I write with reference to the article which appeared in the Business Times of 7th October 2012 under the caption “Trade Unions urge amendments to law permitting right to strike”. It states that “a strong body of Trade Unions in the National Labour Advisory Council has urged the government to present laws to formalize the [...]

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Is there a right to strike?

By Ravi Peiris, Director General, The Employers’ Federation of Ceylon
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I write with reference to the article which appeared in the Business Times of 7th October 2012 under the caption “Trade Unions urge amendments to law permitting right to strike”. It states that “a strong body of Trade Unions in the National Labour Advisory Council has urged the government to present laws to formalize the right to strike by Unions as enshrined in ILO regulations”.

At the outset, it must be said that the trade unions proceed to make assumptions and interpretations which are not accurate in line with ILO Conventions and national laws relating to strike action.

In this context, it is relevant to mention that at the International Labour Conference held this year in Geneva, the Employers Group very clearly articulated the position that the ILO Convention on Freedom of Association (Convention No.87) contains no explicit or implicit text on a right to strike. It was very clearly pointed out that countries can have legal domestic provisions with regard to strike action. Each country is free to legislate as it sees fit but such development arises from within a country, not from any international obligation arising from an ILO Convention. Therefore, the distinction between the content of an ILO convention and national legal developments on the right to strike is important.

The article under consideration appears to assume that the ILO Conventions Nos.87 and 98 automatically gives workers the right to strike. This is the first point of misunderstanding which needs to be highlighted.

The Sri Lankan law does not explicitly recognize a right to strike, as in the case ofthe fundamental right to freedom of association, which also includes the right to join a trade union of choice. These fundamental rights do not at any point state that it includes the right to strike. However, the Trade Unions Ordinance defines as to what strike action involves and therefore, in the context of the Sri Lankan labour law, strike action can be regarded as a legitimate trade union activity, except in situations where it is restricted by law.

This article also refers to a letter sent by Mr T M R Rasseedin, President of the Ceylon Federation of Labour to the Minister of Labour and Labour Relations drawing his attention to a Supreme Court judgment which in their view has “intervened to prohibit industrial action”. It further proceeds to state that the “ILO Committee of Experts had ruled that the Supreme Court intervention was inconsistent with provisions of the ILO Convention No.98”.

With all due respect to the Ceylon Federation of Labour, it is submitted that the interpretation of the judgment of the Supreme Court in this case by the ILO Committee of Experts is erroneous in view of the following reasons:

a) In this case, the Supreme Court very clearly held that the action that was resorted to by the workers was not strike action but “go slow” action. In fact, the unions in this case conceded that there was go slow action as the performance at the Port had dropped by 60 per cent. The Sri Lankan law, as enunciated in judicial authorities very clearly stipulates that “go slow” is not strike action and moreover, it amounts to misconduct which warrants disciplinary action.

b) The Committee on Freedom of Association in ILO CFA case No.2519 in relation to the Sri Lanka Ports Authority, proceeds to thereafter draw a parallel between “go slow” and “strike action”. Its conclusions state as follows:

“As concerns the alleged illegality of the go slow action, the Committee recalls that, regardless of whether the action in question is a work-to-rule or actually a go slow, it has always recognized the right to strike by workers as a legitimate means of defending their economic and social interests, and that various types of strike action (wild cat 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”.

In other words, there is a clear attempt to bring in ‘go slow’ action within the purview of strike action by the Committee on Freedom of Association as long as it is conducted by peaceful means.

c) Such an interpretation cannot be accepted on any reasonable standard. Quite apart from that, such an interpretation will be totally inconsistent with Sri Lankan judicial precedent which very clearly recognizes the distinction between strike action and’go slow’ action. Our courts have very clearly outlined that ‘go slow’ action is a subtle action by which workers sabotage operational activities by being at work and resorting to various disruptive conduct. Therefore, it is not “peaceful” by any meanr.

d) It is also relevant to state that both, the Convention on Freedom of Association (No.87) and Convention concerning the right to organize and bargain collectively (No.98) do not define as to what strike action means. In fact, there is no reference to strike action. On the other hand, Article 8(1) of Convention No.87 requires workers and employers to respect the law of the land, whilst at the same time stipulating that the law shall not impair the guarantees provided for in the Convention.

e) The Sri Lankan law comprehensively protects the principles contained in both Conventions but the fundamental rights guaranteed under the Constitution and the Industrial Disputes Act have clearly recognized these rights. In fact, the amendment to the Industrial Disputes Act No.56 of 1999 goes beyond what is required in terms of Convention No.98 thus making it discriminatory of employers. It makes collective bargaining mandatory by law if a trade union commands more than 40 per cent representative strength.

At the ILO meeting in Geneva this year, the employers very categorically stated that an independent Committee of Experts (created by ILOs members) cannot expand and define the right to strike and its application within Convention No.87. In June 2012, the Employers Group called a halt to this practice and reacted strongly as a direct result of the experts comments in their 2012 General Survey concerning Convention No.87. The Group could not accept the experts continuing to elaborate upon a right to strike. It was very clearly pointed out that these observations made by experts cannot be construed as legal interpretations. Any definitive message of the ILO is only that which is given by its constituents. The Experts Reports are neither agreed nor definitive texts.

It is somewhat disappointing to note that the trade unions refuse to accept the reality that:

a) Strike action is not a part of any of the ILOs Conventions and therefore cannot be linked to Convention Nos.87 or 98.

b) Strike action can only be regulated by the laws of each country and this has been done in Sri Lanka by our superior courts and we need to acknowledge and accept the fact that it has binding authority over and above any interpretation given by international bodies of experts.

c) Attempting to promote disruptive action such as ‘go slow’ and work to rule as being part of ‘strike action’ would lead to ‘industrial chaos’ in the context of Sri Lanka’s industrial culture.

At a time when Sri Lanka desperately needs a balanced employment relations culture, seeking laws to strengthen disruptive action such as strike action will be counter productive. The EFC has already proposed to the government to enact a Workplace Relatios Act, the provisions of which focus on strengthening good workplace relations whilst recognizing the employees’ freedom to be a member of a trade union or any other organization of his own choosing. It focuses on speedy attention of employee grievances which will prevent industrial disputes at workplaces. These are the proactive mechanisms that we need to look at to bring about a new workplace culture. As E. F. Schumacher says:

“If we cannot achieve a real ‘meeting of minds’ with the people close to us in our daily lives, our existence becomes an agony and a disaster. In order to achieve it, I must be able to gain knowledge of what it is like to be ‘you’ and you must be able to gain knowledge of what is means to be like ‘me’.”

If we look at some of the employment related disputes that have escalated and caused serious disruption to the activities of certain sections of our society, in the recent past, it is evident that refusal to understand the other party and appreciating their concerns have been the root causes of the dispute.

We will not be able to cultivate such a culture of understanding and empathy so long as we promote confrontational and adversarial reforms to labour laws.




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