Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 350, Juin 2008

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

1. 203. The Committee last examined this case, which concerns a court-ordered injunction and suit brought against a go-slow action initiated by the seven complainant organizations (the Health Services Trade Union Alliance, the Free Trade Zone and General Services Employees Union, the Jathika Sewaka Sangamaya, the Suhada Waraya Sewaka Sangamaya, the United Federation of Labour, the Union of Post and Telecommunication Officers, and the Dumriya Podhu Sewaka Sahayogitha Vurthiya Samithiya) in ports run by the Sri Lanka Ports Authority (SLPA), and the amendment to the Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2005 so as to include an expanded schedule of services deemed to be essential, in its November 2007 session. On that occasion, the Committee made the following recommendations [see 348th Report, paras 1113–1146]:
   • (a) The Committee requests the Government to indicate whether a final decision to consider the question of the alleged go-slow action has been rendered, and if so to transmit a copy of the Supreme Court’s judgement. Should the case still be pending before the Supreme Court, the Committee requests the Government to take the necessary measures to expedite the judicial process and ensure that the Committee’s conclusions, particularly those concerning the exercise of the right to strike, are submitted for the Supreme Court’s consideration.
   • (b) The Committee requests the Government, in consultation with representatives of workers and employers organizations, and taking into account the particular circumstances in the country, to review and take the necessary measures to amend the schedule of essential services provided for in Emergency (Miscellaneous Provisions and Powers) Regulation No. 01, as amended on 3 August 2006, if it is indeed still in force, so as to bring it into conformity with Conventions Nos 87 and 98. If the schedule has since been repealed, the Committee requests the Government to provide a copy of a the repealing order.
   • (c) The Committee reminds the Government that it may avail itself of the technical assistance of the Office.
2. 204. In its communication of 7 January 2008, the Government states that following the publication of the Committee’s recommendations in its 348th Report, on 3 December 2007 the Supreme Court handed down a decision permitting the Joint Apparel Association Forum (JAAF) to withdraw its 21 July 2006 fundamental rights application seeking an injunction against the go-slow action which had been initiated by the seven complainant organizations further to its dispute with the SLPA. The Government’s communication includes two letters from the Employers’ Federation of Ceylon (EFC) addressed to the Minister of Labour Relations and Manpower and the International Organisation of Employers, respectively. In both letters, the EFC raises concerns with regard to the Committee’s conclusions in the present case, contained in its 348th Report, particularly as regards the principles relating to the protected nature of go-slow actions. In particular, the Employers’ Federation states that a go-slow action is a subtle method by which employees sabotage operational activities by being at work and resorting to various disruptive conduct. The employer is hurt most as wages also have to be paid as there is no cessation of work. The Government further attaches a copy of Gazette Notification No. 1464/26, issued on 29 September 2006, which amends the Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 by, inter alia, repealing the schedule of essential services contained in the latter.
3. 205. In its communication of 29 January 2008, the Government attaches a copy of the 3 December 2007 Supreme Court decision referred to above. In its decision the Supreme Court notes that following the granting of interim relief to the JAAF in July 2006 a state of normalcy was restored to the Port of Colombo, resulting in regular operations and the conclusion of a collective agreement between the complainant organizations and the SLPA; in view of this situation, the JAAF submitted its first application for withdrawal of its action on 19 March 2007. The JAAF’s withdrawal application was objected to by several of the complainant organizations named as respondents in the action, on grounds that the JAAF should not be permitted to withdraw its application after having secured interim relief, and that the collective agreement had not yet entered into force. The Court cited the conclusion of the collective agreement in rejecting the respondents’ objection. The Court further referred to the fact that two of the respondents had submitted a complaint to the Committee in respect of the action and maintained that, as the organizations concerned owed a paramount duty to have matters already before the Court concluded, they therefore should not have not sought redress from an external body; their complaint to the Committee, as such, amounted “per se to defiance of [the] Court and of the law of this Country”.
4. 206. The Committee notes with interest that the dispute underlying the matters raised in the present case has been resolved. The complainant organizations have concluded a collective agreement with the SLPA, and the JAAF’s application to withdraw its action has been granted by the Supreme Court in its 3 December 2007 decision. As regards the Supreme Court’s characterization of the complainant organizations’ complaint to the Committee, which was submitted before the action before the Court had been concluded, as an act of defiance of the Court and of the nation’s laws, the Committee recalls that, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see 348th Report, para. 1139]. The Committee further recalls that, by virtue of its Constitution, the ILO was established, in particular, to improve working conditions and to promote freedom of association in the various countries. Consequently, the matters dealt with by the Organization in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the purpose cannot be considered to be interference in internal affairs, since it falls within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 2]. Both the complainants’ recourse to the Committee and the Committee’s own examination should be viewed in the light of the procedures establishing its mandate and competence – as well as the right of organizations to submit complaints thereunder.
5. 207. The Committee notes with satisfaction that the schedule of essential services provided for in Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 has been repealed.