Report in which the committee requests to be kept informed of development - Report No 286, March 1993

1. 176. The International Textile, Garment and Leather Workers' Federation (ITGLWF) presented a complaint - on behalf of its affiliate the Ceylon Mercantile, Industrial and General Workers' Union (CMU) - against the Government of Sri Lanka in communications dated 12 December 1991 and 14 January 1992; it supplied further information in a letter dated 31 January 1992. The International Union of Food and Allied Workers' Associations (IUF) presented its complaint, also on behalf of its affiliate the Ceylon Mercantile, Industrial and General Workers' Union (CMU), in a communication dated 29 January 1992.
2. 177. The Government sent its observations on the allegations in a communication dated 21 September 1992.
3. 178. Sri Lanka has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 179. In its letters of 12 December 1991 and 14 January 1992, the ITGLWF alleges that the Government has violated workers' rights by using the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1989, issued by the President under section 5 of the Public Security Ordinance. The complaint concerns particularly Simca Garments Ltd. in Colombo, which employs 236 women workers in clothing manufacture. The employees joined the CMU in November 1991 and the union notified the company of the formation of a branch in the factory and sought recognition from the employer since the overwhelming majority of the workforce had joined the union. When the company ignored this written request, the CMU sought the intervention of the local Labour Department, but without success.
2. 180. At midday 20 February 1991, all 236 women went on strike demanding recognition of their union and out of fear of suffering victimization at the hands of the manager who had snatched a list of the union members from the branch secretary's hands and refused to return it. The company fired the entire workforce. The union sought the assistance of the Local Assistant Commissioner of Labour who organized a conference on 4 March to settle the strike. However, this attempted settlement failed because the employer contended that, although the workers had a legal right to join a union, there was no law requiring employers to recognize and deal with a union. The union then called on the National Commissioner of Labour who organized a conference on 1 April, where again the employer's lawyers argued that a recognition issue could not arise because the workers had ceased to be employees of the company from the moment they went on strike on 20 February by virtue of the Essential Services Order covering the Garment Export Trade issued on 6 July 1989 by the Government under the Emergency Regulations. The Commissioner asked the lawyers to try and persuade the employer to take the workers back but, in the face of silence, a further conference was convened for 29 April 1991. The employer neither attended nor sent a representative. The Commissioner then formally requested the employer in writing to permit all workers to report for work, to which the managing director replied that the workers had gone on strike in violation of the Emergency Regulations under which strikers are deemed to have terminated their employment. The complainant points out that ostensibly these regulations were meant to apply only to essential services, but the President's Order of 6 July 1989 extended this concept to include all banks, government departments and local authorities, transport services, postal and telecommunications services, plantations of tea, rubber and coconut, the export of all commodites including garments, ports, the supply of electricity and work connected with the supply of fuel. The complainant contests that the sewing of pieces of imported fabric into shirts and dresses could become an activity critical to the life of the nation.
3. 181. According to the complainant, under the pretext of dealing with terrorism, the Government has removed the right to strike from the overwhelming majority of workers in Sri Lanka whose activities are not remotely connected with the emergency. The complainant provides copies of the legislation in question.
4. 182. In its letter of 31 January 1992, the ITGLWF adds that, if the Government tries to argue in this case that it took all possible steps to have the workers involved reinstated but that this proved impossible due to the bankruptcy of the company, Simca Garments Ltd. has in fact opened a new establishment under the name of HMS Garments Ltd. near Kandy. The company has been granted a quota by the Ministry of Handlooms and Textile Industries for access to USA export markets for 1991-92, according to information published in the Daily News of 4 November 1991.
5. 183. The IUF, in its complaint dated 29 January 1992, also denounces the situation at Simca Garments Ltd. The annexures it provides include a copy of a CMU letter to the Minister of Labour recounting the background to the one-day strike and calling on the Minister, first, to urge the company to comply with the Labour Commissioner's request that it permit the workers involved to resume work, and secondly, to revoke the Presidential Order of 6 July 1989 as soon as possible as being incompatible with Convention No. 98, ratified by Sri Lanka. It also encloses a May 1991 petition to the United States Trade Policy Staff Committee requesting a review of Sri Lanka as a beneficiary developing country under the Generalised System of Preferences; that petition quotes a US Department of Labor report as stating that while Sri Lankan labour legislation generally applies in its export processing zones, in practice the overseeing authority for such zones discourages the formation of unions. The petition also claims that the Government is using the Tamil-Sinhalese conflict as an excuse to keep in place draconian restrictions on the right to organize and to bargain collectively through the means of the Emergency Regulations, as evidenced by the broad list of services deemed to be essential under the 6 July 1989 Order. According to the petition and the attached testimony submitted in September 1991, as at 29 May 1991 the Simca workers remain without employment and the company continues with impunity to refuse to reinstate them or recognize the CMU as their representative.

B. The Government's reply

1. 184. In its communication of 21 September 1992, the Government states that the main issue contained in the complaint appears to concern the denial of freedom of association in the free trade zone. In this connection, the Government points out that the notion that free trade zone enterprises are exempted from the coverage of labour legislation is a misconception. In fact, to the contrary, all labour laws do apply to these establishments. This is evident from the fact that some employers of the zone have been prosecuted for violating the labour laws.
2. 185. According to the Government, although there happens to be no trade unions operating within the zone, the workers have taken collective action on several occasions in the recent past. Several strikes have ensued and the workers concerned have, in most instances, won their demands. The lack of a trade union organization is not peculiar to the zone. There are a large number of enterprises outside the zone, which are much older than those within, where trade unions do not operate. It is relevant to note that only 35 per cent of the workforce of the country is as yet unionized. However, mandatory "joint consultative councils" consisting of equal numbers of management and worker representatives, function within the zone to handle the grievances of the workers.
3. 186. Regarding entry of trade union representatives to the zone, the Government is prepared to review the security rules to enable authorized representatives of registered trade unions to enter the zone on the written invitation of the worker's representatives of the joint consultative councils operating within the zone.
4. 187. With regard to the other issue raised by the complaint, i.e. the Emergency Regulations in force curtailing trade union action, the Government states that these Regulations were promulgated at a time when the country was facing a terror campaign and when a very grave situation persisted. Now that the situation has eased considerably, the Government is actively considering a review of these Regulations with a view to removing the export industries from the list of essential services. It adds that an amendment to the Emergency Regulations has been prepared to exempt industrial disputes from the application of these Regulations, provided 14 days' notice has been given to the Commissioner of Labour and to the employer concerned of intended strike action. In that event, the workers in question will not suffer any penal sanction and the dispute concerned will be referred to compulsory arbitration for settlement.

C. The Committee's conclusions

1. 188. The Committee notes that this case involves the alleged use of wide powers under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1989 (issued by the President under the Public Security Ordinance) to issue, on 6 July 1989, an Essential Services Order covering, inter alia, the garment export trade. The Order removes the right to strike from the many workers employed in garment assembly. The complainant specifically cites the example of the 236 employees of Simca Garments Ltd. in the free trade zone in Colombo (now apparently operating under the name of HMS Garments Ltd. near Kandy) who went on strike, were dismissed en masse and who, despite efforts through the disputes settlement machinery, have not been reinstated by the company on the ground that their violation of the Order amounted to termination of contract.
2. 189. The Committee notes the Government's denial that workers in the free trade zone are exempted from the labour legislation and its insistence on the fact that the lack of unions in the zone is a reflection of the low rate of unionization in the country in general and has in no way restricted their exercise of their rights, as demonstrated by the strikes which have taken place there. In particular, the Committee notes the Government's response to the use of the Emergency Regulations, namely that in view of the easing of the terrorism situation the Government is actively considering a review of the Regulations so as to remove export industries from the list of essential services where strikes are banned.
3. 190. The Committee welcomes this indication that the Order of 6 July 1989 may be reviewed to delete export industries and asks the Government to keep it informed of progress towards this amendment of the Order. In view of the fact that many of the other activities also listed in the Order go beyond the definition of essential services as stated by the ILO supervisory bodies - that is, services where an interruption would endanger the life, personal safety or health of the whole or part of the population (General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations, 1983, para. 214) - the Committee requests the Government to take account of this principle when it amends the Order and to remove from the Order services which are not essential in the strict sense of the term (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, paras. 400 and 402). The Committee invites the Government to keep it informed of measures taken in this regard.
4. 191. As for the specific case of the Simca Garments Ltd., the Committee notes that the strike in question was aimed at the recognition of the union and, in this connection, would recall that employers should recognize, for the purposes of collective bargaining, organizations that are representative of workers in a particular industry or enterprise (Digest, para. 619).
5. 192. As regards the dismissals of employees for striking, the Committee regrets that the Government gives no details as to their current situation or the further measures taken to ensure that the employer respect the written request of the Labour Commissioner to reinstate the strikers. In this respect, it would draw the Government's attention to the principle that the use of extremely serious measures such as the dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association (Digest, para. 443). It requests the Government to ensure the immediate reinstatement of dismissed strikers in their jobs and to keep it informed of the implementation of the Labour Commissioner's request to this end.