‘THE COURT OF APPEAL underArticle 140 of | the Constitution of the Demqeratic Socialist Republic of Sri Lanka for mandate in the nature of] Writs of Certiorariand of Mandamts and Prohibition Application No: x | CA: Writ «39/2016 pliythanbyTanbiah | General Secretary | People’s Workers Union | : No. 522, Church Road | Kahawatha | | | Pet ier Ys. The Commissioner of Labbur Tabour Secretariat | 2 Colombo 05 2. The Chairman ‘The Fmployer’s Federation of Ceylon No. 385 J3 Old Kotte Road, Rajugiriya 3. The General Secretary Ceylon Worker’s Congress No. 72, Ananda Coomaraswamy ‘Mawatha, Colombo 07 4. ‘The General Secretary ‘Lanka Jathika Estate Worker's Union No. 60, Bandaranayakephra,10. 12, 13, Sri Jayawardenapura, Welikade, Rajagiriya The General Secretary Joint Plantations Trade Union Centre No. 89, DharmapalaMawatha, Matale ‘Agelawatte Plantations PLC 'No.10,Gnanarathna —_Pradeepa ‘Mawatha Colombo 08 Balangoda Plantations PLC No. 110, Norris Canal Road, Colombo 10 ‘Bogawantalawa Plantations PLC No. 153, Nawala Road, Narahenpita Colombo 05 ; Elkaduwa Plantations PLC No. 55/75, Vauxhall Lane, Colombo 02 Elpitiya Plantations PLLC No. 305, Vauxhall Lane Colombo 02 - Hapugastenne Plantations PLC No. 95A, P.O. Box 02 Nambapana, Ingiriya Horana Plantations PLC ‘No. 20, R.A. de Mel Mawatha, Colombo 03 Kahawatta Plant PLC No.. 52, Maligawatte Road, ‘Colombo 1014, Kegalle Plantations PLC No. 310, High Level Road, ‘Nawinna, Maharagama 15. Kelani Valley Plantations PLC No. 400, Deans Road, ‘Colombo 10 16. Kotagala Plantations PLC No. 53 - WI Sir| Baron JayatilakaMawatha Colombo 01 17. Madulsima Plantations PI No. 833, Sirimavo Safe Mawatha, Colombo 14 18, Malwatte Valley Plantations PLC ‘No. 280 Dam Street, Colambo 12 19, Maskelilya Plantations PLC No. 310, High Level Roa.” ‘Nawinna, Maharagama 20. Maturata Plantations PLO No. 12B, Gregory's Road, Colombo 07 21, Namunukala Plantatidris PLC ‘No. 310, High Level Road, Nawinna, Maharagama 22, Pussellawa Plantations PLLC No. 228, Havelock Roat Colombo 05 23. Talawakella Plantations PLC ‘No. 400, Deans Road Colombo 10 24. Udapussellawa Plantatids PLC No. 95A, P.O. Box 02 Nambapana, Ingiriya25. Watawala Plantations PLC No. 60, DharmapalaMawatha, Colombo 03 26.The Honourable Minister of Labour and Trade Unions Ministry of Labour and Trade Unions’ 2 Floor, Labour Secretariat, Colombo 05 27.The Honourable Minister for Plantation Industry Misistry of Plantations Industries 11 Floor, Sethsiripaya 2 Stage, Batiaramulla 28. The Honourable Attorney General Attorney General’s Department Colombo 12 Respondents On|this 29" day of June 2017, sonfetimes referred to as ‘ Regi Statement of Objections of the 3" Respondent above-naméd (hereinafter is Respondent’) appearing by . M.J.S Fonseka its istered Attorney — at -Law states as follows: This Respondent states as a preliminary objection that the Pet standi to prefer this application to Your Lordship’s Court. jer has no locus a The Petitioner has’ preferred this purported application in his. personal ‘capacity. b. The Petitioner is not a party to the collective agrccments marked ‘P4°, ‘PS, PG", “PT, ‘PS’, ‘PO, ‘PIO’, ‘PII’, ‘P12’, “P13", ‘P14’, and “P1S° to the Petition nor the collective agreement no. 35 of 2016 marked ‘P17'to the Petition and sought to be set aside by the Petitioner (hereinafter sometimes referred to as the ‘said collective agreements). aoe:c. The Petitioner has failed and/or neglected to adduce any evidence pf his authority to prefer this application on behalf of the People’s Workers [Union and/or its members and/or any other person. d, ‘The Petitioner has not pleaded the identity of any member of the Pfople’s ‘Workers’ Union and/or any other person adversely affected by and/or desirous ‘of setting aside the collective agreement no. 35 of 2016 marked ‘P17" fe. Strictly without prejudice to the above this Respondent further states|that in any event the People’s Workers Union is also not a party to the said cojlective agreements, including the collective agreement rio. 35 of 2016 marked )P17". 2. This Respondent respectfully further states that Your Lordship’s Court does nok have jurisdiction to hear and determine this matter. ‘a. The orders sought to be obtained by the Petitioner inthis application cannot be granted under the writ jurisdiction of Your Lordship's Court, bb. The Petitioner cannot avail the writ jurisdiction of Your Lordship's Court to canvass any alleged grievances the Petitioner and/or the workers and/or members of the People’s Workers Union may have in respect of the terms and conditions of the said collective agreements and/or compliance thereto! ec. The Petitioner cannot avail the writ jurisdiction of, Your Lordship’s Court to ‘add to or vary the terms and conditions of the collective agreement no. 35 of 2016 marked ‘P17 to the Petition d. The variation and/or addition and/or ‘iteration of the remuneration package or any of the monetary payments applicable to employees under the dollective agreement no. 35 of 2016 marked ‘P17’ to the Petition while the agreement is in force constitutes a breach of the said collective agreement. ‘e. The Petitioner has an alternative remedy in terms of the Industrial Disputes ‘Act to challenge the scope and effect of the said collective agreement|no. 35 of 2016 marked ‘P17”. {The grant of the reliefs sought by the Petitioner will cause grave prejudice to the employees who ‘are presently enjoying the benefits provided Linder the collective agreement no. 35 of 2016 marked ‘P17’ to the Petition, 3. ‘The necessary parties to this purported application are not before Your ordship’s Court.a. The office of General Secretary does not have legal personality and no suit can be brought against the office of General Secretary and in such event the Petitioner cannot proceed with this application without amending the caption of the Petition b. The Ceylon Workers Congressis a party to the said collective agreements including collective agreement no. 35 of 2016 marked ‘P17" to the Petition ‘and sought to be set aside. €. The Ceylon Workers Congress is a trade union duly registered in terms of the ‘Trade Union Ordinance No. 14 of 1935 as amended (hereinafter sometimes referred to as the “Trade Union Ordinance’) which may be sued under its registered name in terms of the Trade Union Ordinance. 4. The Petitioner has failed and/or neglected tq make the Ceylon Workers Congress a party to this application and as such all the parties necessary for Your Lordship’s Court’ to cffectually and completely determine. this application are not before Your Lordship's Court } Strictly without prejudice to the position of this Respondent that the Petitioner lacks locus standi for this application, this’ Respondent further states that the Petitioner is guilty of laches. a. The alleged defective provisions in the collective agreement no. 35 of 2016 marked ‘P17’ to the Petition are found in previous collective agreements, b. The Petitioner has not raised any: objections to any of the said collective agreemeints before they were entered into or during their currency. ©. The Petitioner has mot attempted in any manner to become a party to the said collective agreements. } Strictly without prejudice to the afoirésaid preliminary objections, this Respondent states that the Ceylon Workers Congress enters into.collective agreements from time ‘o time with the 2" Respondent in terms of the Industrial Disputes Act No. 43 of 1950 as amended (hereinafter sometimes referred to as the ‘Industrial Disputes Act?) and: that collective agreement no. 35 of 2016 marked ‘P17’ is one of several collective agreements that the Ceylon Workers Congress has entered into with the 2™. Respondentover time with a view to improving the terms and conditions of employment of the members of the Ceylon Workers Congress. 4, The Ceylon Workers Congress is under no obligation under law or by the function and powers vested in it by its constitution to promote the interests of workers who are not part of its membership, including those of the People’s Workers’ Union.This Respondent annexes hereto a true copy of the constitution of the Ceylon Congress marked as ‘Y1’ and pleads the same as part and parcel hereof. Workers In terms of the Industrial Disputes Act, the Ceylon Workers Congress is entitled to enter into collective agreements from time to time with the 2" Respondent apo of the terms and conditions of employment of the members of the Ceylon Congress. trade unions and workmen referred to in the agreement. 9, -In terms of the Industrial Disputes Act however, the workmen belonging, trade unions and their unions are entitled to the benefits of the said oi agreements, but need not be limited to those terms and conditions. a. ‘The Industrial Disputes Act stipulates that collective agreements si offer terms and conditions that are Jessfavourable than those granted ‘workmen and that other workmen should also not have terms lessfa than those granted in the collective agreements. . Other unions and their workmen are free to negotiate better ‘employment than those provided in collective agreements. c. The said collective agreements do not fetter or debar the People’s Union and/or its members from negotiating better terms of employ themselves with the 6" to 25" Respondents. . 10. The terms and conditions, particularly in respect of the wages and incentive by the 6" to 25" Respondenis to those workers of the membership of tht rorkers “The Industrial Disputes Act provides that collective agreements shall bind only those other Mective | ld not 0 other jourable s of forkers ent for payable Ceylon Workers Congress and who are employed by the 6" to 25" Respondents are revised from tiie to time. 11. The daily wage payable to such employees has increased over time with each coll revi ‘export market. ive agreement that has been entered into but the negotiations on st 12. Any person who avails the benefits of the said collective agreements is enti wage and performance incentive scheme not provided under the Wage Ordinance No. 27 of 1941 as amended. ich wage jons depend on several factors, including the performance of the industry in the itled to a Boards 13. The collective agreements are usually amended from time to time depending on the negotiations between the Employers Federation of Ceylon and Ceyl WorkersCongress, Lanka Jathika Estate Workers Union and Joint Plantations Trade Union Centreand 6” to 25" Respondents. 14. There is no provision or requirement however, that the collective agreements must be renewed every two years or that the collective agreements must operate retrospectively to provide for any so-called arrears in performance incentives or wages. 15. The said collective agreements have provided from time to time that the incentives siven under the said collective agreements shall not constitute part of the employees’ earnings for the payment of any consequential benefits such as those under the Employees Provident Fund Act No. 15 of 1958 as amended (‘EPF Act’) and the Employees Trust Fund Act No. 46 of 1980 as amended (‘ETF Act’). 116. The said collective agreements have provided that the benefits under the EPF Act and ETF Act shall only be paid on the daily wages. 7. The performance incentives under the said collective agreements including those under the collective agreement marked ‘P17’ to the Petition, do not amount to ‘earings’ in terms of the EPF Act and ETF Act. 8. This Respondent is unaware of the averments in paragraphs 1, 2, and 3 of the Petition '9. This Respondent denies the averments in paragraphs 4 and 8 of the Petition and states that the collective agreement on 18" October 2016 was entered into with the Employer's Federation of Ceylon, the Ceylon Workers Congress, the Lanka Jathika Estate Worker’s Union and Joint Plantations Trade Union Center. a. The collective agreement dated 18" October 2016 expressly provides in terms of the Industrial Disputes Act the persons to whom such agreement relates. 0. This Respondent denies the averments in paragraphs 5 and 6 of the Petition. a. This Respondent respectfully reiterates that the Petitioner has no locus standi to prefer the above captioned application to Your Lordship’s Court. b. This Respondent did not sign the collective agreement no, 35 of 2016 marked ‘P17’ on behalf of the members of the Petitioner’s union, 7!-In response to the averments in paragraph 7 of the Petition, this Respondent espectfully reiterates that the 1" Respondent is obliged in terms of section 6 of the Industrial Disputes Act No. 43 of 1950 to gazette the collective agreement, only once the parties to the agreement submit the agreement to the 1" Respondent and subject thereto, denies the remainder of the averment.22. In response to the averments in paragraphs 9 and 10 of the Petition, this Respfondent admits only that the 26" Respondent is identified in the caption as the Hongurable ‘Minister of Labour and Trade Unions, 27" Respondent is identified in the cation as the Honourable Minister of Plantation Industries and the 28” Respondent] is the ‘Attomey-General and denies the remainder of the averments. 23. In response to the averment in paragraph 11 of the Petition, this Respondent adjnits only that collective agreement no, 50 of 1998 was entered into on 4" Decembe} 1998 by the Employer's Federation of Ceylon, the Ceylon Workers Congress, the Lanka Jothika Estate Worker's Union and Joint Plantations Trade Union Center and was remainder of the averments therein. 24. In response to the averments in paragraph 12 of the Petition, this Respondent admits only that collective agreement no 09 of 2000 was signed on 20 June 2900 and provided that the said agreement shall be effective from 01" July 2000-ahd shall remain in force until 30! June 2002 and was published in extraordinary gazette dated 5" October 2000 and denies the remainder of the averments in paragraph 12 of the Petition. 2 25. In response to the averments in paragraph 13 of the Petition, this Respondent admits only thatsupplementary collective agreement no. 18 of 2001 was signed on 15" March 2001, and was published in extraordinary gazette no. 1194/21 dated'26" July 2001 and denies the remainder of the averments therein. 26. In response to the averments in paragraph 14 of the Petition, this Respondent admits only that the collective agreement no. 13 of 2002 is published in extraordinary gazette no, 1261/2 dated 05" November 2002 and denies the remainder of the averments in paragraph 14 of the Petition. 27. In response to the averments in paragraph 15 of the Petition, this Respondent admits only that collective’ agreement no. 13 of 2003 was signed on 24% July 2003 and published in extraordinary gazette no. 1309/14 dated 8" October 2003 and denies the remainder of the averments in paragraph 15 of the Petition. | 28. In response to the averments in paragraph 16 of the Petition, this Respondent admits only that clause 6 of the collective agreement no 13 of 2003 provides that the wages and price share supplement shall be paid in accordance with the Collective Agreement dated 5" September 2002 and any subsequent agreement on wages and price share supplement as may be entered into during the curreney of this agreement and denies the remainder of the averments in paragraph 16 of the Petition.|29. This Respondent denies the averments in Paragraph 17 of the Petition and states that there is no obligation on the part of parties to the said collective agreements to renew the collective agreements every two years. 0. In response to the averments in paragraph 18 of the Petition, this Respondent states that collective agreement no. 42 of 2004 was entered into on 26" October 2004 and was published in extraordinary gazette no. 1375/5 dated 10” January 2005 and denies the remainder of the averments in paragraph 18 of the Petition, 1.In response to the averments in paragraph 19(a) of the Petition, this Respondent admits only that collective agreement no. 37 of 2006 was signed on 19" December 2006 and published in extraordinary gazette no. 1480/14 dated 18” January 2007 and Genies the remainder of the averments in paragraph 19(b) of the Petition. 2. In response to the averments in paragraph 19(b) of the Petition, this Respondent admits only that collective agreement no. 14 of 2009 was signed on 16" September 2009 and published in extraordinary gazette dated: 30" October 2009 and denies the remainder of the averments in paragraph 19(b) of the Petition; 3. In response to the avermenis in paragraph 19(c) of the Petition, this Respondent admits only that collective agreement no. 22 of 2011 was signed on 16" June 2011 and published in extraordinary gazette no. 1710/14 dated 16” June 2011 and denies the remainder of the averments in paragraph 19(c) of the Petition. fi 4-In response to the averments in paragraph 19(d) of the Petition, this Respondent admits only that collective agreement no. 10 of 2013 was signed on 4" April 2013 and Published in extraordinary. gazette no. 1810/21 dated 13 May 2013 and denies the remainder of the averments in paragraph 19{d) of the Petition. 5. This Respondent is unawaré of the terms in paragraph 20 of the Petition. 16. This Respondent denies the averments in paragraph 21 of the Petition, and states further that the Employer’s Federation of Ceylon, the Ceylon Workers Congress, the Tanka Jathika Estate Worker's ‘Union, and Joint Plantations Trade Union Centemegotiated at length in order'to, agree’on the terms of the collective agreement no. 35 of 2016 marked ‘P17"-to the Petition in spite of the poor performance of the industry. ‘This Respondent denies the averments in paragraph 22 of the Petition and states that the Employer's Federation of Ceylon, the Ceylon Workers Congress, the Lanka Jathika Estate Worker's Union and Joint Plantations Trade Union Center entered into collective agreement no 35 of 2016 marked ‘PI7" to the Petition, . This Respondent is unaware of the averments in paragraph 23 of the Petition.30. In response to the averments in paragraph 24 of the Petition, this Respondesit only admits that collective agreement no. 35 of 2016 was published in extraoydinary gazette dated 10" November 2016 and denies the remainder of the averments in paragraph 24 of the Petition. 40. This Respondent denies the averments in paragraph 25 of Petition. 41. This Respondent denies the averments in paragraph 26A(1) of the Petition ang! states that peragraph 2 reads that ‘the remuneration package as determined under Clause 1 above, shall come into force and apply for a imum period of tw commencing 15" October 2016 and shall continue to be in force thereafter unlkss it is abrogated by either party by giving one month’s notice to the other’. 42, This Respondent denies the averments in paragraph 26A(JI) and26A(III), By C and Dof the Petition. 43. This Respondent denies the averments in paragraph 27 of the Petition and states that the collective agreements were entered into by the Ceylon Workers Congress for the benefit of the members of the Ceylon Workers Congress. 44, This Respondent denies the averments in paragraphs 28, 29, 30, 31, 32, 33, 34] and 35 of the Petition. 45. This Respondent is unaware of the averments in paragraph 36 of the Petition. 46. This Respondent respectfully states that in all ofthe above circumstances the Petitioner is not entitled to the reliefs sought ih the Petition. ‘WHEREFORE the 3™ Respondent prays Your Lordship’s Court be pleased to a, Dismiss the Petition b. Grant costs c. Grant order for such further and other relief as Your Lordship’s Court shall seem meet. Attorne(at/Lal? for the 3 Respondent MM. 3. 5S. FONSEKA Attorney-at-Lavy, Notary Public & Commissioner for Oaths, NO. 171, BOPITIYA, PAMUNUGAM TEL crane, MOBILE: O77 PONE