CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Sri Lanka (RATIFICATION: 1995)

Other comments on C087

Observation

Direct Request

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Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee had previously noted that section 43(1) of the Industrial Disputes Act stipulates that a person who commits any crime under that Act would be liable upon conviction, to a fine, to imprisonment, or to both and requested the Government to amend this provision, as concerned its application to strikes, since it did not distinguish between peaceful and other strikes and sanctions may be imposed under the provision for peaceful strikes as well. The Committee regrets that the Government provides no information on the measures taken to that end. The Committee is therefore bound to recall that no penal sanctions should be imposed against a worker for having carried out a peaceful strike, regardless of whether this strike was carried out in contravention of certain provisions of domestic law, and that punitive measures of imprisonment or fines can be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed. The Committee recalls once again that such sanctions may be imposed exclusively pursuant to punitive legislation, such as the Penal Code. The Committee therefore urges the Government to take the appropriate measures to amend section 43(1) of the Industrial Disputes Act so as to ensure that these principles are respected. It requests the Government to provide information on all measures taken or envisaged in this regard.

The Committee had previously requested the Government to specify legislative provisions defining or enumerating essential services, and any procedures in place for reviewing or challenging such definitions or enumerations. The Committee notes the Government’s indication that any service deemed essential to the life of the community in any applicable circumstances could be declared an essential service. The Government adds that any service listed in the Schedule to the Essential Public Services Ordinance No. 61 of 1979 could be declared essential by the President under: (i) section 5 of the Public Services Ordinance (PSO); or (ii) section 2 of the Essential Services Act, No. 61 of 1979 (ESA). The Government informs that section 5 of the PSO empowers the President to issue emergency regulations for the maintenance of supplies and services essential to the life of the community. The Government adds that section 2 of the ESA enables the President to declare a service as essential if it fulfils the following conditions: (i) the service is provided by any category of persons employed in any government department of public corporations, local authorities or co-operative societies; (ii) the service is listed in the Schedule to the Act and is likely to be impeded or interrupted; and (iii) the maintenance of that service is essential to the life of the community. The Committee notes the Government’s indication that any order declaring a service as an essential service is amenable to judicial review, either exercising the writ jurisdiction of the Court of Appeal or the fundamental rights jurisdiction of the Supreme Court, under articles 139 and 126(3) of the Constitution, respectively. While noting the existence of judicial review, the Committee recalls that the definition of essential services should be limited strictly to those “the interruption of which would endanger the life, personal safety or health of the whole or part of the population” ( 2012 General Survey on the fundamental Conventions, paragraph 131). The Committee therefore requests the Government to amend the above-mentioned pieces of legislation accordingly and to provide information on all measures taken to that end.