Informe provisional - Informe núm. 336, Marzo 2005

1. 778. The complaint is set out in two communications made by the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 18 March 2004 and 23 July 2004, on behalf of its affiliate, the Free Trade Zone and General Services Employees’ Union (FTZGSEU).
2. 779. The Government made its observations in a communication dated 4 January 2005.
3. 780. Sri Lanka has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 781. The complaint relates to the workers of Workwear Lanka (Pvt.) Ltd. located in the Biyagama Free Trade Zone. The complainant alleges that the management of the company has indulged in various acts of anti-union discrimination to prevent the workers of the company from unionizing themselves. According to the complainant, the workers in the plant started the process of forming a branch union towards the end of December 2003. On 27 December 2003, the workers held a work stoppage to protest against the management’s verbal abuse aimed at members of the Employees’ Council who had gone to the office to raise their concern about the company’s failure to pay the month’s wages and the end of year bonus. The next day, the workers held a founding meeting to set up a branch union of the Free Trade Zones and General Services Employees Union (FTZGSEU). Thereafter, the management spoke to every single worker about their union affiliation asking them to resign from the membership of the union. On 31 December 2003, the management issued letters to the vice-president, treasurer and committee members of the branch union and three other activists accusing them of going on strike on 27 December and thus causing financial losses to the company.
2. 782. The complainant alleges that the company stepped up its anti-union campaign after the union wrote to the company on 1 January 2004, notifying the names of its office-bearers. The next day when the night shiftworkers reported for work, five of the office-bearers of the branch union were denied work. On 4 January, the union wrote to the company asking that it immediately cease the harassment of its union members. On the same day, the union also wrote to the Minister of Labour and the Commissioner of Labour requesting the immediate intervention of the labour authorities. On 8 January, the company issued a charge sheet against the branch secretary holding her responsible for the work stoppage on 27 December and the company’s subsequent losses. The management also demoted a number of other workers because they refused to resign from the union.
3. 783. The complainant further alleges that the representatives of the company failed to turn up at the meeting convened by the Commissioner of Labour on 12 January 2004. The management then wrote to the office-bearers of the union indicating that it would not dismiss them if they pled guilty to the charges brought by the company and asked for a pardon in writing. The union office-bearers refused. The representatives of the company then wrote to the Additional Commissioner General of Labour indicating that there was no union in the plant and if the union continued to claim membership, then it should submit a membership list with members’ signatures. The union responded that it had already informed the management of the creation of the union and furnished the names of the office-bearers and that it would submit the requested membership list on condition that the company put an end to its campaign of harassment and reinstate the dismissed workers. On 3 February, those union leaders and activists who had been asked to admit their guilt and ask for a pardon were dismissed. On 9 February, the representatives of the company again failed to turn up at the meeting convened by the Additional Commissioner General of Labour. According to the complainant, by 10 February, about 100 suspected union members had been dismissed on the grounds that they were casual labourers and their services were no longer required. In the meantime, however, the company had been recruiting new workers through an agency.
4. 784. The complainant states that on 16 February 2004, it wrote to the Minister of Employment and Labour asking him to intervene to ensure that the company ceases its anti-union activities and takes corrective action to reinstate all those workers whose services had been terminated, withdraw the suspension of the branch union office-bearers, committee members and activists and cancel all transfers and demotions of union members and restore them to their earlier place of work and that it respect the right of workers to organize without interference from the management. The complainant states that it has not received a response from the Minister.
5. 785. In its communication of 23 July 2004, the complainant alleges that, despite the Commissioner General of Labour’s intervention, the situation has not improved in the company. According to the complainant, on 6 April, another meeting with the Commissioner of Labour was held during which the company agreed to conclude the domestic inquiries into the accusations against the suspended workers before 30 April and to pay the suspended workers 50 per cent of their salary from the date of suspension until the finalization of the inquiry. The company agreed to pay these wages on 10 April and to hold new meetings with branch union office-bearers on 23 April. On 9 April, the company informed the suspended workers of the domestic inquiry, with various starting dates beginning from 18 April. The suspended workers then wrote to the company requesting an opportunity to retain defending officers on their behalf. The complainant alleges that on 10 April, the management refused to pay the suspended workers as agreed and stated that it will only pay the workers if the domestic inquiry was not finalized before 30 April. On 18 April, workers attending the domestic inquiry learnt that their demand of having defending officers retained on their behalf was refused. The company however retained its own attorney. The workers protested the injustice and the inquiry was postponed until 24 April. On 25 April, the suspended workers attended the domestic inquiry with a jointly signed letter explaining the unfair manner in which the domestic inquiry had been conducted. When the workers submitted this letter to the inquiry officer, they made it clear that their participation in the inquiry would be under protest due to these concerns. At the behest of the company’s lawyer, the inquiry officer then denied the suspended workers admittance to the inquiry and requested that they withdraw their letter. The workers did not agree and the inquiry officer decided to hold the domestic inquiry without the workers being present. On 27 April, the suspended workers sent a joint letter to the inquiry officer protesting the decision to hold an ex parte inquiry.
6. 786. The complainant states that on 28 April 2004, the union wrote another letter to the Commissioner General of Labour mentioning the violations of the agreement reached at the 6 April meeting and requesting that the following action be taken: (a) that the employer be asked to pay 50 per cent of the workers’ salaries; (b) compulsory arbitration of the dispute regarding the termination of services of about 100 workers on the pretext of their being contract workers; and (c) legal action against and prosecution of the company for its unfair labour practices. On 7 May, the Commissioner General of Labour held another discussion to which the Director of Industrial Relations of the Board of Investment of Sri Lanka was invited. The Commissioner General of Labour put forward the following proposals to settle the dispute: (a) to allow the suspended officers to retain a defending officer and restart the domestic inquiry. The findings of the domestic inquiry should be issued before 30 July and, in the meantime, the suspended workers should be paid 50 per cent of their salary from the date of their suspension; (b) alternatively, the company should reinstate the suspended workers and the workers would submit a letter of apology which could not be used against them in the future; and (c) the company should discuss with branch union officials matters related to their members. The company representatives asked for time to get advice from their directors about these proposals. The union representatives agreed to consider the proposal after hearing the company’s decision. On 13 May, the union once again wrote to the Commissioner General of Labour requesting immediate prosecution due to the company’s reluctance to settle the matter on the basis of his proposals. The union is still awaiting the Commissioner General’s responses.
7. 787. The complainant further states that respect for the principles of freedom of association requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious and fully impartial. The complainant alleges that by showing no will to take any decisive action to settle the case and by not being able to apply sufficiently dissuasive sanctions against the company, the Commissioner General of Labour has shown his inability to ensure rapid and effective protection against acts of anti-union discrimination. The complainant further alleges that this also indicates the Government of Sri Lanka’s inability to provide adequate protection against acts of anti-union discrimination and to effectively ensure the right of workers to establish organizations of their own choosing.

B. The Government’s reply

1. 788. The Government states that Workwear Lanka (Pvt.) Ltd. is an enterprise situated in the Biyagama Free Trade Zone and is involved in the manufacture of rubber, leather and cotton industrial and sports gloves. It commenced operations in 1996 and employs around 700 workers. A labour dispute arose in the enterprise in early January 2004 over an issue of the management failing to pay wages before Christmas 2003 and the workers had become restless reportedly as a result of a female worker being abused by a supervisor over this issue. The formation of a branch union coincided with this incident and it is alleged by the union that the management had resorted to unfair labour practices. The management’s position is that they were unaware of the existence of a trade union and asserts that eight workers had been dealt with on disciplinary grounds. The eight workers had violated the disciplinary procedure of the company and had been served with charge sheets. The management was not satisfied with the responses given by the eight workers, therefore they were asked to tender apologies to the company for what they had committed. Since the eight workers did not respond, disciplinary inquiries were held and they were offered work subject to punishments. According to the management, disciplinary measures were necessitated as some of the workers were resorting to disruptive activities. Hence, the services of one female worker had been terminated. Five workers had reported for work and two had resigned. According to the management, the disciplinary inquiry was delayed due to the protests made by the trade union against having a disciplinary inquiry.
2. 789. The trade union’s position is that eight workers were instrumental in the formation of the trade union and 263 workers had already received the membership of the union. The management did not want to accept the existence of the union. Seven out of the nine charges in the charge sheets of the eight workers concerned were related to their participation in the strike and thereby the management had committed an unfair labour practice in terms of the Industrial Disputes (Amendment) Act No. 56 of 1999. The union is also of the view that around 100 workers participated in the strike and serving charge sheets only on eight of them was a clear proof of victimization.
3. 790. The Department of Labour has taken measures to settle the dispute by way of conciliation. The trade union is not in favour of holding a referendum in terms of the Industrial Disputes (Amendment) Act No. 56 of 1999 in order to ascertain 40 per cent representative strength of the union for the purposes of collective bargaining. The trade union contends that the management had obstructed formation of the union and brought disrepute to them. Unless corrective measures are taken, the union is not agreeable to a referendum. However, the management is agreeable to the holding of a referendum. Attempts were also made recently on 24 November and 14, 15 and 23 December to settle the dispute by way of conciliation. However, these attempts were not successful. In the circumstances, action is being taken by the Department of Labour to prosecute the management in terms of the Industrial Disputes (Amendment) Act No. 56 of 1999 for resorting to unfair labour practices. The action taken and their outcome will be intimated.

C. The Committee’s conclusions

1. 791. The Committee notes that this case concerns allegations of anti-union discrimination by an employer in a free trade zone. The complaint indicates that the management of Workwear Lanka (Pvt.) Ltd. engaged in various acts of anti-union discrimination pursuant to the formation of a branch union of the Free Trade Zone and General Services Employees’ Union (FTZGSEU) in its plant on 28 December 2003. The sequence of events as set out in the complaint is as follows: following the formation of the union, the management spoke to every single worker about their union affiliation and asked them to resign from membership of the union. On 31 December 2003, the management issued letters to the vice-president, treasurer and the committee members of the branch union and three other activists accusing them of going on strike on 27 December and causing financial losses to the company. The union notified the names of its office-bearers to the employer on 1 January 2004. On the next day, when the night shiftworkers reported for work, five of the union office-bearers were denied work. On 4 January, the union made a representation to the company seeking that it immediately cease the harassment of its members and also made a representation to the Minister of Labour and the Commissioner of Labour requesting the immediate intervention of the labour authorities. On 8 January, the company issued a charge sheet against the branch secretary holding her responsible for the work stoppage on 27 December and the consequent losses. The management also demoted a number of other workers who refused to resign from the union. The management thereafter wrote to the office-bearers of the union indicating that it would not dismiss them if they pled guilty to the charges brought by the management and asked for a pardon in writing. The union office-bearers refused. On 3 February, the union leaders and activists who had been asked to admit their guilt and ask for a pardon were dismissed. By 10 February, about 100 suspected union members had been dismissed on the grounds that they were casual labourers and that their services were no longer required. In the meantime, however, the company began recruiting new workers.
2. 792. The Committee also notes that according to the complainant, the management failed to turn up at meetings convened by the Commissioner of Labour on 12 January 2004 and by the Additional Commissioner General of Labour on 9 February 2004. Further, the management failed to honour its commitment made on 6 April 2004 during a meeting convened by the Commissioner of Labour wherein the management agreed to pay the suspended workers 50 per cent of their salary from the date of suspension until the finalization of the inquiry. The request of the workers for having defending officers retained on their behalf for the inquiry was refused while the company retained its own attorney. Pursuant to a joint representation by the concerned workers recording that their participation in the inquiry would therefore be under protest and their refusal to withdraw the representation, it was decided to hold the inquiry ex parte without the workers being present.
3. 793. The Committee notes that all the dismissals, suspensions and demotions took place soon after the formation of the branch union and a work stoppage organized to protest against the company’s failure to pay wages and benefits. The Committee also notes that the company accuses some of the concerned workers of having been responsible for the work stoppage on 27 December 2003 and the alleged subsequent losses. Notwithstanding the management’s claim that it was unaware of the existence of the trade union, the Committee considers that given the sequence of events detailed above, the dismissals, suspensions and demotions of the office-bearers and members of the union appear to be linked to the trade union activities and membership of the workers concerned.
4. 794. In this regard, the Committee recalls that no person shall be prejudiced in his or her employment by reason of his or her trade union membership or legitimate trade union activities, whether past or present and that necessary measures should be taken so that trade unionists who have been dismissed for their activities related to their establishment of a union are reinstated in their functions, if they so wish [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 690 and 703].
5. 795. The Committee takes note of the Government’s observations that the efforts of the Department of Labour to settle the dispute by conciliation had not met with success and that it is taking steps to prosecute the employer. In these circumstances, the Committee urges the Government to take without delay the necessary steps to ensure that a procedure on the allegations of anti-union discrimination be opened and be brought to a speedy conclusion in a fully impartial manner and to keep it informed in this respect. Further, if the allegations are found to be justified, the Committee requests the Government to ensure in cooperation with the employer concerned that: (i) the workers dismissed as a result of their legitimate trade union activities are reinstated without loss of wages and without delay or, if reinstatement in one form or another is not possible, that they are paid adequate compensation which would represent sufficient dissuasive sanctions for such anti-trade union actions; (ii) the workers demoted as a result of their legitimate trade union activities are restored to their former posts without delay; and (iii) the workers under suspension because of their legitimate trade union activities are allowed to resume work without delay and are paid wages for the period when they were unjustly denied work. The Committee requests the Government to keep it informed in this regard.
6. 796. The Committee requests the Government to solicit information from the employers’ organization concerned, with a view to having at its disposal its views, as well as those of the enterprise concerned, on the questions at issue.