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The Committee takes note of the comments made by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 2 August 2010.

Article 2 of the Convention. In its previous comments, the Committee noted the allegation that workers’ representatives faced difficulties in accessing undertakings located in export processing zones (EPZs). It also noted from the Government’s report, that the Labour standards and employment relations manual of the Board of Investment (BOI – which is the overseeing authority in EPZs) had been amended in order to provide (section 9A) that a duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, shall be granted access to the enterprise/export processing zone, provided the union: (a) seeks access for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access which may not be unreasonably withheld with due respect to the need to maintain the smooth functioning of the enterprise concerned; and (c) having satisfied the above requirements, obtained an entry permit from the BOI authorities. The Committee had requested the Government to specify in this regard the meaning of the expression “representation functions”. The Committee notes that the Government indicates in its report that the expression “representation functions” embraces all activities and functions a trade union may undertake to protect and further the interests of its members, including collective bargaining and conclusion of collective agreements with the management, submitting a claim directly to the management or attending the annual general meeting of their branch union.

Article 5. In its previous comments, the Committee noted the allegation that employers in EPZs have used for many years the creation of “employees’ councils” promoted by the BOI to hamper the creation of free and independent trade unions and to prevent them from exercising their right to collective bargaining and in particular that the councils can replace trade unions in collective bargaining if the latter do not represent 40 per cent of the workforce and the former do. The Committee notes that, according to section 9(v) of BOI Labour standards and employment relations manual, where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employer shall not use the employees’ council to undermine the position of such trade union and its representatives and shall encourage cooperation on all relevant matters between the employees’ council and the trade union concerned. According to section 10.3.2, where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employees’ council shall not represent the employees in collective bargaining and settlement of industrial disputes concerning terms and conditions of employment. The Committee notes that according to the Government’s report these provisions are compatible with the principles of ILO supervisory bodies. The Committee recalls that it considers that the protection of Article 5 of the Convention applies to the representatives of all trade unions in an undertaking and not just those trade unions which are recognized as representative. The Committee requests the Government to ensure that, where both trade unions and elected representatives exist in an undertaking either within or outside the EPZs, the representatives of all trade unions are adequately protected in accordance with the terms of Article 5 of the Convention.

In its previous comments, the Committee noted the observation made by the National Trade Union Federation (NTUF) according to which the legislation does not contain provisions concerning the facilities to be afforded to trade union representatives. The Committee notes that the Government indicates in its report that it is not clear what “facilities” refer to in this context, that Part V of the Trade Union Ordinance No. 14 of 1935 provides for rights and liabilities of trade unions, that Part V(A) of the Industrial Dispute Act No. 43 of 1950 addresses unfair labour practices by employers and the sanctions thereof, including measures against anti-union discrimination, and that the Trade Union Representatives (Entry in Estates) Act No. 25 of 1970 enables trade union representatives to visit members of their union or holding or addressing meetings of such members into estates.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee takes note of the comments communicated by the International Confederation of Free Trade Unions (ICFTU) dated 20 February 2004.

Article 2 of the Convention. The Committee recalls that its previous comments concerned access to the undertakings located in the export processing zones (EPZs) for workers’ representatives. The Committee notes that, according to the ICFTU, such access is very difficult. The Committee also notes from the Government’s report that the Labour Standards and Employment Relations Manual of the Board of Investment (BOI – which is the overseeing authority in EPZs) has been amended in order to facilitate the representatives of trade unions who are not employed in the undertakings but whose trade union has members employed therein to enter and engage in trade union activities. Thus, section 9A of the Manual provides that a duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, shall be granted access to the enterprise/export processing zone, provided the union: (a) seeks access for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access which may not be unreasonably withheld with due respect to the need to maintain the smooth functioning of the enterprise concerned; and (c) having satisfied the above requirements, obtained an entry permit from the BOI authorities. The Committee requests the Government to specify in its next report the meaning of the phrase “representation functions”.

Article 5. The Committee notes that, according to the ICFTU, employers in EPZs have used for many years the creation of “employees’ councils” promoted by the BOI, to hamper the creation of free and independent trade unions and to prevent them from exercising their right to collective bargaining. In particular, the councils can replace trade unions in collective bargaining if the latter do not represent 40 per cent of the workforce and the former do. The Committee notes that, according to section 9(v), where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employer shall not use the employees’ council to undermine the position of such trade union and its representatives and shall encourage cooperation on all relevant matters between the employees’ council and the trade union concerned. According to section 10.3 of the Guidelines for the Formation and Operation of Employees’ Councils, where both a representative trade union which has been recognized for collective bargaining purposes and an employees’ council exist in an enterprise, the employees’ council shall not represent the employees in collective bargaining and settlement of industrial disputes. The Committee considers that the protection of Article 5 of the Convention applies to all trade unions in an undertaking and not just those which are recognized as representative. The Committee requests the Government to amend the above provisions so as to ensure that, where both trade unions and elected representatives exist in an undertaking either within or outside the EPZs, all trade unions regardless of the representativeness requirement are adequately protected in accordance with the terms of Article 5 of the Convention.

The Committee notes the observation on the application of the Convention made by the National Trade Union Federation (NTUF) dated 22 July 2009 according to which: (1) the legislation does not contain provisions concerning the facilities to be afforded to trade union representatives; and (2) in the export processing zones the employers make use of practices which prevent workers from organizing unions. The Committee requests the Government to communicate its comments thereon.

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The Committee takes note of the Government’s report. It also notes the comments communicated by the International Confederation of Free Trade Unions (ICFTU) dated 20 February 2004.

Article 2 of the Convention. The Committee recalls that its previous comments concerned access to the undertakings located in the export processing zones (EPZs) for workers’ representatives. The Committee notes that, according to the ICFTU, such access is very difficult. The Committee also notes from the Government’s report that the Labour Standards and Employment Relations Manual of the Board of Investment (BOI - which is the overseeing authority in EPZs) has been amended in order to facilitate the representatives of trade unions who are not employed in the undertakings but whose trade union has members employed therein to enter and engage in trade union activities. Thus, section 9A of the Manual provides that a duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, shall be granted access to the enterprise/export processing zone, provided the union: (a) seeks access for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access which may not be unreasonably withheld with due respect to the need to maintain the smooth functioning of the enterprise concerned; and (c) having satisfied the above requirements, obtained an entry permit from the BOI authorities. The Committee requests the Government to specify in its next report the meaning of the phrase "representation functions".

Article 5. The Committee notes that, according to the ICFTU, employers in EPZs have used for many years the creation of "employees’ councils" promoted by the BOI, to hamper the creation of free and independent trade unions and to prevent them from exercising their right to collective bargaining. In particular, the councils can replace trade unions in collective bargaining if the latter do not represent 40 per cent of the workforce and the former do. The Committee notes that according to section 9(v), where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employer shall not use the employees’ council to undermine the position of such trade union and its representatives and shall encourage cooperation on all relevant matters between the employees’ council and the trade union concerned. According to section 10.3 of the Guidelines for the Formation and Operation of Employees’ Councils, where both a representative trade union which has been recognized for collective bargaining purposes and an employees’ council exist in an enterprise, the employees’ council shall not represent the employees in collective bargaining and settlement of industrial disputes. The Committee considers that the protection of Article 5 of the Convention applies to all trade unions in an undertaking and not just those which are recognized as representative. The Committee requests the Government to amend the above provisions so as to ensure that, where both trade unions and elected representatives exist in an undertaking either within or outside the EPZs, all trade unions regardless of the representativeness requirement are adequately protected in accordance with the terms of Article 5 of the Convention.

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Article 3. The Committee had recalled that access to the undertakings for workers’ representatives is a basic facility in order to enable them to carry out their functions promptly and efficiently. The Committee had requested the Government to indicate whether trade union representatives are able to have access to export processing zones (EPZs) and if this right is guaranteed by law. The Government considers that the Convention and its accompanying Recommendation are not meant to give the right of access to the EPZs or the workplaces to all trade unions, but only to "representatives of trade unions" having membership in the enterprise and to "elected representatives of workers" operating in the enterprise. In this respect, the Committee refers to Paragraph 17(1) of Recommendation No. 143, which establishes that "trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking". Therefore, the Committee requests the Government to ensure the application of this principle in EPZs, and to keep it informed of any measure taken, indicating also any complaint lodged concerning the right of access of workers’ representatives.

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The Committee notes the Government’s report. It also notes the comments made by the Employers’ Federation of Ceylon (EFC) and by the Lanka Jathika Estate Workers’ Union (LJEWU).

Article 1 of the Convention. In its previous observation, the Committee trusted that a draft Bill which was being examined would ensure an effective protection of workers’ representatives. The Committee notes that the Industrial Disputes Act of 1967 has been amended by the Industrial Disputes (Amendment) Act No. 56 of 1999. In this respect, the Committee notes with satisfaction that this Act contains provisions (reproduced in the Government’s report): (1) prohibiting acts of anti-union discrimination (including dismissal) because of union affiliation or union activities; and (2) considering these acts as punishable offences.

The Committee requests the Government to send the complete text of this new amending Act indicating the sanctions applicable in case of infringement, in particular, in relation to trade union activities in the enterprise.

The Committee is also addressing a request on another point directly to the Government.

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The Committee notes the information provided by the Government in its report.

Article 3 of the Convention. A report on employment relations in export processing zones attached to the Government's report for Convention No. 98 states that "representatives of trade unions did not have free access to the zones, being bonded areas, and the investors seem to refuse to recognize and deal with trade unions". The Committee recalls that access to the undertakings for workers' representatives is a basic facility in order to enable them to carry out their functions promptly and efficiently. The Committee requests the Government to indicate whether trade union representatives are able to have access to export processing zones and if this right is guaranteed by law.

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The Committee notes the Government's report. In its previous comments, the Committee had drawn the Government's attention to the importance of effective protection of workers' representatives against any act prejudicial to them, including dismissal, based on their status or activities as workers' representatives and to the need to adopt measures in this regard beyond the procedures provided for in the Termination of Employment of Workmen (Special Provisions) Act, 1971, which only allows the Ministry of Labour to refer individual disputes to arbitration and the Industrial Disputes Act, 1967, which only establishes appeals procedures further to which courts may make decisions on the basis of "just and equitable" criteria. The Committee notes from the Government's report that a draft Bill on employment and industrial relations ensuring full conformity with Article 1 of the Convention is under consideration by a Cabinet subcommittee. The Committee trusts that the future legislation will ensure the effective protection of workers' representatives. It requests the Government to inform it in its next report of any progress made in the adoption of these amendments.

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The Committee notes the information provided by the Government in its report.

In its previous comments, the Committee had drawn the Government's attention to the importance of effective protection of workers' representatives against any act prejudicial to them -- including dismissal -- based on their status or activities as workers' representatives and to the need to adopt measures in this regard beyond the procedures provided for in the Termination of Employment of Workmen (Special Provisions) Act, 1971, which only allows the Ministry of Labour to refer individual disputes to arbitration and the Industrial Disputes Act, 1967, which only establishes appeals procedures further to which courts may make decisions on the basis of "just and equitable" criteria. The Committee notes from the Government's report that the necessary amendments to the Industrial Disputes Act are under consideration by a Cabinet subcommittee in this respect. The Committee trusts that these amendments to the Industrial Disputes Act will ensure the effective protection of workers' representatives in accordance with Article 1 of the Convention. It requests the Government to inform it of any progress made in the adoption of these amendments in its next report.

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The Committee notes the information provided by the Government in its report.

1. In its previous comments, the Committee had considered that the wide-ranging restrictions contained in several recently issued Emergency Regulations impaired the day-to-day functioning of workers' representatives in the undertaking, contrary to Article 2 of the Convention. The Committee had therefore requested the Government to lift the restrictions which affected the functioning of and facilities available to workers' representatives. The Government states that the political situation of the country is reviewed once a month and that Parliament extends the state of emergency depending on the report submitted by the Ministry of Defence. Although the state of emergency is currently still in force, restrictions on trade union activities have been eased as a result of which strikes and other trade union activities are common occurrences today. The Committee takes note of this information.

2. The Committee recalls that it had previously drawn the Government's attention to the importance of effective protection of workers' representatives against any act prejudicial to them -- including dismissal -- based on their status or activities as workers' representatives and to the need to adopt measures in this regard beyond the approval and appeals procedures provided for in the Termination of Employment of Workmen (Special Provisions) Act, 1971, and the Industrial Disputes Act, 1967. In its report, the Government indicates that the necessary amendments to the Industrial Disputes Act have been drafted in this respect. These amendments are being considered by a Cabinet subcommittee and, once approved, will be presented to Parliament. The Committee trusts that these amendments to the Industrial Disputes Act will ensure the protection of workers' representatives in accordance with Article 1 of the Convention. It requests the Government to supply a copy of these amendments as soon as they are adopted.

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous observation, the Committee had referred to the wide-ranging restrictions contained in the Emergency Regulations No. 1 of 6 January 1990 and had considered that these Regulations, contrary to Article 2 of the Convention, impaired the day-to-day functioning of workers representatives in the undertaking. The Committee notes that several Emergency Regulations have been issued since its previous comments to supersede the earlier ones. The Committee trusts that any emergency restrictions on the functioning of and facilities available to workers' representatives have now been lifted and requests the Government to provide information in this respect in its next report. The Committee would recall that, in previous comments, it has drawn the Government's attention to the importance of effective protection of workers' representatives against any act prejudicial to them - including dismissal - based on their status or activities as workers' representatives and to the need to adopt measures in this regard beyond the approval and appeals procedures provided for in the Termination of Employment of Workmen (Special Provisions) Act, 1971, and the Industrial Disputes Act, 1967. In its report for the period ending 30 June 1987, the Government indicated that the legislation would be reviewed and this matter pursued as soon as the situation prevailing in the country permitted. The Committee expresses the hope that the Government is now in a position to review its legislation and to take the necessary measures to ensure the protection of workers' representatives in accordance with Article 1 of the Convention. The Government is requested to indicate, in its next report, the progress made in this regard. The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

END OF REPETITION

[The Government is requested to report in detail in 1997.]

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The Committee notes the information provided in the Government's latest report as well as the comments made by the Ceylon Workers' Congress, the Lanka Jathika Estate Workers' Union, the Jathika Sevaka Sangamaya (National Employees' Union) and the Employers' Federation of Ceylon.

In its previous observation, the Committee had referred to the wide-ranging restrictions contained in the Emergency Regulations No. 1 of 6 January 1990 and had considered that these Regulations, contrary to Article 2 of the Convention, impaired the day-to-day functioning of workers representatives in the undertaking. While noting the Government's indication that such restrictions were necessary given the exceptional situation in the country, the Committee recalled that there was no provision in the Convention allowing the invocation of a state of emergency to justify exemption from the obligations arising under it, but that the ILO supervisory bodies have found that in circumstances of extreme gravity (e.g. serious disruption of civil order), restrictions may be justified on the conditions that they are limited in scope and duration to what is strictly necessary to deal with the situation in question. Once the acute emergency has subsided, bans or restrictions under state of emergency legislation should immediately be lifted. The Committee notes that several Emergency Regulations have been issued since its previous comments to supersede the earlier ones. The Committee trusts that any emergency restrictions on the functioning of and facilities available to workers' representatives have now been lifted and requests the Government to provide information in this respect in its next report.

The Committee notes the observation made by the Jathika Sevaka Sangamaya (National Employees' Union) in a communication dated 10 August 1992 relating to harassment of office-bearers by their employers. The Committee would recall that, in previous comments, it has drawn the Government's attention to the importance of effective protection of workers' representatives against any act prejudicial to them - including dismissal - based on their status or activities as workers' representatives and to the need to adopt measures in this regard beyond the approval and appeals procedures provided for in the Termination of Employment of Workmen (Special Provisions) Act, 1971, and the Industrial Disputes Act, 1967. In its report for the period ending 30 June 1987, the Government indicated that the legislation would be reviewed and this matter pursued as soon as the situation prevailing in the country permitted. The Committee expresses the hope that the Government is now in a position to review its legislation and to take the necessary measures to ensure the protection of workers' representatives in accordance with Article 1 of the Convention. The Government is requested to indicate, in its next report, the progress made in this regard.

The comments of the Lanka Jathika Estate Workers' Union dated 30 July 1992 have been examined by the Committee in 1994 under Convention No. 98.

[The Government is asked to report in detail in 1996.]

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The Committee notes the comments of the Ceylon Federation of Trade Unions dated 10 October 1990 alleging that workers' representatives need adequate legal protection to discharge their duties as such. It also notes the Government's reply to these comments.

The Federation indicates that workers' representatives' functions become impossible to carry out when the Government declares a state of emergency and prohibits the holding of union meetings, the distribution of union leaflets or any other trade union manifestations.

The Committee notes that, according to the Government, article 14 of the national Constitution guarantees the exercise of fundamental rights subject to restrictions in times of public disorder. Such restrictions are imposed on the holding of meetings, the distribution of leaflets and the conducting of processions. The Committee also notes that the Government stresses the exceptional situation which has prevailed in Sri Lanka over the past few years.

The Committee would first note the wide-ranging restrictions contained in the Emergency (prevention of subversive political activity) Regulations No. 1 of 6 January 1990 which ban "any activity, politicial or otherwise, ... designed to adversely affect the due functioning of such workplace", any meeting or procession and the posting of any posters or signs, the penalty for non-compliance being imprisonment for a term of not less than three months and not exceeding five years and a fine of not less than 500 rupees and not exceeding 5,000 rupees. The Committee considers, as indicated by the Ceylon Federation of Trade Unions, that the day-to-day functioning of workers' representatives in undertakings has been impaired by the Emergency Regulations contrary to Article 2 of the Convention. The Committee, while taking into account the Government's justification for these restrictions on the rights of workers' representatives in the undertaking, would point out that the Convention makes no provision for derogation in times of civil unrest. At the same time, the Committee recalls that the ILO supervisory bodies have in similar exceptional factual situations accepted such restrictions as long as they are imposed for a limited period of time and are limited to the geographical areas directly affected by hostilities or public disorder. Once such an acute emergency has subsided, bans or restrictions under state of emergency legislation should immediately be lifted.

Accordingly, the Committee trusts that the Government's next report (due next year) will contain information on the lifting of the emergency restrictions on the functioning and facilities available to workers' representatives in the undertaking.

As regards the comments of the Lanka Jathika Estate Workers' Union dated 4 December 1989, see the Committee's observation under Convention No. 98.