Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee had noted the observations of the ITUC received on 1 September 2019 alleging anti-union dismissals in a company and denouncing that anti-union discrimination and union-busting remain a major problem in the country, and had requested the Government to send its reply thereon. In the absence of information from the Government in this regard, the Committee reiterates its request.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Effective and expeditious procedures. For many years, the Committee has referred to the fact 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 for bringing cases before the Court. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee had 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 and had expressed the hope that the Industrial Disputes Act would be amended accordingly. The Committee notes that the Government once again indicates that the possibility for workers and trade unions to lodge complaints before the courts have been discussed for years at the National Labour Advisory Council (NLAC). Nevertheless, no consensus has been reached on this matter. The Government adds, on the other hand, that during the NLAC meeting held on 24 August 2021, the trade unions were requested by the Government to submit an alternate proposal in this regard and that once they submit a proposal, the Government will initiate a discussion on how to build consensus among stakeholders. The Committee takes due note of these elements. However, while highlighting that legislative reforms on labour issues should be done in consultation with the social partners and, as far as possible, be based on a tripartite consensus, the Committee underlines that it is ultimately the Government’s responsibility to take the decisions necessary for the fulfilment of the State's international commitments undertaken through the ratification of international labour Conventions. The Committee therefore urges the Government to take the necessary measures to amend the Industrial Disputes Act to grant trade unions the right to bring anti-union discrimination cases directly before the courts. The Committee additionally requests the Government to provide information on the number of cases of anti-union discrimination examined by the courts as well as to indicate the duration of proceedings and the sanctions or remedies imposed.

Article 4. Promotion of collective bargaining. Export processing zones (EPZs). The Committee had previously requested the Government to indicate the respective number of trade unions and employees’ councils established in the EPZs and to continue informing on the number of collective agreements concluded by trade unions in the EPZs and on the number of workers covered by them in comparison with the total number of workers employed in the sectors covered. Recalling previous ITUC observations regarding the refusal to recognise the right of unions to bargain collectively in the EPZs, the Committee had also encouraged the Government to continue to take measures to promote collective bargaining in the EPZs and requested it to provide information in this regard. The Committee notes the Government’s indication that with the start of the COVID-19 pandemic, the Government established a tripartite Task Force to find amicable solutions to the issues faced by workers and employers. The Government states that major trade unions representing workers in the EPZs were included in the Task Force that contributed to sort out many labour issues. The Committee had also noted the Government’s indication that the fact that only trade unions can engage in collective bargaining discourages the establishment of employee councils in the EPZs. In this regard, the Committee notes the Government’s indication that there are 35 trade unions and 123 employees’ councils in the EPZs. The Committee notes that the Government also indicates that since 2019 five collective agreements were concluded in the EPZs in the sectors of printing, rubber tires and tubes, personal care products and toiletries, and glassware products. These collective agreements cover respectively, 646 workers out of 2,577 workers employed in the sector of printing (25 per cent), 100 workers out of 1,663 workers in the sector of rubber tires and tubes (6 per cent), 515 out of 983 workers in the sector of personal care products and toiletries (52.3 per cent), and 480 out of 842 workers in the sector of glassware products (57 per cent). While taking due note of this information, the Committee observes that the number of employees’ councils is significantly higher than that of trade unions and that there is a limited number of collective agreements in force in EPZs. The Committee therefore requests the Government to intensify the measures taken to promote collective bargaining in the EPZs and to inform about the measures taken to ensure that employees’ councils do not undermine the position of trade unions. The Committee additionally requests the Government to continue to inform on the number of collective agreements concluded by trade unions in the EPZs, particularly in the clothing and textile sectors, and the number of workers covered by them in comparison with the total number of workers employed in this sector.

Representativeness requirements for collective bargaining. In its previous comments, the Committee had requested the Government to review section 32(A)(g) of the Industrial Disputes Act, according to which no employer shall refuse to bargain with a trade union that 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 that the Government reiterates that this matter was discussed within the NLAC and that both the employers and major trade unions do not agree to reduce the threshold, as it would create more divisions in the workplace and dilute the trade union representation and bargaining power. The Government also reiterates that the 40 per cent threshold does not prohibit any unions from participating in collective bargaining as it is possible for trade unions to enter into collective agreements by federating with other minority trade unions. On the other hand, the Committee notes the Government’s indication that it is willing to consider the matter, but it cannot proceed due to the lack of consensus among stakeholders. Recalling that the ITUC had previously referred to cases where companies had refused to bargain collectively with unions that did not reach the 40 per cent threshold, the Committee emphasizes that the representativeness requirements set by legislation to be designated as a bargaining agent may bear a substantial influence on the number of collective agreements concluded and that the mentioned requirements should be designed in such a manner that they effectively promote the development of free and voluntary collective bargaining. Highlighting again that it is ultimately the Government’s responsibility to take the decisions necessary for the fulfilment of the State’s international commitments undertaken through the ratification of international labour Conventions, the Committee reiterates that it expects that 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 and reminds the Government that it may avail itself of the technical assistance of the Office.

Article 6. Right to collective bargaining for public service workers other than those engaged in the administration of the State. For many years, the Committee has referred to the fact that the procedures regarding the right to collective bargaining of public sector workers do not provide for genuine collective bargaining but rather establish a consultative mechanism. In this respect, the Committee notes that the Government reiterates that: (i) existing government structures do not require a collective bargaining system for public sector unions as trade unions have many venues to get their request fulfilled; (ii) there have been no requests from public sector trade unions to bargain collectively; and (iii) public sector workers are covered by a different set of laws which are more protective and they enjoy more benefits when compared to workers in the private sector. In this regard, the Committee recalls that to give effect to Article 6 of the Convention a distinction should be drawn between, on the one hand, public servants engaged in the administration of the State, 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 the 2012 General Survey on the fundamental Conventions, paragraph 172). The Committee notes the Government’s indication that it welcomes any ILO technical study on this matter as proposed by the Office to determine the necessity of such a proposal. Given the above and considering that section 49 of the Industrial Disputes Act excludes state and government employees from the Act’s scope of application, the Committee reiterates its previous request to the Government to take the necessary measures to guarantee the right to collective bargaining of the public servants not engaged in the administration of the State so they can negotiate their conditions of work and employment. The Committee also trusts that the Government will avail itself of the technical assistance of the Office for this purpose.