Sri Lanka has come under close scrutiny on the implementation of internationally recognised core labour standards particularly in relation to ILO C.87 (Freedom of Association and Protection of the Right to Organise) of 1948 adopted by Sri Lanka in 1995 and C. 98 of 1948 (The Right to organise and Collective Bargaining ratified by Sri Lanka in 1972).
The Workers Charter promulgated by the then Head of State Chandrika Kumaratunga on September 2, 1995 as state policy in the field of labour and labour relations states in its preamble that Sri Lanka is committed to the ideals enshrined in the declarationof Philadelphia in 1944 and to Conventions and Recommendations adopted by the ILO. It provides, in categorical terms, in Part 1 of the Workers Charter provisions relating to “Basic Human Rights, Freedom of Association and the Right to Organise and Bargaining Collectively.” The incumbent President Mahinda Rajapaksa played a pivotal role as the then Minister of Labour and Vocational Training in the preparation of the National Workers Charter.
The Industrial Disputes (Amendment) Act No.56 of 1999 was specially intended to give effect to the aforementioned provision in the Workers Charter. In its working it has now been realised that Act No. 56 of 1999 falls short of the original expectations of the framers to meet the requirements contained in ILO Conventions No.87 and No.98 and the National Workers Charter. Hence, the unions in the NLAC are engaged in the exercise to revisit and revise I.D. (Amendment) Act No. 56 of 1999 to bring it in line with the requirements mentioned above. It is the considered opinion of the writer that no amount of tinkering with the present legislation will produce the desired result. What is really needed is the complete repeal of Act No. 56 of 1999 and its replacement with a new law that will be consistent with the National Workers’ Charter and ILO Conventions: C 87 and C 98.
New Act needed
The new Act may be enacted as a separate amendment to the I.D. Act of 1950 or as a separate piece of legislation incorporating provisions dealing with Recognition of Trade Union, Anti trade union discrimination and the Right to Organise and Bargain Collectively, giving effect to the National Workers Charter and international conventions on labour mentioned above.
Sri Lanka’s Constitution guarantees the unfettered right to belong to a union under Article 14 (1) (c) and (d). The Trade Union Ordinance of 1935 allows seven or more persons to form a union, frame its own rules and elect leaders. However, the right does not require the employer to recognise the union within his establishment. The functioning or the existence of a union in a workplace is rendered redundant without the employer being required to accord recognition to the union at his workplace.
The role of the trade union is to represent employees who are its members and to protect, safeguard and advance their interests in respect of matters arising from employment with security of employment, rights and economic issues. Union recognition must proceed by the employer accepting the right of the trade union to raise such issues with him.
Employers find ingenious ways and methods not to tolerate unions in their establishments. They resort to means fair and foul to scuttle union formation. Some employers have earned international notoriety and condemnation for their anti-trade union attitude. The government is held responsible for the misdemeanors of private employers. Such a situation cannot be allowed to continue. Beside revamping the law enforcement machinery of the Department of Labour it is necessary through new legislation to give effect to the provisions in the National Workers’ Charter and the ILO Conventions ratified by Sri Lanka by prohibiting any act intended or calculated to deny the existence of a trade union and accord such trade union recognition and deal with it on matters pertaining to its members’ needs and interests.
Recognising TUs
The Employers’ Federation of Ceylon has adopted 40 % as the minimum strength required to recognise a union as a bargaining agent. The EFC contends that the 40 % rule prevents multiplicity of unions in a workplace. Many years ago after the land reforms the Ministry of Plantation Industry recognised unions irrespective of the number of members they had. Later, when the Ministry sought to change the system to a minimum percentage of 25 % a union challenged it in the Supreme Court and the SC held that the decision to fix 25 % was arbitrary and disallowed it. Earlier, the Labour Department and the courts have ruled that a dispute in relation to union recognition does not fall within the purview of an industrial dispute under Act No. 43 of 1950.
The matter is being recanvassed by the authorities under the provisions of Act No.56 of 1999 and it is learnt that two cases have already been filed against errant employers. There is a ILO ruling that 40 % threshold is excessive and this should be lowered to 25 %. It is also the opinion of the ILO that the rights of workers to establish organisations of their own choosing implies in particular the effective possibility to create more than one workers’ organisation per enterprise and any provision of a law which does not authorise the establishment of a second union in an enterprise fails to comply with Article 2 of Convention 87. The ILO further states” while it is generally to the advantage of workers to avoid the multiplicity of trade unions, unification of the trade union movement imposed through state intervention by legislative, means runs counter to the principles embodied in Articles 2 and 11 of Convention 87.”
The National Workers Charter stipulates no percentage requirement for recognition of trade unions. In Part 1 it is stated that “The state shall-
(a) Guarantee and protect the right of workmen to form and join Trade Unions, and to organise and bargain collectively.
(b) Ensure that employers recognise Trade Unions and deal with them on matters pertaining to their members”
The position being so, it is recommended that refusal to recognise and deal with a trade union that makes representations regarding a worker or workers either individually or collectively who is/are member/s of such trade union on matters concerning their members be made an offence.
Employers are also well known for their exercise of undue influence on workers to wean them away from trade unions that protect their interests. It is necessary to provide adequate protection for workers in line with Part 1 (a) above.
Some protection is found in the current I.D. (Amendment) Act No.56 of 1999 and may be included in the new legislation with further addition that no employer shall prevent, deter or dissuade a worker from forming, joining, being a member of a trade union, or representing a trade union or for doing any lawful act as a member, representative and / or as an official of a trade union. The Act No.56 of 1999 lists only open and blatantly discriminatory acts of employers as unfair labour practices. It is necessary to bring more clear and explicit provisions for recognition of trade unions and also to establish the right of trade unions irrespective of whether they have 40% membership or not to enter into collective bargaining negotiations with the employer on behalf of employees whom it seeks to represent. Recognition of a trade union should entail the right of members to have their membership dues deducted from their salaries and remitted to the union concerned.
A regulation made in 1971 under the Wages Boards Ordinance by the then Minister of Labour in the SLFP-LSSP-CP united front government, the late M.P. de Z Siriwardena treated contribution or subscription to a union as authorised deduction. Presently unions in the Public Service and Plantation Sector enjoy this facility. There is no reason why a registered union in the Private Sector be denied this facility.
Penalty for non-compliance of the law by employers needs to be increased to serve as a sufficient deterrent.
Special Tribunal
Employers are bound to resist the strengthening of the rights of workers and the right of trade unions to organise and bargain collectively. The importance of efficient and rapid proceedings to reduces anti-union discrimination acts on the part of employers need to be stressed. In this regard the creation of a “rapid response” function by a special tribunal to inquire into violation of freedom of association, the rights to organise and the right to collective bargaining assumes importance as the establishment of such a mechanism would obviate the necessity for unions to takes up unresolved disputes in forms outside the country.
State obligation
The Supreme Court has held principles of ILO Conventions No.87 and No. 98 inadmissible in Sri Lanka as no enabling laws exist guaranteeing the principles of the mentioned ILO Conventions. This vacuum in law has to filled if rights of workers and trade union are to be protected.
It is also necessary that the government issue a statement to clarify that the full exercise of the rights recognised by ILO Conventions ratified by Sri Lanka is in accordance with the country’s constitution and that there is nothing that can be construed impeding the full exercise of such rights.
(The writer is also Member, National Labour Advisory Council -NLAC-)
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