The Sundaytimes Sri Lanka

Employers’ group challenges sanctity of interpretations by the ILO committee of experts


In a statement issued a few days ago to the International Labour Conference Committee on the Application of Standards (CAS), the International Organisation of Employers’ (IOE), has categorically reiterated its position that the Committee of Experts did not have a mandate to interpret international labour standards. This statement was precipitated by the Committee of Experts’ General Survey, under discussion in the CAS, on the eight Core Conventions of the ILO.

File photo shows trade union groups holding a pre-budget protest at Lipton’s Circus last year. Pix by Nilan Maligaspe

A matter of special concern was the interpretation on the right to strike given by the Committee of Experts. This is obviously a matter for Sri Lanka to be concerned as well.It should be noted that in the ILO Constitution in Article 3 a guideline is provided for the framing of Conventions and Recommendations that national conditions should be kept in mind.

The conditions mentioned are: climatic, imperfect development of industrial organization, or ‘other special circumstances which make industrial conditions substantially different’. This is why many Conventions refer to the application of Conventions ‘subject to national law and conditions’ Interestingly, the Convention on the Right to Organize and Bargain Collectively (No.98) in Article 3 states that: “machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in the preceding articles”.

Employers have argued for long that the right to strike must be considered in a national context. The national situation must be taken account of in deciding how the right could be exercised. Convention 87, which gives the Right to Associate Freely, and which is considered a fundamental right, does not speak of the right to strike. The Convention is silent on the right to strike.

The IOE maintains that the mandate of the Committee of Experts does not give it authority to express a view which is binding as an interpretation of the Convention. Employers called for official clarification of the status of the Committee of Experts’ report, and for reaffirmation of the mandate of the Committee at its creation in 1926 as having: “no judicial capacity, nor would it be competent to give interpretations of the provisions of a Convention nor to decide in favour of one interpretation rather than of another.” The employers called for an official clarification in relation to the authority of the Committee of Experts, which request, was regrettably rejected.

This we find led to the employers not being able to agree, to a list of cases to be examined. The IOE has stated that it remains committed to its participation in the ILO’s supervisory system and has expressed willingness to resuming constructive tripartite work once this impasse is cleared.

To us in Sri Lanka the situation in Geneva is of serious concern as the word ‘strike’ has been interpreted very liberally in the past by the Committee of Experts.  The Committee of Experts has extended the use of the word ‘strike’ to  include other forms of trade union action such as work to rule, sick note campaigns and go slows. However the ILO interpretations confirm that during a strike wages are not payable which then begs the question of how one determines the rate of pay to a person who is on a ‘go slow’? Does it then mean that a person on a ‘go slow’ forfeits his/her whole pay? A sick note and a work to rule are also not strictly regarded as strikes as pointed out in my book on Employee Relations in Sri Lanka.

S.R. de Silva [Transformation of Labour Law & Relations, Stamford Lake  2004 – See pg 566]  examines the sanctity of the opinions given by the Committee of Experts and the Committee of the Freedom of Association and points out that the case law of the ILO has only moral authority and is not legally binding on member states. He points out that a finding of the International Court of Justice would have a different impact.

He cites the case of the Federation of Offshore Workers Trade Unions and the Norwegian State, where the Supreme Court held that the nation was not bound by the interpretations of the Conventions given by these Committees but would be, only if in terms of Art 37 of the ILO Constitution, if the decision was made by the International Commission of Jurists (ICJ). He cites the case of the Federation of Offshore Workers Trade Unions and the Norwegian State, where the Supreme Court held that the nation was not bound by the interpretations of the Conventions alone. It is also useful to note that in some countries it has been clearly held that the fundamental right to the freedom of association gave the right to freedom of assembly but not the right to strike which could be curtailed. In Collymore vs Attorney General, the Privy Council held that under the Constitution of Trinidad the legislation which prevented strikes and lockouts and imposed compulsory arbitration was not in violation of the freedom of assembly guaranteed under the said constitution. The Indian Courts have taken a similar view in holding that the constitutional right to form associations or unions did not include the right to collective bargaining or to strike.

The Supervisory bodies of the ILO recognize the distinction between the Freedom to Associate for Public Servants and the Right to Strike [See ILO Principles concerning the Right to Strike, Gernogon -2000]. The Committee on Freedom of Association and the Committee of Experts agree that when public servants are not granted the right to strike, they should enjoy sufficient guarantees to protect their interest, including appropriate, impartial and prompt conciliation, and arbitration procedures; to ensure that all parties participate at all stages, and in which arbitration decisions are binding on both parties and are fully and promptly applied.

Where they are excluded from the right to strike it should be on the basis of objective standards adopted of the nature of the functions performed. Categories which are usually associated with valid restrictions are officers belonging to ministries, comparable government bodies, those belonging to the system of the administration of justice and staff of the judiciary.The Committee of Experts has defined an Essential Service as “the interruption of which, would endanger the life, personal safety or health of the whole or part of the population”
The Committee recognizes that what is essential in particular circumstances prevailing in a country need to be borne in mind.

It also recognizes that what is not “Essential” may become so beyond a certain time or where it extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. It is surprising that the lapse of time is necessary for the rule to be brought into play as a situation of future impact of such a nature should also be given recognition. It also does not provide for situations of danger to individuals.

A general prohibition is permissible in the event of a national emergency, according to the Committee. The limitation must be for a limited time and to the extent needed to meet the requirements of the situation. Serious conflict, insurrection or natural disaster, are some such situations.

The ILO appears to accept the requirements of minimum services in sectors where the safety of persons, the prevention of accidents and the safety of machinery and equipment is involved. If there is a disagreement with regard to numbers required or the nature of the duties, the legislation of the country should provide for the dispute to be settled by an independent body other than the Ministry of Labour or Public Service.

The Indian Supreme Court in a petition brought by Public Sector Employees in the State of Tamil Nadu held that in India there was no fundamental right to strike. This decision was in accordance with a long line of authorities in India commencing from 1960. It is interesting that the principle followed was that each person’s fundamental right (freedom to associate in this instance) cannot be exercised to the detriment of the fundamental rights of others. In Sri Lanka as pointed out by in my book, the employer has a guaranteed constitutional right to pursue his business without interference.

Strikes in Sri Lanka  
A legal strike could take place even in the absence of a dispute and there is no requirement to give prior notice. It only requires an ‘acting in concert’, or in combination, or by common understanding. A spontaneous action by a group of workers to down tools would be a strike, whether they belong to a union or not. A strike would be illegal if it is in violation of an Essential Service Order under the Public Security Ordinance or the Industrial Disputes Act, or is in violation of a Collective Agreement, Award, Order or Settlement in terms of the Industrial Disputes Act. A strike is also illegal if it is during the pendency of an arbitration or industrial court reference.

Decision of the Supreme Court
The case of the Joint Apparel Association Forum (JAAF), et al vs. SLPA, JSS et al.  SC (FR) Application no.248/06 is worth examining as we should regard the judgment as a clear pronouncement of the law regarding ‘go slows’ in Sri Lanka.  JAAF, consisting of 90% of the apparel exporters in the country, pleaded that they were the mainstay of the economy in that their export amounted to a billion rupees per day and that from the 13th July 2006 there had been a go slow in the Port of Colombo called by the unions named as respondents, because they had a dispute regarding their wages with the Sri Lanka Ports Authority (SLPA), the employer. The efficiency of the port had dropped to below 60%, it was alleged.

The petition alleged that the loss was to the national economy, in addition to the loss to the members of the JAAF and would have an impact on the earnings of workers employed in the factories. Although no reference seems to have been made to this fact, another important consideration was that perhaps the late deliveries of goods under order could also have had the consequence of cancellations in the future, since delivery on time is a sacred obligation. This could have had serious implications for the economy of the country.

The Court permitted the petitioners to proceed with the application for relief on the ground that the action of the unions was an infringement of the fundamental rights of the members of the JAAF as guaranteed by Articles 12(1) and 14(1)(g) of the Costitution.
The Court accepted the contention of the petitioners that irreparable loss was being caused by the day and there was justification for granting an interim injunction restraining the ‘go slow’ until the determination of the case.

The Court accepted that ‘go slow’ was not legitimate trade union action and was as described by an Indian Court a ‘pernicious practice’ of deliberately slowing down production. The Court stated that this amounted to misconduct and an unfair labour practice.The order of the Supreme Court was reported to the ILO by the International Textile, Garment and Leather Workers Federation (ITGLWF) and the International Transport Workers Federation (ITF) in a communication dated the 27th September 2006.

The ILO took up the complaint through its Committee on Freedom of Association in Case no.2519 and the report is now contained in the 348th Report of the Committee.  The Committee in its report notes that the unions did not seem to contest that ‘go slow’ would amount to misconduct warranting disciplinary action, but at paragraph 1143 gives its conclusion that:  “ 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 (wildcat strikes, tools down, go slow, work too rule and sit down strikes) fall within the scope of this principle: restrictions regarding these various types of action may be justified only if the strike ceases to  be peaceful.”

When one reads the statement carefully, it seems as if the Committee is saying that the ‘illegality’ is not an issue and the only issue is whether it is a ‘go slow’ which then legitimizes the conduct which becomes prohibited only if it ceases to be peaceful! What if the ‘sit in’ which is referred to by them as acceptable means that all other employees are prevented from leaving the premises? Unless it leads to violence on the part of those confined, the Committee would approve of the sit in although it is a criminal offence, being wrongful restraint? A ‘go slow’ which results in materials perishing cannot also be prevented? In some industries unless a process is continued in a systematic, uninterrupted run, the machinery may be ruined as in the case of rubber and plastics.

Our Courts have shown that they would intervene in the best interests of the economy or where social tensions may develop. The possibility of the Supreme Court examining an issue when there is a breach of the fundamental rights of an employer is also underscored by this ruling. The Employers Federation of Ceylon (EFC) through its Director General Ravi Pieris has apprised the ILO of the position in Sri Lanka and supported the position of the IOE.

(The writer is a former  EFC Director General)

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