Observación (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the information contained in the Government’s report, including the recently adopted EPZ Workers’ Associations and Industrial Relations Act, No. 23 of 2004. It also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2327 with respect to the conformity of the provisions of this Act to the Convention (see 337th Report, approved by the Governing Body at its 293rd Session, June 2005, paragraphs 183-213). It notes finally, the comments sent by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005. It requests the Government to communicate its observations on the comments in its next report.

1. Right to organize in export processing zones. The Committee notes that in its conclusions and recommendations reached in Case No. 2327, the Committee on Freedom of Association expressed its concern at the fact that, while taking certain steps to provide greater freedom of association to EPZ workers, the EPZ Workers’ Associations and Industrial Relations Act contains numerous and significant restrictions and delays in relation to the right to organize in EPZs. The Committee also notes the comments made in this respect by the ICFTU.

While observing that the adoption of this Act is aimed at providing greater protection for the association rights of EPZ workers, the Committee notes that numerous provisions of the EPZ Workers’ Associations and Industrial Relations Act are incompatible with the Convention. In particular, the Act: (i) contains a blanket denial of the right to organize in EPZs until 31 October 2006, thus postponing the effective recognition of this right until November 2006 (section 13(1)); (ii) provides that workers’ representation and welfare committees (WRWCs), which function instead of workers’ associations until 31 October 2006, shall be dissolved after that date, unless the employer considers that they should continue to function (section 11(2)); (iii) provides that workers’ associations will not be allowed in industrial units established after the commencement of the Act, until a period of three months has expired after the commencement of commercial production in the concerned unit (section 24); (iv) provides that there can be no more than one workers’ association per industrial unit (section 25(1)); (v) establishes excessive and complicated minimum membership and referendum requirements for the establishment of workers’ associations (sections 14, 15, 17 and 20); (vi) confers excessive powers of approval of the constitution drafting committee to the executive chairperson of the Bangladesh Export Processing Zones Authority (BEPZA) (section 17(2)); (vii) prevents steps for the establishment of a workers’ association in the workplace for a period of one year after a first attempt failed to gather sufficient support in a referendum (section 16); (viii) permits the deregistration of a workers’ association at the request of 30 per cent of the workers even if they are not members of the association and prevents the establishment of another trade union for one year after the previous trade union was deregistered (section 35); (ix) provides for the cancellation of the registration of a workers’ association on grounds which do not appear to justify the severity of this sanction (such as contravention of any of the provisions of the association’s constitution) (section 36(1)(c), (e)-(h) and 42(1)(a)); (x) establishes a total prohibition of industrial action in EPZs until 31 October 2008 (section 88(1) and (2)); (xi) prevents workers’ associations from obtaining or receiving any fund from any outside source without the prior approval of the executive chairperson of the BEPZA (section 18(2)); (xii) provides for severe restrictions of strike action, once recognized (possibility to prohibit a strike if it continues for more than 15 days or even before this deadline, if the strike is considered as causing serious harm to productivity in the EPZ - section 54(3) and (4)); (xiii) requires an excessively high minimum number of trade unions to establish a higher level organization (more than 50 per cent of the workers’ associations in an EPZ - section 32(1)); (xiv) prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs (section 32(3)); and (xv) does not seem to afford guarantees against interference with the right of workers to elect their representatives in full freedom (e.g. the procedure of election shall be determined by the BEPZA, etc. - sections 5(6) and (7), 28(1), 29, 32(4)). The Committee requests the Government to take the necessary measures to amend the EPZ Workers’ Associations and Industrial Relations Act so as to bring it into conformity with the Convention and to provide detailed information in its next report in this respect.

2. Other discrepancies between national legislation and the Convention. The Committee recalls that for many years it has been referring to serious discrepancies between the national legislation and the Convention. It also notes that, according to the comments made by the ICFTU, there has been no improvement in national law and practice. In this respect, the Committee notes that, in its latest report, the Government reiterates previously provided information and indicates that in light of the national context, there is no discrepancy between the national legislation and the Convention. The Committee nevertheless underscores the universal nature of the rights set forth in the Convention and the absence of any exclusions relating to the national context.

The Committee therefore reiterates the hope that it will be possible to bring the legislation into full conformity with the requirements of the Convention as soon as possible and asks the Government to provide information in its next report with regard to measures taken or contemplated in order to:

-  remedy the exclusion of managerial and administrative employees from the right to association (section 3(a) of the IRO);

-  repeal provisions which restrict membership in trade unions and participation in trade union elections to those workers who are currently employed or were employed during the previous year in an establishment or group of establishments (section 7A(1)(b) of the IRO); moreover, repeal provisions which prevent workers from running for trade union office if they were previously dismissed for misconduct;

-  limit the overly broad authority of the Registrar of Trade Unions to enter trade union offices, inspect documents, etc., without judicial review (Rule 10 of the Industrial Relations Rules, 1977);

-  lower the minimum membership requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments for initial and continued union registration (sections 7(2) and 10(1)(g) of the IRO);

-  lift several restrictions on the right to strike (requirement for three-quarters of the members of a workers’ organization to consent to a strike (section 28 of the IRO), possibility of prohibiting strikes which last more than 30 days (section 32(2) of the IRO) and also at any time if a strike is considered prejudicial to the national interest (section 32(4) of the IRO) or involves a public utility service (section 33(1) of the IRO) and penalties of imprisonment for participation in unlawful industrial action (sections 57 and 59 of the IRO)).

3. Adoption of the draft Labour Code. The Committee recalls that, in its previous report, the Government had indicated that the draft Labour Code was being re-examined by the Tripartite Labour Code Review Committee, while the issue of the right of association of workers in the Security Printing Press had also been placed before the Review Committee. The Committee notes that the Government’s latest report contains no information with regard to these issues. The Committee requests once again that the Government transmit in its next report a copy of the draft Labour Code and provide information as to the current stage in the process of adoption of the Labour Code. It also requests that the Government provide information on measures taken to guarantee the right of association to workers in the Security Printing Press.

In respect of the legislative issues raised above, the Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

4. Publications of public servants’ associations. With regard to its previous comments concerning the right of public servants’ associations to issue publications on trade union matters (Government Servants Conduct Rules, 1979), the Committee notes the Government’s comments in its report to the effect that public servants can publish any research paper, articles or scientific matters in the newspapers or journals without prior approval of the Government, subject to the condition that such papers, materials or articles do not go against the interests of the Government, or the State, the citizens or the country’s integrity. While being aware of the particular nature of the functions performed by public servants, the Committee also recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights which calls for a free flow of information, opinions and ideas. The Committee emphasizes that workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of their other activities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 38). It requests the Government to ensure respect for this freedom in practice.

5. ICFTU comments on violations of the Convention. The Committee notes with concern that, according to the comments sent by the ICFTU on 20 April 2005, the police arrested 350 women trade unionists, including the General Secretary of the JSL’s Women’s Committee, Shamsur Nahar Bhuiyan, when they were taking part in activities to mark Women’s Day organized by the ICFTU-affiliated Jatio Sramik League (JSL). They were released on bail on 25 April and were due to face possible charges in court on 5 May 2005, although the nature of those charges were unclear. The Committee recalls that the arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association. Moreover, the Committee emphasizes that freedom of assembly constitutes a fundamental aspect of trade union rights and the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see General Survey, op. cit., paragraphs 31 and 35). The Committee requests the Government to communicate its observations on the comments made by the ICFTU and, in particular, to indicate the grounds on which 350 women trade unionists including the General Secretary of the JSL’s Women’s Committee, Shamsur Nahar Bhuiyan, were arrested, whether charges have been brought against them and any measures taken to drop such charges and to remedy any damages suffered.

6. Furthermore, the Committee takes note of the comments made by the ICFTU with regard to the Registrar’s refusal to register the Immaculate (Pvt.) Ltd. Sramik Union and the conclusions and recommendations reached by the Committee on Freedom of Association in this respect (Case No. 2327, 337th Report, paragraphs 214-240). The Committee requests the Government to indicate in its next report the measures taken to ensure the prompt registration of the Immaculate (Pvt.) Ltd. Sramik Union.

The Committee addresses a request on certain other points directly to the Government.