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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bangladesh (RATIFICATION: 1972)

Other comments on C087

Observation

Direct Request

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The Committee takes note of the Government’s report of 19 September 2023 on progress made in the implementation of the road map of actions to address all outstanding issues in the complaint pending under article 26 of the ILO Constitution concerning this Convention, among others. It also notes the decision adopted by the Governing Body at its 349th Session (November 2023) in this regard, requesting the Government to report on further progress to its 350th Session (March 2024) and to defer the decision on further action to that session.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 27 September 2023 and of the Trade Union Committee of International Labour Standards (TU-ILS) (a committee of the workers’ representatives from the National Coordination Committee for Workers’ Education (NCCWE) and IndustriALL Bangladesh Council (IBC)) transmitted by the Government with its report, as well as the Government’s comments thereon. Both the ITUC and the TU-ILS refer to matters addressed in this comment.

The Committee notes the observations of the Bangladesh Employers’ Federation (BEF), which are incorporated in the Government’s report.

The Committee observes from the Government’s statement to the Governing Body, within the framework of the discussions on the article 26 proceedings, that the Parliament approved an amendment to the Bangladesh Labour Act (BLA) in November 2023.

Civil liberties. The Committee has been expressing deep concern at the allegations of violence and intimidation of workers for a number of years and has urged the Government to take all necessary measures to prevent such incidents in the future and ensure that, if they occur, they are properly investigated. In its previous comment, the Committee requested the Government to review all the allegations of violence, harassment and intimidation reported by the TU-ILS. The Committee notes with regret that the Government does not elaborate on any concrete investigations undertaken into these incidents but simply reiterates that the Industrial Police maintain law and order, prevent violence and threats against unionists and that any alleged excess of law enforcement officials is investigated through established legal and administrative procedures. The Committee further notes from the Government’s report in the framework of the pending article 26 proceedings that, in February 2023, the Ministry of Labour and Employment (MOLE) requested the Ministry of Home Affairs to create a dedicated committee for ensuring and monitoring proper investigation of alleged cases of violence and harassment by the police against workers, including in the context of protests. While welcoming this initiative, the Committee strongly encourages the Government to speed up its efforts to approve and establish the committee and to provide information on its composition and functioning in practice. The Committee expects these measures to significantly contribute to speedy and transparent investigations of violations of trade unionists’ civil liberties.

The Committee further notes that, in its 2023 observations, the ITUC expresses concern as to the anti-union tendencies of the security and police forces in relation to the exercise of workers’ rights and denounces new instances of violence and union busting. In particular, the Committee notes with deep concern the death of Shahidul Ismal, a labour organizer at the Bangladesh Garment and Industrial Workers’ Federation (BGIWF), and the wounding of Ahmed Sharif, also a union organizer, in July 2023 in Dhaka. The two were attacked by a group of assailants after they were assisting garment workers to obtain unpaid salaries. The ITUC also reports: (i) injuries to at least 16 garment workers in April 2022 when, during a clash over unpaid salaries, the police charged them with batons; and (ii) a serious case of union busting in a garment factory in 2021 and 2022, involving intimidation, threats and torture of union officers. The Committee requests the Government to provide its observations on the specific ITUC allegations, as well as those reported by the TU-ILS in 2022, and urges the Government to ensure that rapid investigations are conducted by an independent entity to determine those responsible, punish the guilty parties and prevent the repetition of any such acts.

In its previous comments, the Committee also encouraged the Government to continue to provide all necessary training and awareness-raising to the police and other State agents on human and trade union rights and urged the Government to review their role to ensure that issues purely concerning labour relations are relegated to the unique authority of the relevant Ministry. The Committee notes the detailed information provided by the Government on the training and sensitizing programmes offered to Industrial Police personnel (1,348 personnel trained between January and June 2023), as well as continued training of workers, management and government officials on the applicable laws and regulations and the prevention of violence provided by the Department of Labour (DOL) and the Bangladesh Export Processing Zones Authority (BEPZA). The Government also indicates that a compendium of laws in Bangla has been drafted, allowing training of Industrial Police to focus on human and trade union rights, labour rights, labour law and other relevant laws and regulations. While taking note of the continued training and other initiatives undertaken, the Committee observes that, according to the TU-ILS, no steps were taken to relegate the authority regarding Industrial Police to the MOLE and the attitude towards trade union leaders has not changed, with new cases filed against them. The Committee is also aware, from publicly available information and the discussion in the Governing Body, of recent incidents of violence in the context of minimum wage protests, leading to injuries, arrests and the death of several workers. In light of the above, the Committee requests the Government to continue to provide and indeed intensify targeted training to the Industrial Police on the use of minimum force when engaged in crowd control measures, in particular during labour protests, and urges the Government once again to review the role of the Industrial Police,with the workers’ and employers’ organizations concerned, so as to ensure that issues purely concerning labour relations are relegated to the unique authority of the relevant Ministry.

Article 2 of the Convention. Right to organize. Registration of trade unions. For a number of years, the Committee has been addressing the need to simplify the registration process to make it user-friendly, objective, rapid and transparent, including by providing comprehensive training to the relevant officers responsible for registration. The Committee notes the Government’s indication that training and workshops for DOL officials, as well as workers’ representatives, are ongoing, as are discussions to explore the possibility of further simplifying both online and regular registration systems. The Government provides updated statistics on registration between November 2022 and June 2023, which show that 421 new applications were received in addition to 83 pending applications, out of which 236 were accepted, 75 rejected, 172 filed and 102 remain pending. It further informs about the main reasons for rejecting trade union registration (lack of minimum membership, use of fake names, fraudulent practices, etc.). The Committee understands from the above that, in the specified period, registration was only granted to about half of all the applications received, that a large number of the applications were considered as invalid and were filed and that around 15 per cent of all the applications were rejected. It further observes that the Government does not distinguish in its report between the reasons that render a registration application invalid or inadmissible (the application is then filed without assessing whether the material requirements of registration are fulfilled) and those invoked by the Registrar to reject a valid registration application because it does not meet the registration requirements.

The Committee also observes that the ITUC and the TU-ILS raise a number of concerns and point to obstacles with regard to the registration process, including procedural complexities in the online application, delays in registration, DOL-created layers of approval (investigation hearings and other procedures) leading to arbitrary decisions, employers’ opposition to trade union registration and lack of consultations on the simplification of the registration process. The ITUC also alleges that the rejection rate of applications by independent unions is higher than indicated by the Government as many of the approved applications only concern government-controlled unions. In these circumstances, the Committee urges the Government to continue to engage with workers’ representatives on ways to further simplify the registration process and eliminate any legislative or practical obstacles that prevent it from becoming a rapid, objective and transparent process. The Committee also requests the Government once again to provide detailed information on the reasons which were found in practice to render applications for registration invalid or inadmissible, as well as the reasons which justify the rejection of applications because they do not meet the registration requirements. The Committee encourages the Government to continue to provide adapted training to the relevant officials who are responsible for assessing registration applications. The Committee expects that the Government will be in a position to report progress on this long-standing issue in its next report.

Minimum membership requirements. The Committee had previously pointed to the need to review the BLA with a view to reducing the minimum membership requirements to a reasonable level (currently at 20 per cent, section 179(2)); ending the possible cancellation of trade unions that fall below minimum membership requirements (section 190(f)); and addressing the limits on the number of trade unions in an establishment (currently at three unions, section 179(5)). The Committee notes the Government’s indication that no union has yet been cancelled under section 190(f) of the BLA and that the tripartite constituents in the Tripartite Working Group (TWG) for the BLA have discussed the issue of further lowering the minimum membership requirement and will make a comprehensive recommendation on the issue. The Committee further observes from the Government’s statement to the Governing Body, within the framework of the discussions on the article 26 proceedings, that the minimum membership requirement for enterprises with over 3,000 workers was reduced from 20 to 15 per cent and the minimum membership requirement in groups of establishments from 30 to 20 per cent (section 183(6)). While taking due note of these amendments, the Committee understands that very few enterprises employ over 3,000 workers and recalls that a minimum membership requirement of 15 per cent in such enterprises and 20 per cent in groups of establishments is still excessive. The Committee further observes with regret that the Government has once again failed to take the opportunity of a legislative reform to address the Committee’s previous concerns in relation to sections 179(2) and (5) and 190(f) and notes that the ITUC points to difficulties in almost all factories to reach the minimum membership requirement. The Committee therefore requests the Government to continue to discuss the matter with a view to reducing the minimum membership requirements to a reasonable level (sections 179(2) and 183(6)), bearing in mind the recommendations of the tripartite constituents, and also with a view to amending sections 179(5) and 190(f) accordingly.

With regard to the application of the BLA to workers in the agricultural sector, in its previous comment, the Committee requested the Government to provide detailed information on the practical application of the reduced minimum membership requirement in Rule 167(4) of the Bangladesh Labour Rules (BLR) applicable to groups of establishments, including small family farms (300 members). The Committee notes the Government’s indication that there are 38 registered trade unions in groups of establishments in the agricultural sector in 20 out of 64 districts, covering 6,834 members and that the stakeholders did not report any hindrance in this regard. While taking note of this update, the Committee observes that the reported unionization rate in the agricultural sector seems extremely low given that tens of millions of workers are engaged in agricultural activities in Bangladesh, and that many of these may well be prevented from trade union activities as a practical matter. Recallingthat a minimum requirement of 300 members may in practice restrict the right to organize, especially in case of small family farms, the Committee requests the Government to continue to take measures, in consultation with the social partners, to reduce the requirement in Rule 167(4) so as to ensure that agricultural workers can exercise their right to organize without hindrance.

Articles 2 and 3. Right to organize, elect officers and carry out activities freely. Bangladesh Labour Act. In its previous comment, the Committee urged the Government to ensure that worker representation in the National Tripartite Consultative Council (NTCC), which is reviewing the BLA, reflects the independent choice of the trade union movement. The Committee notes the Government’s indication that with the assistance of the Office, it is developing institutional mechanisms and capacity-building for the NTCC, as well as a road map on social partners’ awareness and capacity-building for social dialogue and collective bargaining. The Committee however observes the concerns raised by the ITUC and the TU-ILS that malpractices in the selection process of workers’ representatives in tripartite delegations continue, including lack of transparency and independence. Noting these allegations with concern, the Committee urges the Government once again to ensure that selection of workers’ representatives into the NTCC reflects the independent choice of the labour movement, so as to allow the NTCC to expeditiously and transparently conduct its work in reviewing the BLA with the aim of aligning it with the Convention.

In relation to the review of the BLA, the Government further informs that, with the assistance of the ILO, a draft amendment of the BLA was discussed and finalized by the TWG, the Tripartite Labour Law Review Committee and the NTCC. While the Committee does not have at its disposal an official translation of the BLA amendment approved by the Parliament in November 2023, it takes note of the Government’s indication to the Governing Body in the framework of the discussions on the article 26 proceedings that several amendments agreed on with the Office could not be implemented for technical reasons. The Committee understands, from the draft version of the BLA submitted to the Parliament, that besides the slight reduction in the minimum membership requirements mentioned above (referring to very large enterprises and groups of establishments), amendments were made to section 185 (broadening of the right to organize of seamen). While welcoming these amendments, the Committee observes that most of the other provisions previously highlighted by the Committee as raising concerns with regard to their compatibility with the Convention were not addressed by the labour law review. The Committee is, therefore, obliged to recall the need to further review and amend, or provide information on, the following provisions of the BLA: (i) scope of the law – restrictions on numerous sectors and workers remain, including, among others, Government workers, university teachers and domestic workers (sections 1(4), 2(49) and (65), 175 and 185 (further amendments necessary on the right to organize of seamen)); (ii)) restrictions on organizing in groups of establishments (sections 179(5) and 183(1)); (iii) restrictions on trade union membership (sections 2(65), 175, 193 and 300); (iv) interference in trade union activity, including cancellation of registration for reasons that do not justify the severity of the act (sections 192, 196(2)(b) read in conjunction with 190(1)(c), (e) and (g), 229, 291(2)–(3) and 299); (v) interference in trade union elections (section 180(1)(a) read in conjunction with section 196(2)(d), and sections 180(b) and 317(4)(d)); (vi) interference in the right to draw up constitutions freely by providing overly detailed instructions (sections 179(1) and 188 (in addition, there seems to be a discrepancy in that section 188 gives the DOL the power to register and, under certain circumstances, refuse to register any amendments to the constitution of a trade union and its Executive Council whereas Rule 174 of the BLR only refers to notification of such changes to the DOL who will issue a new certificate)); (vii) excessive restrictions on the right to strike (sections 211(3)–(4) and (8) and 227(c)) accompanied by severe penalties (sections 196(2)(e), 291(2)–(3) and 294–296); and (viii) excessive preferential rights for collective bargaining agents (sections 202(24)(b), (c) and (e) and 204). Furthermore, the Committee is still awaiting information on whether workers in small farms consisting of less than five workers can, in law and practice, group together with other workers to form a trade union or affiliate to existing workers’ organizations (section 1(4)(n) and (p) of the BLA). The Committee observes with regret that the Government did not avail itself of the opportunity to address these numerous and long-standing concerns during the recent amendment of the BLA despite continued and extensive technical assistance provided by the Office. Further noting the commitment of the Minister of Law, Justice and Parliamentary Affairs expressed in the Governing Body to address other outstanding amendments previously discussed with the Office, the Committee has been subsequently informed that the President has sent the amended law back to the Parliament for further consideration and firmly expects that the opportunity will be taken to address its pending comments so as to ensure compliance with the Convention. The Committee requests the Government to provide detailed information on the progress made in this regard. The Committee requests the Government to provide an English translation of the amended BLA.

The Committee also observes the Government’s indication to the Governing Body that section 34 of the Bangladesh Economic Zones Act, 2010 (BEZA) was amended so as to make the BLA applicable in special economic zones, instead of the Export Processing Zones Labour Act, 2019 (ELA). The Committee requests the Government to provide information on the practical application of this amendment, in particular to indicate when the BLA will start to be applicable in special economic zones and to provide statistics on the formation of trade unions in these zones. The Committee requests the Government to provide an English version of the amended BEZA.

Bangladesh Labour Rules. In its previous comment, the Committee requested the Government to provide detailed information on the application of Rule 188 (formation of election committees that conduct the election of worker representatives to participation committees in the absence of a union), as well as on the results of the Government’s efforts to pilot such elections without any representation of employers (compared to the amended rule of one employer representative in election committees). The Committee notes the Government’s indication that the DOL has been supervising the election of workers’ representatives to participation committees but observes that the Government does not elaborate on the practical application of the amended Rule 188 or on the pilot project. The Committee therefore reiterates its previous request in this regard.

In its previous comment, the Committee also took note of the 2022 BLR amendment and urged the Government to ensure an expedited review of the remaining issues of BLR compatibility with the Convention (Rules 2(g) and (j); 85, Schedule IV, sub-rule 1(h); 169(4); 190; 202; and 350)). The Committee notes that both the ITUC and the TU-ILS raise concerns in relation to the pending issues of BLR compatibility with the Convention and allege, in addition, that: employers use participation committees to suppress trade union activities at the factory level; Rule 172(3) requires both the Director General and the union to inform the employer about its registration; Rule 81(4) allows for a predominant role of employers in the selection of the safety committee secretary and Rule 81(10) gives employers, in certain circumstances, a role in determining workers’ representatives in safety committees, leading to concerns as to the legitimacy of these committees, which are essential to ensure safe working conditions. The Committee further observes the amendment to Rule 183(2) which limits workers’ representatives in participation committees to permanent workers. The Committee requests the Government to provide its observations on the practical application of these amendments and urges the Government once again to ensure an expedited review of all the remaining issues in relation to the Bangladesh Labour Rules, detailed in its previous and current comments, so as to bring them into conformity with the Convention.

Right to organize in export processing zones. In its previous comment, the Committee urged the Government to expedite the review of the ELA to provide EPZ workers with all the rights guaranteed in the Convention, including on matters concerning the minimum membership requirements to establish Workers’ Welfare Associations (WWAs) and federations and the right to associate with other entities. The Committee further requested the Government to provide detailed information on the number of applications and registrations of WWAs, WWA federations and employers’ associations.

The Committee notes the Government’s indication that: (i) the amendment process of the ELA started in July 2023, including consultations with the social partners, and should be completed by 2025; (ii) the issues raised by the Committee will be thoroughly reviewed in the process; (iii) the BEPZA and the ILO jointly conducted workshops on improving labour standards in the EPZs and trainings for relevant stakeholders; (iv) the BEPZA engaged in an exchange of views with WWA representatives on labour rights in EPZs and in consultations with workers’ and employers’ representatives on labour rights and best practices, the ELA and the EPZ Labour Rules adopted in 2022. The Committee also takes note of the statistical information provided on the formation and registration of WWAs between November 2022 and July 2023, showing that 31 applications for registration were received and granted. While taking due note of the Government’s initiatives and welcoming the continued technical assistance of the Office, the Committee must recall that an exceptionally large number of provisions still need to be repealed or substantially amended to ensure the conformity of the ELA with the Convention and that many of the issues raised under the ELA continue under the newly adopted EPZ Labour Rules (an official translation has not yet been made available to the Committee for a detailed assessment). It also observes the allegations of the ITUC that the situation of the right to organize worsened with the implementation of the ELA, as workers can only join a WWA, where they may not be given the full scope of collective bargaining. The Committee therefore urges the Government to expedite the review of the ELA and the EPZ Labour Rules, in full consultation with the social partners, to ensure the conformity of the legislation with the Convention, in particular on the pending issues highlighted by the Committee in its previous and current comments. The Committee recalls that these include, among others, scope of the law, minimum membership requirements, various forms of interference in WWAs’ or WWA federations’ internal affairs, unduly broad powers and interference of the Zone Authority, and excessive restrictions on the administration and functioning of WWAs, federations and employers’ organizations. The Committee further requests the Government to continue to provide statistics on the number of applications and registrations of WWAs, WWA federations and employers’ organizations in EPZs, and to provide an English translation of the EPZ Rules.

In its previous comment, the Committee also encouraged the Government to continue to review the inspection framework set out in the EPZ Labour Rules to ensure the necessary independence of the Department of Inspection for Factories and Establishments (DIFE) and to continue to provide statistical information on inspections of the DIFE in EPZs. The Government informs that the DIFE inspection modality of EPZ factories had been incorporated in the EPZ Labour Rules and that the DIFE is conducting inspections independently and frequently (52 EPZ factories inspected as of July 2023). While taking note of this indication, the Committee recalls that sections 168(1) and 180(g) of the ELA stipulate that the BEPZA Chairperson retains ultimate supervision of labour standards in EPZs and that Rule 290 of the EPZ Labour Rules provides that the DIFE shall submit inspection reports to the Additional Inspector General of the zones who shall direct the concerned establishment to implement the recommendations which he deems feasible. Considering that these provisions may hinder the independent nature and proper functioning of labour inspection, the Committee requests the Government to continue to review the inspection framework set out in the EPZ Labour Rules to ensure the necessary independence of the DIFE and to continue to provide statistical information on DIFE inspections of EPZs. The Committee once again requests the Government to continue to take steps to ensure that unrestricted access for and jurisdiction over labour inspection activities in EPZs is provided to DIFE inspectors. The Committee refers to its more detailed comments on this point made under the Labour Inspection Convention, 1947 (No. 81).

Finally, noting the Government’s indication that all relevant ministries and departments have been engaged in the implementation of the road map established to address all outstanding matters contained in the article 26 complaint, and recalling the overlapping nature of these matters and those raised in the present comment, the Committee expects full and genuine engagement of the Government in addressing these issues. In particular, the Committee firmly expects any upcoming measures taken by the Government, including any legislative amendments, to duly take into account the Committee’s present and previous detailed comments to achieve a timely implementation of the road map and full compliance with the Convention.