SRI LANKA: AUSTR DELANEY DISCUSSES LABOR AND THE AFL-CIO

UNCLAS SECTION 01 OF 04 COLOMBO 001073 SENSITIVE SIPDIS STATE FOR SCA/INS, SCA/RA, DRL KOHL GILL STATE PASS USTR FOR MICHAEL DELANEY AND ADINA ADLER DOL/ILAB FOR TINA MCCARTER E.O 12958: N/A TAGS: ELAB ECON ETRD EINV EAID PGOV KMCA CE SUBJECT: SRI LANKA: AUSTR DELANEY DISCUSSES LABOR AND THE AFL-CIO PETITION REF: COLOMBO 1063 ¶1. (U) Summary: During a November 11-14 visit, Assistant U.S. Trade Representative (AUSTR) Michael Delaney met with key Sri Lankan government officials and local trade union representatives to discuss the June 2008 AFL-CIO petition to USTR that alleges Sri Lanka's labor laws do not comply with internationally recognized worker's rights. Trade union representatives asserted that they do not want Sri Lanka to lose the U.S. Generalized System of Preferences (GSP) and that the petition is meant to pressure the government to comply with ILO standards. Meanwhile, Minister of Labor Relations and Manpower Athauda Seneviratne told AUSTR Delaney that the government is working hard with the ILO and that many of allegations made by the trade unions in the petitions are "false and fabricated." While it is clear that more needs to be done to improve workers' rights (particularly in the EPZs),current conditions are comparatively good by South Asian standards and the Ministry of Labor is demonstrably committed to addressing specific issues when they arise. We do not believe the petition accurately depicts general labor conditions in Sri Lanka. End Summary. Trade Unions: We Want GSP to Remain -------------- ¶2. (SBU) In June 2008 the AFL-CIO submitted a petition to USTR requesting the removal of Sri Lanka from the list of eligible beneficiary developing countries pursuant to 19 USC 2462(d) of the Generalized System of Preferences (GSP). On November 14, AUSTR Delaney met with representatives from four large Sri Lankan trade unions (TU) to hear their concerns, learn more about the labor cases cited in AFL-CIO petition, and explore how the USG and specifically USTR could assist their efforts in working with the GSL on labor issues. At the outset of the meeting, Palitha Athukorale, Chief Organizer of the main opposition United National Party's (UNP) trade union Jathika Sevaka Sangamaya (JSS),noted that the title of the AFL-CIO petition is misleading. He stated the actual objective of the petition is to make Sri Lanka comply with core labor standards, not to remove it from the GSP program. He noted that although Sri Lanka's labor standards are higher than others in South Asia, the government could and should improve its implementation of core labor standards. As such, the trade union representatives agreed that the GSP petition should be used as an instrument to pressure the government to ensure private sector compliance. Anton Markus, Joint Secretary of the Free Trade Zones and General Services Employees Union (FTZ&GSEU) and a key drafter of the AFL-CIO petition, concurred, stating "we want to make sure Sri Lanka gets the GSP and we support the government efforts to keep the GSP." ¶3. (SBU) Meanwhile, Leslie Devendra, Secretary General of the ruling Sri Lanka Freedom Party-aligned Sri Lanka Nidaas Sewaka Sangamaya (SLNS),said the petitioners had never canvassed SLNS for their opinion and argued that the cases cited in the petition are not sufficient reasons to request GSP removal as the examples are primarily located in the FTZs. Athukorale privately told ECON FSN that he did not subscribe to the petition in his capacity in the UNP/JSS. He had contributed to the petition in his personal capacity as the head of Progress Union, a minor trade union working in the FTZs. He stated that if he had known the petition would seek to remove GSP status, he would have disassociated from it altogether. "The Judiciary and Public Are Against Us" -------------- ¶4. (U) AUSTR Delaney asked the representatives about the petition's allegation of increased judicial intervention in labor matters, and whether the rule of law is an effective basis for the employer and employee relationship. He emphasized that labor issues can best be resolved by having independent and transparent negotiations with industry, and encouraged the trade unions to continue to facilitate interactions between members, industry partners, and the government. Devendra complained that irresponsible TU actions have changed the mindset of the judiciary and, as a result, "we have the judiciary against us." He described recent incidents where extreme politically left TUs disrupted essential services, such as the medical and teaching professions, by striking. Because of such actions, the public has little sympathy for strikers, and the COLOMBO 00001073 002 OF 004 judiciary generally supports the public. Marcus added that the public sector has no proper mechanism to resolve public sector disputes and strikes. (Note: The Ministry of Labor (MOL) only has the legal authority to work with the private sector. ILO currently is working on a proposal that would allow for the establishment of a dispute settlement framework for the public sector.) AUSTR Delaney urged the representatives to first negotiate and litigate internally and to use its domestic courts and the MOL to assist them in resolving disputes. ¶5. AUSTR Delaney noted that it appears, from the cases cited in the petition, that FTZs lag behind the rest of the country in labor compliance. Gerald Lodwick of the National Workers' Congress (NWC), which includes members who work at Export Processing Zones (EPZ), "generally agreed" that progress in labor compliance is slower in EPZs. Labor Ministry Counters AFL-CIO's Allegations -------------- ¶6. (U) In a separate meeting on November 14, AUSTR Delaney met with Labor Minister Athauda Seneviratne and other high level MOL officials. The Minister underscored that although the MOL thought that some of the report's allegations were unsubstantiated and fabricated, the MOL was "open-minded and open for discussion" on the petition. The Minister also pointed out that there were several large trade unions that did not support the AFL-CIO petition and that of the eight that subscribed to the petition, five were public sector trade unions that did not represent private sector workers. The Minister complained that the subscribers to the petition should have discussed their concerns with the MOL prior to submitting the report; Seneviratne wondered aloud why Delaney had held separate meetings with the trade union leaders and his office, arguing that a joint meeting would have been better. MOL officials then detailed to AUSTR Delaney their following counter-arguments to the petition: a. Many of the cases cited in the petition are almost settled and/or currently at the courts. Several cases, however, are not labor-related and thus cannot be reviewed by the MOL, including allegations of assassinations and child soldier recruitment. b. Trade union cancellation: With approximately 18% of the country's workforce unionized, Sri Lanka currently has more than 1,600 TUs, with 1,300 in the public sector and the rest in the private sector. No TU has filed action against cancellation for several years. (Note: TUs can lose their ability to operate if they, for example, fail to file necessary paperwork with the government for several years.) c. The denial of TU rights to judicial, armed forces, police, prison and agricultural corps: The Ministry noted that in Sri Lanka, as in much of Asia, certain categories of officers are not allowed to form unions. They may form an association, but it cannot be registered as a union. d. Collective bargaining: In response to the petition's request to reduce the requirement for TUs to represent 20% rather than 40% of the workforce when engaged in collective bargaining with the employer, the MOL asserted that not only have major TUs agreed to the 40% requirement, but many unions suggest an increase to a 50-60% requirement that "would foster stronger TUs." e. ILO conventions 87 on Freedom of Association/98 on Right to organize and collective bargaining are inadmissible: The Ministry argued that the conventions ratified by the GSL have been established and recognized as law. Referring to the Supreme Court's action to break the 2006 strike at the Port of Colombo, MOL officials said that the workers struck in the guise of a go-slow which is illegal under Sri Lankan law. Further, the striking workers were acting violently and did not allow others to report to work. Lastly, the officials said that the ILO Freedom of Association Committee recognized that the case was resolved in June ¶2008. f. In regards to the fine against unfair labor practices: Officials said they are currently reviewing whether to increase the COLOMBO 00001073 003 OF 004 fine against unfair labor practices, which is currently set at Sri Lankan Rupees 20,000 (approximately US $181). Concerning overtime hours, officials said that the law limits a general work day to nine hours (including an hour for lunch) and twelve hours when coupled with overtime. g. Responding to the complaint that the Ministry has not filed any cases against unfair labor practices, officials said that it has been difficult to obtain sufficient evidence to file cases but that they are currently reviewing several files they hope to pursue. They did not comment on these specific cases. h. Access to EPZ's: MOL officials told AUSTR Delaney that they have direct access to EPZs and can conduct inspections at any time. They stated that salaries within EPZs are above the minimum wages set by the Wages Boards for industries (such as apparel) and are higher than the average salary for similar work outside the zones. Employee Councils, consisting of worker representatives, exist side-by-side with TUs in EPZs. Although these councils are not registered as trade unions, there is no barrier for their registration as a TU if they follow the terms defined by the Trade Union Ordinance. Minister ensures compliance to labor rights -------------- ¶7. (U) The Minister underscored to AUSTR Delaney the GSL's and MOL's efforts to protect labor rights by first highlighting that the GSL ratified 40 ILO conventions, including eight core conventions. The Minister proudly noted that in 2006, the MOL implemented the ILO "Decent Work" program in Sri Lanka, the first of its kind in Asia. In regard to its relations with TUs, the Minister described how he is in constant dialogue with the unions as chairman of the National Labor Advisory Council (NLAC),a tripartite body under the MOL comprised of the government officials, employers and unions. The MOL also conducts monthly meetings with TUs throughout the country (except for the North, due to the conflict) via its social dialogue divisions and maintains a compliance unit and a multi-disciplinary inspectorate to monitor labor and health standards. The Minister noted that there are currently no industries officially gazetted as essential services, where strikes are banned. AUSTR Delaney thanked the MOL for its detailed review of the petition and urged the ministry and specifically its Labor Commissioner to continue working closely with trade unions and employers and to collect and publicly update resolved labor disputes. Comment -------------- ¶8. (SBU) Sri Lanka has, if not the highest, some of the best labor standards in South Asia. The government is nevertheless actively involved in working to improve local labor practices. The MOL plays a successful role in dispute resolution. In 2007, it received 5,849 complaints; 5,683 cases were settled and 32 were referred for compulsory arbitration. To improve its ability to conduct inspections, the MOL hired 60 additional labor inspectors to date in 2008 above its 2007 total of 682, and is in the process of hiring 85 more. In 2007, MOL reports that its officials inspected more than 46,000 work places. Following ILO recommendations in 2003, the government's Board of Investment issued guidelines to all BOI companies on labor standards and employment relations, amplifying MOL policies. The BOI also revised its guidelines on the formation and conduct of employee councils, ensuring their independence. These various BOI guidelines require companies to respect the right of the workers to join trade unions and bargain collectively, and to refrain from unfair labor practices. Employee councils were extended collective bargaining rights by the ILO in 2003. ¶9. (SBU) In assessing the petition's claims, a relevant (and complicating) factor is that trade unions in Sri Lanka are highly politicized actors in a frequently chaotic political climate, i.e., their activities are not always confined to a classic trade unionist agenda focused on improvement of work conditions. That fact inevitably affects their relationship with the government. Nevertheless, the Ministry (which is led by a former trade unionist) appears genuinely open to working with trade unions to resolve any concerns. (Note: The one exception to this is specifically Anton COLOMBO 00001073 004 OF 004 Markus; government officials, as well as many other trade union leaders and employers, find him "impossible.") The Minister meets with representatives formally on a monthly basis, and on an ad hoc basis as needed or when requested. Officials within the MOL are in frequent contact with TUs, formally and informally, and work to find acceptable resolution to disputes when they arise. The Ministry is also currently training judges in an effort to ensure they are aware of, and can adequately uphold, local labor laws. More generally, workers can associate freely, and can generally strike without concerns of retribution or interference. In instances where retribution or interference has occurred, cases move (albeit slowly in some instances) through the mandated systems for resolution ¶10. (SBU) There is more to be done. Post welcomes guidance and recommended changes for the GSL to make to enhance local adherence to internationally-recognized labor norms. Nevertheless, Post firmly believes that the AFL-CIO petition for the removal of GSP should be rejected for further review by USTR. The petition is not representative of the overall labor situation in country. Additionally, the local political situation -- in light of the EC's investigation of human rights concerns in conjunction with Sri Lanka's application for a renewal of GSP+ benefits -- demonstrates that the USG will be more successful at fostering change through discussion absent the acceptance of this petition. ¶11. (U) This cable has been cleared by AUSTR Delaney.