It is important to consider the legal status of a strike in the public service and its impact on the public, especially regarding the strike launched by the Teachers Trade Union.
The legal status of Trade Unions in Sri Lanka has been derived basically from three sources namely, Trade union Ordinance and subsequent amendments thereto, Article 14(1) “c” and “d” of Chapter III of the Constitution of Sri Lanka, and ILO Convention 87 ratified by Government of Sri Lanka.
A strike is defined in the Trade Union Ordinance as “the cessation of work by a body of persons employed in any trade or industry acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are, or have been so employed to continue to work or to accept employment”.
Fundamental Rights
Article 14(1) “c” and “d” of Chapter III captioned Fundamental Rights of the Constitution states “every citizen is entitled to the Freedom of Association and the Freedom to form and join a Trade Union”. However, Article (7) of Chapter III of the Constitution qualifies Fundamental Right above referred to as follows: “The exercise and operation of Fundamental Rights declared by Article 14 shall be subject to such restrictions as may be prescribed by law in the interest of national security, public order, and the protection of public health or morality or to secure due recognition and respect for the right and freedom of others or of meeting in just requirement of the general welfare of a democratic society”.
The ILO Convention 87 titled, “Freedom of Association and Protection of Right to Organise” states “workers and employers without distinction whatsoever shall have the right to establish and subject only to the rules of the organisation concerned to join organisations of their choosing without previous authorisation”.
Article 8(1) of the same Convention requires the organisation to respect law of the land. Article 8(2) requires the law of the land shall not be such or applied to impair the guarantees provided for in the Convention.
It may be noted that the condition set out in Article 8(2) of ILO Convention 87 is not practicable since the law of the land enacted by Parliament based on the concept sovereignty of Parliament cannot be subjected to the condition imposed in Article 8(2) of the ILO Convention. Hence, the condition set out in Article 8(1) of ILO convention 87 stands unaffected by Article 8(2).
Right to strike
Union leaders claim they have a right to strike. However, the right to strike has been qualified by Article 07 of Chapter III under the heading Fundamental Right of the Constitution of Sri Lanka and Article 8(1) of the ILO Convention as pointed out above. Article 07 of Chapter III of the Constitution of Sri Lanka implies that trade union action (strike) should not clash with the interest of national security, public order, protection of public health or morality, securing due recognition and respect for the right and freedom of the others, etc.
Similarly, conditions set out in Articles 8(1) of ILO Convention 87 imply strike should not clash with the law of the land. The demonstration conducted by leaders and participants of the strike launched by teachers trade union along the streets and highways, cessation of online teaching abruptly deserting thousands of innocent helpless students, mercilessly, and violation of health guidelines in the event of demonstration blatantly could be cited as glaring instances which have been clashed with conditions set out in Article 07 of Chapter III of the Constitution and Article 8(1) of Convention 87 of ILO.
Could Union leaders justify the necessity of a strike against the Government to get rectified the anomaly appearing in their salary structure amidst the ongoing crisis in this country? Why did they choose this particular situation to launch a strike? The anomaly of present salary structure has emerged due to mismanagement of remuneration package of Government Teachers and Principals by series of previous Governments. It is not possible to rectify the anomaly in any salary structure without studying carefully its impact on the salary structure of other services in the public sector.
It may be noted that the reduction of salaries or downsizing of cadre to some extent seems not uncommon in the private sector consequent to the adverse impact of the pandemic on the overall economy. When compared to private-sector employees teachers in public service are fortunate enough to receive their full pay whilst being at home comfortably.
Conspiracy
Based on the conduct, behaviour, and statements made by the leaders of Teachers Trade Union, and some politicians together with leaders of other Trade Unions such as the Government Nurses Union, JVP Trade Union who disclosed openly their intent to support the strike launched by Teachers Trade Union, it is presumed there is a hidden conspiracy against the Government behind the strike with the intent to sabotage the performance of the Government and to topple it.
It could also be presumed there is a hidden agenda to enlarge the Teachers Union strike to the extent of a general strike or political strike with the support of other trade union leaders above referred to along with disgruntled politicians in the opposition.
Enlargement of the strike beyond the membership of the union concerned in coordination with other trade unions is considered a strategy to convert it to a general strike or a political strike contrary to Article 21(b) in part 4 of Trade Union Ordinance which states that public servants union shall not be affiliated to or amalgamated or federated with any other trade union whether in the public sector or private sector.
A political strike is defined in “The Legal Framework of Industrial Relations in Ceylon” by S. R. De Silva as follows: “Strike may be political in the sense that its aim is to bring pressure on the Government in respect of a non-industrial matter or it may be a political one if acting to achieve a political objective on the pretext of aiming for resolution of non-political dispute”. In any circumstance strike against the Government democratically elected by the people is considered a political strike.
There is a marked difference between strikes in the public and private sectors. In case of a strike in the private sector, the burden of resultant adverse consequences of a strike such as economic losses, hardships, etc. has to be borne by contending parties, employers, and employees.
However, in case of a public sector strike resultant hardships inconvenience, economic losses, etc. have to be borne by the public due to the essential nature of public service. In other words, the victims of any strike in public service are none other than the public. For example, who are the immediate victims of the strike launched by the Teachers Union in the public service? They are none other than thousands of innocent schoolchildren of this country, and their parents and country at large.
The threat triggered by a public sector strike on the Government may lead a party not in power (Opposition) to take advantage of the situation. This may be one of the reasons that some disgruntled politicians in the opposition shedding crocodile tears on strike cracked down by leaders of the Teachers Trade Union and extended their support thereto openly. It is presumed this is the ultimate objective of Union Leaders who launched the Teachers Union Strike on the pretext of fighting for rectification of salary anomalies of union members.
The legal mechanism for settlement of trade disputes which warrant trade union actions including strike are governed by Industrial Disputes Act and subsequent amendments thereto. Article 49 of the Industrial Disputes Act states “nothing in this Act shall apply to or in relation to the Government in its capacity as employer or in relation to a workman in the employment of the Government”.
Trade disputes
The mechanism set out in IDA for settlement of trade disputes applies only to the employees of the private sector and statutory bodies. It does not apply to the public servants and public sector trade unions.
This restriction may be due to the dual role played by the Government as an employer on the one hand and the role of the lawmaker being the sovereign authority that makes laws relating to the employer-employee relationship as well on the other hand. Nevertheless, there is no restriction for Public sector unions to engage in amicable negotiations with Government.
Although public sector employees (except Judicial officers, members of Security Forces, Police Officers, Prison Officers, and members of any corps established under Agricultural Corps Ordinance) are allowed to form trade unions and to crack down on strikes they should operate it subject to the conditions stipulated in Article 07 of Chapter III, under the caption Fundamental rights of the Constitution of Sri Lanka as above referred to.
In terms of the Public Security Ordinance, the Executive President is empowered to declare certain services are essential if circumstances arise endangering public security. It is an offence for any person engaged in essential services so declared to refuse to work or to obstruct a person carrying on his work or to incite a person to depart from his employment.
Emergency
A strike is not practically admissible in respect of essential services declared under the Public Security Ordinance. This does not mean the President can use an emergency declared under Public Security Ordinance to obstruct the right to strike. It means the President could act to protect the Public interest against the adverse consequences of a strike.
In the context above referred to it may be observed that freedom of trade unions and their actions including a strike in the public sector has been restricted to prevent they are being clashed with the public interest. In other words, the overall public interest which includes public security, public welfare, public health, etc. should be given priority over and above the interest of a trade union engaged in a strike.
The success of any strike in the public sector depends on the extent it secures public support. As a strike in the public sector clashes with the public interest, securing public support for such a strike seems extremely unrealistic if not impossible. This is the reality that has been faced by strikes launched by the Teachers Trade Union at present.
It is common sense that out of two issues namely the right to have free education and the right to resolve salary anomaly, the former should be given priority over and above the latter not vice versa in the event of opening schools.
Rectification
It may be noted that the Government has already given an undertaking that salary anomaly would be rectified in full at the forthcoming Budget and pending of which Government has already offered an interim allowance of Rs.5,000 amidst an ongoing financial and economic crisis that emerged in this country due to the pandemic. At this juncture, it is not morally justifiable for the Union to continue on the cessation of duties by its members owed to the innocent schoolchildren and hold them as ransom to settle salary anomalies.
The best alternative to the strike is nothing but to resume amicable negotiations with the Government with genuine interest to resolve the dispute effectively on a win-win basis. It seems the Government has already committed to this course of action. It is noted that union leaders were so adamant and politically prejudiced to challenge the integrity of the Government in the process of negotiation instead of attempting to engage in that process sincerely.
The strike is an unproductive mechanism, the harsh nature of which could antagonise employees against employer and vice versa, in the process of maintaining a healthy industrial relationship in both public and private sectors. Strike in the public sector cannot be equalised to strike in the private sector. Union Leaders are doing nothing but promoting their political and personal agendas on the pretext of fighting for the rights of union members.
It may be noted that the settlement of disputes effectively either in the private or public sector depends on mutual understanding and dedication by both parties employer and employee to get it done on a win-win basis devoid of political or personal agendas. Although freedom of association is considered as one of the Fundamental Rights or Human Rights codified in the UN Charter of Human Rights or the Constitution of Sri Lanka, the strike does not come under the same category of rights. A strike against any Government democratically elected by the people is considered a strike against the public, which is unwarranted.