Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee takes note of the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006.

Article 1 of the Convention. Protection against acts of anti-union discrimination. 1. In its previous comments, after having noted the provisions providing protection against anti-union discrimination, the Committee noted that section 4(2) of the Industrial Disputes (Amendment) Act of December 1999 provides that any contravention of the provisions concerning anti-union discrimination shall be punished by a fine not exceeding 20,000 rupees. According to the ICFTU, maximum penalties for unfair labour practices are too low to provide sufficient deterrence. The Committee requests once again the Government to provide information in its next report on the dissuasive character of this provision, in particular by indicating the relationship of the amount of the fine to the average wage or other objective indicators.

The Committee notes that the ICFTU refers again to several cases of anti-union discrimination aimed at preventing the establishment or recognition of trade unions. In its 2004 report, the Committee had noted that, according to the ICFTU, these cases have been reported to the authorities since the adoption of the Industrial Disputes Act of December 1999 (which affords protection to workers against acts of anti-union discrimination in taking up employment and in the course of employment), without an appropriate response. The ICFTU added that adequate protection is not provided in practice, as there are no time limits required of labour authorities within which complaints should be made to the Magistrate’s Court (after a complaint has been brought to the Department of Labour).

The Committee notes from the Government’s report that the Department of Labour has not yet taken any legal action in order to penalize employers in individual cases on the ground of anti-union discrimination or interference and that the matter has been brought before the National Labour Advisory Council (NLAC) by one trade union for discussion; the Commissioner General of Labour advised the union to bring the individual cases before him with a view to taking legal action. According to the Government, so far no cases have been referred to the Commissioner.

The Committee notes that trade unions should be able to have direct access to the courts in order to have their complaints examined by the judicial authorities if they so wish. Recalling the importance of efficient and rapid proceedings to redress anti-union discrimination acts, the Committee requests the Government to take measures in consultation with the social partners in order to guarantee a more expeditious and adequate procedure, in particular establishing short delays for the examination of cases by the authority. It requests once again that the Government indicate whether trade unions have the capacity to bring their grievances concerning anti-union discrimination directly before the courts.

Article 4. Measures to promote collective bargaining. The Committee notes from the Government’s report that under the Future Directions Programme of the Ministry of Labour Relations and Employment, a Social Dialogue and Collective Bargaining Unit (SD&CBU) has been set up in order to promote and facilitate an environment conducive to collective bargaining, especially at the enterprise level. The SD&CBU carried out a survey, published in 2005, to ascertain the existing practices of workplace cooperation. According to this report, collective agreements are not widely used as a method of settling or avoiding disputes, but the situation is changing. There were collective agreements in force in 27 enterprises in the sample of 76 establishments studied in this survey (35.5 per cent of the total establishments). The report adds that this situation may be merely accidental and does not reflect the general picture of the situation, as collective agreements are not so widely accepted in regulating the labour relations in Sri Lanka. The report gives some positive examples of social dialogue in Sri Lanka and identifies strengths, weaknesses, opportunities and threats as they relate to social dialogue. The SD&CBU will be responsible for creating conducive national conditions to encourage and promote voluntary negotiation between employers’ and workers’ organizations. The Government indicates that the progress made will be included in future reports.

Furthermore, the Committee takes note of the National Policy for Decent Work in Sri Lanka, annexed to the Government’s report, and notes that it developed a national plan of action for decent work, including ensuring freedom of association and the promotion of collective bargaining as a dispute resolution mechanism.

In its previous comments the Committee had requested the Government to provide detailed and concrete information concerning collective bargaining in export processing zones. The Committee notes that the ICFTU is still referring to several cases of refusal to recognize a representative trade union by employers both inside and outside the export processing zones, without any effective enforcement action being taken. The Committee notes that, according to the Government, there are no legal provisions to restrict the trade unions and the employers in BOI Enterprises from entering in collective agreements. The Industrial Disputes Act No. 43 of 1950 applies to all enterprises in the export processing zones (EPZs) without any restrictions and trade unions or workers and employers of the enterprises within the EPZs can enter into collective agreements if they desire. Furthermore, the Government indicates that section 9A of the Labour Standards and Employment Relations Manual of the Board of Investment (BOI), which is the overseeing authority of the EPZs, contains provisions to facilitate the conclusion of collective agreements. The Committee notes that this provision relates to union committee meetings and to the right of access of trade union representatives to BOI Enterprises, and that this amendment was made following a recommendation of the Committee on Freedom of Association (CFA) that trade unions enjoy the same facilities in the undertaking as employees’ councils without discrimination [see 332nd Report, para. 956(a)(iv)]. The Committee notes from the Government’s report that two collective agreements were signed in 2004, two in 2005, and six enterprises are in the process of negotiating collective agreements. The Government had added that there is a trend towards unionization in EPZs with nine trade unions covering approximately 10 per cent of the EPZ workforce.

Taking into account the statistics provided by the Government, the Committee considers that collective bargaining in the country still needs to be promoted in EPZs and other sectors. The Committee requests the Government to indicate in its next report the precise measures taken or contemplated for this purpose so as to ensure that the recognition provisions for collective bargaining purposes are effectively implemented in practice. The Committee requests to be kept informed of: (1) steps taken by the Social Dialogue and Collective Bargaining Unit for the further promotion of collective bargaining; and (2) measures taken to implement the National Policy for Decent Work in relation to collective bargaining.

Article 6. Denial of the right to collective bargaining to public service workers. According to the ICFTU, the law provides for the right to collective bargaining but this right is denied to public service workers. Recalling that the Convention excludes only public servants engaged in the administration of the State, the Committee requests the Government to send its observations to the ICFTU comment.

Article 4. Representative requirements for collective bargaining. In its previous comments, the Committee had noted that, according to section 32A(g) of the Industrial Disputes (Amendment) Act No. 56 of 1999, no employer shall refuse to bargain with a trade union, which has in its membership not less than 40 per cent of the workmen on whose behalf such trade union seeks to bargain. The ICFTU added that the 40 per cent threshold established in the law for the recognition of trade unions leads to employers tactics in order to avoid such recognition (in particular, changing the lists of employees, as the vote carried out to determine the representativeness is based on a list furnished by the employer). In its next report, the Government states that the national consultations so far conducted with the NLAC showed mixed opinion, but the majority of the members are in favour of retaining the threshold. This matter is now being looked into by the tripartite committee appointed by the NLAC to review the national legislation. Appropriate action will be taken on the recommendations of the tripartite committee reviewing the legislation, and after national tripartite consultations. The Committee considers that if no trade union covers more than 40 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit so that they may negotiate at least on behalf of their own members. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to promote collective bargaining in accordance with the above observation.