Trade unions urge amendments to law permitting right to strike
View(s):A strong body of trade unions led by those in the National Labour Advisory Council (NLAC) has urged the government to present laws to formalize the right to strike by unions as enshrined in International Labour Organisation (ILO) regulations, worried that some courts are not allowing this ‘right’ to unions.
“We have been observing an alarming and disturbing pattern of judicial interventions aimed at restricting and/or aborting the right to strike of legitimately constituted trade unions. We consider that such interventions are patently inconsistent with the provisions of the Trade Union Ordinance and ILO conventions No. 87 and 98,” said a joint letter sent by 29 unions including 11 in the NLAC.
The letter sent by T.M.R. Raseedin, President of the Ceylon Federation of Labour (CFL), to Labour Minister Gamini Lokuge on behalf of the NLAC, states:
“It may be recalled that in 2006 when the port workers were engaged in legitimate trade union action the Supreme Court of Sri Lanka intervened to prohibit their industrial action. The trade unions took up the matter with the ILO which ruled that the SC intervention was inconsistent with provisions of ILO Conventions No. 98
(ILO CFA case No. 2519 – Sri Lanka). It has to be said that such action was not in keeping with the obligations resulting from the country’s ratification of ILO Conventions and the ILO Constitution.
The Government in its submissions on the ILO CFA case mentioned above has clearly indicated that it would abide by the recommendations of the ILO supervisory bodies. However, we find that no action whatever has been taken by the Government so far to rectify the situation.
This has led to a spate of judicial interventions against contemplated trade union action. Continuation of this trend will seriously threaten collective bargaining and weaken the right to freedom of association. We consider this a grave situation warranting urgent attention of the Government. In view of the above, we urge you to take immediate steps to give effect to recommendations of the ILO case No. 2519 as set out in the memorandum attached.
There is a need for the introduction of new amendments to the Trade Unions Ordinance setting out clearly the instances in which the right to strike that is recognised by this statute can be restricted in keeping with the requirements laid down by the recommendations of the ILO Governing Body Committee on Freedom of Association Case No. 2519 on Sri Lanka.
Sri Lanka’s labour law system traditionally recognises workers’ right to strike. However, the extent of the practical exercises of’ this right and its precise limitations are yet to be defined in law. In the 1990s and until very recently, emergency decrees invoking civil war conditions prohibited strikes in government interpreted essential sectors from time to time.
The government then defined such sectors extremely broadly, calling nearly every economic activity “essential.”
The result was a clear violation of the right to strike. The situation deteriorated further as a result of several arbitrary judicial interferences with the exercise of the right to strike since mid-2006. The Supreme Court of Sri Lanka has held principles of ILO Conventions No. 87 and No. 98 on the right to strike are inadmissible in Sri Lanka.
It has also held no enabling laws exist in order to provide for the guaranteeing of principles of ILO Conventions No. 87 and No. 98 in this regard.
The aforementioned inconsistency with the core Conventions of the ILO and the violation of conditions necessary for the free and voluntary exercise of the right to collective bargaining as required by Conventions No. 87 and No. 98 was challenged by Sri Lankan trade unions and two global union federations before the ILO Governing Body Committee on Freedom of Association (Case No.25 l9).
In the aforementioned case the ILO body held that it is inclined to view the restriction placed on the port workers’ action by the injunction issued by the Supreme Court of Sri Lanka as contrary to the principles set out above.
Nevertheless, the policy of compatibility and conformity with ILO standards has continued to remain an important ingredient of Sri Lanka’s relations with the supervisory bodies. This was amply demonstrated in the government of Sri Lanka’s submission to the ILO where it clearly indicated it would abide by the recommendations of the ILO supervisory bodies.
The ILO considers that the right to trade union action such as strikes or similar types of organised workers’ manifestations forms an important ingredient of the right to freedom of association and collective bargaining.
Similarly ILO conventions on collective bargaining strongly emphasise that the right to strike or trade union action is an essential element in protecting the fundamental prerequisite of the free and voluntary nature of the collective bargaining process.
The ILO Committee on Freedom of Association has strongly held and interpreted them (go-slow and work-to-rule) to be an accepted form of trade union in accordance with the provisions of ILO Convention No. 87 on Freedom of Association and Protection of the Right to organise, provided that they are conducted in a peaceful manner.
Recommendations:
(i) The Trade Unions Ordinance and the Public Security Ordinance should be amended as necessary to provide for clear and precise provisions setting out the instances in which the right to strike may be restricted or prohibited:
(a) in the public service only for public servants exercising authority in the name of the the State; or
(b) in essential services in the strict sense of the term – that is services, the interruption of which would endanger the life, personal safety or health or part of the population.
In the determination of situations in which a strike could be prohibitecl, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.
The Trade Unions Ordinance should be amended to recognise and expressly provide that, regardless of whether the action in question is a work-to-rule or actually a go slow, it should always be recognised that the right to strike by workers is a legitimate means of defending their economic and social interests, and that various types of strike action (strikes, tools-down, go-slow, working to rule and sit-down strikes) fall within the scope of this principle; restrictions regarding these various types of strike action may be justified only if the strike ceases to be peaceful.
The Trade Unions Ordinance should be amended in order to expressly provide that any judicial intervention on the right to strike should be subject to the guarantees, limitation and principles as set out earlier.
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