Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

1262. The Committee last examined this case at its March 2005 meeting [see 336th Report, paras. 778-797, approved by the Governing Body at its 292nd Session in March 2005].

1. 1263. The Government forwarded its observations in communications dated 31 August and 1 September 2005.
2. 1264. 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. Previous examination of the case

1. 1265. At its March 2005 session, the Governing Body approved the following recommendations in the light of the Committee’s interim conclusions:
2. (a) The Committee urges the Government to take without delay the necessary steps to ensure that a procedure on the allegations of anti-union discrimination be opened and be brought to a speedy conclusion in a fully impartial manner and to keep it informed in this respect. Further, if the allegations are found to be justified, the Committee requests the Government to ensure in cooperation with the employer concerned that: (i) the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if reinstatement in one form or another is not possible, that they are paid adequate compensation which would represent sufficient dissuasive sanctions for such anti-trade union actions; (ii) the workers demoted as a result of their legitimate trade union activities are restored to their former posts without delay; and (iii) the workers under suspension because of their legitimate trade union activities are allowed to resume work without delay and are paid wages for the period when they were unjustly denied work. The Committee requests the Government to keep it informed in this regard.
3. (b) The Committee requests the Government to solicit information from the employers’ organization concerned, with a view to having at its disposal its views, as well as those of the enterprise concerned, on the questions at issue.
4. B. The Government’s reply
5. 1266. In its communications of 31 August and 1 September 2005, the Government indicates that out of the eight workers, whose services were suspended or terminated, two have resigned. While the Ministry of Labour Relations and Foreign Employment was making arrangements to refer the cases of other six workers to the Labour Tribunal Arbitration under the terms of the Industrial Disputes Act, the workers concerned have applied to the Labour Tribunal. The application of Ms. A.P. Chathurika Sanjeevani (the only worker whose services were terminated) was dismissed by the Labour Tribunal. The hearings of other five cases have been scheduled for 15 September 2005.
6. 1267. The Government further indicates that according to the opinion of the officers who carried out the investigation, the establishment of the union had taken place after the disciplinary actions were imposed on the eight workers. The establishment of the union was an immediate result of the dispute and not the cause of the dispute. According to the Government, it appeared from the statements made by the trade union members and worker members of the Employees’ Council that the dispute was not a result of the intervention by the management in the establishment of the trade union.
7. 1268. During the discussions the Department of Labour held with the management and the union, it was made clear that if the trade union could prove that it had the adequate number of members in accordance with the Industrial Disputes Act, it would be recognized. Previously, the trade union refused to hold a referendum under the terms of the above Act. However, the union has now agreed to hold a referendum in order to ascertain its representativeness. The referendum was scheduled for 15 September 2005.
8. 1269. The Government further indicates that workers who are not members of the Free Trade Zone and General Services Union but are members of the Employees’ Council have formed their own trade union and have applied for registration. According to the Registrar of trade unions, the application is in conformity with all legal requirements and the union will therefore be registered under the Trade Union Ordinance.

The Committee’s conclusions

1. 1270. The Committee recalls that this case concerns allegations of anti-union discrimination by an employer in a free trade zone and more particularly, of a campaign of intimidation and harassment, including the dismissal of 100 workers suspected of trade union membership, undertaken by an employer, in order to prevent the workers from setting up a branch of the Free Trade Zones and General Services Employees Union.
2. 1271. The Committee further recalls that when it examined this case at its March 2005 meeting it urged the Government to take without delay the necessary steps to ensure that a procedure on the allegations of anti-union discrimination be opened and be brought to a speedy conclusion in a fully impartial manner. Further, if the allegations were found to be justified, the Committee requested the Government to ensure in cooperation with the employer concerned that: (i) the workers dismissed as a result of their legitimate trade union activities were reinstated without loss of wages and without delay or, if reinstatement in one form or another was not possible, that they were paid adequate compensation which would represent sufficiently dissuasive sanctions for such anti-trade union actions; (ii) the workers demoted as a result of their legitimate trade union activities were restored to their former posts without delay; and (iii) the workers under suspension because of their legitimate trade union activities were allowed to resume work without delay and were paid wages for the period when they were unjustly denied work. The Committee also requested the Government to solicit information from the employers’ organization concerned, as well as those of the enterprise concerned, on the questions at issue.
3. 1272. The Committee regrets that no information from the employers’ organization and the enterprise concerned has been provided. The Committee expects that the Government will ensure in the future that when a complaint concerns a private undertaking, it solicits the relevant information from the employers’ organization and the enterprise concerned.
4. 1273. The Committee regrets that no information was provided by the Government on the alleged termination of services of about 100 workers following their participation in the strike. At the same time, the Committee notes the Government’s indication that out of the eight workers, whose services were suspended or terminated, two have resigned and the other six workers have applied to the Labour Tribunal. While the application of one was dismissed by the Tribunal, the hearings of the other five cases were scheduled for 15 September 2005. The Committee trusts that these cases will be examined rapidly so that the necessary remedies can be applied effectively and requests the Government to keep it informed of the decisions reached by the Tribunal. It requests the Government to transmit copies of the decisions as soon as they are handed down by the Tribunal, as well as to provide information on the grounds on which an application to the Tribunal by one worker was dismissed. With respect to the remaining workers, the Committee reiterates its previous recommendation and urges the Government to take the necessary steps without delay to ensure that a procedure on the allegations of anti-union discrimination be opened and be brought to a speedy conclusion in a fully impartial manner and to keep it informed in this respect. Furthermore, if the allegations are found to be true, the Committee requests the Government to ensure in cooperation with the employer concerned that: (i) the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if reinstatement in one form or another is not possible, that they are paid adequate compensation which would represent sufficiently dissuasive sanctions for such anti-trade union actions; (ii) the workers demoted as a result of their legitimate trade union activities are restored to their former posts without delay; and (iii) the workers under suspension because of their legitimate trade union activities are allowed to resume work without delay and are paid wages for the period when they were unjustly denied work. The Committee requests the Government to keep it informed in this regard.
5. 1274. The Committee notes the Government’s statement to the effect that if following a referendum (scheduled for 15 September 2005), it is revealed that the union represents an adequate number of members in accordance with the Industrial Disputes Act, it will be recognized. The Committee understands that the reference is made to the recognition of the union for collective bargaining purposes. The Committee further notes that according to section 32A(g) of the Industrial Disputes (Amendment) Act No. 56 of 1999, no employer shall refuse to bargain with a trade union, which has in its membership not less than 40 per cent of the workmen on whose behalf such trade union seeks to bargain. The Committee considers that if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in the unit so that they may negotiate at least on behalf of their own members [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 830]. The Committee therefore requests the Government to ensure and to amend the legislation, if needed, that if the branch of the Free Trade Zones and General Services Employees Union at the Workwear Lanka does not represent 40 per cent of the workers, this does not preclude the union from exercising its activities and that, if no other trade union at the enterprise covers more than 40 per cent, the union could bargain collectively at least on behalf of its members. The Committee requests the Government to keep it informed in this respect.