2007 Annual Survey of violations of trade union rights - Sri Lanka
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Sri Lanka, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca0d18.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
While unions' hard work to organise in Sri Lanka's three export processing zones (EPZs) resulted in progress, often employers still refused to recognise unions or bargain with them, and provoked confrontations leading to strikes and lock-outs. The government retains absolute discretion to impose an expansive definition of 'essential services' on any economic sector, thereby criminalising strikes and other trade union actions. Worryingly, the Supreme Court intervened in a major labour dispute involving the Sri Lanka Port Authority, significantly restraining unions' ability to act in support of demands to the SPLA management.
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 should have the right to organise according to international standards. Public service unions are not allowed in law to form federations.
A minimum of seven workers is required to found a new union. The Industrial Disputes Act grants compulsory recognition to any union which represents over 40 per cent of workers at any given workplace. The government has consistently failed to take any significant steps to reform the Act in line with ILO recommendations. The Act prohibits employers from sacking a worker because of their union activities.
Young workers can be employed from the age of 14, but are not permitted by law to join a union until they are 16 years old.
Broad definition of essential services and draconian penalties against strikes and industrial action: The Public Security Ordinance, and the Emergency (Miscellaneous Provisions and Powers) 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.
The result is that there are essentially no limits whatsoever on the President's powers to impose new, draconian restrictions on any sector of the economy that he deems appropriate.
The Ceylon Workers' Congress (CWC) reports that these regulations have so far never been invoked. The government claims they were introduced to counteract terrorist activities.
Collective bargaining – denied to public sector workers: The law provides for the right to collective bargaining, but this right is denied to public sector workers.
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
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. As a result, workers are afraid of being identified with the union, and the union loses the poll. The Department of Labour has recently sought to address the problem, issuing instructions in 2004 to labour officers on the implementation of the law and where pro-active measures are to be taken to hold polls to prevent any delays in the process.
Alternatively, employers change their workforce figures to ensure the 40 per cent recognition target is not met, for example in the case of Lanka Walltiles Ltd.
Victimisation of union activists: The 1999 Industrial Disputes (Amendment) Act, which is supposed to protect workers against acts of anti-union discrimination in taking up employment and in the course of employment, has not been effectively applied and the maximum penalty of US$250 is not a strong enough deterrent. Since the Act was adopted, many serious cases have been reported of anti-union discrimination and non-recognition of trade unions.
The Labour Department often fails to file complaints against employers alleged to have engaged in unfair labour practices. Such offences are tried before a Magistrate's Court and only the Labour Department can submit cases. There is no time limit on bringing cases to court, hence they can be delayed until the union has been weakened and disbanded. According to the Labour Department, there are "instructions" for filing complaints within 30 days, but these are not enforceable.
Collective bargaining: There are relatively few bargaining agreements in the private sector compared to the total number of enterprises and unions.
Public Sector Federations tolerated: In practice the legal provision preventing the federation of public sector unions is not invoked, and there are currently seven public sector federations. They do not engage in collective bargaining, however.
EPZs – a history of anti-unionism: There have been widespread violations of trade union rights in Sri Lanka's Free Trade Zones. The zones are managed by the government's Board of Investment (BOI), which sets wages and working conditions and has a history of discouraging union activity. In the past, union members have faced intimidation, and new workers have been warned not to join unions. Labour representatives say that the Labour Commission, under pressure from the BOI, has failed to prosecute employers who refuse to recognise, or enter into collective bargaining with, trade unions.
Employees' councils: Employees' councils are structures funded by 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 theory their role, according to the BOI, 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, or a last defence, against an attempt by workers to set up a trade union.
Improvements since Jaqalanka ... : The Free Trade Zone and General Service Employees' Union (FTZGSEU) reported that, since the bitter, but ultimately successful, battle for union recognition at Jaqalanka Ltd, it has been able to organise workers in factories in the zones. It says a number of its branch unions have been recognised, including those at Jaqalanka Ltd, Jaqalanka International and Gartex Ltd.
... but anti-union attitudes persist: Anti-union attitudes persist, however. The National Association for Trade Union Research has pointed out that the BOI guidelines revised in 2004 do not reflect all the ILO recommendations. For example, it is the BOI that convenes the first meeting of the elected Council, and facilitates the conduct of elections.
Forming trade unions is still difficult in the zones, and some employers are still trying to undermine the formation of unions. In 2005, only eight factories had recognised unions representing their work forces, out of the approximately 200 enterprises in the EPZs. <<
Violations in 2006
Background: Sri Lanka slid back into full civil war, with the break-down of talks between the Liberation Tamils of Tiger Eelam (LTTE) and the hard-line government of Prime Minister Mahinda Rajapakse. Attacks on senior figures in the government, including a suicide bombing attempt on the Army Commander, by the LTTE were met with increased government attacks on Tamil areas in the North and East of the country.
Supreme Court interference in union rights: Starting in March, the Sri Lanka Ports Authority (SLPA), a state enterprise engaged in all aspects of port operations under the authority of the Ministry of Ports, refused to bargain in good faith with a coalition of 14 unions making demands on wages and benefits. The unions finally decided to initiate a trade union action, working according to the specific terms of the contract only and refusing additional work demanded by the employers. The Minister of Ports responded by publicly stating on 19 July that the government would not negotiate with the unions. Soon thereafter, an employer group, the Joint Apparel Association Forum (JAAF), file a petition with the Supreme Court claiming the trade union action constituted an infringement of their right to "lawful occupation". The Court accepted the case and on 25 July issued a restraining order forbidding the trade union's actions until 27 November. The Court ordered the police and military to take immediate steps to ensure the trade unions' complied with the decision. The unions filed a complaint with the ILO.
Arresting journalists for meeting with trade union: The Free Media Movement, an affiliate of the International Federation of Journalists, reported that two journalists were detained by Army soldiers on 5 November for meeting with picketing workers of the Sri Lanka Telecom headquarters branch. The Army then sent the journalists – Saman Janaka and Jayasiri Wikramasignha of the newspaper Sathdina Sinhala – to the local police who intensively interrogated them, destroyed their film and pictures of the union pickets, and held them for five hours without charge until their editor personally gave verbal assurances to the police to secure their release.
Prima fires striking workers: After a series of futile negotiations with Prima management over failure to provide salary increments to employees, the Inter Company Employees Union (ICEU) went on strike on 20 March. The next day, the company fired 1,600 workers. The union sought to continue discussions, but reported that management would only agree to reinstate those fired workers who agreed in advance to a 40 per cent salary decrease.
Protesting workers beaten at Dye-In Sri Lanka: After the Dye-In factory in Galle province fired three women leaders in January who led worker protests over management's failure to pay a New Year's bonus, the workers went out on indefinite strike in front of the factory. As the strike continued, police threatened workers with 14 day jail sentences if they did not end their protest and disperse. Finally, on 5 February, the workers reported that police, backed up by local thugs hired by management, attacked the protest to ostensibly allow a truck with finished goods to leave the factory. Police used batons to severely beat the workers, sending seven of the striking workers to the hospital with serious injuries.
Still no justice for workers at Global Sports Lanka/North Sails: The 207 workers of Global Sports Lanka (formerly North Sails), who were fired for trade union activities in 2002, spent another year out of work, while court cases filed by 38 of these workers seeking reinstatement continued to grind on. In early 2006, the ITGLWF filed a complaint against the company with the Australian National Contact Point for the OECD Guidelines for Multinational Enterprises.
Freezing out the union: The CWC reports that Ceylon Cold Stores Ltd refused to allow 124 CWC members to hold an annual meeting to elect union officials on company premises, despite being a representative union, and disregarding past practice.