Effect given to the recommendations of the committee and the Governing Body - Report No 344, March 2007

Case No 2380 (Sri Lanka) - Complaint date: 18-MAR-04 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 192. The Committee examined this case at its March 2006 meeting [see 340th Report, paras 1262–1275]. On that occasion, it made the following recommendations:
2. (a) With regard to the allegation of anti-union dismissals, suspensions or termination of services, the Committee:
3. – regrets that no information was provided by the Government on the alleged termination of services of about 100 workers following their participation in the strike;
4. – trusts that the five appeals lodged before the Labour Tribunal by the dismissed workers will be examined rapidly so that the necessary remedies can be applied effectively and requests the Government to keep it informed of the decisions reached by the tribunal. It requests the Government to transmit copies of the decisions as soon as they are handed down by the Tribunal, as well as to provide information on the grounds on which an application to the Tribunal by one worker was dismissed;
5. – in respect of the remaining aggrieved workers, the Committee once again urges the Government to take the necessary steps without delay to ensure that a procedure on the allegations of anti-union discrimination be opened and be brought to a speedy conclusion in a fully impartial manner and to keep it informed in this respect. Furthermore, if the allegations are found to be true, the Committee requests the Government to ensure in cooperation with the employer concerned that: (i) the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if reinstatement in one form or another is not possible, that they are paid adequate compensation which would represent sufficiently dissuasive sanctions for such anti-trade union actions; (ii) the workers demoted as a result of their legitimate trade union activities are restored to their former posts without delay; and (iii) the workers under suspension because of their legitimate trade union activities are allowed to resume work without delay and are paid wages for the period when they were unjustly denied work. The Committee requests the Government to keep it informed in this regard.
6. (b) The Committee requests the Government to ensure and to amend the legislation, if needed, that if the branch of the Free Trade Zones and General Services Employees Union at the Workwear Lanka does not represent 40 per cent of the workers, this does not preclude this union from exercising its activities and that, if no other trade union at the enterprise represents more than 40 per cent, the union could bargain collectively at least on behalf of its members. The Committee requests the Government to keep it informed in this respect.
7. 193. In its communication dated 31 August 2006, the Government contests that 100 workers had been dismissed and indicates that out of 100 workers who participated in the strike, only eight persons were dismissed. Out of the eight workers whose services were terminated, two had resigned. With regard to the other six workers who applied to the labour tribunal, one case was dismissed by the tribunal, five others are still pending.
8. 194. In this respect, the Government forwards the information from the Employers’ Federation of Ceylon and the enterprise concerned. It follows from these communications that one worker was dismissed on the grounds of misconduct. According to the enterprise’s communication, Mrs Chandrina Rupika, the secretary of the workers’ council, had requested for the salary to be paid on 27 December 2003, instead of the last day of the month, as it was usually done. When it was explained to her that this was not possible, Mrs Rupika insulted and threatened the personnel assistant. When one of the managers reprimanded Mrs Rupika for disturbing peace and harmony at the workplace, the latter incited other employees to stop working. As a result, a disciplinary punishment was imposed on seven workers. However, instead of reporting to work, they filed a complaint before the labour tribunal. The enterprise denied that 100 workers were dismissed from the enterprise. While some 100 trainees were employed at the enterprise at that time, their services were not retained after the training period. The employer states that there is no dispute arising out of cessation of employment of the trainees. Furthermore, according to the employer, at the time of the alleged dispute, the workers involved were not trade union members, nor was there a union involved in the strike.
9. 195. With regard to the question of amending legislation so as to remove the 40 per cent threshold for trade union recognition for collective bargaining purposes, the Government indicates that it was discussed at the National Labour Advisory Council (NLAC). Except for a few trade unions, the majority of the trade unions represented in the NLAC and the employers’ organizations were not in favour of removal of the 40 per cent threshold. However, this issue had been referred to the subcommittee of the NLAC, which is currently in the process of examining the labour legislation to recommend labour law reforms. The Committee’s recommendation will also be referred to the subcommittee. On the recommendation of the labour law reform subcommittee, measures would be taken to amend the legislation appropriately. It will be a part of the overall labour law reform exercise.
10. 196. The Government further provides details on other developments which occurred since October 2005, which relate to the dispute in this case. The members of the Free Trade Zones and General Services Employees’ Union went on strike when their branch president was banned and were later dismissed by the employer. A complaint was brought before the Commissioner General of Labour, who disagreed with the employer. This matter was referred for inquiry under the Termination of Employment of Workmen Act No. 45 of 1971. The applications under this Act were filed in respect of 205 workers on 8 November 2005. Three persons had withdrawn their applications. The inquiries in respect of the others are still pending. In the meantime, the company requested permission from the Board of Investments to recruit temporary workers until the termination inquiry was over. While the Board was considering this application, the company made an application to the Court of Appeal seeking writs of certiorari, mandamus and an interim order to recruit workers on a temporary basis. The Court of Appeal granted an interim order permitting employment of temporary labour operative until 13 December 2005. On 5 April 2006, the Board of Investment issued a directive to the company to terminate the services of all temporary workers recruited. The company filed an application to the Court of Appeal, which issued an interim order staying the directive until the final determination of applications for termination of employment filed with the Commissioner of Labour. The workers have now made an application to the Court of Appeal seeking relief by way of setting aside the interim order. The Department of Labour is awaiting the decisions of the labour tribunal and the inquiry of the Commissioner General of Labour to take suitable measures.
11. 197. The Committee notes the information provided by the Government, and the information from the employers’ organization and the enterprise management transmitted by the Government. The Committee recalls from its previous examination of this case that the hearings of cases lodged before the labour tribunal in respect of five workers allegedly dismissed from the Workwear Lanka (Pvt.) Ltd in December 2003 were scheduled for 15 September 2005. The Committee further notes that 202 workers were dismissed following their participation in a subsequent strike and their case has been pending since November 2005. The Committee recalls that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 666]. The Committee further recalls, as it did in Case No. 2419 also concerning Sri Lanka, that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned. 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., 2006, paras 826 and 835]. The Committee expects that the competent authorities will process these cases without delay and that, if the allegations of anti-union discrimination are confirmed, will take suitable measures to remedy any effects of anti-union discrimination. The Committee requests the Government to keep it informed in this respect and to transmit copies of the decisions as soon as they are handed down by the labour tribunal. It further once again requests the Government to provide information on the grounds on which the tribunal dismissed the application of one worker fired in December 2003.
12. 198. With regard to its previous recommendation to ensure and, if needed, to amend the legislation, that if the branch of the Free Trade Zones and General Services Employees’ Union at the Workwear Lanka (PVT) Ltd does not represent 40 per cent of the workers, this does not preclude this union from exercising its activities and that, if no other trade union at the enterprise represents more than 40 per cent, the union could bargain collectively at least on behalf of its members, while noting with interest the legislative initiatives undertaken in this regard, the Committee requests the Government to indicate the measures taken to ensure the rights of the above union to exercise its activities. The Committee draws the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.