Trade Union II

DOMESTIC FRAMEWORK
02.06.2023
ILOs

 At the end of the lecture, students should be able to:

 Describe the background and emergence of trade unions and the right to Free Association

 Define Trade Unions

 Describe and analyse the objectives, powers and functions of Trade Unions

 Compare the TUO with another jurisdiction (eg. Trade Union Act 2016, UK)
References

 The Function of Trade Unions K.D. EWING, Industrial Lar Journal, Vol. 34, No. 1,
March 2005
 Opportunities and Challenges in Formation and Functioning of Trade Unions in Sri
Lanka, (With Reference to ILO Convention No. 87 on Freedom of Association and
Protection of the Right to Organise and Convention No. 98 on Right to Organise and
Collective Bargaining) (2020)
 Human rights law and freedom of association: Development through ILO supervision Lee
SWEPSTON, International Labour Review, Vol. 137 (1998), No. 2
 Egalahewa on Labour Law
 Labour Law and Relations, A Human Resource Management Approach, Arosha Adikaram
 Background

 Labour unionisation grew as a response to industrialisation under a capitalist system

 Industrialisation changed the nature of work – from the worker being his own master to capital and
labour being provided by two sets of persons
 The divergent needs of the two classes inevitably led to conflict and exploitation
 At the beginning the workers took up their grievances the traditional way – King, courts and parliament.
 The dominant philosophy of laissez faire and economic liberalism prevented state interference
 Trade unions were an outcome of this system.
Birth of TUs

 In England, the combination of workers (association) was banned by law in the early
1800s.
 Due to continued pressure the Combination Laws were repealed.
 Today FOA is recognised and guaranteed as a fundamental human rights by international
law as well as by domestic constitutions.
 TU Movement in Sri Lanka

 Although the TU Ordinance was introduced in 1935, origins of trade unions go further back

 SL already had established workers associations ( Ceylon National Congress 1919, All Ceylon Trade Union Congress 1928
– they demanded the right of combination and recognition of TUs.

 During the latter part of the 1920s, due to a series of strikes, the British Governor submitted draft legislation to control Tus.

 However, a labour party was in power in the UK and the Secretary of State for the colonies were a TU leader. The draft
legislation was dismissed. They recognised the right to form TU and association and recommended legislation based on the
British Trade Union Act of 1871.
 Despite provisions such as compulsory registration and the creation of a political fund – the Trade Union Ordinance No
14 of 1935 was passed in Sri Lanka.
Trade Unions Ordinance 7

 “An ordinance to provide for the registration and control of trade unions”
 the Ordinance was an important step for trade unions in that for the first
time the right of association and the right to bargain collectively
recognized.
 Although a trade union is required to register under this statute to qualify
for the privileges and immunities available under the Act, the
qualification to do so does not make registration unduly prohibitive, as
the initial requirement for registration is only seven members
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Definition – S. 2

 What is a TU?
 According to Sydney Webb – a trade union is a “continuous association of wage earners
for the purpose of maintaining or improving the conditions of their working life”
 TUO- “Trade Union” means any association or combination of workmen or employers,
whether permanent or temporary, having among its objects one or more of the
following objects:
(a) the regulation of relations between workmen and employers, or between workmen
and workmen or between employers and employers; or
(b) the imposing of restrictive conditions on the conduct of any trade or business; or
(See S.29)(doctrine of restraint of trade)
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Trade Union

 (c) the representation of either workmen or employers in trade disputes ; or

 (d) the promotion or organization or financing of strikes or lock-outs in any trade or
industry or the provision of pay or other benefits for its members during a strike or lock-
out, and includes any federation of two or more trade unions. (Section 2)
Major features of the TUO

 Compulsory Registration

 Immunity from civil and tortious acts

 Right to sue and be sued (Locus Standi)

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Compulsory Registration

 Every trade union shall apply to be registered under this Ordinance within a period of three months reckoned
from the date of establishment. [S. 8(2)]
 Every application for registration shall be signed by at least seven members of the union. [S.9(1)] (Should the
number of members be increased? – multiplicity of TUs within the organization and TU rivalry)
 This requirement makes fragmentation of trade unions an almost foregone conclusion in the face of political
differences and inadequate power-sharing amongst the leadership. This has been most marked in the plantation
sector, where in 1993 over 30 trade unions were reported in the estate sector which had at that time a total
workforce of only about 450,000 workers
 If the Registrar is satisfied that a trade union applying for registration has complied with the requirements, shall
register the trade union. [S.10]
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Registration contd…

 The Registrar, on registering a trade union, shall issue a certificate of registration.

[S.11]
 Requirements for registration
 Have more than 7 members
 Be an association of either employees or employers
 Have one or more of the statutory objectives
 Apply within 3 months
 Withdrawal or cancellation of registration [S.15]

 At the request of the TU

 If the registrar is certain that the certificate was obtained by fraud or mistake
 If one of the objectives is unlawful
 The constitution of the TU is unlawful
 Funds have been used in an unlawful manner
 TU has ceased to exist
 Not followed directions of the registrar
Consequences of failure to register or of withdrawal or cancellation of
registration

 Unlawful association and shall cease to enjoy any of the rights, immunities, or privileges of a
registered trade union
 The trade union shall not take part in any trade dispute or promote, organize or finance any
strike or lock-out.
 The trade union shall be dissolved, and funds disposed
 No person shall take any part in its management or organisation. [S.18 (a)-(d)]
Major features of the TUO

 Compulsory Registration

 Immunity from civil and tortious acts

 Right to sue and be sued (Locus Standi)

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Rights and Liabilities

 A trade union shall not enjoy any of the rights, immunities or privileges of a registered trade
union until it is registered.” (S.25)
 Immunity from civil action. [S.26]
 Immunity for tortious acts. [S.27]
 Liability in contract. [S.28]
 Immunity is afforded if only done in furtherance or contemplation of a trade union dispute
 A registered TU is recognised by the employer
 Take part in trade disputes or promote and organise strikes and lockouts
 Can own immovable or movable property
 A registered trade union may sue or be sued. [S.30(1)]
A registered trade union may sue or be sued.
[S.30(1)]

 Its own member can sue it for wrongful expulsion, i.e breach of contract. (Bonsor v.
Musicians’ Union ’(1956) A.C. 104; (1955) A.E.R. 518.)
 A registered Trade Union might sue in its own name for defamation where the defamatory
statement touches its collective reputation. (General and Municipal Workers v. Gillian
(1945) 2 All E.R. 593)
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Immunity from civil action

 “No action or other legal proceeding shall be maintainable in any civil

court against any registered trade union or any officer or member
thereof in respect of any act done in contemplation or in furtherance
of a trade dispute to which a member of the trade union is a party on the
ground only that such act induces some other person to break a contract
of employment, or that it is in interference with the trade, business or
employment of some other person or with the right of some other person
to dispose of his capital or of his labour as he wills.” (S.26)

Sarves
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Immunity from tortious acts

 “An action against a trade union or against any members or officers thereof on behalf of
themselves and all other members of the trade union in respect any tortious act
alleged to have been committed by or on behalf of the trade union in
contemplation or in furtherance of a trade dispute shall not be entertained
by any court.” (S.27)

Sarves
Major features of the TUO

 Compulsory Registration

 Immunity from civil and tortious acts

 Right to sue and be sued (Locus Standi)

 Locus Standi –Civil Proceedings

 Can a registered TU institute action before a court of law on behalf of its members regarding the contractual rights of
its members?
 The Ceylon Mercantile Union v. The Insurance Corporation of Sri Lanka1978 80 NLR 309
 Plaintiff was a registered TU and instituted action on behalf of its members stating that revised rates of allowances
agreed by contract were not paid by the defendant.
 DC dismissed the case.
 SC – the question was whether the plaintiff had a cause of action against the defendant, and if not, the action fails as
the plaintiff does not have locus standi.
 SC held that the plaintiff had no locus standi.
 The Civil Procedure Code provides requirements of an action and it requires an injured party, a person who has
a vested interest and claims relief.
 In this case there cannot be joint action – because although the grievance is similar, the action is separate (each
plaintiff V the defendant)
 TU is a quasi-corporation and the law (CPC) does not provide for a TU to institute action on behalf of its
members
 No direct interest
 Does not affect the corporate status of the plaintiff (TU)
 However, the Industrial Disputes Act (Chap. 131), provided that a Trade Union could, on behalf of a workman
who is a member of that Union, make an application in writing to a Labour Tribunal for relief (section 3 IB). T
 Locus Standi –FR

 Ceylon Electricity Board Accountants’ Association v. Patali Champika Ranawaka, Minister of Power and
Energy, SC FR No. 18/2015 on 03.05.2016 (unrep)
 held that a Trade Union does not have locus standi to institute a fundamental rights action on behalf of its
members - Articles 17 and 126(2)
 The TU is not a natural or legal person
 Article 17 and 126 (2) does not allow a broad definition of the term ‘person’ to include an unincorporated
body of persons
 The remedy is personal
 Attention was drawn to S 30 (1) –court referred to The Ceylon Mercantile Union v. The Insurance
Corporation of Sri Lanka1978 80 NLR 309.
 For the definition of a person, the following cases were cited.
 Public Service United Nurses Union v Jayawickrema and Others 1988 1 Sri LR 229 (no objection was
raised, and the second petitioner, who was a nurse and the Sec of the Union FR was violated)
 EFL v UDA 2009 1 Sri LR 123 – (EFL is an incorporated body and the case was filed in the public interest)
 these cases were distinguished
 “that in the absence of a specific provision permitting a Trade Union to institute action on behalf of its
members, the Petitioner Union cannot have and maintain this application on behalf of its members in terms of
Article 17 read with Article 126(2) of the Constitution”
 Locus Standi –Writ Application

 Lanka Viduli Podhu Sevaka Sangamaya v CEB and Others CA/Writ/193/2015 (unrep.) Decided on
01.05.2016
 The following cases were distinguished
 The Insurance Corporation of Sri Lanka (1977) 80 NLR 309
 Environmental Foundation Limited v. Urban Development Authority of Sri Lanka [2009] 1 Sri LR 123
 Ceylon Electricity Board Accounts’ Association v. Minister of Power and Energy (SC FR No.18/2015 decided on
03.05.2016)
 Unlike Article 126(2) of the Constitution where the word “person” has been given a unique place, in Article 140,
there is no personalization of the application, or rather the applicant. The word “person” has no place in
Article 140. The word “person” used there at the end is referable not to the applicant, but to the person against
whom the writ is sought.
 Who can file a writ application? The short answer is―any “person” (as defined in section 2(s) of the
Interpretation Ordinance) who has “sufficient interest” as opposed to the outdated requirement of “personal
interest” because of the element of “public interest”.
 This includes a Trade Union. High-level technical objections regarding locus standi have no place in modern
administrative law. (Vide Wijesiri v. Siriwardene [1982] 1 Sri LR 171)
 A TU can file a writ application on behalf of its members.
Major features of the TUO

 Compulsory Registration

 Immunity from civil and tortious acts

 Right to sue and be sued (Locus Standi)

 Others (political objectives)

 Political Objectives of TUs (S 47)

 The TUO not only permits but establishes a specific mechanism for a trade union to pursue political
objectives through the establishment of a separate fund
 by the collection of contributions by members and ‘voluntary contributions of non-members’ (section
47(9)).
 The pursuit of these political objectives, which include the financial support for the election of any
political candidate, maintenance of such a candidate, holding of political meetings or preparation of
election literature, is, therefore, a lawful and legitimate activity of a trade union.
 29
Restrictions to Public Officers’ Union and 1948 and
1970 Amendment-Part IV)

 Public sector was allowed to organise under Trade Unions Ordinance (Amendment) Act No. 15 of
1948
 But it prohibited their affiliation, amalgamation and federation, and also their having political
objects and maintaining political funds.
 The amendment also empowered the Attorney-General to obtain a judicial order directing the
Registrar of Trade Unions to withdraw or cancel the registration of a trade union of public servants
if the Court was satisfied that it has promoted or organised any strike intended to influence or
overthrow the Government on any political issue not affecting public servants in their official
capacity.
 TUO draws a distinction between the public sector and the private sector.
 Public officers are defined in the ordinance- any person employed by the GOSL whatever may be
the duration of employment.
 Public officers membership eligibility is restricted to
 The rules of the union shall contain a provision restricting the membership or any office
(1) to a department or (2) the class or category of public officers. The rules may
permit (3) two persons from outside to be members or to hold office, one of such
persons being the president or the secretary of the union, and the other being a member of
the union. [S.21(1)(a)]
 The rules of the union of peace officers or Government staff officers shall contain a
provision declaring that the union (4) shall not be affiliated to or amalgamated or
federated with any other trade union (cannot federate) and declaring that the union
shall not have any (5) political objects or political fund. [S.21(1)(b) (c)]
 (6) Registrar will not register unless these conditions are satisfied
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Restricted Categories

 An association or combination consisting of –

 judicial officers
 members of the armed forces
 police officers
 prison officers
 members of any corps established under the Agricultural Corps Ordinance
shall be deemed not to be a trade union. [S.20(2)]
 The obvious purpose of the restrictive provisions is to weaken the strength of union of public offices in
the bargaining process, especially in a situation of a strike.

 Do these provisions violate the principles stipulated in ILO C. 87? Read Article 2.

 TUO draws a distinction between the public sector and the private sector and executives and non-
executives in the public sector.