Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, referring to issues already raised in 2005 and alleging physical violence against unionists and acts of retaliation against strikers. The Committee requests the Government to send its observations on these comments.

Article 2 of the Convention. 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 the Government’s indication 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 and that, so far, no response has been received. The Committee trusts that the Government will 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 that the Government indicates that a subcommittee has been appointed by the National Labour Advisory Council (NLAC) to review labour legislation and this matter is also being considered in the context of the overall labour law reforms. The Committee trusts that the Government will take the necessary steps to ensure the revision of this disposition 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, although it acknowledges that progress was made. The Committee notes that the Government indicates that EPZs were created 25 years ago and enterprises have been slow in organizing, but there is a growing trend towards unionization in the zones where ten trade unions are already operating. Two of these are enterprise-based unions, while the others are free trade zone (FTZ) of general unions. Union membership is spread over 54 out of the 268 FTZ enterprises (or 21 per cent of the total number of FTZ enterprises), with a total membership of 10,646 (out of a total EPZ workforce of 116,000 or 9 per cent of FTZ workforce). Taking into consideration the ICFTU’s comments relating to threats and violence against trade union representatives in the EPZs, the Committee requests the Government to take the necessary measures to guarantee that trade union rights can be exercised in normal conditions in this sector.

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 also recalls that the Confederation of Public Service Independent Trade Unions (COPSITU) made comments related to this issue. The Committee notes that the Government indicates that: (1) the matter has been given priority under the overall labour law reforms by the subcommittee appointed by the NLAC; (2) the National Plan of Action for Decent Work in Sri Lanka which has already been presented to the Cabinet of Ministers gives priority to the amendments to the Trade Union Ordinance with a view to removing the existing restrictions; (3) this Ministry is in the process of obtaining approval of the National Plan of Action for Decent Work, and the proposals made by the subcommittee on labour law reforms would be presented to this inter-ministerial committee for the concurrence and support of the concerned ministries; and (4) action is being taken to remove the restrictions and the progress will be reported in the next report. The Committee trusts that the amendments to the Trade Unions Ordinance mentioned by the Government concerning this comment will be adopted in the near future and requests the Government to keep it informed in this respect.

Articles 3 and 10. Compulsory arbitration. In its previous comments, the Committee recalled that 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 by the public authorities. Furthermore, it had noted 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, and under section 4(2), the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement. The Committee notes that the Government reiterates the indications provided in its last report. In these circumstances, the Committee therefore requests once again the Government to take the necessary measures to amend sections 4(1) and 4(2) that can give rise to compulsory arbitration, 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. 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 noted 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 Committee regrets to note that the Government indicates again that, along with the appeal, the aggrieved party could file a petition seeking an 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 take the necessary measures 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.