Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Sri Lanka (Ratification: 1995)

The Committee notes the Government’s report.

Article 2 of the Convention. Exclusion of certain workers. In its previous comments, the Committee, noting that judicial officers and prison officers were excluded from the scope of the Trade Unions Ordinance (TUO), had requested the Government to specify whether these workers could otherwise associate to further and defend their occupational interests, and to provide further particulars on the type of associations formed and the relevant legislative or other texts governing the rights of these officers to form associations for the defence of their members’ interests. Regarding prison officers, the Committee notes the Government’s reference to comments made by the Commissioner General of Prisons, according to which prison officers are permitted to form welfare associations to protect and promote their occupational and welfare interests. Furthermore, the Committee notes the Government’s indication that by virtue of Treasury Circular No. 422 of 1957, prison officers are permitted to form a Joint Council whose function is to look into matters relating to working conditions, health and safety facilities, welfare amenities, sports, canteen facilities, training and suggestions for administrative improvements. The Government also indicates that the Joint Council meets once every three months under the chairmanship of the Commissioner General of Prisons and involves the participation of representatives of each institution that comes under the Department of Prisons.

Regarding judicial officers, the Government indicates that they are permitted to associate to further their occupational interests. The Committee also notes that according to the Government, the Judicial Service Association has indicated that it does not have a Constitution, as it follows the traditions that have existed in the judicial service for several years. The Committee requests the Government to indicate, in its next report, the relevant legislative texts that grant judicial officers the right to form associations for the defence of their members’ interests.

As concerns the minimum age limit for joining a trade union under the TUO, the Committee had noted in its previous report that although the minimum age for employment in general circumstances was 14, a worker had to be 16 years old to become a trade union member, and had requested the Government to indicate the measures taken or envisaged to delete section 31 of the TUO so as to guarantee the right to organize for minors and young persons who are working in accordance with the law. The Committee notes the Government’s indication that educational authorities are of the view that compulsory school education (which currently applies to children from 5 to 14 years of age) should be extended to 16 years of age, and in the event that it is changed, the minimum age for employment will also be raised accordingly. The Committee notes that in anticipation of extending compulsory school education to 16 years of age, the Government does not wish to amend the minimum age for trade union membership immediately and that it will keep the Committee informed of any progress in this regard.

Articles 2 and 5. The right of public servants to join and establish organizations of their own choosing. In its previous comments, the Committee had noted that section 21 of the TUO and the Establishment Code restricted membership in a union to public servants employed in any one specified department or service of the Government, or specified class or category and that public officers were prohibited from becoming members of any trade union which permitted persons who are not public officers to be members. The Committee had asked the Government to indicate in its next report the measures taken or envisaged to amend the TUO and the Establishment Code so as to ensure that government staff officers may enjoy the right to organize at the first level with other ministries or departments in the public service and that their organizations may join confederations of their own choosing, including with organizations of workers in the private sector. The Committee notes the Government’s indication that the "services" referred to in section 21 of the TUO are not confined to one particular department, and include members in several departments and ministries. The Government explains that government staff officers belonging to the same service may form trade unions, despite being employed in different departments and ministries, as is the case with the Sri Lanka Engineering Service, Sri Lanka Administrative Service, Sri Lanka Medical Service and Sri Lanka Educational Service of staff officers. Furthermore, the Government also indicates that officers of any specified class or category employed in different departments may form a trade union, and thus the provisions of the TUO permit, to a certain extent, staff officers in different ministries and departments to form first-level organizations. The Government also indicates that action will be taken to negotiate with the ministry concerned with the administration of public servants with a view to complying fully with the Committee’s previous request. The Committee expresses the firm hope that the Government will take the necessary action, in the very near future, to ensure that organizations of government staff officers may join confederations of their own choosing, including with organizations of workers in the private sector, and requests the Government to keep it informed of any progress in this regard.

In its previous comment, the Committee had also requested the Government to indicate the measures taken or envisaged to amend the relevant legislation so that workers in state-owned enterprises or institutions enjoy the right to organize without restriction. The Committee notes the Government’s indication that the definition of "public officer" under the Establishment Code excludes employees of public corporations, statutory bodies, or institutions vested in the Government, and thus these categories of employees enjoy the right to organize to the same extent as all other workers, other than public officers.

Articles 3 and 10. In its previous comments, the Committee had noted that the Industrial Disputes Act did not apply to the public service and had asked the Government to specify the type of machinery available to public servants to redress their collective claims and to furnish the complete text of the Establishment Code. The Government indicates in its report that Part II of Volume 11 of the Establishment Code provides the machinery for dispute settlement. The Committee requests the Government to transmit a copy of the relevant provisions of the Establishment Code with its next report.

Regarding employees of state-owned enterprises, the Committee notes the Government’s indication that these employees are not public officers and since they are included under the scope of the Industrial Disputes Act, they are not prohibited from taking industrial action.

In its previous comments, the Committee noted that section 4(2) of the Industrial Disputes Act granted the minister overly broad powers to refer any industrial dispute to an industrial court for settlement and requested the Government to indicate in its next report the measures taken or envisaged to limit the minister’s power to refer disputes to binding arbitration to those occurring in essential services and to those public servants exercising authority in the name of the State or in case of acute national crisis. The Government indicates in its report that the power of the minister to refer disputes to arbitration is to end a stalemate in negotiations. The Government indicates that a dispute will be referred to arbitration on the recommendation of the Commissioner of Labour and only after all attempts to conciliate the parties have failed. Furthermore, the parties may appeal the minister’s decision to refer the dispute to arbitration to the Court of Appeal, and that with respect to arbitration, the parties may terminate the award by virtue of section 20 of the Industrial Disputes Act. The Government also indicates that referring an industrial dispute to an industrial court for settlement is not done on the sole discretion of the minister, but with the recommendation of the Commissioner of Labour and the parties concerned. The Committee requests the Government to indicate the precise legislative provisions which provide that a recommendation of the Commissioner of Labour and of the bargaining parties is required in order for the minister to refer a dispute to arbitration, under section 4(2) of the Act.

Article 4. In its previous comments, noting sections 15-18 of the TUO, the Committee had requested that the Government amend its legislation to ensure that the decision of the Registrar to withdraw or cancel registration did not take effect until the appeal procedures were exhausted. The Committee notes the Government’s indication that the cancellation or withdrawal of registration of a trade union will not take effect until the appeal procedure is over. The Committee requests that the Government indicate the legislative provisions which provide that a decision of the Registrar shall not take effect until a final decision is handed down by the courts.