Observación (CEACR) - Adopción: 1989, Publicación: 76ª reunión CIT (1989)

The Committee takes note of the report of the Government. It also takes note of the observations made by the Bangladesh Employers' Association.

The Committee recalls that for a number of years it has expressed concerns relating to:

- the right of association of persons carrying out managerial and administrative functions;

- the right of association of public servants;

- restrictions upon the range of persons who can hold office in trade unions;

- the extent of external supervision of the internal affairs of trade unions; and

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

Managerial and administrative functions

The Comittee has pointed out that section 2(b)(viii) of the Industrial Relations Ordinance, 1969, as amended, excludes from the definition of "worker" and "workmen" persons who are employed in a managerial or administrative capacity or who exercise functions of a managerial or administrative nature. This has the consequence that such persons are denied the right of association which is set out in section 3(a) of the Ordinance. In the past the Committee has noted statements by the Government and by the Bangladesh Employers' Association to the effect that such staff are covered by the definition of "employer" in section 2(b)(viii), whose right of association is provided for by section 3(b) of the same Ordinance. The Committee has pointed out, as it does in paragraph 131 of its General Survey of 1983, that forbidding such persons to join trade unions representing other workers is not necessarily incompatible with freedom of association, on two conditions: first, that they have the right to form their own organisations to defend their interests and, second, that the categories of managerial staff and employees in positions of confidence are not so broadly defined that the organisations of other workers in the establishment or branch of activity are weakened by being deprived of a substantial proportion of their present or potential membership. According to the Bangladesh Employers' Association, there would be no management or administration if these groups of staff were authorised to set up trade unions with the workers under their orders. The Committee has noted that these groups of persons are entitled to set up their own associations for the defence of their interests. Bearing these considerations in mind, the Committee has repeatedly asked the Government and/or the Bangladesh Employers' Association to provide details as to the number or percentage of workers affected by these provisions. In its most recent observation, the Employers' Association states that the number is "small". The Government states that the required information is not readily available.

The Committee again asks the Government to try to provide some estimate of the percentage of the workforce who are regarded as being employed in a managerial or administrative capacity. It also asks the Government to provide information as to the number, and size of membership, of organisations which have been formed in order to represent the interests of such staff.

Right of association of public servants

The Committee recalls that public servants, apart from those employed on the railways, and in postal, telegraph and telephone services, are excluded from the scope of the Industrial Relations Ordinance, 1969. They are permitted to form and to join associations for purposes of ventilating their grievances and promoting their interests. However, such associations are subject to a number of constraints which do not apply to trade unions which operate within the framework of the 1969 Ordinance. For example, section 29(c) and (e) of the Government Servants (Conduct) Rules, 1979, forbids associations from engaging in any form of political activity, whilst section 29(d) denies them the right to issue or maintain any publications other than in accordance with Government orders, or to publish any representation on behalf of their members except with the express sanction of the Government.

The Committee has repeatedly pointed out that such restrictions are not in conformity with the requirements of the Convention. It again urges the Government to reconsider the situation, in order to give full effect to Articles 2 and 3 of the Convention with respect to public servants.

Restrictions upon the right to join or to hold office in trade unions

As a result of amendments in 1970 and in 1980, section 7A(1)(a)(ii) and (b) of the Industrial Relations Ordinance, 1969, limited the right to be a member or officer of a trade union to persons actually employed in the establishment or group of establishments where the union was formed. The Committee has consistently taken the view that a provision of this kind restricts the right of workers to establish and to join organisations of their own choosing (Article 2 of the Convention), to elect their representatives in full freedom and to organise their administration and activities (Article 3) (see the Committee's General Survey of 1983, paragraphs 157 and 158). Section 7A was amended in 1985 so as to remove the prohibition formerly contained in section 7A(1)(b). The Committee has observed that this change reflected the fact that this provision had ceased to be necessary by reason of the effluxion of time. The stipulation formerly embodied in section 7A(1)(a)(ii) is now found in a new section 7A(1)(b), but with the important qualification that former employees at an establishment or group of establishments can now be members or officers of a trade union formed at that establishment. Both the Government and the Bangladesh Employers' Association are of the opinion that section 7A(1) is now consistent with the requirements of the Convention. The Committee notes the amendment, and the views of the Government and of the Employers' Association, with interest. However, it requests the Government to adopt measures with a view to making these provisions more flexible by exempting from the occupational requirement a reasonable proportion of the officers of an organisation so as to allow the candidature of persons who are outside the profession. (General Survey, paragraph 158.)

External supervision

The Committee has noted on a number of occasions that section 10 of the Industrial Relations Rules, 1977, invests the Registrar with very wide-ranging powers as regards access to, and inspection of, the accounting and other records of trade unions. In a 1987 observation, the Bangladesh Free Trade Union Congress also drew attention to the broad scope of these powers, and to the fact that officials of the Federation (and other unions) are summoned to the office of the Authorised Officer (Registrar) immediately on receipt of their annual returns.

The Committee notes the information supplied by the Government to the effect that in practice the supervision exercised by the Registrar is limited to the inspection of account books and calling for any necessary clarification. The Government further states that no investigatory measure has so far been taken by the Registrar against any trade union or federation, and that the summoning of officials of the Bangladesh Free Trade Union Congress was entirely consistent with both the legislation and the Convention. The Government also points out that the powers of the Registrar in relation to the deregistration of trade unions (for example because of financial irregularities) is subject to judicial review by virtue of section 10(3) of the Industrial Relations Ordinance, as amended in 1985. However, the Committee notes that there does not appear to be any express provision for judicial review of the exercise of the Registrar's powers under section 10(g) of the Industrial Relations Rules 1977. The Committee asks the Government to inform it whether or not this is indeed the case.

The Committee also notes the views of the Bangladesh Employers' Association to the effect that union officers hold the funds of the union on trust for the members, and that accordingly it is appropriate that the law should seek to protect the interests of those members. The Committee refers again to paragraph 188 of its General Survey of 1983, where it points out that investing an administrative authority (such as the Registrar) with broad discretionary powers to examine the papers of an organisation creates a grave danger of interference with the guarantees provided by the Convention. Accordingly it requests the Government to keep it informed of any practical problems which may arise from the continued operation of these provisions - especially in the form of complaints by registered unions of undue interference on the part of the Registrar.

The 30 per cent requirement

The Committee again notes that section 7(2) of the Industrial Relations Ordinance, 1969, provides that no trade union may be registered under the Ordinance unless it has 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. It also notes that section 10(1)(g) of the Ordinance gives the Registrar the power to cancel the registration of a trade union where its membership has fallen short of 30 per cent of the workers at the establishment(s) concerned. Decisions under both of these provisions are subject to judicial review.

In its report, the Government reiterates its opinion that the purpose of sections 7(2) and 10(1)(g) is to help the unions to maintain their numbers and ensure social peace by avoiding a multiplicity of small competing unions. The Government also points out that no group of workers, union or federation, has ever raised any doubt about the efficacy of these provisions.

The Committee has taken the view that provisions like section 10(1)(g) which grant an administrative authority discretionary powers over the existence of a trade union, are equivalent to a restriction on the right of workers to establish and to join organisations of their own choosing without prior authorisation, as envisaged by Article 2 of the Convention (see General Survey, 1983, paragraphs 104-119). It is obviously appropriate that there be a right of apppeal against decisions of the Registrar under sections 7 and 10 of the Ordinance. However, the Committee points out that the existence of such a right of appeal does not of itself constitute a sufficient protection of the rights guaranteed by the Convention since it does not alter the nature of the powers conferred upon the Registrar in the first place (see General Survey, 1983, paragraph 117).

The Committee considers that, where the legislation lays down a criterion of a minimum number of members, this number should be a reasonable one. The figure of 30 per cent, applied generally both to small and to large establishments, is excessive in the opinion of the Committee, which considers that it may be an obstacle to the establishment of organisations (see General Survey, 1983, paragraphs 123-124).

The Committee urges once again the Government to reconsider the situation as a whole in the light of the above comments and to report any measure that is taken in order to give effect to the Convention. [The Government is asked to supply full particulars to the Conference at its 76th Session.]