2010 Annual Survey of violations of trade union rights - Sri Lanka
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Sri Lanka, 9 June 2010, available at: http://www.refworld.org/docid/4c4fec5828.html [accessed 28 May 2016]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The Sri Lankan authorities have by no means done all they can to ensure the respect of their own labour legislation. Trade union rights violations are commonplace in the export processing zones.
Trade union rights in law
Despite initial guarantees, trade union rights are limited by excessive restrictions. The right to form and join unions is recognised, however a number of workers are excluded or enjoy limited freedom of association, including agricultural workers. Furthermore, public service unions are not allowed to form federations or engage in collective bargaining. While the right to bargain collectively is guaranteed for other trade unions, they must represent over 40% of the workers at a given workplace in order to be recognised. The right to strike is seriously circumscribed. The long list of services defined as "essential" was removed in 2006 and replaced by a broad unrestricted definition. The regulations allow the President to ban any organisation s/he considers to be impeding, obstructing or delaying the production and delivery of 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".
Trade union rights in practice and violations in 2009
Background: The victory by government troops over the independent Liberation Tigers of Tamil Elam (LTTE) put an end to the civil war that had been tearing the country apart for decades. In the last months of the war, both sides committed serious violations of international humanitarian law. Civilian residential areas were shelled, killing thousands and displacing hundreds of thousands more. The Government of Sri Lanka also waged a vast campaign against the media in 2009, frequently accusing journalists that criticised it of treason and of siding with the Tigers. At least 14 media professionals have been killed in Sri Lanka since 2006. On 31 August a high court sentenced the journalist Jayaprakash Sittampalam Tissainayagam to 20 years in prison for writing and publishing articles criticising the way in which the authorities treated Sri Lankan Tamils affected by the war (he was released on bail at the beginning of 2010 in the run up to the presidential elections).
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.
Employers change their staffing figures to ensure the 40% representation target (excessive by ILO standards) is even harder to meet. 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 (but it can be a long time before the referendum takes place). If it is then found that the 40% requirement has been met, the Commissioner directs the employer to recognise the union.
Economic crisis used as pretext to delay social dialogue or close factories: According to the Sri Lankan trade unions, many employers have used the economic crisis to take a harder line in collective bargaining. Moreover, workers faced with an employer's refusal to enter into social dialogue get little support from the authorities. On the contrary, in sectors such as clothing and construction, the authorities favour flexible employment relationships.
According to the Free Trade Zones & General Services Employees Union (FTZ&GSEU) some employers are using the economic crisis as a pretext to close unionised factories. The FTZ&GSEU cites the case of Sinotex Lanka, a clothing factory run by the Hong Kong group Cristal Martin, which closed its two factories in January after 27 years in Sri Lanka without respecting the legislation concerning the compensation to be paid to its 2,500 workers (mainly women).
EPZs – a history of anti-unionism: Sri Lanka's export processing zones (EPZs) are managed by the Board of Investment (BOI), which sets wages and working conditions. In many cases, union members or officials are suspended, demoted or dismissed, and many have been assaulted. New workers, often women, are warned not to join unions. Union activists not employed by an enterprise in the zones are not allowed inside an EPZ unless their entry is approved by the employer. This ban is one of the main barriers to organising in the EPZs.
Weak labour inspection in the export processing zones: Labour inspection is clearly inadequate in the Export Processing Zones (EPZs). Government labour inspectors are not allowed to carry out unannounced visits to factories in the EPZs. 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. This was the case for the decisions by the General Labour Commissioner regarding New Design Manufacturing Ltd. and Ceyenergy Electronics (PVT) Ltd. In other cases, the authorities completely ignore requests for mediation by the trade unions, such as at Smart Shirts Lanka Ltd.
Four additions to the list of essential services: In mid-November the government declared that four new services would be considered as essential: water and electricity distribution, port activities and the oil sector. The decision came after wild cat strikes linked to pay demands.
Victimisation of union activists: Many cases of anti-union discrimination and non-recognition of trade unions have been reported. 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, the employers can delay indefinitely until the union has been weakened or even disbanded. To comply with the ILO's fundamental standards, the Government of Sri Lanka must take measures, in consultation with the social partners, to guarantee the quickest and most appropriate procedures in cases of anti-union discrimination, in particularly the setting of short deadlines for the examination of cases by the authorities.
Derisory fines: The maximum fine for employers found guilty of anti-union discrimination is 20,000 rupees (around 174 US dollars), which is far too little to be dissuasive.
Judicial system bans legal strikes: In recent years, the judicial system has had a tendency to ban strikes in the public sector, even though they are legal, further to complaints introduced by third parties in industrial disputes.
Public sector trade union federations tolerated: Although 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, as they are not legally recognised as trade unions.
Employees' councils: Employees councils have been promoted by the Board of Investment (BOI) as a substitute for trade unions in the export processing zones (EPZs). Employees' councils are structures funded by and functioning under the aegis of the employer and can influence workers' choices much more easily than a union (where the workers make financial contributions). 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 some cases, management refuses to recognise an emerging trade union and will "negotiate" directly with the employees' council as if it were the workers' legitimate representative body. In other cases, it will offer employee council members certain advantages if they don't join a union and threaten them if they do. In the case of Work Wear Lanka, management went so far as to register the employees' council, with the approval of the authorities.
Pressure linked to US GSP and EU GSP+: The ITUC and the European Trade Union Confederation (ETUC) have again 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. The ITUC and the ETUC drew attention to the government's statements to the effect that it would promote export companies in the North East regions previously caught up in the civil war. Considering the widespread violations of workers' rights in the export processing zones in the rest of the country, the ITUC and the ETUC believe that after suffering all the atrocities linked to the war, the populations of these regions could soon be exposed to violations of their rights at work.
The US national trade union centre the AFL-CIO has put pressure on the US trade representative to remove Sri Lanka from the list of developing countries eligible to benefit from the Generalised System of Preferences (GSP) until the Sri Lanka respects the conditions linked to workers' rights in the System.
Fierce anti-union discrimination at Wheel Work Ltd.: Management at the Wheel Work (Pvt.) Ltd. factory in the Biyagama export processing zone created an employee's council following the creation of a branch of the Free Trade Zones & General Services Employees Union (FTZ&GSEU). From the moment the union was created at the end of 2008 its members were victimised (frequent changes to working hours, downgrading to unskilled jobs, refusal of the pay rise recommended by the Board of Investment, etc.). On 6 May, a trade union official and a union member were suspended, supposedly because of negligence. The union member was reinstated the next day after resigning from the union. Faced with management's refusal to meet representatives of the FTZ&GSEU, the assistant labour commissioner intervened. Management told him that it refused to accept a union in its factory and handed over letters signed by 46 workers stating that they had disaffiliated from the union. The union official suspended on 6 May had still not been reinstated by the end of 2009.
General secretary of journalists association beaten up: Many Sri Lankan journalists have been attacked, abducted, arrested or threatened with death. In June Poddala Jayantha, general secretary of the Sri Lanka Working Journalists Association (SLWJA) was abducted and beaten by a group of armed men.
No improvement for workers at GP Garments: After a major industrial dispute in 2005 at the GP Garments factory in the Biyagama export processing zone, and notably a sit-in organised by the Free Trade Zones & General Services Employees Union (FTZ&GSEU), 518 workers, including the whole union delegation, were sacked. In 2008, 37 workers who were summoned to appear before court on 13 counts of breaching the penal code were released on bail. Since then the hearing for their case has been repeatedly postponed.