Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bangladesh (Ratification: 1972)

Other comments on C098

Observation

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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 4 and 31 August 2011, concerning the dismissal of more than 5,000 employees in the garment sector in 2010, in response to workers’ exercise of their trade union rights as well as several cases in which the leaders of worker welfare societies have been fired in retaliation for the exercise of trade union rights. The Committee requests the Government to provide its observations thereon.

In its previous comments, the Committee had noted the comments submitted by the National Level Trade Union Federation of Workers (NCCWE), sent along with the Government’s report, stating that there is a weak implementation of labour law in general, and more particularly an unwillingness of employers to recognize trade unions and collective bargaining. The Committee notes the Government’s indication that with all its capacity, it has been very much committed to implement the provision of the Labour Act, 2006, all over the country and that it has established a Department of Labour (MOLE) which looks after the trade unions aspects in the country and a Department of Inspection for Factories and Establishments (DIFE). The Committee further notes that the Government has started the implementation of a Better Work Programme, with the assistance of the ILO.

Articles 1 and 3 of the Convention. Protection of workers in export processing zones (EPZs) against anti-union discrimination. In its previous comments, the Committee had noted that the ITUC referred to numerous problems concerning the application of the Convention in the EPZ sector, particularly in the garment industry. The ITUC further stated that although the law provides for the establishment of an EPZ labour tribunal and an EPZ labour appellate, these two bodies had yet to be established, thus denying workers access to the judicial system for their grievances. The Committee had requested the Government to provide information in respect of these matters, including information on the number of complaints of anti-union discrimination in the EPZ sector submitted to the competent authorities, as well as the outcomes of those complaints.

As concerns the establishment of an EPZ Labour Tribunal and an EPZ Labour Appellate, the Committee had previously noted that according to the Government, EPZ workers could seek judicial redress in cases of anti-union discrimination. The Committee had noted that the Government had decided to allow the existing labour courts of the country (established under the Labour Act, 2006) to dispose of EPZs industrial disputes and settle the workers’ complaints, by incorporating necessary modifications in sections 56 and 59 of the EPZ Workers Association and Industrial Relation Act 2004. The Committee notes that in August 2010, the Parliament passed the EPZ Workers’ Welfare Societies and Industrial Relations Act 2010 (EWWSIRA) and that section 52 specifies that until the EPZ Labour Tribunal is established under section 48 and the EPZ Labour Appellate Tribunal is established under section 51, labour courts established under section 214 and the Labour Appellate Tribunal established under section 218 of the Bangladesh Labour Act, 2006 shall be deemed to be the EPZ Labour Tribunal and the EPZ Labour Appellate Tribunal respectively for carrying out the purposes of the Act. The Committee also notes that the Government indicates in its report that two separate orders will be published within very short time regarding the EPZ Labour Tribunal and EPZ Labour Appellate Tribunal. The Committee recalls the principle that the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The Committee requests the Government: (i) to provide statistics in its next report on the number of complaints of anti-union discrimination presented by workers in the EPZs before the labour courts established under sections 214 and 218 of the Bangladesh Labour Act, 2006; and (ii) to indicate the progress made regarding the adoption of the two separate orders on the EPZ Labour Tribunal and EPZ Labour Appellate Tribunal and to provide a copy of those two orders when adopted.

The Committee further notes that the Government indicates in its report that the intervention of counsellors is well established in all EPZs to deal with employees’ grievances (e.g. harassment, dismissal, violence) and that conciliators and arbitrators have the power to resolve disputes after counsellors, as per sections 40–45 of the EWWSIRA 2010. However, the Committee notes that according to the ITUC’s 2011 comments, the Bangladesh Export Processing Zones Authority (BEPZA) has not yet appointed new conciliators (when the 2004 Act expired, the Government did not extend the tenure of the EPZ conciliator who was appointed under that act) as required under the EWWSIRA 2010 thus hampering industrial dispute resolution in the EPZs. The Committee requests the Government to indicate the measures taken or envisaged to appoint new conciliators in the very near future, as requested under the EWWSIRA 2010.

Article 2. Lack of legislative protection against acts of interference. The Committee had previously noted that the Labour Act 2006 did not contain a prohibition of acts of interference designed to promote the establishment of workers’ organizations under the domination of employers or their organizations, or to support workers’ organizations by financial or other means with the object of placing them under the control of employers or their organizations, and had requested the Government to indicate the measures taken to adopt such a prohibition. The Committee noted the Government’s indication that protective measures are laid down in the Labour Act, particularly in sections 195 and 196 concerning “unfair labour practice on the part of the employer”, and that such act by the employer is an offence punishable under section 291 of the Labour Act, which provides for a prison term which may extend to two years or with a fine of up to 10,000 Bangladeshi taka (BDT), or both. The Committee further noted the Government’s indication that the Tripartite Labour Law Review Committee (TLLRC) may consider adopting a more comprehensive prohibition, as requested by the Committee. Noting that no further information was provided by the Government in its present report, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to adopt a comprehensive prohibition that covers acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs. The Committee hopes that as a first step, the TLLRC will include in its recommendations that a comprehensive prohibition covering acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs should be adopted.

Article 4. Legal requirements for collective bargaining. In its previous comments, the Committee had referred to section 179(2) of the Labour Act, which provides that a trade union may only obtain registration if it represents 30 per cent of the workers in an establishment, as well as to section 202(15) of the Labour Act, which provides that if there is more than one trade union in an enterprise, the Director of Labour shall hold a secret ballot to determine the collective bargaining agent. The Committee recalled that the percentage requirements for registration of a trade union, and for the recognition of a collective bargaining agent set out in sections 179(2) and 202(15) of the Labour Act 2006, may impair in certain cases, in particular in respect of large enterprises, the development of free and voluntary collective bargaining. The Committee notes that the Government indicates in its report that the percentage requirement in section 202(15) has been repealed and that it is the trade union that secures the highest number of votes that is declared as the collective bargaining agent. The Committee notes this information with interest and requests the Government to provide the text of the new section 202 of the Labour Act, 2006.

The Committee further noted that according to NCCWE, collective bargaining is limited as there is no legal provision for collective bargaining at the industry, sector or national levels. In this regard, the Committee notes the Government’s indications that: (i) sections 202 and 203 of the Labour Act, 2006 directly concerns collective bargaining; (ii) the settlement of disputes through bipartite negotiations is done at the industry level and that similarly, different issues are settled through bipartite negotiation or through conciliation at the sector level, such as tea sector, shrimp sector, etc.; (iii) collective bargaining was also done at the national level through consultation with the Workers’ Federation but such practice no longer prevails; and (iv) there are currently 7,297 trade unions registered with the Department of Labour, 32 national federations, 112 industrial federations and 36 garments industries federations and a total of 11 collective bargaining agreements. The Committee requests the Government to amend sections 202 and 203 of the Labour Act, 2006 in order to provide clearly that collective bargaining is possible at the industry, sector and national levels. The Committee further requests the Government to provide statistics on the number of collective agreements concluded at the industry, sector and national levels respectively in its next report.

Promotion of collective bargaining in the EPZs. In its previous comments, the Committee had requested the Government to provide information on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded and the number of workers they cover. The Committee notes the Government’s indication that 302 enterprises are eligible for workers’ associations among 366 in operation and that workers’ associations referendums were held in 205 enterprises – or 67.88 per cent of the total number of eligible enterprises. However, no information was provided by the Government concerning the conclusion of collective agreements in the EPZs. The Committee notes that according to the ITUC, while elected Workers’ Welfare Societies (what substitutes for trade unions in the absence of a legal right to form one) in the EPZs have been established, employers have failed to take the next step and bargain collectively as required by the EWWSIRA Act 2010. The Committee therefore once again requests the Government to provide information in its next report on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded since 2008, and the number of workers they cover.

The Committee further notes that according to the ITUC, there has been little progress on collective bargaining in the EPZs and that this is largely due to the BEPZA’s insistence that there is no room for collective bargaining on any working conditions above the minimum standards already established in the 2004 Act and BEPZA Instructions 1 and 2. The ITUC adds that this largely eviscerates the bargaining provisions of the EWWSIRA 2010 and leaves no room for collective bargaining. The Committee recalls that excluding wages, working hours, rest periods, leave and conditions of works from the field of collective bargaining is not in harmony with Article 4 of the Convention. The Committee requests the Government to ensure that this principle is applied in practice in the EPZs and to provide a copy of BEPZA Instructions 1 and 2.

Tripartite wages commissions in the public sector. The Committee recalls that in its previous comments, it had requested the Government to take the necessary legislative or other measures to end the practice of determining wage rates and other conditions of employment in the public sector by means of government-appointed tripartite wages commissions (section 3 of Act No. X of 1974). The Committee noted that the Government indicated in its report that this system does not prevent free and voluntary collective bargaining. Nevertheless, the Committee, while recognizing the singularity of the public sector which allows special modalities, considered that simple consultation with unions of public servants not engaged in the administration of the State does not meet the requirements of Article 4 of the Convention. The Committee notes that the Government once again reiterates its position. The Committee underlines that the Government has not referred to any collective agreement in the public sector. The Committee therefore once again urges the Government to take the necessary measures to end the practice of determining wage rates and other conditions of employment of public servants not engaged in the administration of the State by means of simple consultation in government-appointed tripartite wages commissions, so as to favour free and voluntary negotiations between workers’ organizations and employers or their organizations. The Committee once again requests the Government to indicate any measures taken or contemplated in this regard.