Rapport intérimaire - Rapport No. 208, Juin 1981

324. The Ceylon Federation of Labour (CFL) presented its complaint, constituting Case No. 988, in a letter dated 29 July 1980. New complaints were presented by the World Federation of Trade Unions (WFTU) on 17 September, the Trade Unions International of Workers in the Building, Wood and Building Materials Industries (UITBB) on 25 September, the Industrial and General Workers' Union of Ceylon (IGWU) on 2 and 16 October and the Trade Unions International of Public and Allied Employees (TUIPAE) on 4 December 1980 and 16 January and 13 April 1981, constituting Case No. 1003. The Government sent its observations on the two cases in a communication dated 20 April 1981.

1. 324. The Ceylon Federation of Labour (CFL) presented its complaint, constituting Case No. 988, in a letter dated 29 July 1980. New complaints were presented by the World Federation of Trade Unions (WFTU) on 17 September, the Trade Unions International of Workers in the Building, Wood and Building Materials Industries (UITBB) on 25 September, the Industrial and General Workers' Union of Ceylon (IGWU) on 2 and 16 October and the Trade Unions International of Public and Allied Employees (TUIPAE) on 4 December 1980 and 16 January and 13 April 1981, constituting Case No. 1003. The Government sent its observations on the two cases in a communication dated 20 April 1981.
2. 325. Sri Lanka has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 326. In its letter of 29 July 1980, the CFL alleges violation of trade union rights by the Government's actions following the general strike called on 11 July 1980, in particular, the passage of special regulations to make strikes illegal, refusal to negotiate with striking unions on the false ground that the strike was political, mass termination of services of strikers and victimisation by seeking to re-employ them as new entrants, and the seizure of trade union funds and the closure of trade union premises.
2. 327. The CFL explains that the general strike was called in order to obtain wage increases (which, although demanded in March, had still not been discussed either by the Government or the Employers" Federation of Ceylon and the withdrawal of punishments imposed on workers who had participated in a lunch-hour picket and a half-day walk-out and picket on 5 June 1980. According to the complainant, on 5 June the Government had organised a counter-picket as an excuse for government thugs to attack the workers' picket; during the violence a government employee and union official, Mr. D. Somapala, had been killed. The immediate reason for calling the general strike had been the illegal and unexplained suspension of 12 railway employees by the government-run railways management on 4 July 1980. According to the CFL, on 16 July the Government invoked the provisions of the Public Security Act to declare a state of emergency and under the said Act issued regulations outlawing strikes in any sector of the public service or of the economy. Under special emergency regulations the Government further decreed that a person illegally engaging in a strike would be deemed to have vacated his employment. The complainant quotes various government owned newspapers stating that the emergency regulations provided for restrictions on trade unions' bank accounts, that the Government had seized the funds of the striking unions to create a special fund for the strikers' families and that it had refused to negotiate a settlement of the strike with the Health Services Joint Council.
3. 328. In its communication, the WFTU calls on the Government and private employers to re-employ unconditionally the 100,000 workers dismissed for their participation in the general strike. It also decries the Government's declaration of a state of emergency which enabled it to outlaw strikes in almost every sector of the economy where wage labour prevails, to close down trade union offices and attempt to confiscate union funds. The WFTU alleges that between 200 and 300 persons were arrested for addressing strikers, distributing leaflets and putting up posters; it claims that a number of trade unionists are still in remand.
4. 329. The UITBB confirms in its complaint the Government's closure of trade union offices, freezing of their bank assets and dismissal of a great number of workers (including more than 8,000 construction workers and several thousand building workers) in retaliation against the workers' strike action. The IGWU, for its part, alleges that the Government has withheld the strikers' earned wages for the month of July up to 17 July and that many private employers have not paid the cost-of-living gratuities, payable once a year in the month of September, as punishment for the strike action. This complainant further states that union offices remain sealed, the Government is contemplating legal action to eject strikers from their quarters (given by the State under the terms of their employment) and has removed the check-off facility. The TUIPAE states that although the general strike was called off on 9 August and the state of emergency on 16 September 1980, nearly 40,000 workers in public administrations and state enterprises have been the victims of lock-outs or dismissals. On 11 November the locked-out employees started a picketing campaign and the Government, according to this complainant, brought the police into action against the demonstration and made arrests. It lists five trade union leaders who were allegedly taken into custody and brought before the courts in connection with the general strike: Messrs. Gunasena Mahanama, Alavi Moulana, Vasudeva Nanayakkara, Karunaratna Bandara and I.G.D. Dharmasekara. Moreover, the TUIPAE lists 18 trade unions whose offices have remained sealed since 18 July 1980, and states that the freeze of trade union funds has restricted and hindered the legal exercise of trade union activities. Lastly, it alleges a violation of Convention No. 98, Article 4, by the Government's continuing refusal to negotiate with the public employees' representatives and their trade unions.

B. The Government's reply

1. 330. In its letter of 20 April 1981, the Government states that it has introduced no law to make strikes illegal or to take away the fundamental rights enshrined in the Constitution or Sri Lanka guaranteeing freedom of association. However, having apprehended a politically motivated agitation, that would have, if left unchecked, caused severe hardships to the community and jeopardised the Government's development efforts, it had to invoke temporarily the Public Security Law for the purpose of maintaining the essential services such as the supply and distribution of food, health services, water supply, gas, electricity, transport and public services. It states that since under the Regulations in force employees who deliberately kept away from work were deemed to have vacated their posts, negotiations with them could not take place as they were, ipso facto, no longer employees.
2. 331. According to the Government, at no time had trade union funds been seized or confiscated. For security reasons it was decided to withdraw the facility accorded to unions to occupy space within government buildings to house their offices; union offices located outside such premises were, however, not affected.
3. 332. The Government declares that no person has been arrested for participating in legitimate trade union activities; however, some persons engaged in acts of violence, vandalism and sabotage were arrested under the normal criminal law and their cases are being dealt with by the law courts.
4. 333. The Government states that the large majority of private sector employees were covered by procedures for the settlement of disputes laid down in collective agreements and by striking had violated their obligation to observe such procedures without resorting to strikes. It further states that public servants, who had made up the majority of strikers, are not, in any case, covered by Convention No. 98. Finally, it states that all action taken by the Government has been lawful and legitimate as has been borne out by various court decisions.

C. The Committee's conclusions

1. 334. This case concerns alleged victimisation of workers during and after a general strike which lasted from 11 July to 9 August 1980, in particular, the passing of state of emergency regulations outlawing strikes; mass dismissal of strikers and refusal to re-employ over 40,000 of them; arrests of workers, including 5 named union leaders; closure of union offices and freezing of union bank accounts; withholding of wages and other benefits due and removal of the check-off facility; and the Government's refusal to negotiate with the public employees' unions one of the complainants also refers to the death of a trade union leader on 5 June 1980 during events leading up to the general strike.
2. 335. The Committee notes that the Government makes no comment on the allegations concerning the death of the trade union leader, Mr. D. Somapala on 5 June 1980, nor of the alleged mass dismissals of strikers and refusal to re-employ thousands of them, nor regarding withholding of wages due and removal of the check-off facility. It would accordingly request the Government to send its observations on the alleged death of the trade union leader, Mr. D. Somapala, and on the other allegations.
3. 336. Regarding the passage of state of emergency regulations, the Committee notes that according to the complainants the sectors in which strikes were banned covered all sectors of the economy, whereas according to the Government the ban on strikes was introduced temporarily to maintain essential services such as the supply and distribution of food, health services, water supply, gas, electricity, transport and public services. In the light of these conflicting statements, the Committee merely wishes to recall that it has considered that the right to strike could be restricted or even prohibited in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. On this criterion, it has, for instance, been of the opinion that the hospital sector is an essential service; it has also stated that general dock work, aircraft repairs and all transport services did not appear to be essential in character. In the present case, the Committee notes the fact that the state of emergency was called off on 16 September 1980, which presumably rescinded the regulations in question. It therefore limits itself to drawing the Government's attention to the above-mentioned principles.
4. 337. As concerns the allegation of arrests of workers, in particular the five trade union leaders, Messrs. Gunasena Mahanama, Alavi Moulana, Vasudeva Nanayakkara, Karunaratna Bandara and I.G.D. Dharmasekara, the Committee notes that according to the complainants they are before the courts in connection with the general strike, whereas according to the Government no person was arrested for participating in legitimate trade union activities, but some were before the courts for having engaged in acts of violence, vandalism and sabotage. In view of the apparently conflicting nature of these statements, the Committee would ask the Government to inform it of the outcome of the court cases, providing copies of the judgements handed down, so that it may formulate its conclusions on this aspect of the case in full knowledge of the facts.
5. 338. Regarding the closure of union offices, the Committee would recall that in the past it has referred to Article 2 of Convention No. 98, ratified by Sri Lanka, and the Resolution on Trade Union Rights and their relation to Civil Liberties (adopted at the 54th Session of the International Labour Conference, 1970) when stating the principle that the right to protection of trade union property is one of those civil liberties which is essential for the normal exercise of trade union rights, and this protection should be adequate. While noting the Government's explanation that only union offices housed in government premises had been closed and that this was only done for security reasons, the Committee would ask the Government to consider reopening its premises for use by trade unions, in particular the 18 unions listed by one of the complainants which have been sealed since 18 July 1980. As regards the alleged freezing of union bank accounts, the Committee takes note of the Government's firm statement that at no time had any union funds been seized or confiscated.
6. 339. As concerns the Government's continuing refusal to negotiate with the public employees' unions involved in the general strike, the Committee notes its claim that, as those workers were deemed by the regulations then in force to have vacated their posts, they are no longer employees and consequently there is no basis for negotiating with them. In this connection, the Committee would draw the Government's attention to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the unions represent. If the unions still exist to represent past or present employees, the Committee considers that it in irrelevant whether some of their members have been deemed to be non-employees.
7. 340. As regards the Government's statement that the large majority of strikers were public servants who are, in any case, not covered by Convention No. 98, the Committee considers it necessary to point out that this Convention does apply both to the private sector and to nationalised undertakings and public bodies, it being possible under Article 6 of the Convention to exclude from such application only public servants engaged in the administration of the State. The Committee would further point out that in this connection the Committee of Experts on the Application of Conventions and Recommendations has stated that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector, who do not act as agents of the public authority (even though they may be granted a status identical with that of public officials engaged in the administration of the State) is contrary to the meaning of the Convention. The distinction to be drawn, according to that Committee, would appear to be basically between civil servants employed in various capacities in government ministries or comparable bodies, on the one hand, and other persons employed by the Government, by public undertakings or by independent public corporations.