Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Sri Lanka (Ratification: 1972)

The Committee notes the comments submitted by the Ceylon Bank Employees’ Union and the Lanka Jathika Estate Workers’ Union (LJEWU), in communications of 18 August 2008, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that under section 43(1A) of the Industrial Disputes (Amendment) Act of 1999, any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees (LKR) and requested the Government to provide information on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators. The Committee notes the Government’s indication that the penalty amount of 20,000 rupees protects workers from unfair labour practices, and that there is no relationship of the amount of the fine to the average wage. The Government further states that a proposal has been initiated to revise and update penalties, surcharges and stamp duties under existing labour legislation. This matter has been referred to the National Labour Advisory Council (NLAC) in order to obtain the views of the social partners; although trade unions are free to express their opinions on the existing penalties to the NLAC, thus far none have yet to do so. The Committee notes this information. Further noting that the ITUC reiterates that the existing penalties are too low to provide sufficient deterrence, and that the LJEWU alleges the same, the Committee requests the Government to ensure that the views of the social partners are fully taken into consideration in the process of updating penalties under the existing labour laws. It requests the Government to indicate the progress made in this regard.

The Committee had previously noted the ITUC’s indication that adequate protection against anti-union discrimination was not provided in practice, as only the Department of Labour could bring cases before the Magistrate’s Court and there were no mandatory time limits within which complaints should be made to the Court. Subsequently, the Committee, recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, had requested the Government to take measures in consultation with the social partners to guarantee a more expeditious and adequate procedure which, in particular, establishes short time periods for the examination of cases by the authorities. It also requested the Government to indicate whether trade unions had the capacity to bring their grievances concerning anti-union discrimination directly before the courts. The Committee notes with regret that the Government has provided no information concerning this matter. It once again requests the Government: (1) to take measures, in consultation with the social partners, to guarantee a more expeditious and adequate procedure which, in particular, establishes short time periods for the examination of cases by the authorities; and (2) to indicate whether trade unions had the capacity to bring anti-union discrimination claims directly before the courts.

Article 4. Measures to promote collective bargaining. The Committee had previously requested the Government to indicate the measures taken by the Social Dialogue and Workplace Cooperation Unit, as well as the measures taken under the auspices of the National Policy for Decent Work, to promote collective bargaining. The Committee notes that according to the Government, 29 Provincial Labour Advisory Councils (PLACs) were established in order to promote collective bargaining and tripartite consultations in a decentralized manner; their activities are coordinated by the Social Dialogue and Workplace Unit. As of July 2008, a total of 1,057 participants from 23 organizations had participated in awareness-raising programmes organized by the PLACs. The Committee requests the Government to provide information on the progress achieved by the measures taken by the Social Dialogue and Workplace Cooperation Unit and those taken in furtherance of the National Policy for Decent Work to promote collective bargaining, including information on the number of collective agreements concluded.

EPZs. The Committee recalls that it had previously commented upon the need to promote collective bargaining specifically within the export processing zone (EPZ) sector. From the information provided by the Government, it further notes that six new collective agreements had been concluded since the last reporting period. The Government also indicates that 11 trade unions are currently operating in EPZs, that 10 per cent of the total workforce in that sector belong to trade unions, and that 40 per cent of EPZ enterprises have employees’ councils; the employees’ councils have bargaining rights and a few of them are in the process of concluding collective agreements. While taking due note of this information, the Committee nevertheless notes that according to the ITUC, employees’ councils are bodies funded by the employer without workers’ contributions, thus giving them an advantage over trade unions, which require membership dues. The ITUC further alleges that employees’ councils have been promoted by the Board of Investment (BOI) as a substitute for trade unions in EPZs. Recalling that Article 2 of the Convention establishes the total independence of workers’ organizations from employers in organizing their activities, the Committee requests the Government to provide its observations with respect to the ITUC’s comments concerning this matter. It further requests the Government to indicate the developments concerning the promotion of collective bargaining in the EPZ sector, including the number of collective agreements concluded by trade unions.

Provisions on trade union recognition. Previously, the Committee had requested the Government to indicate the measures taken so as to ensure that the recognition provisions for collective bargaining purposes were effectively implemented in practice. The Committee regrets that the Government provides no information in this regard. Noting the ITUC’s comment that the recognition of unions for collective bargaining purposes is hampered by excessive delays, and that employers tend to delay the holding of union certification polls to identify, victimize and on occasion dismiss the union activists concerned, the Committee once again requests the Government to indicate the measures taken to ensure that recognition provisions are effectively implemented in practice and to indicate any developments in this regard.

Representativeness requirements for collective bargaining. The Committee had previously noted that under section 32A(g) of the Industrial Disputes (Amendment) Act 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 the trade union seeks to bargain. It subsequently requested the Government to ensure 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 this unit, at least on behalf of their own members, and to indicate the measures taken in this regard. The Committee notes the Government’s indication that this matter was placed before the Labour Law Reform Committee appointed by the NLAC, and that in the ensuing deliberations the employer organizations did not favour a reduction in the 40 per cent requirement while the trade unions were not unanimous in their opinions. The Ministry, for its part, was of the view that reducing the percentage requirement might lead to inter-union rivalry. The Government further states that the matter had been raised by the trade union members at the NLAC meeting held in August 2008, and that no consensus had been reached with respect to the issue. The Committee further notes that the ITUC reiterates that, in practice, it has been difficult for trade unions to meet the 40 per cent requirement, partially as a result of tactics initiated by employers to frustrate such efforts. In these circumstances the Committee, once again recalling that if no union covers more than 40 per cent of the workers collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members, requests the Government to take the necessary measures to give effect to this principle and to indicate the progress made in this regard.

Article 6. Denial of the right to collective bargaining in the public service. Previously, the Committee had requested the Government to send its observations to the ITUC comment indicating that the right to collective bargaining is denied to public sector workers. In this respect, the Government indicates that in 2005 a National Salaries and Cadre Commission – comprising 15 members, of which 13 are independent persons and two are from national trade union centres – was appointed to restructure and determine salaries of public officers at all levels. Collective bargaining is provided for under the Commission’s auspices, in so far as unions may make representations and submit claims to the Commission, and arbitration is also provided for by the Commission in areas where there are disagreements. The Government further indicates that the Commission, following the receipt of representations and claims from unions, then issues salary recommendations that are implemented subject to the approval of the Cabinet of Ministers. The recommendations made by the Commission in 2006 were approved by the Cabinet of Ministers and adopted and implemented; the trade unions had also accepted the recommendations of the Commission. While noting this information, the Committee considers that the procedures indicated by the Government do not provide for genuine collective bargaining, but rather establish a consultative mechanism – with perhaps some elements of arbitration – under which the demands of public service trade unions are considered, while the final decision on salary determination rests with the Cabinet of Ministers. In this regard, the Committee once again recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, should possess the right to collective bargaining with respect to salaries and other conditions of employment. The Committee requests the Government to take the necessary measures to ensure the right of collective bargaining for public service workers, in accordance with this principle, and to indicate any developments in this regard.