Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2860 (Sri Lanka) - Complaint date: 23-MAY-11 - Closed

Allegations: The complainant organizations allege anti-union discrimination, threats against and transfers of union members and the withdrawal of the facilities previously granted to the President of the GNOA as reprisal for their participation in industrial actions

1. 1142. The complaint is contained in a communication from the Health Sector Trade Union Alliance (HSTUA), the Trade Union Confederation (TUC) and the Government Nursing Officers Association (GNOA) dated 23 May 2011.
2. 1143. The Government sent its observations in a communication dated 31 October 2012.
3. 1144. Sri Lanka has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 1145. In their communication dated 23 May 2011, the complainants indicate that the GNOA is a registered trade union under the national laws of government nursing officers and the HSTUA is a registered umbrella trade union federation of health-sector workers and it is the largest health-sector federation in the country. The GNOA is a member of the HSTUA. The Ministry of Health (MOH) is the employer of the workers represented by the GNOA. The MOH is also the employer of all government health-sector workers and these workers are deemed to be public sector employees who come under the ultimate purview of the Government.
2. 1146. The complainants state that over the last few years, the GNOA has been raising its occupational and workers’ rights concerns with the MOH which has continued to ignore, downplay and drag out their issues indefinitely without any constructive engagement. The complainants add that since the Government deliberately failed to respond to the issues raised by the unions, the general membership decided to resort to legitimate trade union actions in order to compel the MOH to engage in constructive discussions with it and resolve the issues. The GNOA therefore engaged in the following trade union actions:
   • – 25 October 2010 – a three-hour walkout from service;
   • – 10 November 2010 – a one-day token strike;
   • – 2 December 2010 – a one-hour walkout from service;
   • – 9 December 2010 – a one-hour walkout from service;
   • – 10–13 December 2010 – an all-out cessation of work in six hospitals.
3. 1147. The complainants indicate that prior to the above trade union actions, the GNOA provided the Government with reasonable and sufficient notice of the impending trade union action, although there are no such laws in the country requiring a trade union to provide such prior notice. The GNOA took all the necessary steps to ensure that emergency medical services in government hospitals were not disrupted. Media reports and statements of government health officials bear testimony to the responsible nature in which the action was carried out. Further, there are no allegations to the effect that emergency services in hospitals were disrupted due to the aforesaid trade union action. The complainants state that the cessation of work in the form of a trade union action is well within the laws of the country and is a guaranteed right of trade unions registered under the laws of Sri Lanka. The Government is also obliged to guarantee these rights in view of its accession to the ILO and the ratification of Conventions Nos 87 and 98.
4. 1148. The complainants further allege that all their trade union actions were for a limited period of time. The GNOA did not choose to engage in long drawn-out actions taking into consideration the inconvenience that might be caused to the general public and believed the MOH would respond to their issues.
5. 1149. The complainants also indicate that health services in the country are not declared as an essential service and the actions of the GNOA were not amounting to the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population. Moreover, at the time of the industrial actions described above, there was no acute national emergency or crisis prevailing.
6. 1150. The complainants further allege that instead of bargaining in good faith and responding to the issues raised by the trade union, the Government chose to intimidate and threaten workers who had participated in the patently legal trade union action of the GNOA. The MOH intimidated and threatened all the workers who partook in the trade union action of 25 October 2010. The Director-General of Health Services (DGHS), through a letter dated 26 October 2010, ordered his officers to compile a list of nursing officers who participated in the union action. The DGHS of the MOH, through a letter dated 26 October 2010, ordered all hospital directors to compel all nursing officers who participated in the trade union action to show cause on the basis that they have committed an offence by participating in the trade union action and as to why disciplinary action should not be pursued against them. In response to the 10 November 2010 one-day token strike, the government health authorities threatened, via the media, that all those who participated in the trade union action would be deemed to have vacated their posts. According to the complainant, MOH authorities acted in a manner so as to create a fear psychosis in the minds of the members of the GNOA that engaging even in a one-day token strike would endanger their employment. Subsequent to the one-hour walkout on 9 December 2010, the MOH transferred 34 trade union activists of the GNOA to distant areas of the country making it impossible for these activists to contribute to any union activity and thereby weakening the organizational capacity of the trade union. Ten of the above activists were from the Hambantota Hospital and the rest (24) were from the Kalubowila Hospital. The DGHS, through a letter dated 10 December 2010, addressed to the aforesaid victimized union activists, expressly states that engaging in trade union action and thereby causing disruption in service as the reason for their transfer. According to the complainants, the aforementioned action of the MOH was an act of revenge amounting to an unfair labour practice.
7. 1151. In addition, according to the complainants, through this same letter, the MOH has clearly declared that any collective industrial action in the form of a strike or a walkout from service would be deemed to be unacceptable and liable for disciplinary action if exercised. Under these circumstances, workers have been explicitly denied the right to exercise collective forms of industrial action. If they exercised such rights, workers run the risk of being subjected to disciplinary action and endanger their right to employment.
8. 1152. Consequent to the MOH’s victimizing, arbitrary and illegal transferring of trade union activists who were involved in the industrial action, the GNOA, on the insistence of its members, was compelled to call for an indefinite strike action in the Kalubowila, Hambantota, Matara, Karapitiya and Colombo main hospitals with effect from 10 December 2010. Despite the industrial action, the GNOA took every step necessary to guarantee basic and emergency services to patients.
9. 1153. The GNOA called off this industrial action on 13 December 2010 on the pledge of the Minister of Health that arbitrary transfers that victimized 34 union activists would be revoked. Despite the pledge by the Minister of Health to revoke the act of victimization of the 34 union activists, the letter of revocation came into effect only on 1 March 2011. However, disciplinary inquiries against these 34 workers and all other workers who participated in the trade union action still continue on the basis that engaging in trade union action is an offence and subversive of discipline.
10. 1154. The complainants allege that this is a clear violation of their right to free and voluntary collective bargaining, that the right to collective trade union action by the GNOA has been restricted and that those union activists involved in such actions have been victimized for engaging in such actions by the MOH. According to the complainants, the actions of the Government, through various official communications, cited in their complaint clearly prove that it has treated the right to strike or similar action as not acceptable and non-exercisable.
11. 1155. Moreover, the complainants state that in the public service, every trade union that has a minimum membership of 1,000 members is entitled to request that one of its members is relieved from their duties in order to engage in full-time trade union functions. The complainants state that the usual practice of unions is to offer this facility to one of its key office bearers. The complainants state that it is entirely at the discretion of the union to determine who from the union will avail themselves of this facility in representing their members and the period for which such person will be nominated. The complainants add that the country’s regulations dealing with public sector workers provide for such a facility and it is widely used by public sector trade unions. The complainants consider that it is a matter strictly falling within the purview of the affairs of the union and any interference in such decisions amounts to state interference into trade union activities.
12. 1156. The complainants allege that in response to the trade union action initiated by the GNOA, the Government, through a letter dated 15 February 2011, has revoked the release of the President of the GNOA from official duties of employment. According to the complainants, this is a clear act of victimization, as the President of the GNOA performed a key role in the trade union actions described above. The complainants allege that this arbitrary decision of the Government ordering the President of the GNOA to report back to work, causing disruptions to regular trade union work, is discriminatory and vindictive. The complainants indicate that the letter dated 15 February 2011 from the Government states that if the President of the GNOA fails to return to work, giving up the currently exercised full-time trade union work, his salary would be withheld with immediate effect. According to the complainants, this action of the Government is against the accepted rule and specifically targets only the President of the GNOA.
13. 1157. According to the complainants, this right to be released from employment duties and to engage in full-time trade union work for a period stipulated by the trade union, after having satisfied the necessary membership requirement, is a right enjoyed by all public sector unions and it is unfair, unjust and discriminatory to selectively deprive the nominee of the GNOA of this facility. The Government cannot decide who should be their trade union nominee to be released for full-time trade union work as it is the prerogative of the GNOA. According to the complainant, such interference in its work is not in keeping with the principles of Conventions Nos 87 and 98 and constitutes anti-union discrimination.

B. The Government’s reply

1. 1158. In its communication, dated 31 October 2012, the Government asserts that it is always ready to engage in constructive discussions with all trade unions, including health-sector trade unions, and that several discussions had been held between the MOH and the GNOA. In particular, the MOH has positively responded to some demands of the GNOA; however, because of the lack of consensus between the major nurses’ trade union (Rajya Sewa Eksat Heda Sangamaya (RSEHS)) and the GNOA, some of the issues are still being discussed.
2. 1159. The Government acknowledges that, as stated in the complaint, the following trade union actions have taken place: a three-hour walkout from services on 25 October 2010; a one-day strike on 10 November 2012; a one-hour walkout from service on 2 and 9 December 2010, and an all-out cessation of work in six hospitals from 10–13 December 2010.
3. 1160. The Government points to the allegation of the complainants that since the Government deliberately failed to respond to, or engage with, the issues raised, it was decided to resort to trade union action. According to the Government, this is factually wrong as the MOH had engaged in constructive discussions before the trade union actions took place. These discussions concerned: (a) the promotion to grade 1 of the nursing service after completion of 12 years; (b) the implementation of a five-day work week for the nursing service; (c) the removal of the conditions in the Service Minute of the Nursing Service which are not favourable to this service; (d) the recruitment of nursing graduates; (e) the extension of the nursing training period to three-and-a-half years; and (f) the enhancement of overtime payment.
4. 1161. The Government states that the GNOA sent a letter dated 20 October 2010 to the secretary of the MOH, alleging that their demands had not been met and indicating that trade union action would be resorted to on 25 October 2010. The Government indicates that this is factually incorrect since a number of discussions took place and each and every possible solution had been implemented prior to 25 October 2010.
5. 1162. Regarding the promotion to grade 1 of the nursing service after completion of 12 years of service, the Government indicates that from 1 November 2010, the new Service Minute of the Nursing Service had been implemented. According to this Minute, after completion of the training period, there are two methods for nurses to get promoted to grade 1: (a) the ordinary performance method, according to which it takes 20 years to get promoted to grade 1; and (b) the special performance method, according to which a nursing officer has to work only for six years to get promoted to grade ii and another six years to become a class 1 officer after undergoing special exams. Any officer may therefore be promoted to grade 1 within 12 years of service.
6. 1163. Concerning the implementation of a five-day work week for the nursing personnel, the Government indicates that the secretary of the MOH had appointed a committee to look into this matter and to recommend remedial measures. This committee had called for observations from all the trade unions in relation to nursing service and from the hospital authorities. Although the GNOA was requesting a five-day work week, the majority of the nurses through their union (that is, RSEHS) had informed the committee that they were not in agreement with the proposal made by the GNOA. Hence, it was not possible for the Government to fulfil the GNOA’s demand. This situation has been communicated to the GNOA.
7. 1164. With regard to the removal of the conditions in the Service Minute of the Nursing Service which were not favourable to this service, the Government indicates that the GNOA alleged that when formulating the new Service Minutes of the Nursing Service, certain proposals which were not favourable to nurses have been included. The Government considers this to be factually wrong and indicates that more provisions favourable to the nursing service have been included, such as: the possibility to get promoted to grade 1 under the special performance scheme after 12 years of service; the fact that two chances are given to take the aptitude test to get promoted to grade 1 under the special performance scheme; and the introduction of a special grade scheme. In other services in the health sector, there is only a possibility to get promoted to grade 1 after 15 years of service under the special performance scheme, there is only one chance given to take the aptitude test to get promoted under the special performance scheme and no special grade scheme has been introduced.
8. 1165. Concerning nursing graduates, the Government indicates that the students of the nursing training schools in Sri Lanka are selected on the basis of competitive examination. The educational qualification required to sit the entrance exam of the nursing training schools was the GCE (O/L), which is 11 years of schooling. This qualification was recently upgraded to GCE (A/L), which is 13 years of schooling. Accordingly, the nursing degree is not a requirement for any post in the nursing service. Therefore, the Cabinet of Ministers has appointed a committee to look into this matter and submit a report.
9. 1166. With regard to the nursing training period (three years) which is to be extended to three-and-a-half years, the Government indicates that the Cabinet of Ministers has appointed a committee to study this proposal and submit a report.
10. 1167. Concerning overtime payment, the Government explains that the GNOA has demanded that the rate of overtime be increased to a higher rate. At present, a standard formula is used for the entire public service. If the demand of the GNOA was met, an anomaly would arise among all other sectors in the public service. Therefore the Government indicates that this matter is been discussed among government authorities.
11. 1168. The Government indicates that even though the measures mentioned above have been taken, the GNOA resorted to a walkout from the service on 25 October 2010, as indicated in a letter dated 20 October 2010 to the MOH. The members of the GNOA had reported for duty on 25 October 2010 and walked out without prior approval of the authorities. Further, there are other instances where the GNOA has engaged in trade union action with just a day of notice. For example, the GNOA informed the secretary of the MOH on 11 December 2010 about its trade union action resorted to on 12 December 2012 (sic).
12. 1169. The DGHS has issued a media announcement not to take any action in the interest of the general public. However, the GNOA carried out the walkout on 25 October 2010 contrary to the request of the DGHS.
13. 1170. In the meantime, the MOH received several complaints from the teaching and other hospitals informing that the action taken by the GNOA had critically disrupted the emergency medical services in the hospitals and created a clear and imminent threat to the lives, personal safety or the health of the general public. As nursing officers have reported for duty and walked out without attending their duties, the service of government hospitals was disrupted. In a letter dated 26 October 2010 to the hospitals’ heads, the DGHS asked that those who walked out without prior permission while on duty should be required to show cause as to why disciplinary action should not be taken against them and it requested the list of those who had walked out without permission while on duty. Accordingly, the Government indicates that the MOH decided to take disciplinary action against 34 officers who kept away from work after reporting.
14. 1171. Meanwhile, the GNOA levelled an allegation against the Government of Sri Lanka claiming that Sri Lanka has violated ILO Conventions Nos 87 and 98 and requested the MOH to withhold the disciplinary action. Accordingly, the MOH suspended the proceedings of disciplinary action on the request of the GNOA and the GNOA consented to withdraw the petition that they made to the ILO since the matters in dispute had been settled. The Ministry of Labour and Labour Relations has communicated this situation to the ILO by its letter bearing reference FR/7/6/38 and dated 14 February 2011.
15. 1172. Despite the decision to suspend the proceedings for disciplinary action, the GNOA resorted to trade union action demanding the withdrawal of these proceedings. Pursuant to a discussion which took place on 1 March 2011 between the MOH and the GNOA, it was decided to officially terminate disciplinary proceedings against the abovementioned nursing officers.
16. 1173. The Government explains that it offers free medical facility for all in order to enhance the social welfare of its citizens. Therefore the actions taken by the GNOA, irrespective of their length, caused an inconvenience to the general public which is immeasurable. As far as safety and health of the population of Sri Lanka is concerned, the health service is a national emergency and essential service. Furthermore, as Sri Lanka has signed international treaties, it is bound to provide maximum health care to the general public. As per the World Health Assembly (WHA) resolution, the Government has to make this service available in such quantity and quality and without any hindrance. Therefore, the position maintained by the complainants to say that there was no acute national emergency or crisis prevailing at the times the union action was taken cannot be justified.
17. 1174. According to Chapter XXV, article 4(ii), of the Establishment Code of Sri Lanka, an officer of the public service may be released for full-time trade union activities of a registered trade union with at least 1,000 members. The President of the GNOA had requested to be released for full-time trade union activities for the seventh time for the period of 1 August 2010 to 30 August 2011. According to section 147 of Chapter 12 of the rules of the Public Service Commission (PSC), a public officer may be temporarily released from the public service for a maximum of five years during his/her entire career. The Cabinet of Ministers lifted this limitation on 1 February 2012. Accordingly, the MOH is in the process of granting approval for the President of the GNOA to engage in full-time trade union activities.
18. 1175. In the view of the Government, the complainants have attempted to emphasize that there is an anti-union discrimination environment in the country and they have mentioned that there are no laws providing provisions relating to anti-union discrimination in Sri Lanka for the public sector. The Government indicates that, although there are no direct laws to deal with any person affected, he or she could seek legal remedy under the provisions of the Constitution claiming that his or her fundamental rights have been violated. Furthermore, in the event that a particular trade union is discriminated against by way of wilful act of a government authority, the office bearers of the trade union could bring such a matter for judicial review in the Court of Appeal by way of a writ or writ of certiorari or mandamus. Moreover, complaints of unfair labour practices under section 32(a) of the Industrial Dispute Act are investigated by the Department of Labour, and based on the merits of the complaints, action is taken against the offenders. These matters are periodically reviewed by the Department of Labour. The petitioner has the option of bringing any alleged unfair labour practices of anti-union action by the employer to the notice of the Commissioner General of Labour.
19. 1176. The Government strongly emphasizes that freedom of association is fully recognized in Sri Lanka and is being widely practiced without any interference by the authorities.

C. The Committee’s conclusions

1. 1177. The Committee notes that in the present case, the complainants allege anti-union discrimination, threats against and transfers of union members, and the withdrawal of the facilities previously granted to the President of the GNOA as reprisal for their participation in legitimate industrial actions.
2. 1178. The Committee notes that the GNOA engaged in the following industrial actions: (i) a three-hour walkout from service on 25 October 2010; (ii) a one-day strike on 10 November 2012; (iii) a one-hour walkout from service on 2 December 2010; (iv) a one-hour walkout from service on 9 December 2010; and (v) an all-out cessation of work in six hospitals from 10–13 December 2010.
3. 1179. The Committee notes that while the complainants state that the MOH ignored, downplayed and dragged out the issues raised with the MOH, the Government asserts that the issues raised by the union had been discussed and that each and every possible solution had been implemented before the industrial actions took place. The Government has described the outcome of these discussions and the fact that some of the matters were still being examined.
4. 1180. The Committee notes that in response to the industrial actions mentioned above, the Government took the following actions:
   • (a) the MOH ordered all hospital directors to compel all nursing officers who participated in the 25 October 2010 industrial action to show cause on the basis that they had committed an offence by participating in the action and as to why disciplinary action should not be pursued against them;
   • (b) in response to the 10 November 2010, one-day token strike, the government health authorities issued a media announcement not to take any industrial action in the interest of the general public. The complainants add that the announcement stated that all those who participated in the trade union action would be deemed to have vacated their posts. According to the complainants, the MOH authorities acted in a manner so as to create fear in the minds of the members of the GNOA that engaging even in a one-day token strike would endanger their employment;
   • (c) subsequent to the one-hour walkout on 9 December 2010, the MOH took disciplinary action against 34 trade union activists of the GNOA. The complainants allege that they were transferred to distant areas of the country making it impossible for these activists to contribute to any union activity and according to the complainants, thereby weakening the organizational capacity of the trade union. Ten of the above activists were from the Hambantota Hospital and the rest (24) were from the Kalubowila Hospital. The DGHS, through a letter dated 10 December 2010, addressed to the aforesaid victimized union activists, expressly states that engaging in trade union action and thereby causing disruption in service were the reasons for their transfer;
   • (d) the complainants allege that through a letter dated 10 December 2010, the MOH has declared that any collective industrial action in the form of a strike or a walkout from service would be deemed to be unacceptable and liable for disciplinary action if exercised.
5. 1181. The Committee takes note of the position of the complainants that the health service has not been declared an essential service in Sri Lanka, that their actions did not amount to the existence of a clear and imminent threat to life, personal safety or health of the whole or part of the population, that the actions were limited in time, that they had considered the inconvenience that their actions would have on the general public, that the GNOA took all the necessary steps to ensure that emergency medical services in government hospitals were not disrupted, that there have been no allegations to the effect that emergency services in hospitals were disrupted due to the trade union actions and that there was no acute national emergency or crisis prevailing at the time of the industrial actions. The Committee further observes that the Government contends that it offers free medical facility for all in order to enhance the social welfare of its citizens, in accordance with the WHA and other international treaties it has signed and that the health service is a national emergency and essential service. The Government adds that the position maintained by the complainants to say that there was no acute national emergency or crisis prevailing at the times of the union actions cannot be justified and that there were several complaints received by the MOH from the teaching and other hospitals informing that the action taken had critically disrupted the emergency medical services in the hospitals and created a clear and imminent threat to the lives, personal safety or the health of the general public.
6. 1182. In this regard, the Committee recalls that final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute. It is contrary to freedom of association that the right to declare a strike in the public service illegal should lie with the heads of public institutions, which are thus judges and parties to a dispute. The Committee also recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 629, 630 and 576] and that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [see Digest, op. cit., para. 595].
7. 1183. Within the context described above, the Committee notes that the GNOA called off the industrial action on 13 December 2010 on the pledge of the Minister of Health that the arbitrary transfers that victimized 34 union activists would be revoked. Despite this pledge, the complainants allege that the letter of revocation came into effect only on 1 March 2011, while disciplinary inquiries against these 34 workers and all other workers who participated in the trade union action still continue on the basis that engaging in trade union action is an offence and subversive of discipline. The Committee, however, notes from the more recent information provided by the Government that it has been decided to officially terminate proceedings against the 34 nursing officers and requests the Government to keep it informed of developments in this respect.
8. 1184. In addition, the Committee notes that according to the complainants, in response to the trade union action initiated by the GNOA, the Government, through a letter dated 15 February 2011, had revoked the release of the President of the GNOA from official duties of employment and indicated that if the President of the GNOA failed to return to work, giving up the currently exercised full-time trade union work, his salary would be withheld with immediate effect. According to the complainants, this action of the Government is against the accepted rules and specifically targets only the President of the GNOA. The Committee notes the Government’s indication that according to the rules of the PSC, a person could not be temporarily released from the public service for more than five years, but this restriction was lifted by the Cabinet of Ministers on 1 February 2012 and the MOH was in the process of granting the release of the President of the GNOA from official duties of employment. The Committee requests the Government to confirm that the release of the GNOA President from official duties has now been granted.

The Committee’s recommendations

1. 1185. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting the Government’s decision to officially terminate proceedings against the 34 nursing officers, the Committee requests the Government to keep it informed of developments in this respect.
   • (b) The Committee requests the Government to confirm that the release of the GNOA President from official duties has now been granted.