2009 Annual Survey of violations of trade union rights - Sri Lanka
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Sri Lanka, 11 June 2009, available at: http://www.refworld.org/docid/4c52cac9c.html [accessed 29 May 2016]|
|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 fully in line with international labour standards and is not always enforced by the authorities. Anti-union behaviour is still rife in the EPZs.
Trade union rights in law
Freedom of association and collective bargaining: The Trade Union Ordinance 14 of 1935 allows all workers to form and join unions, including public sector workers. Members of the armed forces, police officers, staff in the judicial service, prison officers and corps established under the Agricultural Corps Ordinance are not entitled to unionise, however. Agricultural workers can by law only form associations but not unions.
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% 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. The National Trade Union Federation (NTUF) believes the threshold for union recognition should be lowered to facilitate collective agreements.
Special restrictions for young workers: According to the Trade Union Ordinance, young workers between 16 and 21 years of age 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 s/he considers to be 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 list of sectors which already went far beyond what the ILO considers as "essential". 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 2008
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. Throughout the country, there is general impunity for human rights violations, including violations of trade union rights. Reports mention hundreds of disappearances, murders, arbitrary arrests and torture of human rights activists, journalists and anyone who dares criticise the all-out war waged by the government. It is virtually impossible to carry out trade union activities in the north of the country because of this war.
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 polls for the creation of trade unions 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% 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. Where an employer refuses to recognise a union for collective bargaining purposes, the union can complain to the Commissioner General of Labour, who holds a referendum at the workplace. If it is then found that the 40% requirement has been met, the Commissioner directs the employer to recognise the union. However, as stated above, the 40% threshold is too high.
International labour standards: When it was pointed out to the Supreme Court that Sri Lanka had ratified ILO Conventions 87 and 98, the Court declared that it was not bound by ILO Conventions.
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. Workers and trade unions can also complain to the Human Rights Commission. 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. However, hitherto no complaints against employers alleged to have engaged in unfair labour practices have been filed.
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.
Public sector federations tolerated: Though the law prohibits federations of public sector trade unions, there are a few such federations operating openly such as the Public Service National Trade Union Federation (PSNTUF) and the Ceylon Trade Union Federation (CTUF). These federations do not engage in collective bargaining, however. Furthermore, the law is now strictly enforced, and no such federation is registered by the Commissioner General of Labour.
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 into the zones is extremely rare. This ban is one of the main barriers to organising in the EPZs.
Some unions have observed a new anti-union tactic by employers in the EPZs: instead of waiting for a ballot to be held in a company before recognising a union, they only recognise the branch within their company, refusing to have any dialogue with the federation's representatives. There is nothing in the law that requires an employer to engage in dialogue with the federation that their workers' branch union is affiliated to. Isolated and without the support of their federation, shop floor unions are in a weak position.
The demotion of trade unionists is another anti-union tactic. In the Katunayake EPZ, for example, the National Workers' Congress (NWC) reported that the Brooky Diamond company had demoted the leader of their branch union, Jennifa Silva, from supervisor to machine operator.
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 management. 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.
Threats and attacks against the FTZ&GSEU: R. Pieris, Vice President of the Free Trade Zones & General Services Employees Union (FTZ&GSEU, affiliated to the International Textile, Garment and Leather Workers' Federation – ITGLWF) branch at the Star Garment clothing factory in the Katunayake EPZ, was beaten up on 23 June by three individuals who warned him to stop his trade union activities. The police arrested one of his attackers, who said he had been paid by a Star Garment manager to attack the trade unionist. Two days later, he retracted his statement.
Anton Marcus, General Secretary of the FTZ&GSEU, was threatened in July by the President of the Joint Apparel Association Forum (JAAF, the clothing manufacturer's association), who told him that he would end up being kidnapped one day. Such threats are to be taken very seriously in Sri Lanka.
Trade unionists forced to resign: There is a growing trend among employers to press union leaders into resigning in exchange for financial compensation. At the Alitex towel factory in the Biyagama EPZ, for example, unionised workers were strongly encouraged to resign because the factory was making a loss. Those who did leave only received part of the compensation due to them. When the NWC union protested, Alitex began to harass trade union leaders and forced them to resign.
Blue Diamond Limited in Liyanagemulla prepared a voluntary retirement scheme aimed at trade union representatives. When the latter refused to comply, management applied to the Ministry of Labour for permission to dismiss a group of workers, including eight trade union leaders.
No improvement for workers at GP Garments: A major industrial dispute broke out in 2005 at the GP Garments factory in the Biyagama EPZ. Employees affiliated to the FTZ&GSEU occupied the factory and prevented two foreign managers from leaving the premises for several hours. The company retaliated by dismissing 518 workers, including the whole union delegation. An international solidarity campaign was launched in support of the workers and a complaint lodged with the OECD, but no progress has been made since then. In 2008, 37 workers were summoned to appear before court on 13 counts of breaching the penal code; then on 3 November, GP Garments closed the factory down. By the end of the year, the 37 workers had been released on bail. The case is scheduled to be reopened in May 2009.
Anti-union employers turn to the courts and the police for help: Trade unions report that there is a tendency among employers to use the courts to prevent trade union action (such as strikes), citing the potential financial losses. In July, for example, police from the Anuradhapura district put pressure on teachers who were preparing to go on strike. Two union leaders from the Angoda hospital were also briefly arrested.
When 17 trade unions at the port of Colombo resorted to a go-slow on a salary issue, the employers complained to the Supreme Court alleging that their products were being held up at the port. The Court ruled that the union action was illegal. Similar rulings were made in the railway strike and in the union action at the Petroleum Corporation.
European Commission examines union rights violations: The ITUC and the European Trade Union Confederation (ETUC) alerted the European Commission to the Sri Lankan government's failure to meet the commitments it made in 2005 to qualify for the GSP+ scheme, namely implementation of all the ILO's core conventions (and particularly Convention 87 on freedom of association and Convention 98 on the right to organise and collective bargaining.) The Commission assured the ITUC and the ETUC that these breaches would come under close scrutiny in its examination of Sri Lanka's application.