Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

Article 1 of the Convention. The Committee notes that the ICFTU refers to several cases of anti-union discrimination aimed to prevent the establishment or recognition of trade unions. According to the ICFTU, these cases have been reported to the authorities since the adoption of the Industrial Disputes Act of December 1999 (which affords protection to workers against acts of anti-union discrimination in taking up employment and in the course of employment), without an appropriate response. The ICFTU adds that adequate protection is not provided in practice, as there are no time limits required of labour authorities within which complaints should be made to the Magistrate’s Court (after a complaint has been brought to the Department of Labour) and maximum penalties for unfair labour practices are too low to provide sufficient deterrence.

The Committee notes from the Government’s report that the Department of Labour has not yet taken any legal action in order to penalize employers on the ground of anti-union discrimination or interference. The matter has been brought before the National Labour Advisory Council (NLAC) by one trade union for discussion and the Commissioner General of Labour advised the union to bring the individual cases before him with a view to taking legal action.

The Committee notes that section 4(2) of the Industrial Disputes (Amendment) Act of December 1999 provides that any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees. The Committee requests the Government to provide information in its next report on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators.

The Committee also notes that trade unions should be able to have direct access to the courts in order to have their complaints examined by the judicial authorities if they so wish. It therefore requests the Government to indicate whether trade unions have the capacity to bring their grievances concerning anti-union discrimination before the courts in addition to the labour authorities.

Article 4. In its previous comments the Committee had requested the Government to provide detailed and concrete information concerning collective bargaining in free trade zones. The Committee notes that the ICFTU refers to several cases of refusal to recognize a representative trade union by employers both inside and outside the free trade zones, without any effective enforcement action being taken. The ICFTU adds that the 40 per cent threshold established in the law for the compulsory recognition of trade unions constitutes in practice the threshold required for a trade union to be established at the workplace with employers engaging in various tactics in order to avoid such recognition (in particular, changing the lists of employees, as the vote carried out to determine the representativeness is based on a list furnished by the employer).

The Committee notes from the Government’s report that under the Future Directions Programme of the Ministry of Labour Relations and Employment, a Social Dialogue and Collective Bargaining Unit (SD&CBU) has been set up in order to promote and facilitate an environment conducive to collective bargaining, especially at the enterprise level. The SD&CBU has decided to conduct a research of existing systems of workplace cooperation with a view to promoting collective bargaining and collective agreements at enterprise level. In the future, this unit will be responsible for creating appropriate national conditions to encourage and promote voluntary negotiations. With regard to collective bargaining in EPZs in particular, the Committee notes that according to the information provided by the Government, sections 9 and 15 of the Labour Standards and Employment Relations Manual of the Board of Investment (BOI), which is the overseeing authority of the EPZs, contain provisions to facilitate the conclusion of collective agreements. Two collective agreements were registered in the Biyagama and Koggala EPZs in 2004 (another two were already in force), while negotiations are in progress in three enterprises. In addition to this, two Memoranda of Understanding on dispute settlement procedure have been signed in the Katunayake EPZ. The Government adds that there is a trend towards unionization in EPZs with nine trade unions covering approximately 10 per cent of the EPZ workforce.

The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to ensure that the compulsory recognition provisions are effectively implemented in practice and to keep it informed of steps taken by the Social Dialogue and Collective Bargaining Unit for the further promotion of collective bargaining.

The Committee notes that according to section 32A(g) of the Industrial Disputes (Amendment) Act No. 56 of 1999 no employer shall refuse to bargain with a trade union, which has in its membership not less than forty per cent of the workmen on whose behalf such trade union seeks to bargain. The Committee considers that if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit so that they may negotiate at least on behalf of their own members. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to promote collective bargaining in accordance with the above observation.