Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee takes note of the comments made by the Lanka Jathika Estate Workers’ Union (LJEWU) dated 2 August 2010.

Article 2 of the Convention. In its previous comments, the Committee noted the allegation that workers’ representatives faced difficulties in accessing undertakings located in export processing zones (EPZs). It also noted from the Government’s report, that the Labour standards and employment relations manual of the Board of Investment (BOI – which is the overseeing authority in EPZs) had been amended in order to provide (section 9A) that a duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, shall be granted access to the enterprise/export processing zone, provided the union: (a) seeks access for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access which may not be unreasonably withheld with due respect to the need to maintain the smooth functioning of the enterprise concerned; and (c) having satisfied the above requirements, obtained an entry permit from the BOI authorities. The Committee had requested the Government to specify in this regard the meaning of the expression “representation functions”. The Committee notes that the Government indicates in its report that the expression “representation functions” embraces all activities and functions a trade union may undertake to protect and further the interests of its members, including collective bargaining and conclusion of collective agreements with the management, submitting a claim directly to the management or attending the annual general meeting of their branch union.

Article 5. In its previous comments, the Committee noted the allegation that employers in EPZs have used for many years the creation of “employees’ councils” promoted by the BOI to hamper the creation of free and independent trade unions and to prevent them from exercising their right to collective bargaining and in particular that the councils can replace trade unions in collective bargaining if the latter do not represent 40 per cent of the workforce and the former do. The Committee notes that, according to section 9(v) of BOI Labour standards and employment relations manual, where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employer shall not use the employees’ council to undermine the position of such trade union and its representatives and shall encourage cooperation on all relevant matters between the employees’ council and the trade union concerned. According to section 10.3.2, where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employees’ council shall not represent the employees in collective bargaining and settlement of industrial disputes concerning terms and conditions of employment. The Committee notes that according to the Government’s report these provisions are compatible with the principles of ILO supervisory bodies. The Committee recalls that it considers that the protection of Article 5 of the Convention applies to the representatives of all trade unions in an undertaking and not just those trade unions which are recognized as representative. The Committee requests the Government to ensure that, where both trade unions and elected representatives exist in an undertaking either within or outside the EPZs, the representatives of all trade unions are adequately protected in accordance with the terms of Article 5 of the Convention.

In its previous comments, the Committee noted the observation made by the National Trade Union Federation (NTUF) according to which the legislation does not contain provisions concerning the facilities to be afforded to trade union representatives. The Committee notes that the Government indicates in its report that it is not clear what “facilities” refer to in this context, that Part V of the Trade Union Ordinance No. 14 of 1935 provides for rights and liabilities of trade unions, that Part V(A) of the Industrial Dispute Act No. 43 of 1950 addresses unfair labour practices by employers and the sanctions thereof, including measures against anti-union discrimination, and that the Trade Union Representatives (Entry in Estates) Act No. 25 of 1970 enables trade union representatives to visit members of their union or holding or addressing meetings of such members into estates.