My article urging the authorities to bring our law in line with the National Workers’ Charter and ILO Conventions has evoked a response from Mr. Ravi Peiris, Director-General, Employers’ Federation of Ceylon.
 ( Business Times 24/04/2011). The provocation to reply is understandable but the query, more regulation of employment requires an answer as the bitter experience of labour in the country despite what Mr. R.P. calls ‘rigid labour framework’ is that employers will go to any extent to have a free field in employment relations.
With the opening of the economy ushered in 1977 the proliferation of industries both in and outside the Free Trade Zones has seen their employers generally acting oblivious to the basic labour laws of the country. I believe it is apposite to mention here that the original bill seeking to establish FTZs excluded the operation of all important labour laws in the FTZs. It was the sharp eye of Batty Weerakoon, the then General Secretary of the CFL and the legal prowess of Dr. Colvin R de Silva who petitioned the then Constitutional Court that thwarted the reactionary anti-labour moves of the authorities. But to this day worker unrest prevails principally fuelled by intransigent employers chasing after profit at the expense of workers rights and interests.
Adversarial I.R.
Mr. R.P begins his litany of worries by stating that ‘Sri Lanka’s industrial relations have been historically adversarial’ without telling us the factors that brought about that situation. Adversarial behaviour stems from the society we all live in, that breeds antagonistic relations due to socio economic factors and the subjection to the pulls and pressures at the workplace meant to meet the rigours of competitiveness and productivity through arbitrarily fixed work norms, compulsorily extended work time, extended shift work, denial of productivity gains and generally low level of living wages and the hierarchical anti worker attitude of employers.
All these contribute towards the psychological make up of workers and, all of which have a bearing on the approach, attitude and orientation of unions. Mr. R.P. also complains about the surfeit of labour laws and believes that regulation will not foster good industrial relations. Considering that the larger part of our population spends a greater part of their lives at the workplace the necessity for establishing and maintaining healthy industrial relations cannot be overemphasized. Here the power equation at the workplace is a decisive factor. It is this consideration that compels the authorities to come forward to protect labour as the weaker element in society. People living or working together are bound to have conflicting interests.
The worker is primarily concerned with what he can earn and the employer with what he can produce as cheaply as possible to obtain the best possible profit. This conflicting interest calls for regulation and the state is compelled to step in to regulate relations between employers and employees. Mr. R.P appears to be a traditionalist on these matters. Traditional theory worked upon such matters as collective bargaining and terms and conditions of employment as subjects which should be left to the parties themselves to sort out with as little regulation as possible.
This is typical laissez –faire attitude that leads to injustice as the power relationship between trade unions of workers and employers is not the same. In addition, our country’s paternal attitude of employers and their reluctance to deal with unions have resulted in collective bargaining being few and far between. Hence the state has to take necessary legal measures to promote collective bargaining and, Act No. 56 of 1999 was one such measure. Mr. R.P. faults the Industrial Disputes (Amendment) Act No. 56 of 1999 as discriminatory against employers and in contravention of ILO Convention No. 87 and No. 98. This is further from the truth, to say the least.
Union recognition
To have a proper understanding of the issues raised by Mr. R.P. it is necessary, at least in brief, to trace the genesis of the Industrial Disputes (Amendment) Act No. 56 of 1999. The story begins in the year 1991 with employees in Simca Garments joining the CMU and the employer taking up the position that although workers had the legal right to join a union that there was no law requiring employers to recognise and deal with a union. The dispute had reverberations in the US Trade Policy Staff Committee which was petitioned by International Labour Rights Education and Research Fund to review the eligibility of Sri Lanka as a beneficiary under the GSP scheme. A complaint to the ILO was lodged by the Industrial Textile, Garments and Leather Workers Federation (ITGWTUF) and the Industrial Food and Allied Workers (IUF) on violation of basic worker rights in Sri Lanka ( Case No. 1624). As a result, the then government set about to rectify matters. A Cabinet Memorandum (No. 27/93) submitted by the then Labour Minister stated to the Cabinet of Ministers ;
“03. The Committee of Experts of Governing Body of the ILO requires the Government of Sri Lanka to take appropriate measures by means of legislation with dissuasive sanction so as to ensure that workers can exercise their trade union right without fear of anti- trade union reprisals” (my emphasis).
The Minister also sought approval to have a special chapter on unfair labour practices introduced as an amendment to the I.D. Act and to provide that any unfair labour practice be deemed to be an offence under the I.D. Act. The unfair labour practices were enumerated in 05 of the Cabinet Memorandum and it included refusal to ‘bargain collectively with a trade union which has in its membership not less than 40% of workmen in respect of whom such trade union seeks to bargain”. Nothing moved thereafter until Batty Weerakoon who became a member of Parliament in 1994 brought a private member’s bill in Parliament to amend the I.D. Act. The action taken by the then Minister of Labour thereafter resulted in the enactment of amendment No.56 of 1999 which, in the opinion of Mr. R.P. is inconsistent with ILO Conventions. The ILO was well aware of the provisions of Act. No. 56 of 1999 throughout its formulation and had given its tacit approval to the chapter on unfair labour practices. In one of its observations published in 2002 ( Document No. iloex) 062002 LKA098) the Committee Of Experts Observes … “ The Committee notes with satisfaction that by virtue of Sec. 32A of the Industrial Disputes ( Amendment ) Act No. 56 of 1999 workers are protected against acts of anti-union discrimination in taking up employment and in the course of employment. The Committee also notes that Sec. 32A (e) of the Act prohibits employers from interfering in the activities of a trade union. Furthermore under section 40(1) (1A) of the Act, any person who commits an act of anti union discrimination or an act of interference may be imposed a fine up to 20,000 rupees” (My emphasis). From this it is clear that the ILO had followed closely the entire process up to the enactment of Act No.56 of 1999. In the light of the above Mr. R.P.’s assertion appears hollow.
Collective bargaining
Now, let us deal with the question he raises about collective bargaining. In my article I took up the position that refusal to deal with a trade union that makes representation regarding a worker or workers either individually or collectively who is / are member/s of such trade union on matters concerning their members is made an offence.
I.D. (Amendment) Act No. 56 of 1999, according to Mr. R.P., makes Collective Bargaining mandatory with a union having more than 40% membership and this provision contravenes ILO Conventions. My Colleague D.W. Subasinghe brought to my attention an interesting case (No. 2149) in which the Employers’ Confederation of Romania has complained to the ILO against violation of collective bargaining rights by the Government of Romania.
The complaint alleges that the Collective Agreement Act No. 143 of 1997 (of Romania) infringes its rights to voluntary negotiations as guaranteed by article 4 of ILO Convention No.98 and freedom of association principles. Section 1 of the Act 143 provide that: Collective negotiations are obligatory at the enterprise level with the exception of those with less than 21 employees; collective negotiations must occur every year; and that the scope of the negotiations must include, at least wages, working time, work programme and working conditions. The duration of negotiation cannot last more than 60 days. Violation of these provisions results in a fine between 3 million and 6 million in Romanian currency.
The Government of Romania confirmed the above position of the employers and stated in reply that the deadline for concluding negotiations was set with the aim of avoiding vacillation and delays and the Act in no way constitutes a violation of ILO C.98 and to the contrary, is a concrete legal framework for regulating collective bargaining with the aim of eliminating any risk of abuse either on the part of the workers organisation or by the employer or employers’ organisation. Romania further stated that the legislation does not oblige any one to conclude a collective agreement. The parties can take up negotiations again 12 months after the date of the previous unsuccessful negotiation.
The ILO Committee of Experts on the Application of Conventions and Recommendations having gone into the complaint of the Employers Confederation of Romania emphasized that the particular legislation in question does not oblige the conclusion of a collective agreement. It went on to state
“ several other industrial relations system around the world compel in varying circumstances the entering into of negotiations with, as the government of Romania has indicated in the present case, the aim of promoting healthy and harmonious labour relations by providing a period for negotiations between the social partners in a period absent of industrial unrest. Neither these systems nor the legislation in Romania, has been commented upon by the Committee of Experts as giving rise to violation of Convention No.98. The Committee considers that Article 4 of Convention No. 98 in no way places a duty on the government to enforce collective bargaining, nor would it be contrary to this provision to oblige social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery to enter into negotiations on terms and conditions of employment…...” (Report No. 328 of 2007)
Our own Committee of Inquiry into the Law and Practice of the Trade Unions Ordinance (1968) recommended that provision be made making it compulsory for an employer to recognise and negotiate with any registered trade union which makes representation of a general nature in respect of its members provided that it has a membership of at least 33% of the workforce in any particular workplace.
The Industrial Disputes Commission of 1966-69 argued that refusal to bargain collectively with a union, which has in its membership 51% of the workforce be made an unfair labour practice.
All these recommendations seek to enjoin employers to recognise representative unions. The Industrial Disputes (Amendment) Act No. 56 of 1999 in 32 A (g) states no employer shall ‘refuse to bargain with a trade union which has in its membership not less than 40 % of the workmen on whose behalf such trade union seeks to bargain’. This amendment does not go so far as the Romania law but it has earned the ire of the employers in the country whom Mr. R.P. gives leadership.
Workers Representatives C.135
Mr. R.P. also asserts that (I.D. Amendment) No. 56 of 1999 only envisages trade unions and therefore is not consistent with ILO C.87 and C.135. C.135 he refers to is Workers Representatives Convention. Mr. R.P. seems to have missed the wood for the trees in this instance. C.135 is intended to extend the protection granted in Conventions No. 87 and No. 98 to worker representatives. Who are workers representatives? In answering and elaborating this question, Ms. Marleen Rueda, Senior Social Dialogue and Labour Administration Specialist, ILO – SRD, Delhi made the following points during her presentation at a workshop conducted for members of the National Labour Advisory Council which Mr. R.P. and I had the occasion to attend:
Workers representative means – representatives that are freely elected by trade unions or by members of such unions. Representatives that are freely elected by the workers of an undertaking in accordance of provisions of national law or regulations or collective agreements and whose functions do not include activities which are recognised as the exclusive prerogative of trade unions in the country concerned .
When a representative trade union exists and functions in the enterprise allowing other workers representatives to bargain collectively could not only undermine the position of the trade union concerned but also infringe upon its collective bargaining rights.
Legislative or other measures have to be taken in order to ensure that organisations that are separate from trade unions do not assume responsibility for trade union activities and to ensure effective protection against all forms of anti- union discrimination.
Marleen also referred to comments made by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) – relating to Sri Lanka which stated that the government should amend the BOI guidelines so as to ensure that when trade union and elected representatives exist in an undertaking either inside or outside EPZs all trade unions regardless of representativeness requirement are adequately protected in accordance of the terms of Article 5 of C.135.
The Workers’ Representatives Convention No.135 and the Collective Bargaining Convention No.154 contain explicit provisions guaranteeing that where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade union concerned. (Case No. 1459 -259 Report of the Freedom of Association Committee of the Governing Body of the ILO)in the publication Collective Bargaining: ILO standards and Principles of the Supervisory Bodies in the summary it is stated:
“B. Collective Bargaining is a right of employers and their organisations, on the one hand, and organisations of workers, on the other hand (First Level Trade Unions, federations and confederations): only in the absence of these latter organisation may representatives of the workers concerned conclude collective agreements” (My emphasis)
In the same publication it is stated on p.13 “ The preparatory work for the Collective Agreements Recommendation No. 91 (1951) shows that the possibility for representatives of workers to conclude collective agreements in the absence of one or various representative organisations of workers is envisaged in the Recommendation “taking into account the position of those countries in which trade union organisations have not yet reached a sufficient degree of development and in order to enable the principles laid down in the Recommendation to be implemented in such countries ” ( My emphasis ).
The trade union movement in our country is over 100 years old and the reality is that whatever may be our individual preferences, our trade union movement has stood the test of the times. In that situation to entertain the idea of promoting worker representative councils in lieu of trade unions is akin to putting the clock back with consequences that will not augur well for harmonious industrial relations in the country. It is well to remember that the local situation will not permit such a retrograde step.
I believe that Mr. R.P. is well aware that organisations such as the World Bank has decided that the labour market flexibility indicator of its highest circulation publication, Doing Business would not be considered as a criterion for loan conditionality and would no longer be used in the Bank’s strategies or policy advice. The decision follows years of trade unions campaigning against the indicators. The World Bank announced that the present global economic impasse justified going beyond a focus on the “business climate” and paying more attention to “issues as diverse as political stability, social safety nets to shield vulnerable part of society from intolerable levels of risk and protection of rights for workers and households.”
The ‘Doing Business’ methodology granted the highest scores to countries with the least regulations and encouraged them to engage in the ‘de-regulation experiences’ by following countries that were notorious violators of workers–rights. It is significant that an institution like the Work Bank has turned the page on a one-sided de-regulatory view on labour issues.
(The writer is a member of the National Labour Advisory Council (NLAC) General Secretary - National Association for Trade Union Research & Education). |
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