Rapport intérimaire - Rapport No. 190, Mars 1979

Cas no 913 (Sri Lanka) - Date de la plainte: 27-SEPT.-78 - Clos

1. 430. The complaint of the Ceylon Federation of Labour (CFL) is contained in a communication dated 27 September 1978 and is supported by additional material forwarded with a letter of 2 November 1978. The Government forwarded its observations in a communication dated 18 December 1978.
2. 431. Sri Lanka has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 432. The complainant alleges that since its assumption of office in July 1977 the Government of Sri Lanka has adopted a policy calculated to weaken and destroy all trade unions except the National Employees Union (NEU), associated with the ruling political party (UNP), and the Ceylon Workers' Congress of which the leader is a minister in the present Government. Violations of Convention No. 87 on freedom of association are allegedly taking place through repression, thuggery, victimisation and discrimination.
2. 433. According to the complainant, five unions in the Puttalam factory of the Cement Corporation undertook a strike in November 1977. Leaders of all unions on strike were arrested and remanded on serious charges; they were suspended from their employment; they were ordered to vacate the Corporation quarters that had been allocated to them; on their refusal to vacate, electricity and water supplies to the quarters were discontinued. Mr. S. Lokuvithane, branch secretary of one of the unions (UCMU), was subsequently discharged in both cases raised against him when the police informed the Magistrate Court of Puttalam that there was no evidence against him. Four unions in the Thulhiriya factory of the National Textile Corporation refused to attend work on Saturdays, which was not compulsory, until such time as certain outstanding issues between them and the management were attended to. The management locked out about 2,500 workers, only admitting those who were willing to join the NEU. Those workers locked out were subsequently informed by the management that they had vacated their post in that they had failed to report for work. Their services were terminated on that ground. One of the unions has challenged the validity of the vacation-of-post letters in the District Court of Colombo (No. T.U.10). The Government has been questioned about this and other disputes in the National State Assembly; the Deputy Minister of Textile Industries answered that every employee who signs a document accepting certain conditions, justified because of extensive damage caused to factory machinery by these workers, will be taken back to work. Such damage to factory machinery had not been alleged in the employer's answer filed in court.
3. 434. The complainant further alleges that the employees of the Pugoda factory of the National Textile Corporation staged a one day strike on 31 May 1978. They were locked out from the factory from the following day; only those who were willing to sign certain conditions and to join the NEU were permitted back to work. Five hundred workers remain locked out; they have been issued with vacation-of-post letters. The UCMU has challenged the validity of the vacation-of-post letters in the District Court of Colombo (No. 3057/2). At the Enderamulla factory of the Hardware Corporation, several unions held a one-hour strike on 15 March 1978 to demonstrate their disapproval of draft legislation affecting the existing trade union laws. One day's notice of the strike was given to the management. The following day the management interdicted 25 employees, leaders of union branches, on the ground that they had caused a serious breach of discipline by joining the strike. The UCMU has challenged the validity of the suspension and further disciplinary measures in the District Court of Colombo.
4. 435. Specific cases of thuggery are cited by the complainant. It states that, at the Colpetty head office of the Ceylon Petroleum Corporation at lunchtime of 8 March 1978, the General Secretary and other key members of the All Ceylon Oil Workers' Union demonstrated outside the premises of the Corporation against the draft legislation referred to above. UNP thugs from inside the Corporation - says the complainant - attacked and beat these demonstrators. The police have prosecuted the demonstrators on a charge of assaulting the assailants. No action was taken against the assailants. Also, according to the complainant, Mr. Chandrasena, a former president of the All Ceylon Oil Workers Union, was driven away from his workplace by UNP thugs in the Corporation a few weeks after the UNP formed its Government (August 1977). Mr. Chandrasena made several complaints to the management requesting protection from the unruly elements but the management has taken no steps as the thugs had been recruited as security personnel. The Corporation paid Mr. Chandrasena his wages for this period of non-employment but subsequently stopped this payment. He has challenged this action in the District Court of Colombo. On 20 July 1978 the Ceylon Bank Employees' Union held a one-day strike. Thugs set upon the peaceful, unarmed strikers injuring men and women. The police arrested three of the thugs whilst they were in action but later released them without note of their apprehension. There is also general thuggery against union leaders at the oil installation at Kolonnawa.
5. 436. It is also alleged that the Ceylon Transport Board transfers members of trade unions not connected to the UNP to distant work points.
6. 437. The complainant claims that it is the Jathika Sevaka Sangamaya, i.e. the union backed by the UNP, who decides on how the Government should deal with other trade unions. It supplies as evidence copy of a letter of 22 June 1978 from the Port Commissioner to Mr. C. Mathew, president of the JSS (who is also a minister of the Government). The letter refers to an application for use of a Port Commission hall by another trade union, viz. the Sarva Karmike Kam Karu Samithiya, for the annual general meeting. It indicates that, under normal circumstances, the use of the building for such purposes is authorised. However, in this case, outside speakers had been invited (whose names are given) and therefore Mr. Mathew's views were requested.
7. 438. The complainant alleges that the repressive action against trade unions is worsened by a steep devaluation of the rupee, mounting inflation and the withdrawal of consumer subsidies on several essential commodities. In face of these hardships, 17 trade union organisations (whose names have been supplied) formed an association known as the Joint Trade Union Action Committee and requested five demands from the Government, in brief: restoration of rations of rice and other food commodities that prevailed when ration books were withdrawn; restoration of all democratic rights and civil liberties; cessation of attacks upon trade unions and cancellation of all orders of dismissal, vacation-of-post orders, etc.; immediate grant of an interim increase of Rs.150/- per month in wages; reduction in the prices of all essential commodities. In pursuance of these demands a one-day strike was scheduled for 28 September 1978. The Government responded by advising employers in the private sector to treat all those who participated in the strike as persons who have vacated post. As regards the public sector, the complainant furnishes a copy of a government circular to secretaries of ministries, heads of departments and heads of public corporations stating that the strike was called for political matters and not relevant to any issues arising out of an industrial dispute. Therefore, employees who absented themselves on 28 September would be deemed to have vacated post. In face of these measures the strike was postponed.
8. 439. The additional information supplied by the complainant by letter dated 2 November 1978 includes a newspaper article quoting the Prime Minister as having said that any worker failing to report for work on 28 September would be replaced in his job. The Prime minister is also quoted as having referred to a poster calling upon the workers to join the strike and overthrow the UNP Government. The complainant also provides a copy of a memorandum issued by the management of an industrial undertaking to its staff stating that, following the advice of the Employers' Federation of Ceylon, leave would not be allowed on 28 September and a pay cut would be applied to strikers.

B. Observations by the Government

1. 440. In its reply dated 18 December 1978 the Government firstly raises an objection to the receivability of the complaint, referring in this connection to the provisions of the standing orders concerning the procedure for the discussion of representations under article 24 of the Constitution of the ILO. It points out that as it has not ratified Convention No. 87 it cannot be accused of violations of this instrument.
2. 441. Without prejudicing the above claims the Government states that the Constitution of the Democratic Socialist Republic of Sri Lanka protects the freedom of every citizen to form and join a trade union and that any infringement of this freedom is justiciable in the courts. Furthermore, it claims, the Industrial Disputes Act entitles every worker employed in the private sector and in public corporations to make application to an independent judicial tribunal in respect of the termination of his employment and such tribunal is empowered to award such relief as the tribunal may consider to be just, and equitable notwithstanding the terms of the contract of employment. It points out that a considerable body of case law has developed over the years which effectively secures that any worker who establishes that his services have been terminated on the ground of trade union activity should be reinstated or be given ample compensation. An appeal lies from the decision of the tribunal to the court of appeal. Thus the existing legal framework more than effectively secures the right of association guaranteed by the Constitution.
3. 442. The Government claims that the strike of 28 September 1978 called by the Joint Trade Union Action Committee was based on demands of a political character. It states that the demands for restoration of rations of rice, sugar and other foodstuffs, for restoration of democratic rights and civil liberties and for the reduction of prices of all essential commodities were not demands which the private or public employers could have satisfied. They are within the competence of the Government. The present Government had restored the democratic rights and civil liberties that had been lost by the people in the previous seven-year period. Basic fundamental rights are enshrined in the new Constitution and these rights have for the first time been made justiciable. The Government states that any action taken by trade unions in furtherance of such a political dispute would no doubt have been examined by the courts in Sri Lanka under the prevailing law.

C. Conclusions of the Committee

1. 443. As regards the objection presented by the Government to the examination of the complaint, the Committee notes that it is based essentially on the fact that Sri Lanka has not ratified Convention No. 87 to which the complainant refers and that therefore a representation alleging non-observance of the Convention is not receivable under article 24 of the Constitution of the ILO. The Committee wishes to point out, however, that in accordance with the special procedures established by the Governing Body, in accordance with an agreement with the Economic and Social Council of the United Nations approved by the International Labour Conference, for the examination of complaints of alleged violations of trade union rights, the complaint made by the Ceylon Federation of Labour is receivable for examination by the Committee and the Governing Body since it has been submitted by an organisation entitled to do so. The complaint has been submitted by a national organisation of workers directly interested in the matter, and, as indicated below, the complaint contains specific allegations of infringements of trade union rights. Complaints submitted under this procedure may relate to countries which have not ratified the Convention. Moreover, the Committee has in the past emphasised that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact.
2. 444. The Committee notes that the Government, notwithstanding its procedural objection, has supplied certain very general observations on the substance of the complaint. In this respect the Committee wishes to stress that the purpose of the entire procedure which has been instituted is to secure respect for freedom of association de jure as well as de facto; it is convinced that, while this procedure protects governments from unreasonable accusations, the latter should in turn recognise the importance for their own reputations of collaborating fully with the Committee in order to enable it to make a thorough investigation of the facts and to seek solutions to the problems which have arisen.
3. 445. The issues raised in this case refer to the alleged policy of discrimination applied by the Government in respect of certain trade unions, acts of violence against trade union leaders and members, measures of anti-union discrimination taken by the management of certain undertakings, and the interference by the authorities in order to prevent a 24-hour general strike on 28 September 1978.
4. 446. As evidence of the alleged policy of discrimination applied by the Government in respect of unions not aligned to the ruling political party, the complainant supplies a copy of a letter which, in its opinion, shows that a minister of the Government who is a leader of one of the trade union organisations in the country is consulted by other authorities in matters relating to the activities of other workers' organisations. The Committee notes that the Government has not provided its observations on these allegations and considers that it should be invited to do so.
5. 447. Regarding the alleged violent attacks upon trade union leaders and members, the Committee notes that the Government's reply contains no observations on the incidents cited by the complainant. It therefore wishes to ask the Government for its specific observations on the incidents having allegedly occurred during the demonstration at the Colpetty head office of the Ceylon Petroleum corporation, during the strike by the Ceylon bank employees, and at the oil installation at Kolonnawa in 1978. In addition, the Committee would appreciate receiving information from the Government on the outcome of the legal action brought by Mr. Chandrasena before the District Court of Colombo for alleged harassment and dismissal by the undertaking.
6. 448. Similarly, the Committee considers that the Government should provide its specific observations regarding the alleged arrests and dismissals following the 1977 strike at the Puttalam factory of the Cement Corporation and one-hour strike in 1978 at the Enderamulla factory of the Hardware Corporation, the alleged lockouts and dismissals following the refusal to work on Saturdays at the Thulhiriya factory of the National Textile Corporation, the one-day strike at the Pugoda factory of the same Corporation, the alleged transfers ordered by the Ceylon Transport Board, and the other measures which, according to the complainant, were taken by the management of the undertakings concerned against certain trade unions. Moreover, since the complainant has stated that legal proceedings had been initiated in the District Court of Colombo as regards the alleged acts of anti-union discrimination in the Thulhiriya and Pugoda factories of the National Textile Corporation and the Enderamulla factory of the Hardware Corporation, the Committee considers that the Government should be asked also to provide information on the outcome of these proceedings.
7. 449. Regarding the alleged measures taken by the Government to prevent a one-day strike called by 17 trade union organisations for 28 September 1978, the Committee notes the contradiction between the information provided by the complainant organisation and the Government's observations with respect to the nature and objectives of the strike. According to the complainant, the strike had been called in support of five demands, namely the restoration of food rations, restoration of all democratic rights and civil liberties, cessation of attacks upon trade unions and cancellation of all orders of dismissal and related measures, a salary increase of Rs.150 per month, and a reduction in the prices of all essential commodities. The complainant organisation adds that in view of the Government's reaction threatening dismissal of any worker participating in the strike, the latter was postponed. The Government, in turn, states that the strike was based on demands of a political character. In support of this contention, it refers to three of the demands made by the organisers of the strike (those regarding restoration of food rations, reduction of prices of essential commodities and restoration of democratic rights and civil liberties) and indicates that they were not demands which the employers could have satisfied and that the fundamental rights are enshrined in the Constitution and are enforceable through the judicial process. No specific mention is made in the Government's communication to the other demands mentioned in the complaint, i.e. an increase in wages and the cessation of attacks upon trade unions and cancellation of dismissals.
8. 450. The Committee has had occasion in the past to deal with similar cases concerning general strikes of 24 hours in support of claims certain of which were of an occupational character. Having recalled that the right to strike is generally recognised as an essential means by which workers and their organisations can promote and defend their occupational interests, the Committee also recalled that the prohibition of strikes designed to coerce the Government, if they are not occupational in character, does not constitute an infringement of freedom of association, and that strikes of a purely political nature do not fall within the scope of the principles of freedom of association. In the present case, a number of the demands made in connection with the call to strike were occupational in character. In this connection, the Committee wishes to point out, as it had done in the past, that the right to strike should not be restricted solely to industrial disputes likely to be resolved through the signing of a collective agreement. The Committee has considered that workers and their organisations should be allowed to express in a broader context, if they so wish, any dissatisfaction they may feel as concerns economic and social matters affecting their members' occupational interests, so long as such action consists merely in the expression of a protest and is not intended as a breach of the peace.

The Committee's recommendations

1. 451. In these circumstances, while noting the Government's statement that trade union rights are protected in the country by the legal system, the Committee recommends the Governing Body:
   • (a) as regards the allegations concerning measures taken by the Government to prevent a 24-hour general strike, to call the Government's attention to the principles and considerations expressed in paragraph 450 above;
   • (b) as regards the alleged measures of anti-union discrimination on the part of certain employers, to ask the Government to provide its observations on the specific allegations made by the complainant as well as information on the outcome of the judicial proceedings mentioned in paragraph 448 above;
   • (c) to ask the Government to provide its observations on the allegations of discrimination by the authorities in respect of trade unions (paragraph 446 above) and on the alleged acts of violence against trade union leaders and members;
   • (d) to take note of this interim report.
     • Geneva, 20 February 1979. (Signed) Roberto AGO, Chairman.