Report in which the committee requests to be kept informed of development - Report No 348, November 2007

1113. The complaint is set out in a communication of 27 September 2006. The International Textile, Garment and Leather Workers’ Federation (ITGLWF) and the International Transport Workers’ Federation (ITF) affiliated themselves with the complaint in communications dated 30 October and 6 December 2006, respectively.

1. 1114. The Government submitted its observations in communications of 8 February and 14 May 2007.
2. 1115. Sri Lanka has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 1116. In its communication of 27 September 2006, the complainants allege that in March 2006 a dispute over the issue of wage increments arose between the Sri Lanka Port Authority (SLPA) – a state-owned enterprise responsible for the development, maintenance, and operation of the nation’s ports, including those of Colombo, Galle and Trincomalee – and several unions representing SLPA workers. The complainants state that they had tried all possible means of resolving this dispute through negotiations, and had written to both the management of the SLPA and the Minister responsible for ports to ask that their demands be met, or for an opportunity to discuss the matter. Despite these repeated appeals the SLPA and the Minister refused to enter into negotiations on the issue raised.
2. 1117. The complainants subsequently commenced a “work-to-rule” strike action on 13 July 2006, during which normal contractual duties as specified by the service contracts of the workers were performed to the letter, whereas “optional” or additional work was declined. The complainants maintain that the action was totally peaceful, with no incidents of breach of peace reported during the strike period, and that a total of 14 trade unions participated in the said action.
3. 1118. On 19 July 2006 – the peak of the trade union action – the Minister for ports held a news conference, in which he stated that the Government would not negotiate with trade unions with respect to the strike’s underlying demands. The Government’s refusal to negotiate compelled the striking workers to continue their action. On the evening of 19 July 2006, however, the Minister held discussions with the portworkers and subsequently agreed to grant some of their demands and appoint a committee to look into the others, pledging a final solution to the demands within a period of three months. As a result of the Minister’s assurances, the unions decided to suspend their action as of 20 July 2006. Negotiations followed the suspension of the industrial action, during which a number of issues were tabled for discussion. It was amidst these negotiations and positive developments, the complainants allege, that the Joint Apparel Association Forum (JAAF), an association of employers in the apparel sector, brought a legal action before the Supreme Court.
4. 1119. On 21 July 2006, the JAAF filed a petition before the Supreme Court of Sri Lanka claiming that, as a result of the “work-to-rule” trade union action initiated by the port unions, their normal import and export business activities had been affected, and therefore their fundamental right to equality and lawful occupation was being violated by the trade unions. The JAAF therefore sought to quash the trade union action and obtain a requisition order to compel the workers to resume normal working hours.
5. 1120. The complainants state that the JAAF is an organization primarily engaged in the protection and furtherance of the interests of the apparel, fabric and accessory manufacturers, as well as the garment buyers of Sri Lanka. Its membership includes a large number of businesses in the above-noted categories, operating mostly in export processing zones (EPZs) and special economic and tax concession enclaves in Sri Lanka.
6. 1121. On 21 July 2006 the Supreme Court issued an interim order in which, upon consideration of the “prima facie illegality” of the trade union action, and the extensive, ongoing loss suffered by the country as a whole, it granted the JAAF’s petition the right to proceed and also granted the JAAF interim relief by prohibiting all trade union action in the ports until 25 July 2006. The Court further ordered the Inspector General of Police to deploy sufficient numbers of officers and, if necessary, to secure the assistance of the armed forces to ensure compliance with the interim order. On 25 July 2006 the Supreme Court issued an order extending the prohibition on trade union action until 25 November 2006.
7. 1122. The complainants state that as a result of the Court order the members of the port trade unions were forcibly compelled to give up their industrial action and offer their services to the SLPA on terms and conditions not of their own choosing, so as to ensure the JAAF’s economic stability.
8. 1123. The complainants allege that the Supreme Court’s characterization of the unions’ action as a “go-slow” action is misleading, false, and arbitrary. No evidence was submitted by the JAAF, or cited by the Court, to establish that members of the 14 port trade unions had worked below the stipulated work norm specified in the service contract they had entered into with their employer; had such proof been furnished, the complainants maintain, disciplinary actions could have been pursued against the workers concerned, for having violated the terms of the contract. However, not a single worker has been charged with working below the contractually specified work norm, thus proving the legitimacy of the workers’ conduct in exercising their rights. The complainants add that the action engaged in by the port unions, whether characterized as a “go-slow” or “work-to-rule” action, is an acceptable form of strike action under the ILO’s principles on freedom of association. It is also lawful and protected under national legislation – the Trade Unions Ordinance in particular.
9. 1124. The complainants state that the JAAF is a third party that uses the SLPA’s ports for the import and export of apparel and raw materials. As such, it has no standing in the industrial dispute between the 14 port trade unions and the SLPA, as the said dispute is a matter lying strictly within the contractual relationship between the latter two parties. The complainants allege that the JAAF’s petition to compel the 14 port unions to resume full productivity levels in fact undermines the right of workers to determine their own terms and conditions of employment freely and voluntarily. The JAAF petition, moreover, rests upon an alleged fundamental right to equality and lawful occupation not recognized by the Constitution.
10. 1125. With respect to the interim order issued by the Supreme Court, the complainants state that for an infringement of fundamental rights to be invoked, the action complained of must be an executive or administrative one, as set out in article 126 of the Constitution. The action complained of, however, is purely industrial action, as recognized in section 2 and protected by sections 26 and 27 of the Trade Unions Ordinance. The complainants maintain that the Court had erred in determining that the trade unions’ action amounted to executive or administrative action and, moreover, had established a grave precedent that would curtail the exercise of the right to strike by allowing future third-party petitions claiming fundamental rights violations, such as the one submitted by JAAF, to quash legitimate trade union actions and thus weaken the ability of trade unions to compel employers to engage in collective negotiations. The interim order has also made trade union activists fearful of engaging in future industrial action. In light of the above, the Supreme Court order should be declared to be invalid and inconsistent with the provisions of ILO Conventions Nos 87 and 98.
11. 1126. The complainants further allege that, in response to the major trade union action in the ports, the Government had, on 3 August 2006, amended the Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2005 through the addition of a schedule of services deemed essential. The schedule includes a substantial number of services that are not essential in the strict sense of the term, as defined by the ILO, including the following: services provided by the Central Bank; services connected with the supply of fuel, petroleum products and gas; telecommunications and postal services; services in connection with the export of commodities, garments and other products; and rail and public transport services. The schedule also lists all services required of officers or servants of all ministries, government departments and public corporations – of which the SLPA is one. The amended regulation, the complainants maintain, represents a severe restriction on the right of unions to engage in strikes and other industrial action.
12. 1127. Several annexes are attached to the complaint, including the following documents: a list of trade unions that had participated in the industrial action; a copy of the JAAF’s 21 July 2006 petition to the Supreme Court; a copy of the Supreme Court’s 21 July 2006 interim order; a copy of the Supreme Court’s 25 July 2006 interim order; and a copy of the 3 August 2006 amendment to Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2005. The latter document is herein reproduced as Annex 1.
13. B. The Government’s reply
14. 1128. In its 8 February 2007 communication, the Government states that the industrial dispute between the port trade unions and the SLPA began in March 2006. Negotiations to settle the strike had taken place but failed in the initial stages. During this time the unions did not avail themselves of the dispute mechanism provided for in the Industrial Disputes Act, nor did they submit their demands to the Commissioner General of Labour.
15. 1129. With respect to the legitimacy of the trade union’s action, the Government indicates that although the right to strike is recognized by the labour law of Sri Lanka, particularly the Industrial Disputes Act (IDA) and the Trade Union Ordinance (TUO), it is subject to certain limitations, as set out in the relevant sections of the IDA and Chapter 40 of the Public Security Ordinance. Section 32 of the IDA provides for a requisite notice period before calling a strike in an essential service, whereas section 40 restricts the right to strike where such action is in violation of a collective agreement, arbitration award or court decision. Furthermore, new regulations concerning essential services, made under the Public Security Ordinance, were issued on 3 August 2006 – three weeks after the commencement of the port trade unions’ action.
16. 1130. The Government refers to a District Court decision, Case No. 7662, issued on 19 July 2006, in which the SLPA had petitioned the Court for an injunction against alleged acts of intimidation, by the union and against workers not involved in the “go-slow” action that commenced on 13 July 2006, as well as an injunction to prevent the unions from continuing with the “go-slow” action itself (a copy of the case is attached to the Government’s reply.) According to the Government, both injunctions were granted for a one-week period pending the hearing on the merits.
17. 1131. With respect to the injunctions granted by the District Court, the Government maintains that such temporary restrictions or prohibitions on the right to strike, where industrial action could cause serious hardship to the nation as a whole, are permissible under the freedom of association principles elaborated by the ILO.
18. 1132. The Government adds that subsequent to the injunctive relief granted by the District Court, the Minister in charge of Ports and Aviation held discussions with the unions involved in the go-slow and settled the industrial dispute, following which the SLPA withdrew its case pending before the District Court and freed the trade unions from the restrictions imposed on their action by the District Court.
19. 1133. With respect to the JAAF’s fundamental rights application to the Supreme Court on 21 July 2006, the Government states that the SLPA and the Minister of Ports were themselves named as respondents in the action. Among the JAAF’s pleadings were that the garment sector exports approximately 1 billion rupees worth of manufactured apparel and imports approximately 500 million rupees worth of raw materials per day, primarily through the port of Colombo. As a result of the unions’ action, activity in the Colombo port had fallen by 60 per cent, severely affecting the apparel sector and causing extensive loss to JAAF members. The JAAF further pleaded that union members were also engaging in threats and other acts of intimidation, thus preventing SLPA employees from discharging their normal duties, and that the situation at the Colombo port had engendered a crisis of national proportions, affecting the entire country’s economy. The Government indicates that on 21 July 2006 the Court had issued an injunction against the actions and granted the JAAF leave to proceed with its application; hearings for the arguments had been fixed for 19 March 2007. The Government maintains that as the case is sub judice, it is not proper to comment upon its substance. Furthermore, as the complainants have yet to exhaust all possible domestic remedies, the Supreme Court, rather than the ILO, remains the appropriate forum for raising the matters relating to the present complaint.
20. 1134. The Government maintains that, the complainants’ representations notwithstanding, the illegality of “go-slow” actions is well-established in Sri Lankan jurisprudence, as demonstrated in numerous judicial cases.
21. 1135. The Government indicates that though it would abide by the recommendations of the ILO supervisory bodies, it cannot interfere with cases pending before the judiciary. Such interference, in the first instance, would be premature, as the Supreme Court has yet to hand down a final decision with respect to the issues raised by the JAAF’s application and contained in the present complaint; it would also violate the fundamental rights of the litigants and compromise the entire judicial system. It would therefore be inappropriate for the ILO or any other international body to pass judgement upon a decision of the Supreme Court of Sri Lanka, particularly when the decision in question has yet to be issued.
22. 1136. As concerns the essential services order recently promulgated under the Public Security Ordinance, the Government states that although the 3 August 2006 essential services order referred to by the complainants did include an expanded schedule of services, after its publication, the President had clearly expressed that the said regulation would not be implemented against the trade unions. The order was further discussed at the National Labour Advisory Council and, in view of the concerns expressed by the unions, the President repealed the schedule of services by an order published in Gazette notification No. 1456/28 of 4 August 2006. [The latter notification, though referred to as document A5 and said to constitute part of the reply, is not attached to the Government’s communication.] The Committee has nevertheless obtained a copy of Gazette notification No. 1456/28. The notification is a Presidential proclamation stating that, due to a public emergency in Sri Lanka, the provisions of Part II of the Public Security Ordinance shall come into operation throughout Sri Lanka on 4 August 2006. The notification is herein reproduced as Annex 2.
23. 1137. In its 14 May 2007 communication, the Government attaches a communication of 7 March 2007 from the SLPA indicating that, upon the commencement of the industrial action on 13 July 2006, two meetings between the port authorities and representatives of the trade unions participating in the action were held – on 14 July and 20 July 2006, respectively. The SLPA communication further states that the latter meeting, in which the Minister of Ports participated, produced several decisions, including decisions to refer the salary proposals of the trade unions to the National Salaries and Cadre Commission and obtain their recommendations in three months; to pay allowances to SLPA employees pending the issuance of the Commission’s recommendations; and to hold a meeting with the SLPA, the Minister of Ports and the trade unions to review the progress made once in every three months.

C. The Committee’s conclusions

1. 1138. The Committee notes that the present case involves the following allegations: a court-ordered injunction against an alleged go-slow action initiated by several trade unions in ports run by the SLPA, and the amendment to the Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2005 so as to include an expanded schedule of services deemed to be essential.
2. 1139. The Committee first notes the Government’s statement that it would be inappropriate for it to pass judgement, as a suit concerning these matters was still pending before the Supreme Court. In this respect, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 30 of Annex 1]. The Committee, while bearing in mind the fact that certain matters raised in the complaint are currently pending before the courts, and while respecting the independence of the courts and due legal processes under way, shall therefore proceed with its examination of the case.
3. 1140. The Committee notes the complainants’ allegations that, following a dispute with the SLPA over wage increments, 14 trade unions commenced a work-to-rule action on 13 July 2006. Discussions between the unions and the Minister of Ports were held on 19 July 2006, in which the Minister agreed to grant some of the unions’ demands and appoint a committee to examine the others; subsequent to these discussion the unions decided to suspend their action as of 20 July 2006. On 21 July 2006, however, the JAAF – an employers’ association that is not a party to the dispute filed a petition before the Supreme Court of Sri Lanka seeking an injunction against the action initiated by the unions and claiming that, as a result of the action, their normal import and export business activities had been severely affected, thus violating their fundamental right to equality and lawful occupation. The Government, for its part, states that the SLPA had sought an injunction against the unions’ action and was granted a one-week injunction by the Colombo District Court on 19 July 2006. The SLPA subsequently withdrew its case on the merits still pending before the District Court, but was then named – together with the trade unions and the Minister of Ports – as a respondent in a petition before the Supreme Court brought by the JAAF on 21 July 2006. The Government adds that in its petition the JAAF pleaded extensive financial loss to its members as a result of the reduced activity caused by the trade unions’ action. On 21 July 2006 the Supreme Court, upon consideration of the “prima facie illegality” of the trade union action and the extensive loss suffered by the nation as a whole, issued an injunction against the industrial action and granted the JAAF leave to proceed with its fundamental rights action; hearings for the said action had been scheduled for March 2007.
4. 1141. The Committee notes that, in granting the injunction against the go-slow action, the Supreme Court had cited the extensive loss to the nation as a whole as a factor in its determination. Further noting the Government’s indication that temporary restrictions on the right to strike are permissible where industrial action could cause serious hardship to the nation as a whole, the Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term – that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 576]. To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 581].
5. 1142. The Committee recalls that, generally speaking, ports do not constitute an essential service in the strict sense of the term [see Digest, para. 587]. The Committee further recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. Finally, the Committee recalls that the principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an “essential service” in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest, op.cit., paras 582–583]. The Committee observes, that the strike action had lasted for 6 days before the issuance of the District Court’s injunction, and that – apart from the JAAF’s pleading of economic loss suffered as a result of the action – no evidence has been put forward to establish the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population. In addition, the Committee observes, with concern, that the injunction would appear to have an extended validity until the final hearing by the Supreme Court, first scheduled for October 2006 and later postponed until March 2007. In these circumstances, the Committee is inclined to view the restriction placed on the portworkers’ action by the injunction issued by the Supreme Court as contrary to the principles set out above.
6. 1143. As concerns the alleged illegality of the go-slow action, the Committee recalls that, regardless of whether the action in question is a work-to-rule or actually a go-slow, it has always recognized the right to strike by workers as a legitimate means of defending their economic and social interests, and that various types of strike action (wild-cat strikes, tools-down, go-slow, working to rule and sit-down strikes) fall within the scope of this principle; restrictions regarding these various types of strike action may be justified only if the strike ceases to be peaceful [see Digest, op. cit., para. 545]. Noting that a hearing for the JAAF’s application had been scheduled for March 2007, the Committee requests the Government to indicate whether a final decision on the question of the alleged go-slow action has been rendered, and if so to transmit a copy of the Supreme Court’s judgement. Should the case still be pending before the Supreme Court, the Committee requests the Government to take the necessary measures to expedite the judicial process and ensure that the Committee’s conclusions, particularly those concerning the exercise of the right to strike, are submitted for the Supreme Court’s consideration.
7. 1144. As for the essential services order, the Committee notes that the schedule contained in the Emergency (Miscellaneous Provisions and Powers) Regulation No. 01, as amended on 3 August 2006, enumerates a number of services not considered essential in the strict sense of the term, including services in the petroleum sector; the postal service; the Central Bank; export services; rail and public transportation; public corporations; tea, coffee and coconut plantations; and broadcasting services. As regards workers in public corporations, the Committee recalls that public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 577]. Although the Government indicates that the schedule of services had been repealed on 4 August 2006, the Committee observes that Gazette notification No. 1456/28 (Annex 2) does not appear to have done so as it apparently only states that the provisions of Part II of the Public Security Ordinance shall come into operation on 4 August 2006. The Committee therefore requests the Government, in consultation with representatives of workers and employers organizations, and taking into account the particular circumstances in the country, to review and take the necessary measures to amend the schedule of essential services provided for in Emergency (Miscellaneous Provisions and Powers) Regulation No. 01, as amended on 3 August 2006, if it is indeed still in force, so as to bring it into conformity with Conventions Nos 87 and 98. If the schedule has since been repealed, the Committee requests the Government to provide a copy of a the repealing order.
8. 1145. Finally, the Committee reminds the Government that it may avail itself of the technical assistance of the Office.

Annex 1

1. The Gazette of the Democratic Socialist Republic
2. of Sri Lanka – Extraordinary (No. 1456/27)
3. (Thursday, 3 August 2006)
4. Part I: Section (I) – General
5. Government notifications
6. The Public Security Ordinance (Chapter 40)
7. REGULATIONS made by the President under section 5 of the Public Security Ordinance (Chapter 40).
8. Mahinda RAJAPAKSA,
9. President,
10. Colombo, 3 August 2006.
11. Regulations
12. The Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2005 published in Gazette Extraordinary No. 1405/14 of 13 August 2005 and deemed to be in force by virtue of Section 2A of the Public Security Ordinance, and amended from time to time, is hereby further amended as follows:
13. (1) by the amendment of regulation 2 of that regulation by the insertion immediately after definition of the expression “emergency regulation” of the following definition:
14. “‘essential service’ means any service which is of public utility or is essential for national security or for the preservation of public order or to the life of the community and includes any Department of the Government or branch thereof, which is specified in the Schedule hereto and shall also include any service which may at any time thereafter be declared in terms of regulation 40 of these regulations”;
15. (2) by the insertion immediately after regulation 39 of those regulations of the following new regulation:
16. 40. (1) Where any service is declared by order made by the President under regulation 2 to be an essential service, any person who, on or after 13 August 2005 was engaged or employed in any work in connection with that service –
17. …
18. (b) fails or refuses after the lapse of one day from the date of such Order, to perform such work as he may from time to time be directed by his employer or a person acting under the authority of his employer to perform at such time or within such periods as may be specified by such employer or such person for the performance of such work (whether such time or period is within, or outside normal working hour or on holidays) he shall, notwithstanding that he has failed or refused to so attend or to so work in furtherance of a strike or other organized action –
19. (i) be deemed for all purposes to have forthwith terminated or vacated his employment, notwithstanding anything to the contrary in any other law or the terms and conditions or any contract of employment; and
20. (ii) in addition, be guilty of an offence.
21. …
22. (4) Where the President is of the opinion that the members of any organization are committing, aiding and abetting the commission of any act referred to in paragraph (3) of this regulation, he may by Order published in the Gazette declares such organization to be a proscribed organization;
23. …
24. (3) by the addition immediately at the end of these regulations, of the following Schedule:
25. “Schedule
26. (a) the services provided by the Central Bank or any banking institution as defined in subsection (1) of Section 127 of the Monetary Law Act (Chapter 422), or the State Mortgage and Investment Bank, established under the State Mortgage and Investment Bank Law, No. 13 of 1975;
27. (b) all services, work or labour of any description whatsoever necessary or required to be done in connection with the maintenance and the reception, feeding, nursing care and treatment of patients in hospitals, dispensaries and other institutions, under the Ministry of Health and Women’s Affairs;
28. (c) all services connected with the supply or distribution of fuel, including petroleum products and gas;
29. (d) all services connected with the supply of electricity;
30. (e) all services, work or labour of any description whatsoever, necessary or required to be done in connection with the maintenance of postal and telecommunications services, including the overseas telecommunication services;
31. (f) all services, work or labour of any description whatsoever necessary or required to be done by officers or servants of all Ministries, Government Departments and Public Corporations;
32. (g) all services, work or labour of any description whatsoever necessary or required to be done in connection with the maintenance of road, rail and other public transport services;
33. (h) all services, work or labour of any description whatsoever necessary or required to be done in connection with the maintenance and management of tea, rubber and coconut plantations or the production and manufacture of tea, rubber and coconut;
34. (i) all services, work or labour of any description whatsoever necessary or required to be done in connection with the export of commodities, garments and other products;
35. (j) all services, work or labour of any description whatsoever necessary or required to be done in connection with the maintenance of all broadcasting and television services;
36. (k) all services, of any description, necessary or required to be done in connection with the sale, supply or distribution, of any article of food or medicine or any other article required by a member of the public.”
37. Annex 2
38. The Gazette of the Democratic Socialist Republic
39. of Sri Lanka – Extraordinary (No. 1456/28)
40. (Friday, 4 August 2006)
41. Part I: Section (I) – General
42. Proclamations &c., by the President
43. A proclamation by His Excellency the President
44. WHEREAS I am of opinion that by reason of a public emergency in Sri Lanka, it is expedient so to do, in the interests of public security, the protection of public order and the maintenance of supplies and services essential to the life of the community;
45. Know ye that, I Mahinda Rajapaksa, President, by virtue of the powers vested in me by Section 2 of the Public Security Ordinance (Chapter 40) as amended by Act No. 8 of 1959, Law No. 6 of 1978 and Act No. 28 of 1988, do by this Proclamation declares that the provisions of Part II of that Ordinance, shall come into operation throughout Sri Lanka on 4 August 2006.
46. Given at Colombo on 4 August 2006.
47. By His Excellency’s command,
48. Secretary to the President.