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Employers engaged in anti-union activities, unfair labour practices *Draft national policy addresses archaic labour laws, but employers seen violating labour rights



While there is a need to reform archaic labour laws, enforcement must be strengthened as a matter of priority as workers are increasingly being discouraged from forming trade unions with employers resorting to anti-union activities and unfair labour practices, especially in the export processing zones, while threats to employment surface in the economy, a draft policy document spearheaded by the Senior Ministers’ Secretariat says.

The second draft of the proposed ‘National Policy on Human Resources and Employment’ was shared with a wide-range of stakeholders last week.

“There is a declining trend in unionization in Sri Lanka as it is with other countries of the region. The main contributory factor may be the loss of bargaining strength by trade unions,” the draft said.

“Export Processing Zones (EPZ) in the country belongs to special category in this regard. In these Zones the allegation is levelled against employers that they discourage the formation and functioning of trade unions within these Zones, but encourage promotion of Employees’ Councils,” it said.

Social dialogue institutions and labour relations constitute a vital component of any human resources and employment policy providing the necessary human centric components. These institutions are responsible for maintenance of industrial and labour relations.

A contended labour force enjoying a decent work environment with sound labour relations geared to productive employment is what these institutions are expected to produce. The work-place co-operation will create a healthy environment for social dialogue institutions. And in this regard the management of enterprises should engage in periodical dialogues with trade unions and other worker organisations to resolve outstanding issues and differences of opinion in a friendly atmosphere, before such issues lead to disputes requiring intervention of authorities.

The draft policy document made the following observations and recommendations.

“Employers sometimes take anti trade union action and resort to unfair labour practices. The enforcement of law in this regard needs to be strengthened and accelerated. Unfair labour practices ought to be corrected with tripartite consultation in the National Labour Advisory Council. By enacting the Trade Union Ordinance in 1935 and implementing the law todate shows that the governments in succession have recognized the trade union as a legally constituted democratic institution of the workers. All sectors, the government, public corporations and the private sector should recognize and respect the status accorded to trade unions legally. Unfair labour practices should be adequately dealt with under the law.

“The employer and the Trade Unions or organizations of workers should endeavour to maintain cordial labour relations at all levels. The recognition of trade unions or worker organizations is vital although there is no general provision in labour Law granting recognition to these organizations. However, the Industrial Disputes Act for the purpose of collective bargaining stipulates that a trade union having 40 percent of membership at the work-place ought to be recognised for collective bargaining purposes. Nevertheless to maintain cordial labour relations and work-place co-operation the employer should encourage collective bargaining even with trade unions with less than 40 percent membership.

“Labour relations concerning vulnerable segments, e.g.poor and unskilled women, young persons, disabled and sick persons in employment and domestic workers need to be protected. Their interests ought to be looked after in terms of statutory provisions.

“The employers in EPZs will be encouraged to permit freedom of association among workers. They need to respect trade unions and their functioning must be allowed as the trade union is the legally recognized social dialogue institution for workers. The Department of Labour, as the supervisory and implementing authority, will grant the certificate for collective bargaining for trade unions having40 percent of membership, and also initiate action against the violators of unfair labour practices. The BOI also would strengthen the facilities accorded to workers and trade union leaders to meet and discuss matters pertaining to trade unions freely and in privacy.

“Many priority issues concerning labour relations are under discussion. Of these, the need for establishing a “Pension Scheme” and an “Insurance Scheme” (to cover health and accidents) for the private sector including the public corporation sector ishighlighted. Despite many constraints in the establishment of such contributory schemes, it is inevitable to establish them in the light of growing demand with theageing of the population in the country. As the initial step the scheme may be of voluntary nature.

“Certain threats to security of employment have surfaced. Out-sourcing and contract labour practices result in downsizing of the numbers of workers in regular employment. While noting that this type of business innovations exists, measures will be taken to provide security of employment to existing workers. Retraining for alternative employment will be encouraged to help those workers who lose jobs in this process.

“In the modern context different types of employment prevail in the country – part time work, working from home, working on assignment basis etc. These can be accommodated within the contract of employment as agreed, between the employer and the employee.

“A general criticism is that Sri Lanka’s labour and social legislation is rigid in nature. The legal provisions relating to labour and employment are said to be complex and extensive. A recent global survey has indicated that Sri Lanka ranks as a country with a high level of employment “rigidity” (IBRD/World Bank, 2005).

“In this scenario increasing flexibility of labour laws and regulations is essential. However this requires a detailed study at the tripartite forum, NLAC and may embark on such a move preferably reaching a consensus among the employees (trade unions), employers and the government. By identifying all provisions that appear to be rigid such as, provisions restricting five-day week, restriction of night work after 8.00 p.m. particularly for business process outsourcing (BPO) and other areas, the related statutory provisions may be relaxed. In doing so, basic standards set out in ratified ILO Conventions will be adhered to.

“In the event of breakdown of industrial relations, leading to industrial disputes, the Commissioner General of Labour will initiate steps to settle the disputes concerned in terms of statutory provisions. Analternative dispute settlement mechanism isavailable in the Industrial Disputes Act. Except for conciliation, however, all the other procedures laid down in the Act are time consuming and result in delayed relief or redress granted to workers. Identifying these drawbacks the mechanisms have to be strengthened statutorily and by other means.

“Strengthening of the National Labour Advisory Council – the most effective tripartite forum –will facilitate building of tripartite consultation at national level. This forum need to be streamlined, as the apex body to decide the labour policy and the mechanism to review, modify and re-frame the labour policy of the country. However the district level tripartite consultation forum now available will bestrengthened to facilitate freedom of association and to extend labour relations beyond enterprise level.

“The worker training programmes, at present now mostly centralized, will be decentralized and expanded to cater to workers, management representatives and to officials dealing with labour matters. In this regard, the Department of Labour, National Institute of Labour Studies and the National Institute of Occupational Safety and Health would conduct collaborative training programmes for different sectors.

“Social dialogue for public sector employees will be strengthened in parallel with that for private sector employees. A critical review could identify the constraints in unionization of the public sector, in respect of matter such as formation, membership, qualification, affiliation and federation. Action will be taken to relax the existing rigidities. A national level Committee appointed for this purpose could undertake this task and recommend to the Government, having called for the views of the general public, public officers and other organizations, how best the rigid provisions could be relaxed in the Trade Unions Ordinance,” the draft policy document says.

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