allegedly removes the normal legal protections applicable to arrested persons, and suspects held for questioning e.g. a suspect, by order of the relevant Minister, can be detained for up to 18 months without charges being brought against him.
4. 359. These complainants also alleged that the Government refuses to recognise and deal with the elected representative of the Public Service United Nurses Union which claims to represent 90 per cent of the workers concerned.
5. 360. Lastly, these complainants repeated that many trade union offices remain closed and 13,000 workers remain unemployed due to their participation in the July 1980 general strike.
6. 361. The Government in its communication of 24 August 1983, states that the allegation recently presented by the complainants concerning the sealed trade union premises and unemployed strikers are mere repetitions of allegations to which the Government has previously replied and which have already been examined by the Committee.
7. 362. In relation to the outstanding issue of the five trade union leaders committed to the High Court for trial, the Government states that the indictments against them are being finalised by the Attorney-General. The Government undertakes to report to the Committee when the indictments have been filed and judgement delivered.
8. 363. In its communication of 22 September 1983, the Government states that, in view of its progressive attitude towards adopting pro-worker legislation over the past five years, any criticism of its efforts could only come from elements politically opposed to the present Government. With particular reference to the Essential Public Services Act, 1979, it states that its provisions can only be brought into operation, by Gazette notification, for one month at a time, and subject to Parliamentary Resolution on each occasion, when an extraordinary situation develops which necessitates measures to ensure the performance of services essential to the life of the community. According to the Government, the services covered are confined to those provided by Government departments, public corporations, local authorities and co-operative societies.
9. 364. The Government points out that the Prevention of Terrorism Act only applies to terrorists who advocate the use of force to overthrow the Government and is in no way concerned with trade unions, their rights or legitimate activities.
10. 365. The Government denies that the Public Service United Nurses' Union is not recognised; its right to exist and exercise legitimate trade union activities have not been denied and its officials continue to have access to the relevant Government authorities to discuss matters of interest to its membership.
11. 366. As regards the situation of the dismissed workers, the Government states that it cannot investigate specific cases without the names of these workers. It points out that those workers who vacated their posts during the period of the Emergency Regulations (July 1980) are being re-employed as and when vacancies become available.
12. 367. As regards the allegation that trade union offices remain closed, the Government refers to its previously reported comments.

C. The Committee's conclusions

1. 368. As concerns the continued closure of trade union offices which had been housed in government premises, the Committee observes that, since its first examination of these cases in May 1981 it has been requesting the Government to consider reopening its premises for use by trade unions, in particular those unions listed by the complainants. The Committee notes that the Government's explanation for the closure of such premises to union use was that security reasons necessitated this in view of the emergency situation surrounding the general strike. In all these circumstances the Committee cannot but reiterate its request to the Government that, with a view to restoring harmonious industrial relations in Sri Lanka, urgent consideration should be given to the reopening of the trade union premises which were previously housed within the government property.
2. 369. As regards the thousands of workers dismissed after the July 1980 general strike who remain out of work, the Committee observes from the history of the examination of this allegation that the Government construed the deliberate absences from work during the period of the Emergency Regulations as vacation by the worker of his post. Many appeals, however, on the grounds of hardship caused by loss of employment due to the operation of law had been successful and many workers proving legitimate explanations for their absence have been reinstated. In view of the fact that thousands of workers have nevertheless been out of work for over three years, the Committee would again draw the Government's attention to the principle of freedom of association according to which excessively severe measures, such as the mass dismissal of and refusal to re-employ workers on account of their participation in strike action, which is recognised as a legitimate means of defending the occupational interests of workers, is a violation of freedom of association. The Committee accordingly again urges the Government to re-examine the situation of the persons concerned in order to improve the industrial relations climate and, in particular, to ensure that appeals and requests for reinstatement are dealt with rapidly.
3. 370. The Committee notes that the recent allegation concerning 1979 anti-strike legislation is similar to the complainants' initial allegations examined in May 1981 concerning the anti-union nature of the Emergency Regulations passed with a view to putting an end to the July 1980 general strike. The Government at that time argued that restrictions on strike action were introduced temporarily only in essential services because the agitation could have caused severe hardship to the community and jeopardised the Government's development efforts. The Committee notes that in its most recent communication the Government points out that the 1979 legislation can only be invoked in exceptional cases, for one month periods and subject to Parliamentary approval. While noting these safeguards against abusive application of the legislation, the Committee would nevertheless point out that the services covered by the Act might not be strictly essential in view of the criteria concerning the right to strike in the public service or essential services. It therefore recalls that the principle whereby the right to strike may be limited or prohibited in such areas would become meaningless if the legislation defined the public service or essential services too broadly, that is to say, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life personal safety or health of the whole or part of the population. The hospital sector and air traffic control have, for example, been considered essential, whereas banking, agricultural activities, ports, teaching, radio and television are not essential services in the strict sense of the term.
4. 371. In this connection, the Committee notes that the Committee of Experts, in its examination of Sri Lanka's application of Convention No. 98, refers to the Government's proposed Labour Relations Law. This Committee accordingly requests the Government to consider the above principle concerning the right to strike in the new legislation.
5. 372. Since the Government denies that the Prevention of Terrorism Act, 1979 is concerned with trade union rights or activities, the Committee can only comment generally on the allegation according to which this legislation removes the normal legal protections applicable to suspected or arrested persons. It would therefore draw the Government's attention to the principle that every government should ensure observance of human rights and more especially the right of all detained or accused persons to receive a fair trial at the earliest possible moment .2
6. 373. In view of the fact that the complainants, despite being given an opportunity to do so, have not supplied more detailed information on their allegation that the Government refuses to recognise or deal with the representatives of the Public Service United Nurses' Union and the Government's statement that this union and its officers are freely exercising trade union activities, including access to government authorities, the Committee considers that this aspect of the case does not call for further examination.
7. 374. The Committee notes that the indictments against five trade union leaders committed for trial to the High Court of Colombia are being finalised. It requests the Government to keep it informed of developments in these cases.

The Committee's recommendations

1. 375. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular, the following conclusions:
   • (a) As regards the continued closure of trade union offices which had been housed in government premises, the Committee reiterates its request to the Government that with a view to restoring harmonious industrial relations, urgent consideration be given to the reopening of the trade union premises for use by the workers' organisations.
   • (b) As regards the thousands of workers who were dismissed after the July 1980 general strike and who remain out of work, the Committee would again draw the Government's attention to the principle that excessively severe measures, such as the mass dismissal of and refusal to re-employ workers on account of their participation in strike action, which is recognised as a legitimate means of defending the occupational interests of workers, is a violation of freedom of association. The Committee again urges the Government to re-examine the situation of the persons concerned in order to improve the industrial relations climate.
   • (c) As regards the alleged anti-strike provisions of the Essential Public Services Act, 1979, the Committee notes that the legislation contains precise measures to safeguard against abusive application of the legislation. It, nevertheless, recalls that, in view of the large number of services covered by the Act, the prohibition on the right to strike in the public service and essential services should be confined to public servants acting as agents of the public authority and to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to consider this principle when drafting the proposed Labour Relations Law, to which reference has been made by the Government in the context of its application of Convention No. 98.
   • (d) As regards the alleged withdrawal of normal legal guarantees under the Prevention of Terrorism Act, 1979, the Committee notes the Government's statement that legitimate trade union rights and activities are not concerned and can only generally recall that every government should ensure observance of human rights, and more especially the rights of all detained or accused persons to receive a fair trial at the earliest possible moment.
   • (e) The Committee considers that the allegation concerning non-recognition of the Public Service United Nurses' Union does not call for further examination.
   • (f) The Committee requests the Government to keep it informed of developments in the cases of the five trade union leaders who have been committed for trial to the High Court of Colombo.