Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 81) sur l'inspection du travail, 1947 - Bangladesh (Ratification: 1972)

Autre commentaire sur C081

Observation

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The Committee recalls the discussion in the Committee on the Application of Standards (CAS) of the International Labour Conference at its 103rd Session (May–June 2014) on the application of the Convention.

Following the request made by the CAS, the Committee notes that a direct contacts mission to Bangladesh took place from 18 to 20 October 2015, and that the mission has prepared a report on the follow-up to the 2014 conclusions of the Conference Committee concerning the application of the Convention.

Legislative developments. The Committee notes that the Bangladesh Labour Rules implementing the revised Labour Act (BLR, 2015) were published in the Official Gazette on 15 September 2015. The Committee makes observations on the relevant parts of these Rules under the Articles of the Convention referred to below.

Articles 2, 3(1)(a) and (b), 5(a), 13, 17 and 18 of the Convention. Inspection activities to improve occupational safety and health (OSH) standards in the ready-made garment (RMG) sector. The Committee previously noted the various activities and programmes being undertaken by the Government and the social partners with ILO support, as well as those being implemented with other actors, to improve OSH standards in factories in the RMG sector.

It notes the Government’s indication in its report that, as of September 2015, a total number of 3,407 RMG factories had been subject to fire, electrical and structural inspections (1,333 by the national initiative, 1,274 by the group of retailers and apparel brands, ACCORD, and 800 by the group of retailers and apparel brands, ALLIANCE). The review panel established by the Department of Inspection for Factories and Establishments (DIFE) to follow up on the recommendations made in consequence of these initiatives ordered the closure of 34 factories, and the partial closure of 49 factories (following inspections of 110 factories). The Committee notes from the information contained in the direct contacts mission report that doubts exist as to whether the public authorities responsible for fire, electrical and structural safety have the human resources and capacities required to take over from the private initiatives – ACCORD and ALLIANCE – once their mandate expires in 2018. In this regard, the Committee notes from the information provided in the Government’s report that initiatives are under way to increase the number of inspectors within the public bodies responsible for building safety (the capital development authorities (RAJUK)) and fire safety (Department of Fire Service and Civil Defence (DFSCD)).

Inspection activities in sectors other than the RMG sector, including construction. The Committee notes that following the Committee’s previous request the Government has indicated in its report that in 2015 the construction sector has been one of the priority sectors for inspection due to the high number of occupational accidents within it. In this regard, the Committee also notes, however, that the information contained in the Government’s report provided following the direct contacts mission in October 2015 suggests that inspection activities continue to be focused on the RMG sector. The Committee further notes that the direct contacts mission report indicates that the informal sector, which accounts for 87 per cent of the workforce of the country (according to a DIFE 2015 report), is not covered by labour inspections at all.

The Committee requests the Government to provide detailed information on the labour inspection activities disaggregated by sector on an annual basis (including statistics relating to the workplaces in the different sectors and the number of workers employed therein, the number on labour inspections carried out, the violations detected and the penalties imposed, the statistics of occupational accidents and diseases, including deaths resulting from these accidents and diseases etc.).

Cooperation of the labour inspectorate and other public or private institutions engaged in similar activities. In relation to the Committee’s previous request concerning coordination between the labour inspection services and public and private initiatives, the Committee welcomes the Government’s reference in its report to: (i) the development of common minimum standards (devised by the Bangladesh University of Engineering and Technology (BUET) with the assistance of the ILO) for assessing the fire, electrical and structural integrity of RMG factories across public and private initiatives; (ii) the coordination of fire and structural inspections by the High-Level National Tripartite Committee on Fire Safety and Structural Integrity; (iii) the regular coordination meetings between the DIFE, DFSCD and RAJUK; and (iv) the use of a unified checklist by the relevant public bodies, including the DIFE and DFSCD. The Committee requests the Government to continue to provide information in this regard.

Article 3(2). Additional functions entrusted to labour inspectors. The Committee previously noted that the new subsection 124(a) of the Bangladesh Labour Act (BLA), as amended, entrusts the Chief Inspector or any other officials authorized by the Chief Inspector to act as mediator and conciliator in claims concerning outstanding payments or benefits. The Committee notes that Rule 113 of the newly adopted BLR, 2015 makes further provision in this regard.

The Committee once again recalls that Article 3(2) of the Convention provides that any further duties entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties. Moreover, it draws the Government’s attention to the guidance contained in Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), which provides that the functions of labour inspectors should not include acting as conciliator or arbitrator in proceedings concerning labour disputes. The Committee therefore once again requests the Government, in particular in view of the limited human resources available to the labour inspection services, to take the necessary steps to ensure that, in accordance with Article 3(2), any other duties entrusted to labour inspectors do not interfere with the performance of their primary duties. In this regard, consideration should be given to entrusting the mediation and conciliation of individual labour disputes to another public body.

Articles 6 and 7. Status and conditions of service of labour inspectors. Training of labour inspectors. The Committee notes with interest the Government’s indication that, from January 2014 to August 2015, all labour inspectors have been trained in relation to labour law, inspection techniques and OSH.

The Committee also notes from the information contained in the direct contacts mission report that the retention of labour inspectors is problematic. This appears to be because labour inspectors fall outside the career civil service. In this regard, it notes from the direct contacts mission report that a number of recently recruited labour inspectors left the DIFE, after having been trained, to take up work with other government services. The Committee further notes the statements made by the DIFE that it intends in the future to directly recruit labour inspectors to posts outside the career civil service (and not via the Civil Service Commission). The Committee requests the Government to take the necessary steps to ensure that labour inspectors are brought within the career civil service so as to provide them with the same level of protection and career prospects as other public servants. In this regard, it requests the Government to review the professional profiles and grades of labour inspectors and ensure that they reflect those of public servants exercising similar functions, such as tax inspectors or the police. The Committee requests the Government to continue to provide information on the training of labour inspectors, following the adoption of the BLR, 2015. The Committee requests the Government to give specific attention, in the design of the training programmes for labour inspectors on freedom of association, to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), so as to ensure that all training is carried out in full conformity with that Convention.

Articles 10 and 11. Strengthening of the human and material resources of the labour inspectorate. The Committee previously noted the steps that had been taken to strengthen and restructure the labour inspectorate, including by the proposed threefold increase of the Department’s human and budgetary resources and the recruitment of 88 additional labour inspectors.

The Committee notes the Government’s indication that the number of approved labour inspection posts has been increased to 575, and that 230 labour inspectors have been recruited since 2013, bringing the total number of labour inspectors to 283 (187 specializing in general working conditions, 28 specializing in health, and 35 specializing in safety). It further notes the Government’s indication that the vacant positions are in the process of being filled. In this regard, it notes from the information contained in the direct contacts mission report that the Public Service Commission has been asked to recruit 154 additional labour inspectors. The Committee also recalls the Government’s previous commitment to raising the total number of labour inspectors to 800.

The Committee welcomes the improvement in the transport facilities (including through the provision of 160 motorcycles, 15 microbuses and one jeep) and the computer and office equipment available to labour inspectors, referred to by the Government. Welcoming the progress made with the recruitment of additional labour inspectors, the Committee expresses the firm hope that the Government will, without further delay, fill all of the 575 labour inspection posts that have already been approved, and recruit an adequate number of qualified labour inspectors taking account of the number of workplaces liable to inspection. In this regard, it requests the Government to provide a concrete timeline for the filling of the 575 positions that have been approved and for the recruitment of the 800 labour inspectors it has previously committed itself to. It also asks the Government to provide information on the efforts undertaken to increase the number of labour inspectors specializing in OSH.

The Committee further requests the Government to provide a detailed description of the material resources available to the labour inspection offices (i) at the central level, and (ii) within the 23 districts (office space, telephones, computers, Internet connections, photocopiers, measuring devices, etc.), including the transport facilities available.

Articles 12(1), 15(c) and 16. Inspections without previous notice. Duty of confidentiality in relation to complaints. The Committee notes from the information provided in the Government’s report that only 668 of the 25,525 labour inspections carried out in 2014 were unannounced. The Committee notes that the limited number of unannounced inspections may undermine the effectiveness of such inspections in identifying safety and health problems that may otherwise remain concealed or undiscovered. The Committee refers to paragraph 263 of its 2006 General Survey on labour inspection, where it emphasizes the importance of unannounced visits, especially in cases where the employer may be expected to attempt to conceal a violation, by changing the usual conditions of work, preventing a witness from being present or making it impossible to carry out an inspection. In this context, the Committee previously noted that the BLA, as amended, does not contain any legal requirement to refrain from disclosing the identity of the author of a complaint or from indicating that an inspection has taken place in consequence of a complaint. The Committee also recalls its previous observations on the need to carry out a sufficient number of random labour inspections without prior notice to enable labour inspectors to effectively discharge their obligation to treat as confidential the source of any complaint. The Committee is of the view that in the current situation, where only 2.5 per cent of all inspections are unannounced, the establishment of a link between the inspection and the existence of a complaint can readily be made, and confidentiality is, in consequence, undermined. The Committee once again requests the Government to take appropriate steps to enshrine in law a requirement that the existence of a complaint and its source are kept confidential. The Committee also requests the Government to ensure that a sufficient number of unannounced labour inspections are undertaken and requests that the Government provide information on any practical measures taken in this regard.

Articles 17 and 18. Legal proceedings, effective enforcement and sufficiently dissuasive penalties. The Committee previously noted that following the 2013 amendments to the BLA, the maximum fine that could be imposed for a general violation of the BLA had been increased from 5,000 Bangladesh Taka (BDT) to BDT25,000 (approximately from US$65 to US$325), and that the maximum period of imprisonment for obstruction of an inspector had been increased to six months. In this context, it noted the ITUC’s indication that the enforcement of the law remained a serious challenge for a number of reasons. These included the absence of any power in the hands of a labour inspector to impose a fine and the need to report all cases of non compliance to the courts, the insufficiency of legal staff employed by the Ministry of Labour and Employment or the DIFE and the low level of fines which are too negligible to be dissuasive.

In relation to the Committee’s request for information on the number of violations detected, the Committee further notes from the statistics provided by the Government that 1,110 cases were referred to the labour courts. The Committee notes that no information is available on the outcome of these cases. However, the Committee understands from the direct contacts mission report that sentences of imprisonment are rarely, if ever, imposed. The Committee further notes that the Government once again refers to the increase in the level of fines for certain provisions of the BLA following the 2013 amendments, but it does not provide information on any measures envisaged to further increase and enhance the effective imposition of these fines, notwithstanding the very low level of fines available. The Committee once again requests the Government to provide information on the measures introduced or envisaged to ensure that penalties for labour law violations are sufficiently dissuasive and that fines are effectively enforced.

The Committee requests the Government to continue to provide information on the number of violations detected, and the number of cases filed with the labour courts. It also requests the Government to provide details on the areas to which these violations relate (OSH, freedom of association, child labour, etc.) and their outcome (the number of convictions in relation to the infringements reported, the amount of any fine imposed, etc.).

In this context, the Committee also requests the Government to specify how many legal staff are working at the DIFE with responsibility for the enforcement of the violations detected, and to clarify whether labour inspectors have the power to issue fines themselves or whether they have to submit all cases of non compliance to the labour courts.

Articles 2, 4 and 23. Labour inspection in EPZs. The Committee previously noted that the Bangladesh Export Processing Zones Authority (BEPZA) remained responsible for ensuring the rights and privileges of the workers of enterprises operating in EPZs, and that 60 counsellors were dedicated to this function. In this regard, it noted the observations of the ITUC that counsellors undertook limited grievance handling but that there was no labour inspection system in EPZs. It also noted the conclusions of the CAS, according to which the Government should prioritize the amendments to the legislation governing EPZs, so as to bring the EPZs within the purview of the labour inspectorate. The Committee further noted that a separate draft Labour Act for EPZs had been prepared, and notes that this draft has been sent to the Ministry for vetting before being sent to Parliament for adoption. In its previous comment, the Committee noted the observations of the ITUC, according to which the draft Labour Act for EPZs gives rise to a number of concerns. These include the fact that labour inspection and enforcement in EPZs remain vested with the BEPZA and that the powers and functions of the EPZ Labour Courts and the EPZ Labour Appellate Tribunal established under the draft Labour Act for EPZs are severely restricted in comparison with courts under the BLA.

The Committee also notes that the Government indicates, in response to the question concerning the activities of the staff responsible for the enforcement of the rights of workers, that in 2014, 160 cases were brought to the labour courts and 70 were settled. However, no further details are provided concerning, in particular, the subject matter of the cases concerned. The Government further indicates that conciliators and arbitrators in EPZs are responsible for dealing with unfair labour practices, but the Government has not provided information on the number of cases dealt with by them. The Committee also notes the information contained in the direct contacts mission report that there are no fines for labour law violations provided for in the current legislation applicable to EPZs (the 2010 EPZ Workers Welfare Association and Industrial Relations Act (EWWIRA) and the 1989 Bangladesh BEPZA Instructions (1 and 2)). It also notes the statement made by one employer, as referred to in the direct contacts mission report, that no workplace inspections were taking place in EPZs. The Committee expresses deep concern that EPZs continue to be excluded from labour inspection. The Committee once again requests the Government to provide information on the measures taken to bring the EPZs within the purview of the labour inspectorate.

It requests the Government to provide detailed information on the activities carried out within EPZs to ensure that workers’ rights are secured (including on the violations detected and the legal provisions to which they relate, the number of cases referred to the courts and the penalties imposed). The Committee also once again requests the Government to provide statistics on the number and nature of industrial accidents and cases of occupational diseases in EPZs and where they are recorded.

Articles 2, 4 and 23. Labour inspections in Special Economic Zones (SEZs). The Committee notes from the direct contacts mission report that the Government proposes to establish Special Economic Zones (SEZs). The Committee requests the Government to confirm that the provisions of the BLA and the BLR, 2015, in so far as they relate to labour inspection, will apply to such areas.

Articles 20 and 21. Publication and communication to the ILO of an annual labour inspection report. The Committee previously noted with interest the launching of a publicly accessible database system on fire, electrical and building inspections in the RMG sector. It notes the information in the direct contacts mission report that this database will also contain information on labour inspections and working conditions.

The Committee welcomes the Government’s indication, in reply to its previous requests, that efforts are being made to establish a register of all workplaces liable to inspection and of the workers employed therein, and that an annual labour inspection report is currently being prepared and should be published soon. In this regard, it also notes the information in the direct contacts mission report that efforts are being made to establish an improved and more efficient system of data collection and analysis through the development of a computer-based reporting mechanism and the recruitment of staff for the collection, compilation and updating of data. Moreover, a revised labour inspection checklist, which takes account of the legal requirements in the BLR, 2015, should improve the collection of relevant data.

The Committee trusts that the annual inspection report will be communicated soon, and that it will contain information on all the subjects listed in Article 21(a)–(g). It requests the Government to report in detail on the concrete steps taken to establish a register of all workplaces liable to inspection and of the workers employed therein, as well as the other measures described above to improve the collection of inspection data. The Committee requests the Government to continue to avail itself of the technical assistance from the Office for this purpose.

[The Government is asked to reply in detail to the present comments in 2016.]