Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the comments submitted by the International Trade Union Confederation (ITUC) dated 29 August 2008. The Committee further notes the comments submitted by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 2 August 2010, and by ITUC dated 24 August 2010. It notes in particular that the ITUC refers to certain restrictions on the right to strike in sectors which do not provide essential services. The Committee requests the Government to provide its observations thereon.

The Committee notes that the Government indicates in its report that a project entitled “Promotion of Principles and Fundamental Rights at Work” is being implemented by the Ministry of Labour Relations and Productivity Promotion in collaboration with the ILO; and that a Special National Labour Advisory Council Meeting will take place in this framework in September 2010, in order to reach consensus among the social partners to effectively address the issues related to the implementation of ILO Convention No. 87, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135). The Committee trusts that these initiatives will result in legislative amendments which will bring the legislation into conformity with the Convention. The Committee hopes that, in this process, due account will be taken of its comments, and requests the Government to provide information thereon in its next report.

Article 2 of the Convention. Minimum age. In its previous observation, the Committee noted the discrepancy between the minimum age for admission to employment and the minimum age for trade union membership and pointed out that the minimum age for trade union membership should be the same as the minimum age for admission to employment. The Committee noted the Government’s statement that a proposal initiated by the ILO–IPEC Sri Lanka programme to increase the minimum age for employment to 16 years – the same minimum age as for trade union membership – was being pursued. The Committee notes that the Government indicates in its report that this issue will be taken up by the Labour Law Reform Committee and that consultations are being held in this regard with all stakeholders. The Committee requests the Government to indicate in its next report any developments in this regard.

Articles 2 and 5. Public servants. Previously, the Committee had underlined the need to amend the Trade Unions Ordinance of 1935 (CAP 138) in order to ensure that organizations of Government staff officers may join confederations of their own choosing, including organizations of workers in the private sector, and that first-level organizations of public employees may cover more than one ministry or department in the public service. The Committee noted that the Government reiterated that the matter had been given priority under the overall labour law reforms by the subcommittee appointed by the National Labour Advisory Council (NLAC), that the Labour Law Reform Committee had examined the proposed amendment and made recommendations to the NLAC, that the matter was under serious consideration by the Ministry of Public Administration and Home Affairs, and follow-up action was being taken by the Ministry of Labour Relations and Manpower. The Committee notes that the Government indicates in its report, that while the law restricts the organization of trade unions for more than one department or service, as well as the federation of trade unions in the public sectors (section 21 of the Trade Union Ordinance), in practice, nine federations of public service trade unions directly bargain with the Ministry of Public Administration about the rights, terms and conditions of employment of civil servants. The Government’s report adds that the restrictions in the law have never deprived public officers’ unions from exercising their right to freedom of association and that action is being taken, in consultation with the Ministry of Public Administration, to bring the law in line with the Convention. The Committee expresses the hope that the amendments to the Trade Unions Ordinance will be adopted in the near future and requests the Government to take the necessary measures to harmonize the legislation with what appears to be the practice, in order to ensure that trade unions in the public sector may join confederations of their own choosing, and to indicate the progress made in this respect in its next report.

Article 3. Dispute settlement machinery in the public sector. In its previous observation, the Committee noted that the Industrial Disputes Act – which provides for conciliation, arbitration, industrial court and labour tribunal procedures – did not apply to the public service, that a mechanism for dispute prevention and settlement in the public sector was being developed by the Ministry of Labour Relations and Manpower and the Ministry of Public Administration and Home Affairs with technical assistance from the ILO, and that a document concerning the dispute settlement mechanism had been adopted. The Committee notes that the Government refers in this respect to a draft report on the ILO Project for the Prevention and Solution of Disputes in the Public Sector, which provides in particular that: (i) the level of collective action in the public sector is very high and has a heavy impact on the efficiency of the whole public administration; (ii) the first proposal to be submitted to the social partners would be to distinguish between “rights disputes” and “interest disputes”; (iii) for “interest disputes” arising out of demands for employment improvement and working conditions, mediation and conciliation could be options available to the parties; and (iv) that a reference to the National Arbitration Board could be used as a last resort bearing in mind that, exception being made for some public services, it should remain a voluntary process for both parties. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which, would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take the necessary measures, following the report on the ILO project, so that public service dispute settlement mechanisms referred to by the Government will be developed in conformity with this principle.

Compulsory arbitration. In its previous observation, the Committee expressed concern at the broad authority of the Minister to refer disputes to compulsory arbitration and recalled the need to ensure that workers’ organizations can organize their programmes and activities without interference by the public authorities. It noted that under section 4(1) of the Industrial Disputes Act, the Minister may, if he or she is of the opinion that an industrial dispute is a minor dispute, refer it by an order in writing for settlement by arbitration to an arbitrator appointed by the Minister or to a labour tribunal, notwithstanding that the parties to such dispute or their representatives do not consent to such reference, and under section 4(2), the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement. The Committee notes that the Government once again reiterates in its report that sections 4(1) and 4(2) were intended to provide safeguards against strikes that are likely to seriously affect the national economy, and that in practice, however, arbitration was seldom imposed without the consent of the trade union. While noting that the Government further indicates that consultations were held to set up a public service dispute settlement mechanism with ILO technical assistance (as referred to above), the Committee recalls that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure, make it possible to prohibit virtually all strikes, or to end them quickly; such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). In these circumstances, the Committee once again requests the Government to amend sections 4(1) and 4(2) of the Industrial Disputes Act, so as to ensure that any reference to compulsory arbitration may only occur: (i) at the request of both parties to the dispute (i.e. voluntary arbitration); (ii) in the case of essential services in the strict sense of the term; and (iii) in the case of public servants exercising authority in the name of the State. The Committee requests the Government to indicate any developments in this regard in its next report.

Article 4. Dissolution of organizations. In its previous observation, the Committee had requested the Government to take the necessary measures to ensure that in all cases where an administrative decision of dissolution of a trade union is appealed to the courts, the administrative decision will not take effect until the final decision is handed down. The Committee noted the Government’s indication that this matter had been referred to the Labour Law Reform Committee. The Committee notes that the Government’s report provides information on the procedure for the withdrawal or cancellation of the registration of a trade union, including the appeal procedures against the decisions of the registrar, but does not confirm that the decision of the registrar will not take effect until the final decision of the appeal procedure is handed down. The Committee therefore requests the Government to take the necessary measures to ensure that administrative decisions of dissolution are suspended pending their appeal in court, and to indicate any progress in this respect in its next report.