Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 353, Marzo 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 265. The Committee last examined this case at its March 2008 meeting. On that occasion, the Committee, recalling that justice delayed was justice denied, once again requested the Government to keep it informed of developments with regard to the case concerning 202 workers dismissed following a strike and the four cases of individual dismissal before the labour tribunal, all of which were still pending, and to transmit copies of the decisions as soon as they were handed down. It further requested the Government to transmit a copy of the labour tribunal’s decision to dismiss Ms Chathurika’s application on grounds of long absenteeism, and to ensure that the branch of the Free Trade Zones and General Services Employees’ Union at Workwear Lanka (Pvt.) Ltd may exercise its activities, even if it did not represent 40 per cent of the workers concerned [see 349th Report, paras 279–284].
2. 266. In its communication of 28 July 2008, the Government states that the case before the Commissioner concerning the dismissal of 202 workers was about to be concluded when the Free Trade Zones and General Services Employees’ Union withdrew the case in relation to 127 employees, without giving any valid reason. The Government states that at the time the case was brought before the Commissioner, the union had also applied to the labour tribunal on behalf of the same employees concerning their termination of employment. After having withdrawn the case, which was brought under the Termination of Employment of Workmen Act, the union now wished to pursue the matters contained therein before the labour tribunal; however, the Government possessed no information as to whether an action before the labour tribunal had been initiated.
3. 267. The Government provides a translated copy of the labour tribunal’s 15 August 2008 decision to dismiss the application of one dismissed worker, Ms Chathurika, due to long absenteeism. The decision indicates that its dismissal of Ms Chathurika’s application was due to the latter’s failure to appear before the labour tribunal on three separate occasions.
4. 268. As concerns the Committee’s previous comments concerning the branch of the Free Trade Zones and General Services Employees’ Union at Workwear Lanka (Pvt.) Ltd, the Government states that no branch of the above union presently exists at the workplace. Over 90 per cent of the workforce in Workwear Lanka (Pvt.) Ltd are members of the Workwear Lanka (Pvt.) Ltd Workers Council Trade Union, and the remainder do not belong to any trade union. Finally, as concerns the Committee’s previous comments on the legislation, the Government indicates that the question of a 40 per cent threshold for recognition for collective bargaining purposes was placed before the National Labour Advisory Council (NLAC) and the Labour Law Reform Committee. In the deliberations that took place in these forums the employers’ organizations came out against a reduction of the existing 40 per cent requirement, while the trade unions were not unanimous in their opinions.
5. 269. The Committee notes the above information, and in particular that the case before the Commissioner concerning the dismissed workers had been withdrawn by the union, which intended to pursue the matters raised in that case before the labour tribunal. Noting that four other cases of individual dismissal were pending before the labour tribunal, the Committee once again recalls that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 666]. Further recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835], the Committee expects that the labour tribunal will process these cases without delay and that, if the allegations of anti-union discrimination are confirmed, to ensure that 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 so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed of developments in this regard.
6. 270. The Committee notes the Government’s indication that the branch of the Free Trade Zones and General Services Employees’ Union at Workwear Lanka (Pvt.) Ltd no longer exists. The Committee recalls, in this respect, that since its first examination of the case in March 2005, it had urged 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 [see 336th Report, para 795], and had on several occasions since urged the Government to ensure that the competent authorities immediately begin an inquiry and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see, 344th Report, para 197]. In view of the fact that no such investigations had yet been initiated, the Committee regrets that the absence of the union concerned from the employer’s workplace may indeed be due to acts of anti-union discrimination. It requests the Government to indicate whether the Workwear Lanka (Pvt.) Ltd Workers Council Trade Union, which represents over 90 per cent of the workers in the workplace concerned, has concluded a collective bargaining agreement with the employer and, if so, to transmit a copy of the said agreement.