Rapport intérimaire - Rapport No. 382, Juin 2017

1. 149. The complaint is contained in a communication from the International Trade Union Confederation (ITUC) dated 24 April 2016.
2. 150. The Government provides its observations in a communication received on 22 March 2017.
3. 151. Bangladesh has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Complainant’s allegations

1. 152. In its communication dated 24 April 2016, the ITUC denounces the systematic violation of freedom of association rights by the Government.
2. 153. The complainant denounces severe and at times violent anti-union retaliation by management or its agents, particularly in the ready-made garment (RMG) sector. It alleges that leaders of many trade unions established after 2013 were brutally beaten and had to be hospitalized as a result, entire executive boards were sacked and in some cases, unionists were intimidated and harassed by the police, at the apparent behest of factory management. The complainant also denounces the continuing lack of commitment to the rule of law, stating that the police routinely fail to carry out credible investigations into cases of anti union violence, the labour inspectorate is very slow to react, employers are not punished and most union members dismissed for trade union activity have not yet been reinstated, all of which contribute to creating a climate of impunity. Indicating that it is has knowledge of over 100 acts of anti-union discrimination, including dismissals, threats, intimidation and violence, in factories where new trade unions have been registered, the complainant provides a number of representative cases from the RMG sector to illustrate its general allegation.
   • – On 26 August 2014, the acting union president at Global Trousers Ltd. in Chittagong (enterprise (a)) and her husband were beaten by several men armed with iron rods as they waited for the bus to take them home after work. The union’s president was knocked unconscious and had to be rushed to a local hospital in critical condition. They reported that a low-level manager pointed them out to the attackers and that these men shouted throughout the assault that they would kill the pair unless they resigned from the trade union and left the factory. Workers also reported that days before the incident, a group of men with knives were waiting for the union president outside the factory gates but a change in her routine kept them from carrying out any act. The factory closed in May 2015.
   • – Since late April 2014, more than 60 workers at the Raaj RMG Washing Plant (enterprise (b)) were fired, false criminal charges were filed against several union leaders and at least one leader was physically assaulted. According to the factory trade union, the retaliation escalated in March 2014 after a request had been made to management for collective bargaining.
   • – On 10 November 2014, a camera at Global Garments Factory Ltd. (enterprise (c)), owned by a multinational holding company, recorded a female union leader being beaten while a male union leader was punched and chased off. Another female leader was pushed out of a door and attacked out of the range of the camera. This management orchestrated beating and humiliation culminated in the unlawful dismissal of 15 leaders and activists. Although the case had been ultimately resolved through the intervention of foreign buyers acting under pressure from international unions and non governmental organizations and had resulted in a bipartite monitoring agreement and a series of follow-up inspections in the factory, in the last year four out of five unionized factories owned by the same multinational company were closed, while no closures were announced with regard to its more than 20 non-unionized factories.
   • – In February 2014, workers at the Chunji Knit Ltd. (enterprise (d)) sought to form a trade union and invited union organizers from the Bangladesh Federation of Workers Solidarity (BFWS) to assist them. However, four of them were beaten and kicked by a group of 13 men with sticks, accompanied by the factory’s line supervisor and the assistant production manager, and, as a result, two organizers spent several days in the hospital. They were also robbed of their mobile phones, money, labour rights pamphlets and forms to set up the new union, which had already been signed by 300 workers. When they filed charges with the police against the factory management, the management filed counter-claims against 37 leaders and organizers from the BFWS, as well as factory workers, falsely accusing them of theft and causing loss and damage, and a few weeks later, 65 workers were dismissed. An agreement between the union and the management was reached only after pressure from non-governmental organizations and buyers and not through the intervention of labour officials.
   • – In September 2014, after workers at BEO Apparels Manufacturing Ltd. (enterprise (e)) conveyed complaints to the management concerning compensation and workplace safety, the management terminated 48 members of the local union, including most of the leadership. When peaceful protests were held in response to the incident, the management summoned the police who ordered workers to return to their machines and assaulted them, as a result of which five workers, including the union president, required medical treatment. The police later refused to register the workers’ complaints and dozens of similar instances of refusal to accept complaints after suffering attacks and rights violations have been documented. In October 2014, leaders from the Akota Garments Workers Federation (AGWF), to which the factory union is affiliated, and two union members sought the intervention of the Accord on Fire and Building Safety in Bangladesh (the Accord) but the factory demoted the two workers and initiated a campaign of harassment against them. In December 2014, the Accord concluded that the September 2014 dismissals were retaliatory and asked the factory owner to reinstate all of the dismissed workers. Although the owner had initially agreed to do so under heavy pressure from buyers, he later withdrew the commitment claiming that factory managers would all quit if the union members were allowed to return to work. In February 2015, a delegation of representatives from the Accord, the buyers and the AGWF explained to the management that reinstatement of the dismissed union members was essential, but in response several managers physically attacked them, leading to a melee in which managers, armed with sticks and iron rods, beat a number of pro-union workers and the Accord delegation had to request police assistance to safely depart. The owner later announced that the factory would be closing and the entire workforce was dismissed in March 2015. Throughout the conflict, government agencies failed to take any action to restore workers’ employment or hold the factory management accountable for its actions.
   • – The factory union at Dress & Dismatic Co. Ltd. (enterprise (f)) (owned by one of Bangladesh’s largest garment producers) is affiliated with the Bangladesh Garment and Industrial Workers Federation (BGIWF). Several weeks after its registration, the union submitted a charter of demands to management, attempting to initiate collective bargaining but management responded with an array of retaliatory tactics – over the next three months, trade union leaders were continually relocated to different parts of the factory, rank-and-file workers were threatened with retaliatory increases in production targets if they talked to any of the union leaders, a bogus management controlled union was formed at the factory, many workers were forced to sign a petition denouncing the union’s charter of demands, and union leaders received anonymous phone calls, threatening violence. In March 2015, the union submitted a complaint to the Accord, alleging the management’s failure to maintain building safety practices, which was confirmed by an Accord inspection. In April 2015, the factory management retaliated against the union by organizing anti-union workers to physically attack several union leaders, including the president, and demanding that nine union leaders resign. When they refused, police was summoned and told the workers that if they did not agree to resign they would be arrested. While most workers complied due to the pressure, the union president refused to resign but was forced by the police to leave the factory premises and, facing threats of further violence, she did not consider it safe to return. Although the workers attempted to utilize the official means of redress available – filing complaints and seeking reinstatement for the nine union leaders with the Joint Director of Labour (JDL) and the arbitration committee of the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) – these complaints yielded no corrective action. Instead, it took months of pressure from buyers, urged by the Accord, to convince the factory management to reinstate the union leaders in December 2015.
   • – On 29 February 2016, five workers were dismissed or coerced into resigning from the Panorama Apparels Ltd. garment factory in Gazipur (enterprise (g)). At the time of the dismissals, the workers were officers of a union whose application for registration was pending; they were, therefore, dismissed in contravention of the law which prohibits dismissals of union officers while the union’s application for registration is pending without prior permission from the JDL. Accordingly, the dismissed workers reported unfair labour practices to the JDL, who found, based on their own investigation, that no violation had occurred as the five workers had resigned voluntarily. However, the investigation did not consult the concerned workers and apparently relied exclusively on the management’s claims and on the resignation letters that the workers were coerced into signing. Shortly after, the application for registration of the factory union was refused for five reasons, all of which are, according to the complainant, false or pretextual justifications (further details below). When the union sought the intervention of two brands, days before the meeting was to take place, each of the five dismissed workers were approached by local politicians of the Awami League, apparently at the behest of the management, and were asked to admit to having voluntarily resigned from the factory in exchange for large sums of money. Despite the threats, the workers attended the meeting with the brands in which the management agreed on reinstatement and on ground rules for relations with the AGWF. However, the workers reported feeling fearful of the repercussions they would face if they returned to the factory. The complainant points out that these events took place just days before the ILO tripartite mission visited the factory in April 2016.
   • – In 2015, more than 40 union leaders and members at Prime Sweaters Ltd. (enterprise (h)) were terminated, threatened, violently attacked and falsely charged and imprisoned because of their involvement with the factory union. The management collaborated with criminal elements in the community to force union leaders to resign or stop union activities through violence and intimidation both inside the factory and at union leaders’ homes. On 11 January 2016, police came to the factory and arrested the union’s president and the general secretary on false charges filed by an employee of another factory in the same group and while the general secretary was granted bail two days later, the president remained imprisoned until 18 February 2016. At the beginning of February 2016, the employer closed and shifted the factory to another location without prior notice in a clear move to dismantle the union, but officially claimed that the factory was moving as they were unable to remediate the building safety renovations mandated by the Accord engineers. The union filed several complaints with the Ministry of Labour and Employment (MOLE) and the BGMEA.
3. 154. The complainant also expresses concern at the complete discretion of the Director of Labour (DL) to act on a complaint of unfair labour practice and states that in line with Rule 366 of the Bangladesh Labour Rules (BLR), an application regarding unfair labour practice shall be submitted to the DL within 30 days of the offence and the DL shall resolve the matter within 30 working days of receipt of such application. According to the complainant, unions are concerned with the term “resolved” as they consider that the DL can ask or coerce a dismissed worker, who alleges unfair labour practice, to accept a severance pay in order to “resolve” the matter, rather than insisting on reinstatement. It is also common practice for the DL not to discuss with the workers whose rights have been violated and legal processes can take years to conclude.
4. 155. The complainant further denounces a continuous increase in the ratio of rejected registration applications against accepted applications (2013: 158 applications submitted, 84 approved and 44 rejected; 2014: 392 applications submitted, 182 approved and 155 rejected; 2015: 134 applications submitted, 61 approved and 148 rejected; as of mid-April 2016: 13 applications submitted, 3 approved and 14 rejected; in 2015, the JDL in Dhaka rejected 73 per cent of all union applications). The complainant also alleges that the JDL has singled out applications from the National Garment Workers Federation (NGWF), the BGIWF, the Bangladesh Independent Garment Workers Union Federation (BIGUF) and other independent garment federations because of their links with international unions and organizations and the rejection rate for these unions is even higher. In addition, out of the approximately 327 unions registered since the Rana Plaza incident in 2013, at least 44 unions were busted or are now inactive due to anti-union retaliation and at least 50 unionized factories are now closed, thus reducing the total number of registered, active unions by nearly 100.
5. 156. It is also alleged that the JDL retains absolute discretion in the approval of a union’s application for registration. According to the complainant, some applications are rejected even after unions have corrected them per the JDL’s instructions and registration is often refused for reasons outside the scope of the regulations, including refusal of the factory management to let JDL officials enter the workplace to investigate an application, interviews with workers on union activity in the presence of factory management, and alleged discrepancies between signatures on union membership forms (“D-forms”) and salary sheets, without taking into account formatting and other considerations. The complainant points to the lack of credibility of the registration system and provides specific examples.
   • – When an application for registration was submitted for a union at the Dacca Dyeing Garments Ltd. factory (enterprise (i)), it was rejected by the JDL for failure to reach the minimum number of members required to form a union even though the application noted 353 members and the union’s membership thus exceeded the 30 per cent requirement for registration. Two more applications for registration were rejected – one with 408 members and the other one with 535 members, representing more than half of the workers at the factory. The latter application was allegedly rejected due to duplicated D forms and missing information, although even taking this into account, the union still by far exceeded the 30 per cent minimum membership requirement necessary for registration. In November 2015, the factory management, in the presence of police, BGMEA representatives, factory inspection officials and a leader of the ruling Awami League dismissed 152 workers, almost all of whom had previously expressed support for the union and closed the factory in an apparent effort to eliminate the union once and for all.
   • – In February 2016, workers at Savar Sweater Ltd., Savar Sweater Ltd.-A and Orchid Sweater Ltd. (enterprise group (j)) belonging to the same multinational company filed for trade union registration but all three received initial letters of objection from the JDL in Chittagong. Even after they submitted their replies addressing all issues raised, the applications for registration were rejected by the JDL, stating, in one case, that no such factory existed (although the factory identity cards clearly identified the relevant factory) and, in the other two instances, that the unions did not represent 30 per cent of the workers in the establishment (the unions, however, report that in all three factories they far exceeded the 30 per cent minimum requirement).
   • – At factory (g) shortly after five union members were forced to sign resignation letters (mentioned above), the application for registration of the factory union was refused supposedly for the following reasons: it was claimed that meetings of the proposed union were held on two occasions in January 2016 but the JDL found that these did not actually occur; the president and secretary of the union were not working at the factory; 551 union members could not be identified; the union represented less than 30 per cent of the total workforce; and the list of executive committee members was not filled out correctly (all of which are, according to the complainant, false or pretextual justifications).
6. 157. Further to the JDL’s alleged discretionary power, the complainant alleges that with increasing regularity, factory management seek injunctive relief from the courts to stay union registrations that have been properly granted. According to the complainant, this tactic is supported by the courts and has had the effect of freezing union activities for several months. It is a gross violation of the right to freedom of association and a highly questionable use of the judicial process to frustrate trade unions, as demonstrated in the following examples.
   • – In August 2011, after workers at enterprise (a) registered their trade union, the management challenged the registration before the High Court, which enjoined the operation of the union for a period of three months starting from September 2012 and extended it multiple times. In November 2014, it instructed the Department of Labour to file a case in the Labour Court which would decide as to whether the registration of the union had been granted legally or not. As per the order of the Court, the JDL filed a case before the Labour Court in Chittagong seeking permission to cancel the registration but the management and the union reached an agreement in February 2015 and the management withdrew its opposition to the union.
   • – After workers at Donglian Fashion (BD) Ltd. (enterprise (k)) registered the Sommillito Workers Union in January 2015, the management filed a writ petition in the High Court alleging that the registration was granted unlawfully. After hearing the management’s arguments and without including the union as a respondent, the High Court issued an order in November 2015 staying the registration of the union for six months pending the hearing of the writ petition. Following interventions of IndustriALL and the buyers, the management signed an agreement with the Sommilito Garments Sromik Federation (SGSF) in February 2016, in which it agreed to recognize the union and withdraw its petition.
7. 158. The complainant also denounces union-busting in the telecommunications sector, particularly in the following enterprises.
   • – Workers at Grameenphone (enterprise (l)), the largest telecommunications company and the largest private sector employee in the country, have spent the past four years struggling to gain recognition of their union. The day after the enterprise was notified about the union, 163 employees were dismissed, including seven union officials. The Government has repeatedly denied the application for registration, frequently claiming information was absent even if it had been included in the application. After prolonged court proceedings, the Labour Appellate Court ordered the DL to register the union but the Government refused to issue a formal recognition and the enterprise filed a writ petition with the High Court to stay the decision, which was granted. The matter was then remanded to the Labour Court and appealed to the Labour Appellate Tribunal and the parties have been waiting for a judgment since May 2015. It is further alleged that the management of the enterprise sent a threatening email to all employees about holding employees’ gatherings, meetings and campaigns, refuses dialogue with the union, and liaises with other employers in the telecommunications sector to lobby the Government to keep the sector union free and that the Government failed to take any action in relation to the anti-union activity and unfair labour practices in the enterprise. In addition, it is alleged that the broad definition of the term “supervisory officer” included in the BLR appears to be an attempt to frustrate workers from forming a union at the enterprise, as it could be invoked to render workers with any supervisory function ineligible to join a union – the enterprise argued in court that almost all of its 3,000 employees were ineligible to have a union because they were all supervisors or managers.
   • – On 7 February 2016, workers at Banglalink (enterprise (m)), the second largest telecommunications company in the country, submitted an application to register the Banglalink Employees Union (BLEU) and notified the employer about its establishment. A few days later, the management spoke out against the union, stating that it would hamper the company’s growth, and abruptly dismissed a union activist contrary to national labour law. The management also threatened union members and employees of the company, introduced very stringent security protocols, thus creating a hostile working environment, refused any dialogue, pressured employees to use its Voluntary Separation Scheme (VSS) to leave the company and stated that if they did not accept the VSS package, the enterprise would undertake job cuts. After the BLEU petitioned the Labour Court for an injunction against the job cuts, the court temporarily halted the VSS and asked six senior managers to explain why the VSS should not be stopped and why the dismissal of the union activists should not be declared illegal. Meanwhile, in March 2016, the Government rejected the union’s complaint against unfair labour practices at the enterprise stating that it was not receivable as the union was not registered and threatened the union leaders not to undertake any union activities before obtaining registration. In April 2016, the union’s application for registration was rejected by the JDL for reasons common to other cases, including alleged mismatch of signatures, alleged failure to reach the 30 per cent minimum requirement although the union represents 720 out of 2,082 permanent workers (35 per cent), and failure to present vouchers for dues collection (which is not required in the law or regulation). There are indications that the enterprise, together with other companies in the sector, lobbied the authorities to reject the union’s petition in order to keep the telecommunications sector union free.
   • – In July 2014, workers at Accenture (enterprise (n)) successfully registered their trade union, which became the first registered trade union in the telecommunications sector. However, a month later, the management started a campaign calling for a vote as to whether the union was required in the enterprise and instructed all of the line supervisors to ensure voting of their team members against the union. This campaign failed to break the unity of the workers and the management subsequently recognized the union and engaged in collective bargaining, leading to a memorandum of settlement in September 2015. However, by October 2015, the enterprise failed to implement several provisions of the memorandum and Shafiqul Islam, the union’s treasurer, was assaulted and dismissed. Workers demonstrated in protest and filed a claim against the management with police. On 27 March 2016, the DL informed the union that his office filed a case seeking the cancellation of its registration. If successful, this would eliminate the only existing union in the telecommunications sector.
8. 159. Furthermore, the complainant denounces a negative public attitude of the Government towards workers especially during events that are outside of the international spotlight. For example, in June 2014, the Commerce Minister lashed out at trade unions for allegedly having provided information critical to the labour situation in Bangladesh to foreign governments and warned that steps should be contemplated against them. At a December 2014 Dhaka Apparel Summit, the Prime Minister warned that domestic and foreign critics of the working conditions in the country were engaged in a “conspiracy” against the RMG sector, which the unions and labour activists understood to be directed at them. According to the complainant, the Government should not threaten those who bring the many serious violations of workers’ rights to light using their freedom of expression and the threat of retaliation by a cabinet minister is shocking behaviour, particularly in the current context, where violent acts of retaliation against trade unionists are on the rise. The complainant also points out that it has been four years since the murder of Aminul Islam on 4 April 2012 and recalls that Mr Islam’s body was found one day after he was last seen by his family and co workers and bore signs of extensive torture. Strong evidence indicates that he was targeted for his work as a labour organizer and human rights advocate and that the perpetrators of this crime include members of the government security apparatus. According to the complainant, no one has yet been held accountable and the Government’s hostility towards trade unionists is particularly troubling, as demonstrated by the Prime Minister who, in an interview in 2013, cast doubt on the fact that Aminul Islam was ever a labour activist and claimed that no one had ever heard of him before his murder, even though the incident was featured in international media.
9. 160. Lastly, the complainant alleges that the new draft Export Processing Zones Labour Act, 2016 (ELA), which was approved by Cabinet in February 2016, is not in conformity with the principles of freedom of association and collective bargaining and its elaboration was not consulted with workers’ representatives. The complainant recalls that export processing zones (EPZs) employ roughly 400,000 workers who produce garments and footwear, as well as a variety of other manufactured goods, that under the current EPZ Workers Welfare Association and Industrial Relations Act, 2010 (EWWAIRA) trade unions are banned and only workers’ welfare associations (WWAs) may be established, which do not have the same rights and privileges as trade unions, that collective bargaining does not exist in practice and that there are numerous cases in which leaders of WWAs have been dismissed with impunity in retaliation for the exercise of their limited labour rights. It further alleges that: (i) all the provisions of the EWWAIRA in relation to formation, registration, deregistration, cancellation, functions, authority of the WWA, and formation of federations have been incorporated in the draft ELA; (ii) Chapter IX does not allow workers to form unions but only WWAs to engage in industrial relations in their respective industrial establishment; (iii) the draft ELA retains the provisions of the EWWAIRA which prohibit WWAs to maintain any links, overtly or covertly, with any political party or organization affiliated with any political party or non-governmental organization; (iv) certain categories of workers are excluded from the ELA and cannot become members of a WWA: a member of the watch and ward or security staff, drivers, confidential assistants, cipher assistants, irregular workers, workers employed by kitchen or food preparation contractors, and workers employed in clerical jobs; (v) unlike the Bangladesh Labour Act, amended in 2013 (BLA), the draft ELA does not contain any provisions allowing WWAs to take assistance from specialists for carrying out collective bargaining; (vi) Chapter XII provides for the establishment of EPZ Labour Courts and an EPZ Labour Appellate Tribunal whose powers are severely restrictive compared to the general courts constituted under the BLA – the ELA lacks provisions allowing appeal to the EPZ Labour Appellate Tribunal against a judgment of EPZ Labour Courts in individual cases and a former worker or a worker who is removed from employment is not entitled to file any case in EPZ Labour Courts seeking reinstatement; (vii) under Chapter XV, the administration of the ELA is vested in the Bangladesh Export Processing Zones Authority (BEPZA) whose General Manager has the powers of supervision and control over all the industrial establishments under his jurisdiction, including the right to inspect at any time any industrial establishment in EPZs without any prior notice; and (viii) the Labour Inspectorate, which is empowered to enforce the law outside the EPZs, still has no authority inside the EPZs.

B. The Government’s reply

1. 161. In a communication received on 22 March 2017, the Government states that it is keen on maintaining a suitable climate for workers and employers by enforcing existing laws and regulations, as healthy coexistence and mutual trust between workers and employers are a prerequisite for a healthy economy and domestic and foreign investment. Having received responses from the respective agencies, the Government addresses the allegations on a case-by-case basis and provides information on administrative or legal actions taken and their outcome.
2. 162. With regard to the allegations of anti-union retaliation, the Government provides the following information.
   • – A police report states that the alleged incident at the enterprise (a) was unrealistic and was not proven by anyone during investigation. The factory was closed in May 2015 and all workers, including trade union leaders Mira Bosak (acting president), Nurun Nahar, Reba Begum and others, were retrenched and paid all the legal benefits (a copy of the payment was verified and justified).
   • – The Sramik Karmochari Union at enterprise (b) filed a complaint to the JDL, Dhaka stating that 11 workers, including the union’s executive committee members, were threatened, intimidated and beaten up by the management or its agents. An investigation confirmed that the management not only deprived workers of trade union rights, but also inhumanely dismissed many of them. A case has, therefore, been filed at the Labour Court on charges of unfair labour practices (Bangladesh Labour Law (Criminal) Case No. 180/2014) and is currently in trial.
   • – The incident alleging anti-union discrimination at enterprise (c) was investigated by the local police station in Chandgaon Thana in November 2014, which found that the allegations were exaggerated and ill-motivated. The officials also talked to Sumita Sarkar, the union president, who informed that the alleged incident had been solved by peaceful bipartite discussion between management and trade union leaders in the presence of buyers. There is currently no dispute between management and trade union leaders and the labour–management relation is harmonious.
   • – The president and general secretary of the union at enterprise (d) lodged a complaint to the JDL, Dhaka requesting legal action to be taken against the management for unfair labour practices, including violence against workers. Although a first investigation and hearing reported no resentment at the allegation, further investigation confirmed unfair labour practices, and a case has been filed at court on charges of unfair labour practices.
   • – The president of the union at enterprise (e) lodged a complaint to the JDL, Dhaka stating that the management dismissed many workers to keep them detached from trade union activities and requested legal action to be taken against the management. A labour officer from the JDL investigated the allegation in the factory and reported that the case had been amicably settled, the complainants had withdrawn their complaint and the factory had been closed since September 2014 due to financial problems.
   • – The president and the general secretary along with four workers of enterprise (f) lodged a complaint to the JDL stating that six union members had been illegally dismissed and requested legal action to be taken against the management. A labour official from the JDL was sent to the factory to inquire about the allegations and reported that the dismissed workers had been reinstated by intervention of the Accord, had joined the work in the factory and had received their wages. In July 2016, a second investigation of the matter took place and confirmed that the workers had been ousted from employment in February 2015 but reinstated from December 2015 with back wages fully paid.
   • – The president, the general secretary and three other members of the union at enterprise (g) filed a complaint to the JDL against the management for illegal dismissal of five workers. The JDL addressed a letter to the management requesting a written justification for the dismissals and after the management replied, two Assistant Directors of Labour visited the factory, the union office and the management to inquire into the matter. It appears from the inquiry report that the five workers had voluntarily left their job and had received their legal claims. Zakir Hossain and Bachchu Mia found jobs at a different enterprise and the complainants have withdrawn their complaints.
   • – The president and the general secretary of the union at enterprise (h) brought a complaint of unfair labour practices before the JDL, Dhaka stating that 17 union activists had been dismissed for their involvement in union activities. Two inquiries took place in July 2016 and their reports stated that the management had signed an agreement with the representatives of Biplobi Garments Federation, on the one hand, and with the IndustriALL Global Union and the Accord, on the other hand, according to which due payment to 40 workers would be made and the factory would be moved.
3. 163. As regards the complainant’s concerns about the JDL’s discretion in addressing allegations of unfair labour practices, the Government states that between January and July 2016, 31 complaints of unfair labour practices were received and timely addressed by the JDL, Dhaka, out of which ten were settled, four are pending and 17 are on trial at the Labour Court. If a charge of unfair labour practice is proved, it will be punished with ten years’ imprisonment or a penalty of Bangladesh Taka 10,000 (US$125) or both, in line with section 291 of the BLA but this is a judicial process not connected with the administration of the DL.
4. 164. Concerning the allegations of increased rejection of applications for registration and the JDL’s discretionary power in assessing such applications, the Government indicates that in so far as the period 2013 to 2015 is concerned, there is nothing it can do. For the period from January to July 2016, however, the Government states that the percentage of registrations granted has increased to 52 per cent, in comparison to 27 per cent in the previous year: out of 59 applications received by the JDL, Dhaka (45 new ones and 14 previously pending), 24 were granted, 22 were rejected and 13 are ongoing; and out of 28 applications received by the JDL, Chittagong (27 new ones and one previously pending), 11 were granted, 16 were rejected and one is pending. The Government further states that when assessing applications for registration, the JDL has to act according to the law, which is definite and does not allow for discretion. There are a number of essential elements to be taken into account, including but not limited to signatures on D forms and salary sheets, and only if all the essential elements are correct is the registration granted. The Government adds that anyone aggrieved by the actions of the Registrar may seek remedy before the labour courts and that the JDL does not control the closure of factories which result in disappearance of unions. Turning to the specific cases of rejected applications for registration alleged by the complainant, the Government indicates that: (i) as workers did not take any action at courts to challenge the rejected application for registration in enterprise (c), this shows that the Registrar’s action was appropriate; and (ii) concerning the rejected applications for registration at enterprise group (j), the applications were rejected due to having less than 30 per cent of workers in favour of the proposed unions, the cancellation was done in accordance with the legal process and since the unions did not file any complaint, the rejection of their applications for registration proved legal.
5. 165. With regard to the alleged efforts by the management to seek injunctive relief from the courts to stay union registrations, particularly in the RMG sector, the Government provides the following case-specific information.
   • – The management of enterprise (a) challenged the registration of the factory union on the ground that it had obtained registration through misrepresentation of facts and filed a writ petition at the High Court Division of the Supreme Court. After the hearing, the High Court directed the Registrar, Chittagong to seek permission for cancellation of the union’s registration; a case was thus filed before the Labour Court and is currently pending. In the meantime, the management retrenched all the workers in May 2015, paid all legal benefits and closed the factory.
   • – The president and the general secretary of the union at enterprise (k) lodged a complaint against the management for unfair labour practices but on primary inquiry, it was observed that before the filing of these allegations, the factory management had lodged a complaint to the JDL alleging that the union had obtained registration by providing false information and had requested its cancellation. After inquiry found prima facie evidence, the High Court issued a stay order on the union for six months. A further inquiry found that the management and the union arrived at an agreement, which provides for the withdrawal of the management’s writ petition asking for cancellation of the union registration. The management recently started the withdrawal process.
6. 166. Concerning the allegations of union-busting activities in the telecommunications sector, the Government provides the following information.
   • – At the telecommunications enterprise (l), workers attempted to form two trade unions. In both instances, the events developed as follows: while registration was initially refused (in one case, on the ground that most of its members were not workers of the enterprise but were outsourced from a different company and that the total number of workers in the enterprise could not be ascertained and as a result the minimum number of workers required could not be determined), it was appealed by the unions and the High Court ordered the DL to register the unions; the DL further appealed the decisions but these were confirmed by the Labour Appellate Tribunal and the unions were registered. However, the enterprise appealed the registration of the unions and a stay order was issued on the operation of the unions pending the decision on the writ petitions. The Government indicates that since the matter is judicial, the DL could not take any further action on any allegations of unfair labour practices.
   • – The proposed union at the telecommunications enterprise (m) did not fulfil one of the essential requirements – it did not represent the minimum 30 per cent of the total employees but only 21.23 per cent (442 out of 2,081 employees) – and its registration was thus refused.
   • – The union at the telecommunications enterprise (n) is a registered trade union but, in violation of the law, its leaders assembled and blocked the entrance to the company’s office on two occasions in October 2015 and three times in December 2015, obstructing several workers from entering or leaving their offices, all of which is available on video footage. After the management requested the DL to take the necessary remedial measures and legal action against the union, an inquiry officer was appointed to investigate the allegations; three visits were held and both the management and the union were interrogated and the union submitted a written statement. The inquiry officer was told by the management that due to the union’s undisciplined activities, expansion of the company was not possible and if the union continued, the establishment would have to close down. The inquiry report confirmed that union leaders and a few members illegally assembled in the establishment and obstructed officers and staff from entering or leaving the office and a case was thus filed on charges of unfair labour practices at the Labour Court, Dhaka and is now under trial.
7. 167. Regarding the complainant’s concerns about freedom of association rights in EPZs, the Government states that: (i) it is a misconception that EPZ workers are prohibited from forming trade unions, as these have been termed as WWAs in EPZs; (ii) labour rights in EPZs are ensured through the EWWAIRA, 2010; (iii) BEPZA has demonstrated a genuine and continued commitment to its enforcement and is putting its best efforts to form WWAs in all enterprises; (iv) out of 456 enterprises in operation, 417 are eligible to form WWAs, 306 organized a referendum and WWAs were created in 231 enterprises; (v) in line with section 37 of the EWWAIRA, a registered WWA is a collective bargaining agent and can negotiate directly with the employer on wages, working hours and other terms and conditions of employment; (vi) between January 2013 and December 2015, WWAs submitted 260 charters of demands, all of which were settled amicably and led to the signing of agreements; (vii) foreign officials, ambassadors and representatives of organizations visited various EPZs, observed the implementation of the EWWAIRA, witnessed some referenda and expressed satisfaction with the free, fair and credible elections; (viii) no WWA leader or member has ever been dismissed by BEPZA for the exercise of their labour rights; (ix) in order to avoid anti-union discrimination, BEPZA conducts neutral investigations and personal hearings with the concerned workers and any aggrieved worker may appeal to the EPZ Labour Tribunals and the EPZ Labour Appellate Tribunal – WWA members are thus protected against anti-union discrimination and the allegation of workers’ dismissal without reason is, therefore, unrealistic; (x) all compliance issues, labour rights, fire and factory building safety are being properly supervised and monitored by Industrial Relations Officers; (xi) inspection is conducted for 62 parameters in line with international labour standards, including among others, social protection and social dialogue and employment relationships; and (xii) 135 officials, including 45 industrial relations officers and 90 counsellors cum inspectors (60 social and 30 environmental), as well as two environment specialists, are efficiently engaged in such inspections. As a result, harmonious labour–management relationship, congenial working atmosphere, sound industrial relations and uninterrupted production environment prevail in the EPZs and workers benefit from better protection under the existing EPZ laws, rules and regulations than outside the zones. Introduction of any alternative, which is less favourable than the existing benefits, may thus lead to workers’ unrest.
8. 168. Addressing the alleged non-compliance of the new ELA with the principles of freedom of association and the perceived lack of workers’ consultation during its elaboration, the Government reiterates that it is always concerned with the protection of the rights and privileges of workers of the enterprises operating in EPZs. It outlines the laws applicable to EPZs since 2004 – the EPZ Workers’ Association and Industrial Relations Act, 2004 and the EWWAIRA 2010 – before stating that in 2013, in order to ensure a better protection of, and more rights and privileges to, EPZ workers, it formed a high-level committee headed by the Senior Secretary of the Prime Minister’s Office in order to examine the implementation of national labour law in EPZs in light of existing laws, rules, regulations and practices. After a pragmatic and neutral analysis, the Committee formulated a draft of the Bangladesh EPZ Labour Act, 2016, which had been presented to the ILO Country Office in Dhaka and the US Embassy in Dhaka. BEPZA had also consulted and exchanged views on the proposed draft law with EPZ workers’ representatives, investors and other relevant stakeholders, whose opinions and comments had been addressed in the draft law to the extent possible in conformity with the relevant ILO Conventions and international labour standards. The Government further states that BEPZA appointed 90 counsellors, three conciliators and three arbitrators to provide necessary legal assistance to workers and collective bargaining agents in EPZs and that it had designated seven Labour Tribunals and one Labour Appellate Tribunal for eight EPZs in order to settle labour-related disputes. The Government confirms that any aggrieved party, including individual workers and job-separated workers, have the right to file a case before the labour courts, which, since their establishment in 2011, settled 86 out of a total of 161 cases, including cases of dismissed workers. The allegation that workers may not appeal to the Appellate Tribunal in individual cases is, therefore, not correct.

C. The Committee’s conclusions

1. 169. The Committee notes that this case concerns allegations of systematic violation of freedom of association rights, including through repeated acts of anti-union retaliation, arbitrary denial of union registration and union-busting activities, as well as lack of law enforcement and the Government’s public hostility towards trade unions. The complainant also denounces non-compliance of the new draft Bangladesh Export Processing Zones Labour Act, 2016 (ELA) with freedom of association and collective bargaining principles.
2. 170. The Committee notes that the complainant denounces severe and at times violent anti-union retaliation by factory management or their agents, particularly in the RMG sector, and provides a number of representative examples. The Committee observes that these allegations refer to numerous instances of intimidation, harassment, threats, physical assaults and beatings of union members often requiring medical treatment or hospitalization, transfers, bribery, coercion to sign resignation letters, dismissals, false criminal charges, arrest and detention and that, according to the complainant, they were, at times, perpetrated by the police or with their collaboration. The complainant also raises the issue of the 2012 murder of a trade unionist, alleging involvement of the state apparatus and the unresolved nature of the case. The Committee further observes that while the complainant denounces a climate of impunity resulting from the Government’s lack of commitment to the rule of law, slowness of the labour inspectorate, failure by the police to investigate allegations of anti-union violence, JDL’s discretion in dealing with unfair labour practices, absence of punishment and lack of remedial actions, the Government indicates that it is keen on maintaining a healthy coexistence and mutual trust between workers and employers, that complaints of unfair labour practices, when founded, are either settled or sent on to the labour courts and that administrative or legal actions were taken in each of the mentioned illustrative cases. In this regard, the Committee observes that while in some instances, the Government’s inquiry found that the allegations were exaggerated or ill founded, in others, it confirmed the existence of anti-union retaliation, cases were filed at the labour courts and are currently pending. While taking due note of the measures taken, the Committee also observes that in many situations, the Government inquiry simply concluded that labour–management disputes had been solved by a bipartite agreement or the concerned factories had been closed but did not establish whether the alleged violations had taken place or not. The Committee considers that in these instances, further measures could have been taken to inquire and bring the responsible persons to account, especially considering the gravity of the allegations. In this regard, the Committee wishes to recall the conclusions of the high-level tripartite mission to Bangladesh in April 2016, echoed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR), which noted with concern the numerous allegations of anti-union discrimination and harassment and recommended the Government to continue to provide training and capacity building to labour officers in order to bolster their capacity to inquire into such allegations and to set up a publicly accessible database to track unfair labour practice complaints, the steps taken to inquire and address them, as well as remedies and sanctions imposed, which would assist in rendering the MOLE more efficient and transparent. It further notes the 2016 conclusions of the Conference Committee on the Application of Standards (CAS), which urged the Government to investigate as a matter of urgency all acts of anti-union discrimination, ensure the reinstatement of those illegally dismissed, and impose fines or criminal sanctions (particularly in cases of violence against trade unionists) according to the law. The Committee invites the Government to provide full particulars on the progress made in relation to these matters to the CEACR.
3. 171. The Committee considers that the described situation raises serious concerns as to the environment for free exercise of trade union rights. It wishes to emphasize that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for the governments to ensure that this principle is respected. As regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration. The arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 44, 858, 62, 50 and 771]. Regretting that many proceedings concerning allegations of anti-union retaliation seem to have been pending for several years without resolution, the Committee wishes to emphasize that justice delayed is justice denied [see Digest, op. cit., para. 105]. The Committee requests the Government to take the necessary measures to ensure that all anti-union acts alleged in this case, including those allegedly perpetrated by the police and the 2012 murder of a trade unionist – allegations which raise serious concern – are fully investigated and that their perpetrators are held accountable, so as to avoid occurrence of such serious acts in the future, and to inform it of any developments in this regard. The Committee requests the Government to keep it informed of the outcome of ongoing judicial proceedings relating to the alleged anti union retaliation in the cases of the Sramik Karmochari Union and the union at enterprise (d), as well as the measures taken to ensure their implementation by the employers. The Committee also expects the Government to take all necessary measures to ensure that the police and other state authorities are not used as an instrument of intimidation and harassment of workers and that all future allegations of anti-union violence reported to the police are properly and expeditiously investigated in order to avoid impunity. The Committee encourages the Government, in collaboration with the social partners and the ILO, to institute training on human rights, civil liberties and trade union rights so as to assist the police and other state authorities in better understanding the limits of their role in respect of freedom of association rights and to ensure the full and legitimate exercise by workers of these rights and liberties in a climate free from fear.
4. 172. The Committee further notes that the complainant denounces a number of general practices, both by the Government and factory management, in relation to registration of trade unions and provides specific examples to illustrate its point. Firstly, it alleges that the approval of trade union applications remains at the absolute discretion of the JDL, who often rejects applications for unfounded reasons or for reasons outside the scope of the law and even after they had been corrected as per the JDL’s instructions, and that the ratio of rejected applications against accepted applications has been continuously increasing since 2013, with rejection particularly targeting organizations with international affiliation. The Committee notes, however, that the Government denies this allegation and states that assessment of applications for registration by the JDL is done strictly within the law, which does not allow for discretion but instead requires a number of essential elements to be met by trade unions to obtain registration, and that the percentage of registrations granted in the first half of 2016 increased to 52 per cent, compared to 27 per cent during the previous year. While taking due note of the reported increase in the percentage of trade unions registered in the first half of 2016, the Committee observes that, according to this information, almost half of all trade union applications submitted during this period in the Dhaka region and more than half of the applications submitted in the Chittagong area have been rejected. The Committee must express concern at such a high percentage of rejected applications, especially considering that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to function efficiently, and represent their members adequately [see Digest, op. cit., para. 295]. The Committee further recalls that although the registration procedure very often consists in a mere formality, there are a number of countries in which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorization is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude; these factors are such as to create a serious obstacle for the establishment of a trade union and lead to a denial of the right to organize without previous authorization [see Digest, op. cit., para. 296]. In this regard, the Committee wishes to recall the conclusions of the CEACR which noted that, according to the report of the high-level tripartite mission, the procedure for registration of trade unions and its practical application were heavily bureaucratic and had the likelihood of discouraging trade union registration and of intimidating workers, and the combination of the broad discretionary powers of the JDL when processing applications for registration, the lack of transparency on the reasons for rejection and delays in judicial proceedings have led to an increased rejection of registration requests and a decreasing registration of trade unions over the past few years. In light of these considerations, the Committee requests the Government to take all necessary measures to facilitate the registration process so as to ensure that it is a simple formality, which should not restrict the right of workers to establish organizations without previous authorization. The Committee requests the Government to report progress on this issue to the CEACR, to which it refers this aspect of the case and which has, for a number of years, closely followed developments in this regard.
5. 173. Secondly, the complainant alleges that even when registration is granted, factory management often seek injunctive relief from courts to stay union registration, thus freezing union activities for prolonged periods of time pending the final hearing on the issue, and resort to various means of union-busting and retaliation against trade unionists. The Committee observes that to illustrate this point, the complainant provides specific examples of factories in the RMG and telecommunications sectors, where trade union registration was repeatedly challenged by the management or where the union and its members were subjected to union-busting and retaliatory measures, and alleges that there seems to be a movement by telecommunications enterprises to lobby the authorities to keep the sector union free. Taking due note of the Government’s comments on the listed situations, the Committee observes from the information provided that in some cases, procedures for cancellation of union registrations are still pending or are in the process of being settled by the parties and that there is a court case pending against the only existing trade union in the telecommunications sector for unfair labour practices. While emphasizing that trade unions and their members have an obligation to respect the law of the land, the Committee also expresses concern at the severe implications the alleged requests for cancellation of registration, union-busting and lobbying can have on the functioning of trade unions, especially in light of the overly lengthy nature of many of these proceedings. In light of these considerations, the Committee requests the Government to take the necessary measures to ensure that the procedure available to challenge trade union registration is not misused so as ultimately to become a tool for impeding, or significantly delaying, workers’ exercise of their freedom of association rights and that any future allegations of union-busting are fully and expeditiously investigated, and to keep it informed of any developments in this regard. The Committee also requests the Government to keep it informed of the outcome of any pending proceedings relating to cancellation of trade union registrations in the abovementioned factories.
6. 174. The Committee further notes the complainant’s allegations that on several occasions, government representatives have made public statements showing a negative attitude and hostility towards trade unionists, perceived by the latter as threats of retaliation, and regrets that the Government does not directly respond to this allegation. Noting in particular the complainant’s concern that such hostility may have a negative impact on freedom of expression of trade unionists, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., para. 155]. In view of the importance it attaches to the principles of freedom of association and collective bargaining and in light of the Government’s general commitment to ensure full respect of trade union rights, the Committee firmly trusts that all government entities and representatives will refrain from publicly expressing hostility or antagonism towards trade unionists so as to contribute to an environment conducive to the full development of trade union rights.
7. 175. In relation to freedom of association rights in EPZs, the Committee observes that while the complainant denounces the fact that workers in EPZs do not have the same trade union rights as workers outside the zones and alleges that the new draft ELA is not in conformity with the principles of freedom of association and collective bargaining and that workers’ representatives were not consulted in its elaboration, the Government indicates that labour rights in EPZs are ensured through the applicable legislation, which often guarantees better working conditions than outside the zones, and that the draft ELA, which will further improve workers’ protection, was elaborated by a high-level committee headed by a senior government official, in consultation with EPZ workers’ representatives and other stakeholders. The Committee observes that some of the issues raised by the complainant include alleged limitation on the right to organize, as workers can only form a WWA, prohibition of any affiliation with a political party or a non-governmental organization, exclusion of certain categories of workers from its scope of application, broad supervision powers of the zone authority and exclusion from the purview of the labour inspectorate established under the labour legislation. In this regard, the Committee wishes to recall that many of these issues had been previously addressed by the Committee in relation to the EPZ Workers’ Association and Industrial Relations Act, 2004 in Case No. 2327. In particular, the Committee considered that the Act contained numerous and significant restrictions and delays in relation to the right to organize in EPZs and urged the Government to review the Act so as to ensure meaningful respect for the freedom of association of EPZ workers (337th Report, paras 191–213). The Committee notes with regret that more than a decade later many of the same issues continue to arise in relation to the draft ELA and observes that the CEACR has addressed them in its last examination of compliance by Bangladesh with Conventions Nos 87 and 98. The Committee recalls that the CEACR recognized that the draft ELA represented an effort to provide the zones with protection similar to that provided outside the zones and in many areas reproduced the provisions of the BLA, but also observed that the sections concerning freedom of association and unfair labour practices mainly transposed into the draft the text of the EPZ Workers Welfare Association and Industrial Relations Act, 2010 (EWWAIRA), the non-conformity of which had already been addressed on numerous occasions. The CEACR encouraged the Government to consider replacing Chapters IX, X and XV of the draft ELA by Chapter XIII of the BLA (bearing in mind the further revisions called for by the CAS and the CEACR), thereby providing equal rights of freedom of association to all workers and bringing the EPZs within the purview of the labour inspectorate. The Committee emphasizes that workers in EPZs – despite the economic arguments often put forward – like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions [see Digest, op. cit., para. 264]. The Committee expects the Government to take the necessary measures, including legislative, to ensure that workers in EPZs can fully benefit from freedom of association rights and requests the Government to report progress on this matter to the CEACR, to which it refers this aspect of the case.