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

The Committee takes note of the Government’s report and the comments of the International Confederation of Free Trade Unions (ICFTU). It further notes the comments made by the Lanka Jathika Estate Workers’ Union in a communication dated 15 November 2004 and requests the Government to transmit its observations thereon.

Article 2. 1. Exclusion of certain workers. The Committee recalls that it had in its previous comments emphasized the need for clear recognition by legislation of the right of judicial officers to form associations and requested the Government to indicate the measures taken or envisaged in this regard. The Committee notes that the issue of granting judicial officers the right to form associations for the defence of their members has been referred to the Chief Justice by the Ministry of Justice and Judicial Reforms. The Committee trusts that the Government will expeditiously take all necessary measures to ensure that judicial officers are guaranteed the right to establish and join organizations of their own choosing, both under the law and in practice, and requests to be kept informed of further developments in this regard.

2. Minimum age. The Committee recalls that, in its previous comments, it had noted the discrepancy between the minimum age for admission to employment and the minimum age for trade union membership and had pointed out that the minimum age for trade union membership should be the same as the minimum age for admission to employment. The Committee notes with interest that a proposal to amend the Trade Unions Ordinance making the minimum age for trade union membership the same as the minimum age for admission to employment, that is, 14 years, has been submitted to the Cabinet of Ministers and that the cabinet decision to draft the amendment bill and submit it to the Parliament is awaited. The Committee trusts that the Government will rapidly take the necessary steps to ensure that the proposed amendment is carried out and requests the Government to keep it informed of further developments in this regard and to transmit a copy of the amended text, when adopted.

3. Organizing in export processing zones (EPZs). The Committee notes that the ICFTU has indicated that access for trade union representatives to EPZs is difficult and union members face intimidation including threats of beatings by security guards. The Committee notes in this respect that the Board of Investment (BOI), the overseeing authority of the zones, has indicated in a communication dated 21 May 2004 that it has made arrangements to insert an additional clause to section 9A of the Labour Standards and Employment Relations Manual as per which a duly nominated representative of a trade union, who is not employed in a BOI enterprise but whose trade union has members employed therein, whether within or outside the EPZ, shall be granted access to the enterprise/EPZ provided that the union: (a) seeks access to the enterprise for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access, which may not be unreasonably withheld; and (c) having satisfied these requirements, has obtained an entry permit from the BOI authorities for the entry sought, in the case of an enterprise located within an EPZ. The Committee requests the Government to specify the meaning of the phrase "representation functions".

Articles 2 and 5. Public servants. The Committee recalls that in its previous comments, it had requested the Government to take the necessary action to ensure that organizations of government staff officers may join confederations of their own choosing including with organizations of workers in the private sector and that first-level organizations of public employees may cover more than one ministry or department in the public service. The Committee notes that the process for amending the Trade Unions Ordinance in order to grant organizations of government staff officers the right to form and join federations has been initiated and that the proposal has been referred to the concerned ministries for their observations, in particular, the Ministry of Public Administration, and that after receiving the observations from the other concerned ministries and the approval of the Cabinet of Ministers, the Trade Unions Ordinance would be amended suitably. The Committee trusts that the Government will rapidly take the necessary steps to ensure that the proposed amendment is carried out and requests the Government to keep it informed of further developments in this regard and to transmit a copy of the amended text, when adopted.

Articles 3 and 10. Compulsory arbitration. The Committee recalls that, in its previous comments, it had expressed concern at the broad authority of the Minister to refer disputes to compulsory arbitration and had requested the Government to indicate the measures taken to ensure that workers’ organizations can organize their programmes and activities without interference of the public authorities. The Committee notes that according to the Government, only when parties to an industrial dispute are unable to nominate an arbitrator under section 3(1)(d) of the Industrial Disputes Act, the Minister may intervene by way of reference of the industrial dispute to compulsory arbitration taking into consideration the national interest involved in settling the dispute and the interest of the parties concerned. The Government has indicated that there is no legal provision empowering the Minister to refer a dispute for compulsory arbitration on the recommendation of the Commissioner and at the request of at least one of the parties but that it has been the practice to do so. The Government has further indicated that between January and October 2004, 48 cases had been referred for compulsory arbitration on the recommendation of the Commissioner of Labour. The disputes relate to employers in the private as well as the public sector.

The Committee notes, however, that under section 4(1), the Minister may, if he or she is of the opinion that an industrial dispute is a minor dispute, refer it by an order in writing for settlement by arbitration to an arbitrator appointed by the Minister or to a labour tribunal, notwithstanding that the parties to such dispute or their representatives do not consent to such reference. Moreover, under section 4(2), the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement. The Committee therefore considers that the powers granted to the Minister under sections 4(1) and 4(2) can give rise to compulsory arbitration contrary to Article 3 of the Convention.

The Committee therefore requests the Government to take the necessary measures to amend these provisions so as to ensure that any reference of labour disputes to compulsory arbitration is only at the request of both parties to the dispute or in the case of essential services in the strict sense of the term or in the case of public servants exercising authority in the name of the State. The Committee requests the Government to keep it informed of further developments in this regard.

Article 4. Dissolution. The Committee recalls that, in its previous comments, it had requested the Government to indicate the relevant legislative provisions to ensure that a decision of the Registrar to withdraw or cancel registration of a trade union will not take effect until an independent judicial body has handed down a final decision on the matter. The Committee notes that, under section 16(1) of the Trade Unions Ordinance, any person aggrieved by an order made by the Registrar under section 15 withdrawing or cancelling registration may appeal against such an order by filing a petition or appeal in the district court. A further appeal could be lodged under section 17 against the order of the district court. The Government has indicated that along with the appeal, the aggrieved party could file a petition seeking interim stay of the order of the Registrar and obtain an order of stay preventing any further action by the Registrar pending disposal of the appeal. The Committee recalls, however, that measures of administrative dissolution, even when there is a possibility of judicial review, may involve a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by all the necessary guarantees. In particular, the Committee considers that the administrative decision should not take effect until a final judicial decision is handed down and that this should not depend upon whether a judge has decided to grant interim relief. The Committee therefore requests the Government to indicate the measures taken to ensure that in all cases where an administrative dissolution is appealed to the courts, the administrative decision will not take effect until the final decision is handed down.