2008 Annual Survey of violations of trade union rights - Sri Lanka
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Sri Lanka, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6ea.html [accessed 25 October 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Sri Lanka's labour law is not totally in line with the international standards protecting workers' rights and is not always enforced by the authorities. Anti-union behaviour is still rampant in the EPZs. The Supreme Court of Sri Lanka called into question ILO principles, and some trade unionists were abducted whilst others received death threats.
Trade union rights in law
Freedom of association and collective bargaining: All workers have the right to form and join unions, including public sector workers, with the exception of members of the armed forces and police officers, who are not entitled to unionise, and staff in the judicial service, prison officers and agricultural corporations who ought to have the right to organise according to international standards.
Public service unions are not allowed in law to form federations. The law does not recognise their right to engage in collective bargaining either.
A minimum of seven workers is required to found a new union. The Industrial Disputes Act grants compulsory recognition to any union that represents over 40 per cent of workers at any given workplace, which is too high a threshold based on recent ILO case law that considered even a 30% requirement as excessive. The government has consistently failed to take any significant steps to reform the Act in line with ILO recommendations.
In addition, the ILO Committee of Experts on the Application of Conventions and Recommendations recommended that where a union does not represent more than 40% of the workers, collective bargaining rights should be granted to all the unions in the production unit so that they can at least negotiate on behalf of their own members. So far the Sri Lankan government has not acted on that recommendation.
Special restrictions for young workers: Young workers between 16 and 21 years old are not allowed to be members of a union's executive committee or management board.
Broad definition of essential services and draconian penalties against strikes and industrial action: The Public Security Ordinance, and the Emergency Regulation No. 01 of 2005 which implements it, allow the president to ban any organisation that he thinks is impeding, obstructing or delaying the production and delivery of an "essential" service.
On 3 August 2006, the Ordinance and the Emergency Regulations were amended to expand on the number of services defined as essential, adding to a specific schedule of sectors which was already far beyond what the ILO considers as "essential" industries. Further to protests by Sri Lankan trade unions and their international supporters, in a further amendment to the regulation promulgated on 29 September 2006, the long list of essential services was replaced by a broad, unrestricted definition. The Regulations allow the president to designate as "essential" any service "which is of public utility or is essential for national security or for the preservation of public order or the life of the community and includes any department of the government or branch thereof". To make such a declaration, the president only needs to order the restriction to be issued in the government gazette.
These texts give the president unlimited power to impose new, draconian restrictions on any sector of the economy.
Export processing zones: The law grants workers in Sri Lanka's export processing zones (EPZs) the same rights to join unions as other workers.
Trade union rights in practice and Violations in 2007
Background: Sri Lanka has been experiencing a civil war since the breakdown of dialogue between the Liberation Tigers of Tamil Elam (LTTE) and the government. There is general impunity for human rights violations, including violations of trade union rights. Reports mention hundreds of disappearances, murders of people working for charity organisations, arbitrary arrests and torture.
Supreme Court questioning ILO principles: A complaint was lodged with the ILO Committee on Freedom of Association in September 2006 by the Sri Lankan trade unions, the ITGLWF and the ITF regarding a dispute between workers and the Sri Lankan Port Authority (SLPA), a state enterprise that handles all business in the ports. Since March 2006, the SLPA had refused to negotiate in good faith with a coalition of 14 trade unions, mainly over wage demands. The unions decided to carry out a "work to rule" strike on 13 July 2006, only observing the specific terms and conditions in their contracts and refusing to do any additional work requested by the employers. Shortly afterwards a group of employers from the clothing industry, the Joint Apparel Association Forum, which was not involved in the dispute, filed a petition to the Supreme Court, arguing that their "fundamental right" to conduct their business activities had been breached by the unions' action (since imports and exports of clothes pass through the ports). On 25 July 2006, the Court issued an interim order banning any action by the unions up to 25 November, partially justifying its decision through the alleged "extensive, ongoing loss suffered by the country as a whole". The Court ordered the police and armed forces to take immediate measures to ensure that the unions respected this decision.
The 348th report of the Committee on Freedom of Association, submitted on November 2007, rejected the decision of the Supreme Court. It recalled that the criterion for determining cases in which a strike could be banned was that there should be a clear and imminent threat to the "life, personal safety or health of the whole or part of the population". The committee also pointed out that the ports were not essential services in the strict sense of the term and that a strike like the one carried out by the port workers was not illegal.
However, the Supreme Court failed to take cognisance of the decision of the Committee on Freedom of Association. It also ruled that the unions had no right to demand compensation while a case was pending in the Court, despite the obligations resulting from the country's ratification of the ILO conventions and the ILO Constitution.
Trade unionists abducted and falsely accused of terrorism: On 6 February, three people working for the railway workers' union newspaper, "Akuna", were abducted in Colombo. They were Nihal Serasinghe, a contributor to Akuna; Lalith Seneviratne, in charge of layout; and Sisira Priyankara, the editor. The abductions sparked a spontaneous protest the next day in front of Fort railway station in Colombo. On 8 February, the government declared that the three abducted individuals were in government custody and that they were being interrogated on suspicion of collaboration with the insurgent "Tamil Tigers" (Liberation Tigers of Tamil Elam, LTTE).
The union leaders involved in that protest then became victims of a campaign seeking to link them with the terrorist uprising. Posters branding them as traitors and terrorists and calling for their arrest began to appear in public places across the country. Those targeted include: Anton Marcus of the Free Trade Zone and General Services Employees' Union (FTZGSEU), Sman Ratnapriya and Ravi Kumudesh of the Health Sector Trade Union Alliance (HSTUA), Sampath Rajitha and Raja Kannangara of the Joint Railway Trade Union Alliance (JRTUA), and Joseph Stalin of the Ceylon Teachers' Union (CTU). Several of them had been involved in campaigns denouncing the government's role in attacks on the right to strike and arbitrary labour law reforms.
Following this campaign, the targeted trade unionists received several death threats. On 21 February, the FTZGSEU and the HSTUA made several complaints to the police, hoping to receive protection enabling them to continue their trade union activities. The authorities neglected their duty; however, the police did not carry out a serious enquiry and also did little to ensure the safety of the union leaders.
Weak enforcement of union recognition law: The recognition of unions for collective bargaining purposes is dogged by excessive delays. Employers tend to delay the holding of union certification polls for a long time and use this time to identify, victimise and, frequently, fire the union activists concerned. In the worst cases, activists have been physically assaulted and threatened with death. As a result, workers are afraid of being identified with the union, and the union loses the poll. To prevent such situations, the unions would like to hold their elections within four weeks of sending the application for recognition of the union.
Alternatively, employers change their staffing figures to ensure the 40 per cent representation target is even harder to meet. They sometimes include middle and top managers in the calculation of the total number of staff, for instance.
Victimisation of union activists: Many serious cases have been reported of anti-union discrimination and non-recognition of trade unions. Such offences are tried before a Magistrate's Court, and only the Labour Department can submit cases. However, hitherto no complaints against employers alleged to have engaged in unfair labour practices have been filed. There is no time limit on bringing cases to court; hence, they can be delayed indefinitely until the union has been weakened or even disbanded. In 2005 and 2007, the ILO Committee of Experts on the Application of Conventions and Recommendations repeated that the unions should have direct access to the courts.
Ridiculous fines: The maximum fine for employers found guilty of anti-union discrimination is 20,000 rupees (around 187 US dollars), which is far too little to be dissuasive. In 2005 and 2007, the ILO Committee of Experts on the Application of Conventions and Recommendations asked the government to provide information on the dissuasive character of the level of the fine; however, the government did not send a reply to the Committee, or raise the level of these fines.
Striking teachers arrested: Following a dispute concerning wages and promotion prospects, teachers belonging to a union decided in August to suspend their marking of examinations taken by students until the dispute was resolved. On 9 and 13 September, without summoning the unions, the Supreme Court issued an injunction ordering the ending of the trade union action. On 14 September, five union leaders summoned by the Supreme Court were informed that their action amounted to contempt of court and that they would be released only if they paid a sum of 50,000 rupees each as bail. The principal of a public school in Colombo paid the 250,000 rupees needed to secure their release. The police were then sent to the homes of teachers supposed to be marking the exams and forced them to work.
Collective bargaining: There are relatively few bargaining agreements in the private sector compared to the total number of enterprises and unions: only some 44 employers belonging to the main employers' organisation, the Employers' Federation of Ceylon, have signed a collective agreement with their employees.
Public sector federations tolerated: In practice the legal provision preventing public sector unions from forming federation is not invoked. These federations do not engage in collective bargaining, however.
EPZs – a history of anti-unionism: There are widespread violations of trade union rights in Sri Lanka's Free Trade Zones. The zones are managed by the Board of Investment (BOI), which sets wages and working conditions and has a history of discouraging union activity. In many cases, union members or officials are suspended, demoted or dismissed, and many have been assaulted. New workers are warned not to join unions.
Labour inspection is clearly inadequate in these zones. The government labour inspectors are not allowed to carry out unannounced visits to factories in the EPZs. The BOI has its own industrial relations department, but the BOI is always headed by a prominent businessman. In practice, therefore, the BOI's handling of industrial relations always works against the interests of the workers in the zones (most of whom are women).
When complaints are received by the competent government body, employers rarely turn up to the hearings, and, when they do so, they frequently flout the rulings with total impunity. The government has proved incapable of forcing employers to respect the decisions of the authorities.
Union activists are not allowed inside an EPZ unless their entry is approved by the employer. Even if workers are unionised in a particular factory within an EPZ, such entry intro the zones is extremely rare. This ban is one of the main barriers to organising in the EPZs.
One of the many examples of violation of union rights in the EPZs in 2007 concerned the factory Smart Shirts Lanka. A strike held on 11 December had been ended by an agreement between the employers' and workers' representatives, with the help of the Labour Ministry. However, when the workers returned to their posts, the management took a series of retaliatory measures against them including the sacking of two union leaders.
Another case in 2007 involved the clothing factory Brandix Finishing Ltd, a supplier for Marks & Spencer; the FTZGSEU reported that workers who had taken part in industrial action had been subjected to continuous intimidation.
One of the largest clothing companies in Sri Lanka, Star Garments Ltd, has also been notorious for its anti-union attitudes. Since early 2007, the FTZGSEU had attempted to organise the three Star Garment factories in the Katunayake EPZ. As soon as they learned of this initiative, management paid some union activists to leave the company and stacked the employees' council (see below) with anti-union members. The company then did all it could to break a strike organised in July: the police arrested five activists because they had union leaflets, the leaflets were confiscated from the workers, thugs were paid to threaten the workers, etc. Subsequently the management used some other techniques against the union members at Star Garments, such as falsely accusing them of violence (accusations entailing three-hour imprisonments prior to their release on bail). The general manager finally agreed, on 23 July, to recognise the union at Star Garments, but he has refused any dialogue with the FTZGSEU.
Employees' councils: Employees' councils are structures funded by and functioning under the aegis of the employer, without the workers needing to make contributions. This gives them an advantage over unions, which rely on membership dues. This consideration inevitably influences the choice of workers. They have been promoted by the BOI as a substitute for trade unions in the EPZs. In theory, according to the BOI, their role is to promote "the effective participation of employees in the affairs of the enterprise through consultation". In reality, the great majority of companies do not have employees' councils, as these councils tend to be created primarily as a barrier against an attempt to set up a trade union. In these union substitute councils, the selection of members is heavily influenced by the managements. These employees' councils are at times not mandated to discuss the main issues for the staff such as wages and working conditions. Unlike registered trade unions, employees' councils have no legal standing before the law.