Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, as well as the comments made by the Lanka Jathika Estate Workers’ Union and the Employers’ Federation of Ceylon.

Article 2 of the Convention.  Exclusion of certain workers.  In its previous comments, the Committee, noting that judicial officers and prison officers were excluded from the scope of the Trade Unions Ordinance (TUO), requested the Government to specify whether these workers could otherwise associate to further and defend their occupational interests. The Committee notes from the Government’s latest report that judicial officers, while being debarred from forming trade unions under the TUO, have formed their own associations. The Committee requests the Government to provide further particulars in its next report on the type of associations formed and the relevant legislative or other texts governing the rights of judicial officers to form associations for the defence of their members’ interests.

As concerns prison officers, the Committee notes the indication in the Government’s report that this category of workers is very similar to the police and the armed forces and that the forming of trade unions of prison officers and resort to industrial action would imperil the law and order of the country. The Government adds that these workers are free to form associations to protect and promote their occupational interests. The Committee would first recall that Article 2 of the Convention provides that workers, without distinction whatsoever, should have the right to join and form organizations of their own choosing with the only possible exception being the police and the armed forces. The right to organize should therefore also be guaranteed to prison officers who may, however, be considered to be an essential service in the strict sense of the term and restricted in their right to strike. Noting however the Government’s indication that prison officers are free to form associations to protect and promote their occupational interests, the Committee requests the Government to provide further particulars in its next report on the type of associations formed and the relevant legislative or other texts governing the rights of prison officers to form associations for the defence of their members’ interests.

As concerns the minimum age limit for joining a trade union under the TUO, the Committee notes from the Government’s report that, while a worker must be 16 years old to become a trade union member, the minimum age for employment in general circumstances is 14. The Government adds that, although a person of 14 years of age is generally recognized to have the capacity for employment, that person does not possess sufficient skills and maturity to become a member of a trade union. Hence, the Government considers that 16 would be a "sufficient age" to become a member of a trade union. In this respect, the Committee would draw the Government’s attention to paragraph 64 of its 1994 General Survey on freedom of association and collective bargaining wherein it states that distinctions on the basis of age are not authorized by the Convention; if a person has attained a sufficient age to be a worker, he or she should be able to join a trade union for the defence of his or her occupational interests. The Committee requests the Government to indicate in its next report the measures taken or envisaged to delete section 31 of the TUO so as to guarantee the right to organize for minors and young persons who are working in accordance with the law.

Articles 2 and 5.  The right of public servants to join and establish organizations of their own choosing.  In its previous comments, the Committee noted that section 21 of the TUO and the Establishment Code restricted membership in a union to public servants who are employed in any one specified department or service of the Government, or specified class or category and that public officers are prohibited from becoming members of any trade union which permits persons who are not public officers to be members. The Committee had recalled that it has considered it admissible for first-level organizations of public servants to be limited to that category of workers, subject to the following two conditions: (i) that their organizations are not also restricted to employees of any particular ministry, department or service; (ii) that they may freely join confederations of their own choosing, including organizations of workers in the private sector (see 1994 General Survey, paragraph 86). Noting from the Government’s latest report that "Government staff officer", which is referred to in respect of the various restrictions set out in section 21 of the TUO, means any officer whose salary is at least 74,160 rupees per year, the Committee requests the Government to indicate in its next report the measures taken or envisaged to amend the TUO and the Establishment Code so as to ensure that government staff officers may enjoy the right to organize at the first level with other ministries or departments in the public service and that their organizations may join confederations of their own choosing, including with organizations of workers in the private sector.

Furthermore, the Committee notes from the information provided in the Government’s report that, under the Establishment Code, "Public Officer" includes an employee of a public corporation, a statutory body or an institution vested in the Government. Recalling that Article 2 of the Convention provides for the right to form and join organizations for all workers, without distinction whatsoever and including those employed in state-owned economic undertakings, the Committee requests the Government to indicate in its next report the measures taken or envisaged to amend the relevant legislation so that workers in state-owned enterprises or institutions enjoy the right to organize without restriction.

Articles 3 and 10.  In its previous comments, the Committee noted that the Industrial Disputes Act did not apply to the public service and requested the Government to provide information concerning dispute settlement for the public service. The Committee notes from the Government’s report that public officers may appeal the termination of their services to the Public Service Commission and the Cabinet of Ministers using the machinery provided for in the Establishment Code and that all other disputes will be dealt with in accordance with Part II of the Code. In this respect, the Committee recalls that, where the right to strike is subject to restrictions, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (1994 GeneralSurvey, op. cit., paragraph 164). The Committee requests the Government to specify in its next report the type of machinery available to public servants to redress their collective claims and to furnish the complete text of the Establishment Code.

The Committee further notes that employees of public corporations, statutory bodies and institutions vested in the Government are also considered to be public officers under the Code and hence excluded from the Industrial Disputes Act. The Committee would recall in this respect that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and requests the Government to indicate in its next report the measures taken or envisaged to ensure that employees of state-owned enterprises or institutions may carry out their activities and formulate their programmes, including resort to industrial action, without penalty.

In its previous comments, the Committee noted that section 4(2) granted the Minister overly-broad powers to refer any industrial dispute to an industrial court for settlement and recalled that the right to strike may only be limited or prohibited in respect of essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crisis. While noting the indication in the Government’s report that the relevant parties may appeal to the Minister for reconsideration of the industrial court award, the Committee continues to believe that this provision clearly goes beyond the permitted scope of restrictions to strike action noted above in that it permits the Minister to restrict any industrial action at his or her own discretion and the court awards in such instances are binding, even if appealed. Furthermore, the Committee notes that any contravention of the Industrial Disputes Act is punishable by a fine or up to six months’ imprisonment. The Committee therefore requests the Government to indicate in its next report the measures taken or envisaged to limit the Minister’s power to refer disputes to binding arbitration to essential services and to public servants exercising authority in the name of the State or in case of acute national crisis.

Article 4.  In its previous comments, noting sections 15-18 of the TUO, the Committee requested the Government to amend the legislation to ensure that the decision of the Registrar to withdraw or cancel registration did not take effect until the appeal procedures were exhausted. The Committee notes from the Government’s latest report that any aggrieved party from a decision from the Registrar can invoke an injunction against the decision restraining the cancellation or restoring registration until the conclusion of the court appeal. The Government adds that the trade union has two months’ prior notice to show cause to the Registrar against the proposal to withdraw or cancel registration. While taking due note of the Government’s indications, the Committee recalls once again that this Article of the Convention provides that workers’ organizations shall not be liable to dissolution by administrative authority. In the view of the Committee, an administrative decision to dissolve or suspend an organization is a clear violation of the Convention and should not take effect until a final decision is handed down by the courts, particularly in the light of the serious consequences for the organization under section 18 of the TUO. It requests the Government to indicate in its next report any measures taken or envisaged to bring its legislation into conformity with the Convention on this point.