2012 Annual Survey of Violations of Trade Union Rights - Sri Lanka

Population: 20,800,000
Capital: Colombo

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Murders: 1
Injuries: 285
Arrests: 21
Dismissals: 33

Documented violations – actual number of cases may be higher

Introduction

Violations of trade union rights continue, particularly in the export processing zones. In May, the police harshly repressed a workers' demonstration, leaving one person dead and 270 injured.

Background

The government ended the State of Emergency that had been in force for nearly 30 years, but the legislation and other measures still give the police excessive powers of detention. Thousands of people are still being held without trial, often for years. Human rights activists who denounce the violations committed during and after the civil war continue to be the victims of assassinations, threats, attacks or long prison sentences. Power is being concentrated more and more in the hands of the friends and family of President Rajapaksa. Sri Lanka has one of the worst records in the world for violating freedom of the press.

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".

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

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.

EPZs – A long tradition of anti-unionism: 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. In addition, new workers, often women, are warned not to join unions. Union activists not employed by one of the firms operating in an EPZ are not allowed to access the zone unless their entry is expressly authorised by the employer. This ban is one of the main barriers to organising in the EPZs.

Derisory fines: The maximum fine for employers found guilty of anti-union discrimination is 20,000 rupees (around USD 174), which is far too little to be dissuasive.

Poor enforcement of legislation on union recognition:

The recognition of unions for collective bargaining purposes is hindered by excessive delays. Employers try to delay the holding of union elections for as long as possible and use this time to identify, victimise and, very often, fire the union activists concerned. As a result, workers generally refrain from voting, for fear of being identified, and the union fails to secure the number of votes required for it to be recognised. Employers go as far as to change their staffing figures to ensure the 40% representation target (deemed excessive by the ILO) is even harder to reach.

Where an employer refuses to recognise a union for collective bargaining purposes, the union can complain to the Commissioner General of Labour, who organises a referendum at the workplace. There is generally a very long wait, however, before such a referendum is actually held.

Unions denied access to Magistrates' Courts: There are many cases of anti-union discrimination. As with other unfair labour practices, such cases are heard by the Magistrates' Court, but only the Commissioner General of Labour can file a complaint with it. Trade unions can try to obtain a summons from a higher court, but this is a long and costly procedure. In the absence of a maximum deadline for bringing cases before the Magistrates' Court as of the moment a union reports a violation, the legislation on unfair labour practices serves little real purpose. The Commissioner General of Labour has only filed two cases since 1999.

Poor rights enforcement in export processing zones: Labour inspection labour inspection An authority responsible for ensuring compliance with labour laws and legal provisions relating to protection of workers through the inspection of workplaces. is clearly inadequate in the Export Processing Zones (EPZs), as government inspectors are not allowed to carry out unannounced visits to EPZ factories. In addition, when complaints are received by the competent government body, employers rarely turn up to the hearings, and, when they do so, they often flout the rulings with impunity. The government has proved incapable of enforcing these rulings.

Employees' Councils:

Employees' Councils are promoted by the Board of Investment (BIO) as a substitute for trade unions in the export processing zones (EPZs). Employees' councils are, however, 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 elect their leaders and can act independently as the organisation is financed by the dues paid by its members). 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 do not join a union and threaten them if they do.

A study by the ITGLWF (International Textile, Garment And Leather Workers Federation) in the export processing zones found that at least six factories in the zones banned all union representation and did not even respect the BOI guidelines on creating employees councils.

Violations

Harassment of trade union activists by Bratex:

The Bratex (pvt) Ltd. women's underwear factory, in the Katunayake export processing zone has sought in several ways to intimidate trade union activists from the Free Trade Zones and General Services Employees' Union (FTZ&GSEU).

On 11 February a strike began at the factory over pay demands. On 14 February two workers, Amal Santha and U.W. Gayan Pradeep Kumara, were accused of attacking Bratex staff. They were arrested and detained by the Katunayake police. That evening, as the workers were gathering outside the police station to demand the release of their two colleagues, police officers attacked them and arrested three more people: Asela Dharmapriya, the FTZ&GSEU representative in the Katunayake zone, Asoka Basnayake, a union member, and M. Prasad, a photographer. The latter was released after his photographs were deleted from his camera. The others were released on bail on 18 February.

From 14 February onwards, striking workers were subjected to various forms of intimidation to force them back to work, including sending police officers to their homes in cars supplied by Bratex. During the visits, the police had with them a list of 10 men workers and 10 women workers suspended by Bratex. These 20 people were members or representatives of the FTZ&GSEU. They were questioned by the police, then released on bail.

On 17 February, 33 workers affiliated to the FTZ&GSEU (including the 20 people sought by police a few days earlier) received a letter saying they were suspended on disciplinary grounds. Bratex put up their photographs at the entrance to the Katunyake zone, effectively blacklisting them. Their photographs were also sent to the zone's police.

Nurses union lodges complaint with ILO: The Government Nursing Officers Association (GNOA), the Health Services Trade Union Alliance (HSTUA), and the Trade Union Confederation (TUC) lodged a complaint with the ILO Committee on Freedom of Association. The complaint concerned the intimidation of nursing staff who had taken part in a strike in 2010 (see the 2011 edition of the Survey), the transfer of 34 GNOA activists to distant hospitals to prevent them from taking part, and the authorities' refusal release from duty the president of the GNOA, Saman Rathnapriya. He was refused release from duties at the beginning of the year, even though he had been granted it for the previous four years. The unions considered this to be an act of reprisal against the union president for his role in the strike.

One person killed and hundreds injured when police fire into crowd of workers: A coalition of 26 trade unions was formed to oppose the introduction of a pension fund bill, designed to meet one of the conditions set by the International Monetary Fund for a loan of 2.6 billion dollars to Sri Lanka. On 24 May tens of thousands of workers marched through the streets of Colombo and in the Katunayake export processing zone to protest against the bill. On 29 May, people linked to the government distributed false leaflets in the zone, claiming to be from the trade union coalition, calling for support for the bill. The following day the workers went out onto the streets in protest at this manipulation. The police used extreme violence to repress the demonstration, using automatic weapons and tear gas. A 22-year-old worker, Roshen Chanaka, was killed in the shooting which also left hundreds injured (including 15 police officers). The police then began to harass and intimidate union delegates and workers, by preventing them from leaving their factories for example and by attacking some workers as they left the zone. Women workers were humiliated by the police, and some were even struck with iron bars. Trade union offices were searched by the police, without a warrant. The police finally handed over security in the zone to the army. The head of the Sri Lankan police force resigned following this repression and two police officers were arrested. In the end the bill was withdrawn by the government.

Thugs attack teachers' demonstration: On 6 July, in Kurunegala, a peaceful demonstration by members of the Ceylon Teacher Services Union (CTSU) was attacked by about 50 yobs wielding sticks. Fifteen teachers were injured. The union believes the thugs had close links with the government.

Unions not recognised:

Once a parent union is registered, the branch unions that subsequently form are not legally required to individually register themselves with the Department of Labour. Recognition of a union at the plant or branch level is achieved when the employer recognizes and enters into collective bargaining with the plant-level and the parent union. Several companies refused to recognize plant-level unions in 2011.

Tensil Structures Pvt., Ltd. rejected the FTZ-GSEU after they discovered the union formation. The company engaged the branch union, but refused to deduct union dues from worker paychecks and to remit the dues to the FTZ-GSEU, despite the branch union specifically requesting the deduction.

At Mirrai Pvt Ltd, management intimidated the unionized workers and internally transferred the President and Assistant Secretary of the branch union from the ironing section to the sewing section of the factory (a transfer viewed as retaliatory by the union) after they were notified of the formation of the branch union.

The Progress Union was not recognized at Kinetecs, DSL Toys, Sees Lanka, Upali Garments, Mazda Plastics, Melborne Metal, and CD Packing. The National Workers Congress was not recognized at United Tobacco Processing, Sky Fan Asia, Alitex, Dainin Lanka, Brandix, Sha Lanka, and Passion Trade.

Despite the repeated failure of these companies to recognize plant and branch level unions, the government brought only two unfair labour practice cases before the Magistrate's Court. Both cases failed.

Employees councils used to frustrate unions:

Employees' councils are being promoted inside the Export Processing Zones (EPZ) as an alternative to union recognition. Management-controlled employees' councils are staffed by supervisors and office-based workers, and management sets the agendas for meetings and limits discussion of issues. The use of employees' councils to subvert the will of workers to form a union is a violation of the right to organize and bargain collectively. A number of companies are promoting employees' councils where a union is trying to register and is being unrecognized.

Mirrai Pvt., Ltd. instructed the branch union of FTZ-GSEU to go through the employees' council of the factory. Brandix continues to promote the employees' council in the Koggala EPZ even though the National Workers Congress is attempting to gain recognition. In addition, several companies are promoting employees' councils where unions are registered: Mag Pack (Pvt) Ltd. instructed the branch union of FTZ-GSEU to go through the employees' council of the factory after the branch union requested an appointment from management to discuss demands. DSL Lanka is trying to undermine Progress Union's plant-level union by establishing an employees' council. Finally, Ranmalu, Suluta, Koggala Garment, Trandsetter, Sky Sport, I.C.L., and Brooky Diamond are promoting employees' councils as an alternative to the branch level National Workers Congress unions.