Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 336, Marzo 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 103. The Committee last examined this case which concerns certain provisions of the Guidelines for the Formation and Operation of Employees' Councils issued by the Board of Investment (BOI), the overseeing authority for Sri Lanka's free trade zones (FTZs) and the BOI Manual on Labour Standards and Employment Relations, at its November 2004 meeting (see 335th Report, paragraphs 173-180). During its previous examination of the case, the Committee had: (1) noted the observation of the Government that the modifications to sections 5, 12.3 and 13(ii) of the BOI Guidelines for the Formation and Operation of Employees' Councils made pursuant to the recommendations of the Committee, would be presented for discussion and adoption to the National Labour Advisory Council (NLAC) once it is reconstituted and resumes its meetings and requested the Government to keep it informed in this regard; (2) noted the observation of the Government that the issue of the 40 per cent requirement for the recognition of trade union representativeness would be taken up by the NLAC once reconstituted and requested the Government to keep it informed in this regard; (3) noted that the Government did not indicate any further measures to promote collective bargaining, as previously requested by the Committee and therefore requested the Government to indicate the concrete measures taken to promote collective bargaining in FTZs and to provide statistical data regarding the number of collective agreements concluded in FTZs; and (4) noted that section 9A of the BOI Manual on Labour Standards and Employment Relations had been revised so as to provide trade union representatives access to workplaces in FTZs, under certain conditions but that such access was envisaged only "for the purpose of performing representation functions" and therefore requested the Government to specify the exact scope and meaning of the phrase.
2. 104. In its communication of 4 January 2005, the Government indicates with regard to the first issue noted above that the BOI guidelines were amended on the basis of the recommendations of the Committee and that it is only in respect of the 40 per cent requirement that the government had earlier indicated that action was being taken to bring up the matter at the NLAC.
3. 105. In respect of the 40 per cent requirement for the recognition of trade union representativeness for collective bargaining purposes, the Government indicates that the issue has been noted for listing in the NLAC agenda within the next three months and that further developments in this regard will be notified to the Committee in March 2005.
4. 106. In respect of the third issue mentioned above, the Government indicates that the Ministry has initiated measures to promote collective bargaining in FTZs through the mediation officers of the Department of Labour assigned to the FTZs and the Assistant Commissioners of Labour in charge of the zonal areas and that further intensive measures will be undertaken by the Department of Labour after providing suitable training to the officers who are identified for this purpose. The Government also refers to the annexure to its observations, which according to the Government indicates that three collective agreements were concluded in 2004 and another three are being negotiated. In addition, two more agreements have been concluded as "memorandum of settlement" which falls within the meaning of collective agreement.
5. 107. In respect of the issue of access of trade union representatives being restricted for the performance of trade union functions, the Government indicates that the phrase "representation functions" embraces all activities and functions a trade union may undertake to protect and further the interests of its members. The Government also mentions the functions of branch unions established at the enterprise level and parent unions and explains when the parent union can have access to the workplace. According to the Government, trade unions have established branch unions to deal with the management on personnel and welfare matters and to handle grievances and disputes. Where the branch union fails to reach an accord with the management on any of these matters, the parent union steps in to pursue the disputed or unsettled issues with the management. The parent union itself can raise matters or submit claims affecting the interests of the members directly with the management. Collective bargaining is initiated by the parent union. Collective bargaining negotiations and conclusion of collective agreements are undertaken by the parent unions. For purposes of discussing any issues arising from disputed matters or unions' claims or for negotiating collective agreements, the parent union can seek entry to the workplace within or outside the FTZs. In practice, parent union officials may enter the zone to address annual general meetings of their branch union. The Government indicates that all these aspects fall within the scope of "representation functions" within an enterprise for the purpose of paragraph 9(A)(ii) of the BOI Manual on Labour Standards and Employment Relations.
6. 108. In respect of the first of the aforesaid issues, the Committee recalls that in its communication of 14 May 2004, the Government had indicated that the modifications to the BOI guidelines need to be presented to the NLAC for discussion and adoption and it had therefore requested the Government to keep it informed in this regard. The Committee notes that the Government in its communication of 4 January 2005 appears to however indicate that the BOI guidelines have been amended and only the issue of the 40 per cent requirement needs to be brought up before the NLAC. In the circumstances, the Committee requests the Government to clarify whether the amendments to sections 5, 12.3 and 13(ii) of the BOI Guidelines for the Formation and Operation of Employees' Councils have come into effect.
7. 109. In respect of the 40 per cent requirement for the recognition of trade union representativeness, the Committee notes that the Government has indicated that the issue has been noted for listing in the NLAC agenda within the next three months. The Committee requests the Government to keep it informed in this respect.
8. 110. The Committee notes that according to the Government, the Ministry has initiated measures to promote collective bargaining in FTZs through the mediation officers of the Department of Labour assigned to the FTZs and the Assistant Commissioners of Labour in charge of the zone areas and that further intensive measures will be undertaken by the Department of Labour after providing suitable training to the officers who are identified for the purpose. The Government has however not specified what specific measures have been taken and are intended to be taken in this regard. The Committee therefore requests the Government to specifically indicate the measures taken to promote collective bargaining in the FTZs.
9. 111. The Committee takes note of the statistical data furnished by the Government which indicates that three collective agreements were concluded in the FTZs in 2004, three are in the process of being negotiated and two agreements were concluded as memoranda of settlements. The Committee also notes that the annexure to the Government's communication of 4 January 2005 indicates that ten trade unions are operating in the zones and that their membership is spread over 54 enterprises and constitutes 10 per cent of the FTZ workforce. The annexure further indicates that an enterprise union affiliated to the All Ceylon Federation of Free Trade Unions had recently signed a collective agreement with the management.
10. 112. In respect of the issue of access of trade union representatives to FTZs under section 9A of the BOI Manual on Labour Standards and Employment Relations, the Committee notes that according to the Government, the phrase "representation functions" includes all activities and functions that a trade union may undertake to protect and further the interests of its members. The Committee also notes that the Government has indicated that representatives of branch unions may have access to the workplace to deal with the management on personnel and welfare matters and to handle workers' grievances and disputes, and those of parent unions may have access for the purpose of discussing any issues arising from disputed matters or union claims or for negotiating collective agreements, and to address annual general meetings of the branch union. The Committee notes however that the explanation of the Government does not indicate that trade union representatives may have access for the purpose of communicating to workers, the potential advantages of unionization. The Committee recalls in this context that Governments should guarantee access of trade union representatives to workplaces with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 954]. The Committee therefore requests the Government to take the necessary measures to ensure that trade union representatives can also seek access to FTZ enterprises under section 9A of the BOI Manual on Labour Standards and Employment Relations for the purpose of apprising the workers in the enterprises of the potential advantages of unionization.