Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the comments submitted by the International Trade Union Confederation (ITUC) dated 29 August 2008. The Committee further notes the comments submitted by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 2 August 2010, and by ITUC dated 24 August 2010. It notes in particular that the ITUC refers to certain restrictions on the right to strike in sectors which do not provide essential services. The Committee requests the Government to provide its observations thereon.

The Committee notes that the Government indicates in its report that a project entitled “Promotion of Principles and Fundamental Rights at Work” is being implemented by the Ministry of Labour Relations and Productivity Promotion in collaboration with the ILO; and that a Special National Labour Advisory Council Meeting will take place in this framework in September 2010, in order to reach consensus among the social partners to effectively address the issues related to the implementation of ILO Convention No. 87, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135). The Committee trusts that these initiatives will result in legislative amendments which will bring the legislation into conformity with the Convention. The Committee hopes that, in this process, due account will be taken of its comments, and requests the Government to provide information thereon in its next report.

Article 2 of the Convention. Minimum age. In its previous observation, the Committee noted the discrepancy between the minimum age for admission to employment and the minimum age for trade union membership and pointed out that the minimum age for trade union membership should be the same as the minimum age for admission to employment. The Committee noted the Government’s statement that a proposal initiated by the ILO–IPEC Sri Lanka programme to increase the minimum age for employment to 16 years – the same minimum age as for trade union membership – was being pursued. The Committee notes that the Government indicates in its report that this issue will be taken up by the Labour Law Reform Committee and that consultations are being held in this regard with all stakeholders. The Committee requests the Government to indicate in its next report any developments in this regard.

Articles 2 and 5. Public servants. Previously, the Committee had underlined the need to amend the Trade Unions Ordinance of 1935 (CAP 138) in order to ensure that organizations of Government staff officers may join confederations of their own choosing, including 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 noted that the Government reiterated that the matter had been given priority under the overall labour law reforms by the subcommittee appointed by the National Labour Advisory Council (NLAC), that the Labour Law Reform Committee had examined the proposed amendment and made recommendations to the NLAC, that the matter was under serious consideration by the Ministry of Public Administration and Home Affairs, and follow-up action was being taken by the Ministry of Labour Relations and Manpower. The Committee notes that the Government indicates in its report, that while the law restricts the organization of trade unions for more than one department or service, as well as the federation of trade unions in the public sectors (section 21 of the Trade Union Ordinance), in practice, nine federations of public service trade unions directly bargain with the Ministry of Public Administration about the rights, terms and conditions of employment of civil servants. The Government’s report adds that the restrictions in the law have never deprived public officers’ unions from exercising their right to freedom of association and that action is being taken, in consultation with the Ministry of Public Administration, to bring the law in line with the Convention. The Committee expresses the hope that the amendments to the Trade Unions Ordinance will be adopted in the near future and requests the Government to take the necessary measures to harmonize the legislation with what appears to be the practice, in order to ensure that trade unions in the public sector may join confederations of their own choosing, and to indicate the progress made in this respect in its next report.

Article 3. Dispute settlement machinery in the public sector. In its previous observation, the Committee noted that the Industrial Disputes Act – which provides for conciliation, arbitration, industrial court and labour tribunal procedures – did not apply to the public service, that a mechanism for dispute prevention and settlement in the public sector was being developed by the Ministry of Labour Relations and Manpower and the Ministry of Public Administration and Home Affairs with technical assistance from the ILO, and that a document concerning the dispute settlement mechanism had been adopted. The Committee notes that the Government refers in this respect to a draft report on the ILO Project for the Prevention and Solution of Disputes in the Public Sector, which provides in particular that: (i) the level of collective action in the public sector is very high and has a heavy impact on the efficiency of the whole public administration; (ii) the first proposal to be submitted to the social partners would be to distinguish between “rights disputes” and “interest disputes”; (iii) for “interest disputes” arising out of demands for employment improvement and working conditions, mediation and conciliation could be options available to the parties; and (iv) that a reference to the National Arbitration Board could be used as a last resort bearing in mind that, exception being made for some public services, it should remain a voluntary process for both parties. The Committee recalls 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 or in essential services in the strict sense of the term, i.e. services the interruption of which, would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take the necessary measures, following the report on the ILO project, so that public service dispute settlement mechanisms referred to by the Government will be developed in conformity with this principle.

Compulsory arbitration. In its previous observation, the Committee expressed concern at the broad authority of the Minister to refer disputes to compulsory arbitration and recalled the need to ensure that workers’ organizations can organize their programmes and activities without interference by the public authorities. It noted that under section 4(1) of the Industrial Disputes Act, 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 once again reiterates in its report that sections 4(1) and 4(2) were intended to provide safeguards against strikes that are likely to seriously affect the national economy, and that in practice, however, arbitration was seldom imposed without the consent of the trade union. While noting that the Government further indicates that consultations were held to set up a public service dispute settlement mechanism with ILO technical assistance (as referred to above), the Committee recalls that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure, make it possible to prohibit virtually all strikes, or to end them quickly; such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). In these circumstances, the Committee once again requests the Government to amend sections 4(1) and 4(2) of the Industrial Disputes Act, so as to ensure that any reference to compulsory arbitration may only occur: (i) at the request of both parties to the dispute (i.e. voluntary arbitration); (ii) in the case of essential services in the strict sense of the term; and (iii) in the case of public servants exercising authority in the name of the State. The Committee requests the Government to indicate any developments in this regard in its next report.

Article 4. Dissolution of organizations. In its previous observation, the Committee had requested the Government to take the necessary measures to ensure that in all cases where an administrative decision of dissolution of a trade union is appealed to the courts, the administrative decision will not take effect until the final decision is handed down. The Committee noted the Government’s indication that this matter had been referred to the Labour Law Reform Committee. The Committee notes that the Government’s report provides information on the procedure for the withdrawal or cancellation of the registration of a trade union, including the appeal procedures against the decisions of the registrar, but does not confirm that the decision of the registrar will not take effect until the final decision of the appeal procedure is handed down. The Committee therefore requests the Government to take the necessary measures to ensure that administrative decisions of dissolution are suspended pending their appeal in court, and to indicate any progress in this respect in its next report.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments of the Ceylon Workers Congress in a communication of 8 July 2008, the comments submitted by Lanka Jathika Estate Workers’ Union (LJEWU) in a communication of 11 July 2008, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008, concerning issues previously raised by the Committee. Furthermore, the ITUC refers to the arrest of strikers in the education sector and also indicates that several trade unionists were abducted and interrogated by the Government on suspicion of collaborating with insurgent groups. The Committee requests the Government to provide its observations on the ITUC’s comments.

Article 2 of the Convention. Exclusion of certain workers. In its previous comments, the Committee had trusted that the Government would take the 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. The Committee notes the Government’s indication that judicial officers have their own associations and are satisfied with this arrangement, which grants them the right to deal with the Government, their ministries and their departments to resolve issues relating to conditions of employment. In respect of salaries, the Government further states that judicial officers and public service trade unions may make representations and submit claims for salary increases to the Salaries and Cadre Commission, which was established in 2005 to determine the salaries of public officers at all levels. The Committee notes this information.

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 the Government’s statement that a proposal initiated by the ILO–IPEC Sri Lanka programme to increase the minimum age for employment to 16 years – the same minimum age as for trade union membership – is being pursued. The Committee requests the Government to indicate any developments in this regard.

Organizing in export processing zones (EPZs). In its previous comments, the Committee had requested the Government to take the necessary measures to guarantee that trade union rights can be exercised in normal conditions in this sector. The Committee notes that according to the Government, organizations are not banned in EPZs and workers therein enjoy the right to organize and bargain collectively. The Committee further notes the Government’s indication that 11 trade unions are currently operating in EPZs, and that 10 per cent of the workforce in that sector are union members.

Articles 2 and 5. Public servants. Previously, the Committee had requested to be informed of the progress made on the amendments to the Trade Unions Ordinance mentioned by the Government to ensure that organizations of Government staff officers may join confederations of their own choosing, including 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 Government reiterates that: (1) the matter has been given priority under the overall labour law reforms by the subcommittee appointed by the National Labour Advisory Council (NLAC); and (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. The Government further states that the Labour Law Reform Committee has since examined the proposed amendment and made recommendations to the NLAC; the matter is now under serious consideration by the Ministry of Public Administration and Home Affairs, and follow-up action is being taken by the Ministry of Labour Relations and Manpower. The Committee expresses the hope that the amendments to the Trade Unions Ordinance mentioned by the Government will be adopted in the near future and requests the Government to indicate the progress made in this respect.

Article 3. Dispute settlement machinery in the public sector. In its previous comments the Committee had noted that the Industrial Disputes Act, which provides for conciliation, arbitration, industrial court and labour tribunal procedures, did not apply to the public service. The Committee notes the Government’s indication that a mechanism for dispute prevention and settlement in the public sector was being developed by the Ministry of Labour Relations and Manpower and the Ministry of Public Administration and Home Affairs, and that technical assistance from the ILO had been sought in this regard. A draft document concerning the dispute settlement mechanism had also been drafted, but an English version of the said document was not yet available. Recalling 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, the Committee trusts that the public service dispute settlement mechanism referred to by the Government will be developed in conformity with this principle. It requests the Government to indicate the progress made in this respect, and to transmit a copy of the draft mechanism document once an English version is available.

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) of the Industrial Disputes Act, 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 indicates, in this regard, that sections 4(1) and 4(2) were intended to provide safeguards against strikes that are likely to seriously affect the operation of the industry concerned, and hence production and productivity and, in consequence, the national economy. The Government adds that in practice, however, compulsory arbitration is seldom imposed without the consent of the trade union. While noting the Government’s indications, the Committee recalls that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure, make it possible to prohibit virtually all strikes, or to end them quickly; such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). In these circumstances, the Committee once again requests the Government to amend sections 4(1) and 4(2) of the Industrial Disputes Act, so as to ensure that any reference of labour disputes to compulsory arbitration may only occur: (1) at the request of both parties to the dispute; (2) in the case of essential services in the strict sense of the term; and (3) in the case of public servants exercising authority in the name of the State. The Committee requests the Government to indicate all developments in this regard.

Article 4. Dissolution of organizations. The Committee had previously requested the Government to take the necessary measures to ensure that, in all cases where an administrative decision of dissolution of a trade union is appealed to the courts, the administrative decision will not take effect until the final decision is handed down. The Committee notes the Government’s indication that this matter has been referred to the Labour Law Reform Committee for review. The Committee trusts that the Trade Unions Ordinance will soon be amended so as to ensure that administrative decisions of dissolution are suspended pending their appeal in court. It requests the Government to indicate any progress made in this respect.

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.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments made by the Confederation of Public Service Independent Trade Unions (COPSITU) dated 17 May 2005 and by the World Confederation of Labour (WCL) dated 10 August 2005 and those made by the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2005. These comments concern, among other things, the restrictions imposed on public service staff with regard to the right to form federations and confederations and to join such organizations, the notion of essential services, organization in export processing zones (EPZs) and various cases of anti-union discrimination in practice (intimidation, arbitrary dismissal, police violence during protests, etc.).

The Committee takes note of the Government’s response to the comments made by the WCL with regard to the right to organize in EPZs. The Committee requests the Government to transmit its observations concerning the comments made by the COPSITU and the ICFTU. The Committee intends to examine this information, as well as the questions raised in its previous direct request (see direct request, 2004, 75th Session), within the framework of the regular supervisory cycle in 2006.

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.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report, it also notes the observations made by the Lanka Jathika Estate Workers’ Union and the Employers’ Federation of Ceylon on the application of the Convention.

Article 2 of the Convention. Exclusion of certain workers. In its previous comments, the Committee requested the Government to indicate the relevant legislative texts that grant judicial officers the right to form associations for the defence of their members’ interests. The Government indicates in its report that the Associations of Judicial Officers are informal organizations and they are not formed under any legislation. The Committee recalls the importance it attaches to the need for a clear recognition in the legislation of the right of all workers, including judicial officers, to associate not only for cultural and social purposes but also for the purpose of furthering and defending their occupational and economic interests. The Committee hopes that the Government will take the necessary steps to ensure that the rights under the Convention are recognized to judicial officers and requests the Government to indicate the measures taken or envisaged in this regard.

Minimum age. The Committee, in its previous comments, had noted the Government’s indication that educational authorities were of the view that compulsory school education (which currently applies to children from 5 to 14 years of age) should be extended to 16 years of age and, in the event that it is changed, the minimum age for employment would also be raised accordingly. The Committee had noted that, in anticipation of extending compulsory school education to 16 years of age, the Government did not wish to amend the minimum age for trade union membership immediately. The Committee now takes note of the indication in the Government’s report that it is presently considering modifying its position, in the light of the consensus of the participants in the Second Tripartite Workshop on the Implementation of Conventions Nos. 87 and 98, which decided that the minimum age for trade union membership should be the same as for admission to employment. The Committee requests the Government to keep it informed of any steps taken to guarantee the right to organize for minors and young persons who are working in accordance with the law.

Articles 2 and 5 of the Convention. Public servants. In its previous comments, the Government had indicated that action would be taken to negotiate with the ministry in charge of public servants with a view to ensuring the rights of public servants to join and establish organizations of their own choosing. The Committee observes from the report on the abovementioned workshop, that a consensus has been reached on the need to permit public service unions to form federations. Moreover, the Committee notes that the Ministry of Employment and Labour intends to take up this matter with the other ministries concerned, especially the Ministry of Public Administration. The Committee expresses, once again, the firm hope that the Government will take the necessary action, in the very near future, to ensure that organizations of government staff officers may join confederations of their own choosing, including with organizations of workers in the private sector, as well as the right to organize at the first level with other ministries or departments in the public service, and to keep it informed of any progress in this regard.

Articles 3 and 10. Compulsory arbitration. In its previous comments the Committee noted that the application of section 4(2) of the Industrial Disputes Act granted the Minister broad powers to refer any industrial dispute to compulsory arbitration or to an industrial court for settlement. The Government had indicated that referring an industrial dispute to an industrial court for settlement was not done on the sole discretion of the Minister, but with the recommendation of the Commissioner of Labour and the parties concerned. The Committee had requested the Government to indicate the precise legislative provisions which provide that a recommendation of the Commissioner of Labour and of the bargaining parties is required in order for the Minister to refer a dispute to arbitration under section 4(2) of the Act. The Government replies that the Minister of Labour has discretion on the matter and that there is no compulsion by law for the Commissioner to recommend to the Minister to refer an industrial dispute to arbitration. However, according to the Government, in practice the Commissioner refers a matter to the Minister only after all efforts to conciliate the dispute have failed and that the recommendations are of an administrative nature. The Committee recalls that compulsory arbitration must be at the request of both parties. A system whereby the Minister has broad authority to refer disputes to compulsory arbitration seriously limits the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 153). The Committee requests the Government to indicate the measures taken or envisaged to ensure that workers’ organizations can organize their programme and activities without interference of public authorities. The Committee also requests the Government to provide information on cases where the Minister has intervened in industrial disputes, referring them to compulsory arbitration.

Article 4 of the Convention. In its previous comments, noting the Government’s indication that a decision of the Registrar to withdraw or cancel registration does not take effect until the courts hand down a final decision, the Committee requested the Government to indicate the relevant legislative provisions in this regard. The Committee takes note that the Government has referred this matter to the Attorney-General for his opinion. The Committee recalls that, when legislation allows dissolution or suspension of workers’ and employers’ organizations by administrative authority such as in this case, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case. Moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, 1994, paragraph 185). The Committee trusts that the Government will indicate the measures taken to ensure that the administrative decision to withdraw or cancel registration shall not take effect until an independent judicial body has handed down a final decision on the matter.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

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), had requested the Government to specify whether these workers could otherwise associate to further and defend their occupational interests, and to provide further particulars on the type of associations formed and the relevant legislative or other texts governing the rights of these officers to form associations for the defence of their members’ interests. Regarding prison officers, the Committee notes the Government’s reference to comments made by the Commissioner General of Prisons, according to which prison officers are permitted to form welfare associations to protect and promote their occupational and welfare interests. Furthermore, the Committee notes the Government’s indication that by virtue of Treasury Circular No. 422 of 1957, prison officers are permitted to form a Joint Council whose function is to look into matters relating to working conditions, health and safety facilities, welfare amenities, sports, canteen facilities, training and suggestions for administrative improvements. The Government also indicates that the Joint Council meets once every three months under the chairmanship of the Commissioner General of Prisons and involves the participation of representatives of each institution that comes under the Department of Prisons.

Regarding judicial officers, the Government indicates that they are permitted to associate to further their occupational interests. The Committee also notes that according to the Government, the Judicial Service Association has indicated that it does not have a Constitution, as it follows the traditions that have existed in the judicial service for several years. The Committee requests the Government to indicate, in its next report, the relevant legislative texts that grant judicial officers the right 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 had noted in its previous report that although the minimum age for employment in general circumstances was 14, a worker had to be 16 years old to become a trade union member, and had requested the Government to indicate 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. The Committee notes the Government’s indication that educational authorities are of the view that compulsory school education (which currently applies to children from 5 to 14 years of age) should be extended to 16 years of age, and in the event that it is changed, the minimum age for employment will also be raised accordingly. The Committee notes that in anticipation of extending compulsory school education to 16 years of age, the Government does not wish to amend the minimum age for trade union membership immediately and that it will keep the Committee informed of any progress in this regard.

Articles 2 and 5. The right of public servants to join and establish organizations of their own choosing. In its previous comments, the Committee had noted that section 21 of the TUO and the Establishment Code restricted membership in a union to public servants employed in any one specified department or service of the Government, or specified class or category and that public officers were prohibited from becoming members of any trade union which permitted persons who are not public officers to be members. The Committee had asked 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. The Committee notes the Government’s indication that the "services" referred to in section 21 of the TUO are not confined to one particular department, and include members in several departments and ministries. The Government explains that government staff officers belonging to the same service may form trade unions, despite being employed in different departments and ministries, as is the case with the Sri Lanka Engineering Service, Sri Lanka Administrative Service, Sri Lanka Medical Service and Sri Lanka Educational Service of staff officers. Furthermore, the Government also indicates that officers of any specified class or category employed in different departments may form a trade union, and thus the provisions of the TUO permit, to a certain extent, staff officers in different ministries and departments to form first-level organizations. The Government also indicates that action will be taken to negotiate with the ministry concerned with the administration of public servants with a view to complying fully with the Committee’s previous request. The Committee expresses the firm hope that the Government will take the necessary action, in the very near future, 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 requests the Government to keep it informed of any progress in this regard.

In its previous comment, the Committee had also requested the Government to indicate 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. The Committee notes the Government’s indication that the definition of "public officer" under the Establishment Code excludes employees of public corporations, statutory bodies, or institutions vested in the Government, and thus these categories of employees enjoy the right to organize to the same extent as all other workers, other than public officers.

Articles 3 and 10. In its previous comments, the Committee had noted that the Industrial Disputes Act did not apply to the public service and had asked the Government to specify the type of machinery available to public servants to redress their collective claims and to furnish the complete text of the Establishment Code. The Government indicates in its report that Part II of Volume 11 of the Establishment Code provides the machinery for dispute settlement. The Committee requests the Government to transmit a copy of the relevant provisions of the Establishment Code with its next report.

Regarding employees of state-owned enterprises, the Committee notes the Government’s indication that these employees are not public officers and since they are included under the scope of the Industrial Disputes Act, they are not prohibited from taking industrial action.

In its previous comments, the Committee noted that section 4(2) of the Industrial Disputes Act granted the minister overly broad powers to refer any industrial dispute to an industrial court for settlement and requested 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 those occurring in essential services and to those public servants exercising authority in the name of the State or in case of acute national crisis. The Government indicates in its report that the power of the minister to refer disputes to arbitration is to end a stalemate in negotiations. The Government indicates that a dispute will be referred to arbitration on the recommendation of the Commissioner of Labour and only after all attempts to conciliate the parties have failed. Furthermore, the parties may appeal the minister’s decision to refer the dispute to arbitration to the Court of Appeal, and that with respect to arbitration, the parties may terminate the award by virtue of section 20 of the Industrial Disputes Act. The Government also indicates that referring an industrial dispute to an industrial court for settlement is not done on the sole discretion of the minister, but with the recommendation of the Commissioner of Labour and the parties concerned. The Committee requests the Government to indicate the precise legislative provisions which provide that a recommendation of the Commissioner of Labour and of the bargaining parties is required in order for the minister to refer a dispute to arbitration, under section 4(2) of the Act.

Article 4. In its previous comments, noting sections 15-18 of the TUO, the Committee had requested that the Government amend its 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 the Government’s indication that the cancellation or withdrawal of registration of a trade union will not take effect until the appeal procedure is over. The Committee requests that the Government indicate the legislative provisions which provide that a decision of the Registrar shall not take effect until a final decision is handed down by the courts.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the comments made by the Lanka Jathika Estate Workers’ Union and by the Employers’ Federation of Ceylon concerning the application of the Convention in Sri Lanka.

The Committee notes the Government’s indication that the Emergency Regulations of 3 May 2000 were amended by the Emergency Regulations No. 1 of 6 April 2001. Furthermore, referring to section 7 of the Emergency Regulations of 6 April 2001, the Government indicates that the schedule referred to in the Committee’s previous observations has been repealed. The Committee also notes the comments made by the Employers’ Federation of Ceylon to the effect that the Emergency Regulations of 6 April 2001 define essential services and were made under the Public Security Ordinance. However, the Committee also notes the Government’s indication that these Emergency Regulations are no longer in force and have been ineffective since July 2001 as they were not renewed by Parliament. The Committee requests the Government to keep it informed in its next report of any Emergency Regulation which may be promulgated in the future.

In addition, the Committee is addressing a request regarding certain other points directly to the Government.

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.

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

The Committee notes the comments made by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), as well as the Government’s reply thereon. In particular, the Committee notes the IUF’s contention that the Emergency Regulations recently promulgated by the Government suppress workers’ rights under this Convention in services declared to be essential and that the list of essential services includes services which cannot be considered essential in the strict sense of the term. According to the IUF, the denial of workers’ rights in these regulations is comprehensive and all encompassing, and far exceeds any measure that could be justified by the emergency situation it purports to address.

The Committee notes the Government’s indication that the Emergency Regulations in no way violate or infringe the rights conferred on workers under Articles 3, 4 and 5 of the Convention. Furthermore, the Government clarifies that the schedule containing the list of services that could be declared by the President of the country as essential would be declared only as and when such declaration is indispensable. Depending on the services and the necessity to meet the situation, only the services required may be declared essential, thus it would not be possible to visualize the situation prematurely.

The Committee notes that Regulation 2(4) of the Emergency Regulations of 3 May 2000 refers to any order made by the President declaring any service to be of public utility or to be essential for national security or to the life of the community may be made generally for the whole of Sri Lanka or for any area or place specified in the order. Regulation 40, which makes it an offence to fail or refuse to perform work in an essential service, also refers to the necessary presidential order referred to in Regulation 2. The President has similar powers to issue orders under Regulations 10 and 12 relevant to industrial action. These regulations, together with the indication in the Government’s reply, would seem to indicate that the list of essential services in the schedule to the regulations provides a list of potential services which may be restricted under the regulations by presidential order. Moreover, the Committee does note that the services listed in the schedule go far beyond the strict sense of the term "essential services" as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In addition, there are other important regulations restricting the rights of workers in essential services which do not appear to refer to a pre-established presidential order, such as control of publications (Regulation 14), orders of restriction (Regulation 16), detention of persons (Regulation 17), and distribution of leaflets (Regulation 28). Furthermore, the Committee recalls that the Committee on Freedom of Association was seized in the early 1980s with a number of serious cases of violation of trade union rights and basic civil liberties arising from the application of the Emergency Regulations.

In this respect, the Committee first recalls that the freedom of association Conventions contain no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under the Conventions or any suspension of their application. Such a pretext cannot be used to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity. Furthermore, in cases where the Government has invoked a crisis situation to justify provisions adopted under emergency or exceptional powers, the Committee is of the view that such measures cannot be justified except in a situation of acute national crisis and then only for a limited period and to the extent necessary to meet the requirements of the situation (see 1994 General Survey on freedom of association and collective bargaining,paragraphs 41 and 152). Given the ambiguous nature of some of the regulations referred to above, the Committee requests the Government to take the necessary measures to amend the Emergency Regulations so that they refer only to essential services in the strict sense of the term or cases of acute national crisis. In this regard, the Committee would also invite the Government to give consideration to an earlier statement which it had made in its report due under Convention No. 98 of the possibility of amending the emergency regulations then in force, so as to exempt industrial disputes from their application.

The Committee is raising a certain number of points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's first report.

Article 2 of the Convention. Exclusion of certain workers. The Committee notes that the Constitution provides that "Every citizen is entitled to ... (c) the freedom of association; (d) the freedom to form and join a trade union." (article 14(1)). Article 14(1)(c) can be restricted "in the interests of racial and religious harmony or national economy" (article 15(4)), and article 14 generally can be restricted "in the interests of national security, public order and the protection of public health or morality ..." (article 15(7)). While not all of these limitations seem to be reflected in the Trade Unions Ordinance, the Committee requests the Government to provide information as to whether and to what extent those who are not citizens are protected by the rights provided for under the Convention, and how the limitations under article 15 of the Constitution have been applied, and to forward any relevant Acts or Regulations in this context.

The Committee notes further that the Trade Unions Ordinance, providing for the establishment and functioning of trade unions, excludes certain groups from its scope, and deems that any association or combination of such employees shall be deemed not to be a trade union (section 20(2)): judicial officers, members of the armed forces, police officers, prison officers and members of any corps established under the Agricultural Corps Ordinance. The Committee recalls that the Convention requires that workers and employers, without distinction whatsoever, are to have the right to establish and join organizations of their own choosing, with the only possible exception being the armed forces and the police. Therefore, judicial officers, prison officers and members of corps established under the Agricultural Corps Ordinance should have the right to form and join trade unions. Noting the Government's statement that this restriction has been placed "due to the very nature of their duties being considered as essential", the Committee recalls that restrictions can be imposed on the right to strike in essential services, as strictly defined, but being characterized as essential should not result in a prohibition to associate. The Committee requests the Government to specify whether these workers can otherwise associate to further and defend their occupational interests.

The Committee notes that a minimum age limit is also imposed for the joining of a trade union. Pursuant to section 31 of the Trade Unions Ordinance, a person must be above the age of 16 to join a trade union. The Government is requested to inform the Committee whether this is also the minimum age for employment, recalling that Article 2 applies to workers, regardless of age; therefore if a person has attained a sufficient age to be a worker, he or she should be able to belong to a trade union.

The right of public servants to join and establish organizations of their own choosing. The Committee notes that generally there is no limitation placed on the types of trade unions that may be established, with the exception of trade unions of "public officers". The Government states in its report that the Trade Unions Ordinance restricts the registration of public service trade unions, unless, inter alia, they restrict membership of the union or for any office, solely to public servants who are employed in any one specified department or service of the Government, or specified class or category (section 21(1)(a)). The Government also refers to Chapter XXXV of the Establishment Code, which restricts public officials from joining trade unions by: (a) prohibiting public officers from becoming members of any trade union which permits persons who are not public officers to be members; and (b) prohibiting any person who is not a public officer being appointed to be a patron or office bearer, or admitted to membership of any organization of officers, except as provided for under the Trade Unions Ordinance. The Committee considers that it is admissible for first-level organizations of public servants to be limited to that category of workers, subject to 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 federations and confederations of their own choosing, including organizations of workers in the private sector. However, provisions stipulating that different organizations must be established for each category of public servants, as is the case under section 21, are incompatible with the right of workers to establish and join organizations of their own choosing (see General Survey on freedom of association and collective bargaining, 1994, paragraph 86). It should be noted, however, that senior staff who play a decisive role in determining and implementing major policies and guidelines in the public sector can be restricted from joining trade unions open to lower-grade employees (see General Survey, op. cit., paragraphs 87 to 88). In this context, the Government is requested to provide more information concerning the definition, in law and in practice, of "public officer", "peace officer" and "government staff officer" in section 21, and to review the provision with the aim of bringing it into closer conformity with the requirements of the Convention. The Committee also requests the Government to forward a copy of the Establishment Code.

Representativeness. The Industrial Disputes Act introduces the concept of a "sufficiently representative" trade union, in which case a collective agreement in force may be extended by order of the Minister (section 10). The Committee requests the Government to provide information concerning how representativeness is determined in law and in practice, recalling that it accepts that the recognition of the most representative trade union is not a violation of the right of workers to establish and join organizations of their own choosing, provided certain conditions are met, including that the determination is based on objective, pre-established and precise criteria (see General Survey, op. cit., paragraph 97).

Article 3 (Right to draw up their constitutions and rules). The Committee notes that section 47 of the Trade Unions Ordinance establishes procedures and limitations for maintaining a political fund and for making payments in furtherance of political objects. The Committee notes in particular that no assets of a trade union not forming part of the political fund shall be directly or indirectly applied in furtherance of any political object, which in the view of the Committee could be applied in practice to restrict a wide range of expenditures, and thus constitute interference in the internal affairs of a trade union. The Committee suggests that the legislation be reviewed and revised to provide for some degree of flexibility so that a reasonable balance can be achieved between the legitimate interest of organizations in matters of economic and social policy affecting their members and workers in general, and the separation of political activities in the strict sense of the term and trade union activities (see General Survey, op. cit., paragraph 133).

Articles 3 and 10. Noting that the Industrial Disputes Act, which provides for conciliation, arbitration, industrial court and labour tribunal procedures, does not apply to the public service due to section 49, the Committee requests the Government to provide information concerning dispute settlement for the public service. The Committee notes that the Industrial Disputes Act generally provides for mandatory conciliation where there is an industrial dispute, and arbitration with the consent of the parties (section 3). However, there are situations where strikes can be brought to an end through compulsory arbitration or adjudication. Section 40 provides that it is an offence to strike where the industrial dispute has been referred for settlement to arbitration or an industrial court. Every person who commits an offence under the Act, is liable on conviction to a fine or up to six months' imprisonment, or both (section 43; see also section 41). The Committee notes that section 4(2) empowers the Minister to refer an industrial dispute to arbitration without the consent of the parties, where the Minister is of the opinion that the industrial dispute is a "minor dispute". This term is not defined, and, in the view of the Committee, gives broad power to the Minister to refer a dispute to arbitration. There does not appear to be any appeal from the decision of the Minister. An even broader power appears to be given to the Minister under section 4(2), which provides that "the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement".

In this context, the Committee recalls the importance of the right to strike as one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, and that this right may only be limited or prohibited in specific circumstances, namely in essential services as narrowly defined, ie. services the interruption of which would endanger the life, personal safety or health of the population, and with respect to public servants engaged in the administration of the State (see General Survey, op. cit., paragraphs 147, 158 and 159). The Committee is of the view that section 4 of the Industrial Disputes Act clearly goes beyond the permitted scope of restrictions; thus the Government is requested to amend the legislation to bring it into fuller conformity with the requirements of the Convention. In addition, noting that some of the past Public Security Ordinances contained broad powers to restrict activities interfering with "essential services", defined more broadly than is accepted by the supervisory bodies, the Committee requests the Government to specify which Public Security Ordinances are in force, if any, and to forward copies of these Ordinances.

Article 4. The Committee notes that pursuant to the Trade Unions Ordinance, the Registrar may withdraw or cancel a certificate of registration in a number of circumstances; this decision can be appealed to the District Court, and a further appeal to the Court of Appeal is available (sections 15, 16, 17). However, once the withdrawal or cancellation takes place, even if an appeal has been launched, the trade union is deemed to be an unlawful association and ceases to enjoy any rights, immunities or privileges of a registered trade union, the trade union is not to take part in strikes, and its funds are disposed of in accordance with its rules (section 18). The Committee recalls that legislation should not allow dissolution or suspension of an organization by administrative authority; if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, and the administrative decision should not take effect until a final decision is handed down (see General Survey, op. cit., paragraph 184). The Government is, therefore, requested to amend the legislation to ensure that the decision of the Registrar to withdraw or cancel registration does not take effect until the appeal procedures have been exhausted.

Article 5. The Committee notes that generally there is no limitation on establishing federations under the Trade Unions Ordinance; however, section 21(1)(b) provides that the Registrar is to refuse to register any trade union of peace officers or government staff officers unless the rules of the union contain a provision declaring that "the union shall not be affiliated to or amalgamated or federated with any other trade union whether of public officers or otherwise ...". The Committee notes that this is not in conformity with Article 5 which requires that workers' and employers' organizations have the right to establish and join federations and confederations. The Committee requests the Government to take measures to have the provision amended so that all workers' and employers' organizations are entitled to establish and join federations and confederations. With reference to section 21(1)(a), the Committee requests the Government to specify whether this provision in any way inhibits first-level public service unions from joining general federations. In this context, the Committee recalls that while first-level organizations of public servants may be restricted to this category of workers, such organizations should be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193).

The Committee requests the Government to inform it in its next report of any measures taken or contemplated to bring the legislation into fuller conformity with the requirements of the Convention.