Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report, and the statement made by the Government representative to the 1998 Conference Committee and the discussion that followed. The Committee also takes note of the conclusions of the Committee on Freedom of Association in Case No. 1862 (306th Report, 308th Report and 311th Report).

The Committee recalls that it has been commenting for a number of years concerning the following discrepancies between the national legislation and the provisions of the Convention:

-- the exclusion of managerial and administrative employees from the right of association under the Industrial Relations Ordinance, 1969 (IRO);

-- restrictions on the right of association of public servants;

-- restrictions regarding holding trade union office;

-- excessive external supervision of the internal affairs of trade unions;

-- the "30 per cent" requirement for initial or continued registration as a trade union;

-- denial of the right to organize of workers in export processing zones;

-- restrictions on the right to strike.

In addition, the Committee notes that the Committee on Freedom of Association has brought to its attention, in the context of Case No. 1862, the inability to register a trade union on a nationwide basis or a union comprising workers from different establishments owned by different employers (see 306th Report, paragraph 103).

Managerial and administrative functions

In its previous observations, the Committee has commented on the exclusion from the definition of "worker" of persons carrying out managerial or administrative functions, thus denying them the right of association set out in section 3(a) of the IRO. In its last observation, the Committee noted the two main public sector associations referred to by the Government that had been established for these workers, and requested the Government to provide specific information on the number and size of other such associations, including those in the private sector. The Committee also requested the Government to specify which legislative provision grants the right of association to persons carrying out managerial and administrative functions in the private sector.

The Committee notes the Government's statement to the Conference Committee that while these workers cannot form trade unions under the IRO, they are able to form associations for the advancement of their rights and interests by virtue of article 38 of the Constitution of Bangladesh, which gives every citizen the right to form an association or union subject to reasonable restrictions imposed by law in the interests of morality and public order. In its latest report, the Government states that there is no legal bar for managerial or administrative personnel in the private sector, and points to the fact that various banking and insurance companies have officers' welfare associations to promote their service interests. The Government also lists a number of public sector associations, and states that in addition there are officers' welfare associations in the public sector, but that information as to their number and size is not currently available.

The Committee takes note of the Government's reference to article 38 of the Constitution, and requests the Government to provide further information as to the substance of the right to associate under the Constitution, including how the restrictions foreseen thereunder have been applied, and the recourse available to workers where a violation of this constitutional right is alleged. As article 38 of the Constitution only applies to "citizens", the Committee requests the Government to specify how non-citizens carrying out managerial or administrative functions are able to exercise the right of association. The Committee also looks forward to receiving information on the number and size of the associations, private and public sector, that have been established to further the occupational interests of those carrying out managerial and administrative functions.

Right of association of public servants

The Committee notes that the Government continues to assert that the legislation with respect to public servants is in conformity with the Convention. According to the statement of the Government representative to the Conference Committee, even though public servants are not covered by the IRO, they do have the right to form associations to advance their interests due to the constitutional right to associate referred to above. The Committee notes further that the Government states that matters concerning the exclusion of workers at the Security Printing Press from trade unions are to be placed before the Review Committee now reviewing the draft Labour Code. The Committee notes that the Government has been making this comment for a number of years, and expresses the firm hope that the necessary measures will be taken without further delay to ensure that all workers, without distinction whatsoever, are guaranteed the right to organize, and requests the Government to indicate any progress made in this regard.

The Committee has also raised concerns with respect to the Government Servants (Conduct) Rules, 1979, restricting the right of public servants to issue publications. The Government replies in this context that public servants can publish any research based on culture, sports, development works and scientific matters in any newspaper or journal without prior approval; they can also publish any other matter with prior approval of the authority, pursuant to Rules 21 and 22 of the Government Servants (Conduct) Rules. The Committee notes that an extremely limited range of matters may be the subject-matter of publications by public servants, which does not include basic trade union issues, and as such does not allow for a free flow of information, opinions and ideas.

The Committee again recalls that the measures which impose prior restraint on the subject-matter of trade union publications are contrary to the right of workers' organizations to organize their administration and activities and to formulate their programmes without interference from public authorities, and requests the Government to take measures to amend the above-noted rules accordingly.

Restrictions regarding holding trade union office

In its previous comments, the Committee has drawn attention to legislative provisions that excessively restrict the right of workers' organizations to elect their representatives in full freedom. In particular, the Committee noted that section 7-A(1)(b) of the IRO prevents persons who are not current or former employees of an establishment or group of establishments from becoming members or officers of a trade union in such an establishment or group of establishments. In addition, section 3 of Act No. 22 of 1990 provides that a worker dismissed for misconduct shall not be entitled to become an officer of a trade union.

The Government representative to the Conference Committee stated that a worker dismissed for misconduct might seek revenge against the management, which could hinder normal union activities, industrial peace and productivity. In its report, the Government contends that the relevant provisions do not need to be amended. The Committee must again point out that such legislation entails the risk of interference by the employer through the dismissal of trade union members or leaders for exercising legitimate trade union activities, with the result (or even the intention) of depriving them in future of holding a position as a trade union officer. The Committee remains of the view that section 7-A(1)(b) of the IRO and section 3 of the 1990 Act are contrary to the right of workers' organizations to elect their representatives in full freedom, and urges the Government to take measures to have the provisions amended to bring them into conformity with the Convention. The Committee reminds the Government in the context of section 7-A(1)(b), that it does not object to an occupational requirement being imposed for some of the officers of an organization, as long as a reasonable proportion are exempted from such requirement.

Excessive external supervision

The Committee has previously commented that the powers of the Registrar of Trade Unions to enter trade union premises, inspect documents, etc., under Rule 10 of the Industrial Relations Rules, 1977, is not subject to judicial review. The Government states in its report that the powers of the Registrar to inspect documents are exercised in order to ensure that the rules of the organization and the relevant provisions of the labour laws are observed, and to provide adequate safeguards with respect to trade union funds. The Government states that the law provides that the Registrar under section 10(2) of the IRO is to obtain prior permission from the Labour Court before taking any penal action against unions for contravention of any provisions of the laws. The Government concludes that "it is evident that the powers of supervision of the (Registrar) are clearly under judicial review". The Committee regrets that, while it has previously requested the Government to indicate the provisions that subject such powers of supervision to judicial review, the Government has failed to do so, referring only to section 10(2) of the IRO which provides that the Registrar is to submit an application to the Labour Court for permission to cancel the registration of a trade union. The Committee notes that the provision referred to by the Government in no way limits the Registrar's powers to enter premises and inspect documents and does not subject the substance and procedure of the Registrar's verifications to review by an impartial judicial authority. Noting again that there does not appear to be any limits on the Registrar's powers under Rule 10 to enter trade union premises and inspect documents, etc., and that this power is not subject to judicial review, the Committee asks the Government to amend this provision to bring it into conformity with the Convention.

Registration requirements

The Committee recalls that it has been commenting for several years on the lack of conformity with Article 2 of the Convention of provisions of the IRO imposing a requirement for initial and continued registration that a trade union have a minimum membership of 30 per cent of the total number of workers employed in the establishment or group of establishments in which it is formed (sections 7(2) and 10(1)(g)). Furthermore, the non-conformity of these provisions with the Convention was also raised by the Committee on Freedom of Association (see Case No. 1862, 306th Report, paragraph 102). The Committee also notes that the Committee on Freedom of Association has raised other related concerns, namely that there is no legal provision enabling the registration of a trade union on a nationwide basis and that, pursuant to a court decision, registration of a union comprising workers from different establishments owned by different employers is prohibited (see 306th Report, paragraph 103). The Committee notes in this regard that the right of workers to form organizations of their own choosing implies the free determination of the structure and composition of trade unions.

The Government again asserts that sections 7(2) and 10(1)(g) are in conformity with the Convention, and states that the requirement "has checked the multiplicity of trade unions which is obviously counterproductive for the workers". The Committee notes, however, that, according to the statement of the Government representative to the Conference Committee, the Government was considering taking measures in the near future concerning these provisions. The Committee expresses the firm hope that the necessary measures will be taken in the near future to ensure that the registration provisions are brought into conformity with Article 2 of the Convention.

Export processing zones

The Committee notes that the amendments proposed by the National Labour Law Commission (NLLC), referred to in a previous government report, to extend the provisions of the IRO and related laws to workers in export processing zones not only have not been adopted, but it appears from the Government's latest report that the issue has been resubmitted to a different body for consideration, namely the Review Committee on the Draft Labour Code. The Government also states in its report that the restrictions on the formation of trade unions in export processing zones "are temporary measures necessitated by the national situation, the level of development and the specific circumstances within Bangladesh". The Committee notes that such a fundamental right as the right to organize should not be denied to workers, even temporarily, and that this would constitute a violation of Article 2 of the Convention. In any event, the Committee is of the view that the Export Processing Zones Authority Act which provides for the exemption of the zones from the operation of the IRO, cannot be considered a "temporary measure", in view of the fact that it was adopted in 1980. Due to the seriousness of the violation of such an important right, the Committee urges the Government to take measures without further delay to ensure that workers in export processing zones are entitled to exercise all the rights under the Convention.

Restrictions on the right to strike

In its previous comments, the Committee has repeatedly raised concerns with respect to several provisions of the IRO limiting the right to strike and other forms of industrial action, in violation of the principles of freedom of association. The Committee has commented in particular on the following provisions: (i) the necessity for three-quarters of the members of a workers' organization to consent to a strike (section 28); (ii) the possibility of prohibiting strikes lasting more than 30 days (section 32(2)) and of prohibiting a strike at any time if it is considered prejudicial to the national interest (section 32(4)) or involves a public utility service (section 33(1)); and (iii) the nature of the penalties that may be imposed in respect of participation in unlawful industrial action (sections 57 to 59), including imprisonment. The Committee notes the statement made by the Government representative to the Conference Committee to the effect that the provisions noted above have been examined by the National Labour Law Commission whose report was still being studied by the Government. The Committee notes with interest the further statement of the Government representative that the Government would welcome the technical assistance of the International Labour Office concerning the implementation of the Convention.

The Committee notes the Government's statement that the powers of prohibiting a strike are exercised only in circumstances of national crisis, in conformity with the justification permitted by the Committee. The Committee notes that, while restrictions on strikes may at present only be imposed in circumstances of national crisis, the legislative provisions allow for restrictions to be imposed extending far beyond such circumstances; thus the provisions should be amended accordingly to bring them in line with the requirements of the Convention. The Committee recalls that, while the Committee is of the view that strikes can be restricted in the case of an acute national crisis, this must be limited to a genuine crisis situation, such as those arising from a serious conflict, insurrection or natural disaster, and any such restriction should be imposed only for a limited period and to the extent necessary to meet the requirements of the situation (see General Survey on freedom of association and collective bargaining, 1994, paragraph 152). The Committee, therefore, asks the Government to take the necessary measures to have the legislation amended to ensure that restrictions on the right to strike are confined accordingly.

The Committee notes with regret that no progress has been made by the Government in attempting to bring its legislation into fuller conformity with the requirements of the Convention, and that the Government continues to assert that the legislation does not violate the Convention, despite the repeated comments of the Committee to the contrary. In addition, according to information received by the ILO, it seems that trade union activities in the banking sector have been suspended since January 1998. Furthermore, several applications for registration by trade unions in the textile, metal and garment sector were rejected on unjustified grounds. In this respect, the Committee requests the Government to provide information in its next report concerning these serious allegations.

The Committee asks the Government to review and amend the legislation referred to above, taking into account the Committee's comments, and to inform it of any progress made in this regard. The Committee expresses the firm hope that the Government, having stated that it would welcome ILO technical assistance concerning the implementation of the Convention, will indeed accept such assistance in the near future.

The Committee is also addressing a request directly to the Government.