Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 333, Mars 2004

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

1. 126. During the previous examination of this case, which concerned certain provisions of the Guidelines for the Formation and Operation of Employees’ Councils issued by the Board of Investment (BOI) which is the overseeing public authority in free trade zones (FTZs) [see 332nd Report paras. 915-956], the Committee formulated the following recommendations:
   • (a) Considering that certain provisions of the BOI Guidelines for the Formation and Operation of Employees’ Councils issued by the Board of Investment, which is the overseeing public authority in free trade zones (FTZs), are contrary to Conventions Nos. 87, 98 and 135, ratified by Sri Lanka, and the principles of free and voluntary collective bargaining, the Committee requests the Government to take all necessary measures to:
   • (i) amend section 5(ii), (iii) and (v) of the BOI Guidelines so as to ensure that elections to employees’ councils are carried out in the presence of independent persons and only where requested by both parties, and that the first elections are organized in close consultation with all parties concerned;
   • (ii) amend section 12 of the BOI Guidelines so as to ensure that the procedure for the conduct of meetings between the employer and elected representatives is determined by common agreement between the parties;
   • (iii) amend section 13 of the BOI Guidelines so as to ensure that the right of employees’ councils to engage in collective bargaining is not subject to a prohibition of any action that might affect productivity;
   • (iv) amend section 8(v) of the BOI Guidelines so as to ensure that representative trade unions enjoy the same facilities in the undertaking as employees’ councils without discrimination.
   • (b) The Committee requests the Government to keep it informed of the steps taken with regard to the amendments indicated above.
   • (c) Taking into account that only two collective agreements have been concluded in FTZs, the Committee requests the Government to take measures with a view to promoting collective bargaining in FTZ enterprises in conformity with Convention No. 98 and, considering that the 40 per cent rule is too restrictive, to amend this requirement taking into account the views of the parties. The Committee requests to be kept informed in this respect.
2. 127. In its communication dated 12 January 2004, the Government indicates with regard to points (a) and (b) above, that the BOI has already prepared the necessary changes in line with the Committee’s recommendations and steps will be taken to amend the Guidelines after having received feedback from the ILO. The Government attaches a copy of the proposed amendments. Thus, the draft amendment to section 5 provides that the first election for the creation of an employees’ council shall be organized by the representatives of the BOI Industrial Relations Department, in close consultation with all parties concerned and carried out by a three-member electoral board constituted by the eligible employees of the enterprise. Subsequent elections to the councils shall be carried out by a three-member electoral board which shall be constituted by the council. A representative of the Commissioner General of Labour may be present at the election as an observer where both parties request him to be present. Where the electoral board of a council fails to carry out the election within one month of the date of expiry of the term of office of the council, the Industrial Relations Department of the BOI may, in close consultation with the council, facilitate the carrying out of the election by the electoral board of the council.
3. 128. The Government also indicates that, according to the draft amendment to section 12.3, the procedure for the conduct of meetings between the employees’ council and the employer shall be determined by mutual agreement between the parties. The draft amendment to section 13(ii) provides that the employer and the council shall work together to improve the efficiency and productivity of the enterprise and the well-being of the employees. The draft amendment to section 8(v) stipulates that the facilities provided to employees’ councils under the BOI Guidelines cannot be extended to trade unions, as the Guidelines are applicable to employees’ councils only; parallel to this, certain draft amendments to the Labour Standards and Employment Relations Manual envisage facilities for trade union representatives:
   • Section 9A: Facilities to trade union representatives
     • (i) Union committee meetings
   • The employer shall allow up to two (02) hours duty leave for a meeting of the executive committee of a representative enterprise-union and the branch union committee of a representative union operating from outside the enterprise/export processing zone, and provide the necessary premises and facilities for the conduct of the affairs of the union/branch union.
     • (ii) Right of access of trade union representatives to BOI enterprises/EPZs
   • 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 export processing zone, shall be granted access to the enterprise/export processing zone, provided the union –
     • (a) is a representative union,
     • (b) seeks access to the enterprise for purposes of representation functions,
     • (c) has obtained the consent of the employer for such access, and
     • (d) having satisfied the above requirements, obtained an entry permit from BOI authorities for the entry sought, in the case of an enterprise located within an export-processing zone.
     • (iii) “Representative union” for the purposes of this section means a union which represents not less than forty (40) per centum of the employees in the enterprise on whose behalf it seeks to represent.
   • 129. Regarding point (c) of the Committee’s recommendations, the Government notes that the Department of Labour is taking measures to promote collective bargaining in the FTZ enterprises with ILO assistance. With regard to the 40 per cent rule, the Government states that action is being taken to take up the matter at the National Labour Advisory Council (NLAC). Finally, the Government states that action is being taken to effect the necessary amendments to legislation. All the legislative aspects would be taken up for discussion at the NLAC scheduled to meet in January 2004.
4. 130. The Committee notes with interest the swift steps taken by the Government pursuant to its recommendations, so as to modify the provisions of the BOI Guidelines concerning the organization of elections to employees’ councils, the procedure for the conduct of meetings between the employer and elected representatives, and the conduct of negotiations between the employees’ council and the employer. The Committee notes that these draft amendments will be taken up for discussion at the National Labour Advisory Council in January 2004, along with the issue of the 40 per cent threshold for the recognition of trade union representativeness, which had been considered as too restrictive by the Committee. The Committee expresses the hope that the above draft amendments will be approved and adopted as soon as possible and that appropriate steps will be taken to amend the 40 per cent rule, taking into account the views of the parties. The Committee requests to be kept informed of progress made in this respect.
5. 131. The Committee recalls that during the previous examination of this case, it had requested the Government to ensure that representative trade unions enjoy the same facilities in the undertaking as employees’ councils without discrimination. It notes from the Government’s response that a draft amendment to the Labour Standards and Employment Relations Manual grants facilities to trade union representatives including the right of access to EPZ/FTZ enterprises. Thus, the proposed section 9A of the Manual provides that access to EPZ/FTZ enterprises shall be granted to a union which represents at least 40 per cent of the employees in the enterprise; seeks access to the enterprise for purposes of exercising representation functions; has obtained the consent of the employer; and, having satisfied the above requirements, has obtained an entry permit from the BOI. The Committee considers that these requirements do not allow access to an EPZ/FTZ enterprise of trade unions which do not have representative status in the particular enterprise, in order to inform the workers of the advantages of trade unionism. The Committee recalls 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. In a case concerning the right of trade union leaders to enter an industrial free trade zone, the Committee drew the Government’s attention to the principle that workers’ representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 954 and 957]. The Committee therefore requests the Government to ensure that trade union representatives are granted access to the workplace even when their organization does not have representative status in a particular EPZ/FTZ enterprise, and that permission for such access may not be unreasonably withheld, with due respect to the need to maintain the smooth functioning of the enterprise concerned. The Committee requests to be kept informed in this respect.