Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Free Trade Zones and General Services Employees Union (FTZ and GSEU), received on 1 and 14 September 2018 respectively, concerning allegations of anti-union dismissals in export processing zones, acts of interference in union activities including the creation of parallel workers’ organizations controlled by the employers and the refusal to recognize unions and bargain collectively. The Committee requests the Government to provide its comments in this regard.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. Having noted on several occasions that, in practice, only the Department of Labour can bring cases concerning anti-union discrimination before the Magistrate’s Court, and that there are no mandatory time limits within which complaints should be made to the Court, the Committee urged the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts. It also expressed the hope that the Industrial Disputes Act be amended so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts. With respect to the possibility for the workers to lodge a complaint before the judicial courts, the Committee notes from the Government that it acknowledges the fact that the matter has been discussed for years but that the majority of trade unions and the employers represented at the National Labour Advisory Council (NLAC) still dissent to amend the legislation in this regard. Taking note of the observations of the ITUC and the FTZ and GSEU, which allege acts of anti-union discrimination and highlighting that anti-union discrimination, being one of the most serious violations of freedom of association, affects both the fundamental rights of the victims and the rights of the organizations they are affiliated to, the Committee once again: (i) urges the Government to take the necessary measures in the near future to ensure that workers who are victims of anti-union discrimination can lodge a complaint before the judicial courts; (ii) expresses the hope that the Government will take the necessary measures to amend the Industrial Disputes Act so as to grant trade unions the right to bring anti-union discrimination cases directly before the courts; and (iii) requests the Government to provide further information on the number of cases of anti-union discrimination examined by the courts, the duration of proceedings and the sanctions or remedies imposed.

Article 4. Measures to promote collective bargaining. Export processing zones (EPZs). The Committee notes from the Government that in 2017, 622 inspections were carried out in the EPZs, as against 422 in 2016, and that up to June 2018, 378 inspections have taken place. The Government also emphasizes that 20 trade unions have check-off facilities; seven enterprises have signed collective agreements, and five trade union facilitation centres are now operating in the EPZs, with a view to facilitating private meetings between workers and their representatives. The Committee requests the Government to continue to provide information on the measures taken to promote collective bargaining in the EPZs, as well as the number of collective agreements concluded by trade unions in the EPZs and the number of workers covered. In addition, the Committee requests the Government to indicate the respective numbers of trade unions and employees’ councils in the EPZs, as well as the measures taken to ensure that employees’ councils do not undermine the position of trade unions.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary steps to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union which has in its membership not less than 40 per cent of the workers on whose behalf the trade union seeks to bargain. The Committee notes from the Government that the matter was discussed within the NLAC but that the majority of trade unions do not want to change the threshold of 40 per cent. The Government indicates that the employer’s representatives also have objections to this amendment as they have to deal with multiple trade unions and that in these circumstances the Department of Labour has taken the initiative to explain to unions who do not reach the required threshold that they could organize in order to operate as one. The Committee recalls that the determination of the threshold of representativity to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. In its 2012 General Survey on fundamental Conventions, paragraph 233, the Committee considered that the requirement of too high a percentage for representativity to be authorized to engage in collective bargaining may hamper the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. The Committee nevertheless considers that if no union in a specific negotiating unit meets the required threshold of representativity to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee expects that the NLAC and the Government will take the necessary measures to review section 32(A)(g) of the Industrial Disputes Act, in accordance with Article 4 of the Convention, in order to ensure that if there is no union representing the required percentage to be designated as the collective bargaining agent, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. In its previous comments, the Committee had noted that the procedures regarding the right to collective bargaining of public sector workers did not provide for genuine collective bargaining, but rather established a consultative mechanism. The Committee had noted from the Government that: (i) the Industrial Disputes Act recognizes the right of private sector trade unions to bargain collectively with the employer or the authority concerned; (ii) in Sri Lanka, the private sector includes government corporations where a large segment of workers are engaged; and (iii) section 32(A) of the Act, which deals with unfair labour practices and collective bargaining, applies not only to trade unions in the private sector but also to trade unions in public corporations. The Committee observes from the Government that, although it considers that facilitating collective bargaining in the public sector could generate an uneven playing field, it is taking measures with a view to addressing this issue and will bring further information with its next report. In this respect, the Committee wishes to recall that there are mechanisms to allow the protection of the principle of equal remuneration for work of equal value in the public sector to be reconciled with the recognition of the right to collective bargaining. It also wishes to recall that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (such as, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see 2012 General Survey, paragraph 172). In view of the above, and in light of section 49 of the Industrial Disputes Act, which excludes state and government employees from the Act’s scope of application, the Committee once again requests the Government to take the necessary measures to guarantee the right to collective bargaining of the public sector workers covered by the Convention with respect to salaries and other conditions of employment. Recalling that the Government may have recourse to the technical assistance of the Office, the Committee requests the Government to indicate any progress made in this regard.

[The Government is asked to reply in full to the present comments in 2019.]