Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided in the Government’s report, it also notes the observations made by the Lanka Jathika Estate Workers’ Union and the Employers’ Federation of Ceylon on the application of the Convention.

Article 2 of the Convention. Exclusion of certain workers. In its previous comments, the Committee requested the Government to indicate the relevant legislative texts that grant judicial officers the right to form associations for the defence of their members’ interests. The Government indicates in its report that the Associations of Judicial Officers are informal organizations and they are not formed under any legislation. The Committee recalls the importance it attaches to the need for a clear recognition in the legislation of the right of all workers, including judicial officers, to associate not only for cultural and social purposes but also for the purpose of furthering and defending their occupational and economic interests. The Committee hopes that the Government will take the necessary steps to ensure that the rights under the Convention are recognized to judicial officers and requests the Government to indicate the measures taken or envisaged in this regard.

Minimum age. The Committee, in its previous comments, had noted the Government’s indication that educational authorities were of the view that compulsory school education (which currently applies to children from 5 to 14 years of age) should be extended to 16 years of age and, in the event that it is changed, the minimum age for employment would also be raised accordingly. The Committee had noted that, in anticipation of extending compulsory school education to 16 years of age, the Government did not wish to amend the minimum age for trade union membership immediately. The Committee now takes note of the indication in the Government’s report that it is presently considering modifying its position, in the light of the consensus of the participants in the Second Tripartite Workshop on the Implementation of Conventions Nos. 87 and 98, which decided that the minimum age for trade union membership should be the same as for admission to employment. The Committee requests the Government to keep it informed of any steps taken to guarantee the right to organize for minors and young persons who are working in accordance with the law.

Articles 2 and 5 of the Convention. Public servants. In its previous comments, the Government had indicated that action would be taken to negotiate with the ministry in charge of public servants with a view to ensuring the rights of public servants to join and establish organizations of their own choosing. The Committee observes from the report on the abovementioned workshop, that a consensus has been reached on the need to permit public service unions to form federations. Moreover, the Committee notes that the Ministry of Employment and Labour intends to take up this matter with the other ministries concerned, especially the Ministry of Public Administration. The Committee expresses, once again, the firm hope that the Government will take the necessary action, in the very near future, to ensure that organizations of government staff officers may join confederations of their own choosing, including with organizations of workers in the private sector, as well as the right to organize at the first level with other ministries or departments in the public service, and to keep it informed of any progress in this regard.

Articles 3 and 10. Compulsory arbitration. In its previous comments the Committee noted that the application of section 4(2) of the Industrial Disputes Act granted the Minister broad powers to refer any industrial dispute to compulsory arbitration or to an industrial court for settlement. The Government had indicated that referring an industrial dispute to an industrial court for settlement was not done on the sole discretion of the Minister, but with the recommendation of the Commissioner of Labour and the parties concerned. The Committee had requested the Government to indicate the precise legislative provisions which provide that a recommendation of the Commissioner of Labour and of the bargaining parties is required in order for the Minister to refer a dispute to arbitration under section 4(2) of the Act. The Government replies that the Minister of Labour has discretion on the matter and that there is no compulsion by law for the Commissioner to recommend to the Minister to refer an industrial dispute to arbitration. However, according to the Government, in practice the Commissioner refers a matter to the Minister only after all efforts to conciliate the dispute have failed and that the recommendations are of an administrative nature. The Committee recalls that compulsory arbitration must be at the request of both parties. A system whereby the Minister has broad authority to refer disputes to compulsory arbitration 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraph 153). The Committee requests the Government to indicate the measures taken or envisaged to ensure that workers’ organizations can organize their programme and activities without interference of public authorities. The Committee also requests the Government to provide information on cases where the Minister has intervened in industrial disputes, referring them to compulsory arbitration.

Article 4 of the Convention. In its previous comments, noting the Government’s indication that a decision of the Registrar to withdraw or cancel registration does not take effect until the courts hand down a final decision, the Committee requested the Government to indicate the relevant legislative provisions in this regard. The Committee takes note that the Government has referred this matter to the Attorney-General for his opinion. The Committee recalls that, when legislation allows dissolution or suspension of workers’ and employers’ organizations by administrative authority such as in this case, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case. Moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, 1994, paragraph 185). The Committee trusts that the Government will indicate the measures taken to ensure that the administrative decision to withdraw or cancel registration shall not take effect until an independent judicial body has handed down a final decision on the matter.