Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the Government’s report. It notes that it does not contain all the information requested, despite the fact that the Conference Committee, after noting several discrepancies between the Convention and national law, had requested the Government, in June 2006, to send information on an urgent basis in its next report concerning workers in export processing zones (EPZs) who, for more than 20 years, have not enjoyed the rights set out in the Convention.

The Committee takes note of the discussion which took place at the Conference Committee in 2006, as well as the observations received from the International Confederation of Free Trade Unions (ICFTU), in a communication dated 12 July 2006. The latter, while mainly concerning legislative issues raised in the previous observations of the Committee, underlines serious problems regarding the application of the provisions of the Convention in practice, in particular in the garment and textile industries, including harassment and anti-union discrimination. Furthermore, the Committee notes the Government’s reply of 18 January 2006 to the comments made by the ICFTU on 31 August 2005. The Committee notes that the Government limits itself to referring to the legal provisions prohibiting harassment and acts of anti-union discrimination and establishing imprisonment or fines in cases of infringement; according to the Government, the application of the Convention is not barred in the garment and ship-recycling industries. The Committee requests the Government to send its additional comments regarding the ICFTU’s observations contained in its communication dated 12 July 2006, indicating also the complaints submitted to the authorities in the last two years for anti-union practices.

1. Trade union rights in export processing zones (EPZs). In its previous comments, the Committee had noted the 2005 comments of the ICFTU regarding restrictions on the right to organize in the EPZs. In particular, the ICFTU stated that the new legislation provides that in order to form an association entitled to elect representatives who have the power to negotiate and sign collective agreements in any industrial unit, at least 30 per cent of the eligible workers of that unit must make an application to this effect. It will also have to hold a referendum to ascertain support for the association in which over 50 per cent of the total workforce must participate and over 50 per cent of the votes cast must be in favour of the establishment of a workers’ association. The Committee notes the Government response to these comments stating that workers’ associations are allowed to form under the EPZ Worker Association and Industrial Relations Act of 2004. The Committee recalls however the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2327 (see 337th Report, paragraphs 183-213) relating to important restrictions of the trade union rights of workers in the EPZ Workers’ Association and Industrial Relations Act 2004 and observes that it requested the Government to modify this Act. The Committee also observes that the ICFTU has pointed out that workers made numerous reports of employer interference or irregularities in elections for workers’ committees overseen by the Bangladesh Export Processing Zones Authority (BEPZA), and that discrimination against leaders of Active Worker Representation and Welfare Committees (WRWCs) was reported, and a significant number of these leaders and activist members were unfairly terminated with permission from the BEPZA. The Committee recalls that the Conference Committee had urged the Government, in consultation with the social partners, to take the necessary measures to ensure that these workers benefited in full from the rights laid down in the Convention. The Committee requests the Government to take all necessary measures to eliminate the obstacles to the exercise of trade union rights in law and in practice in EPZs. The Committee asks the Government to keep it informed of all measures taken in this regard, and to submit statistics on the number of complaints of anti-union discrimination as well as the number of collective agreements concluded in EPZs.

2. Lack of legislative protection against acts of interference. The Committee notes with regret that the Government repeats, at the Conference Committee, in its last report and in its comments concerning the ICFTU’s communication, its previous statement about this issue and, particularly, that sufficient protection is ensured under the general provisions of the Industrial Relations Ordinance of 1969 (IRO), relating to trade union rights and freedom of association. The Government adds that protection against interference will be strengthened in the new Labour Code which has already been passed by the Parliament. The Committee recalled that Article 2 of the Convention requires the prohibition of acts of interference by organizations of workers and employers (or their agents) in each other’s affairs, designed in particular to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations. The Committee once again requests the Government to adopt specific measures, coupled with effective and sufficiently dissuasive sanctions, against acts of interference and to keep it informed in this respect.

3. Legal requirements to collective bargaining. In its previous comments, the Committee had asked the Government to lower the percentage requirement, which is 30 per cent, for registration of a trade union and the requirement to have one-third of employees as its members in order to be able to negotiate at the enterprise level (see sections 7(2) and 22 of the IRO). The Committee notes that the Government reiterates its previous statement to the effect that these requirements are justified in order to limit the multiplicity of trade unions, that they strengthen trade unions, and that they are unanimously agreed upon by the social partners. The Committee was bound to point out once again that these requirements may impair and make difficult the development of free and voluntary collective bargaining and that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to the existing unions, at least on behalf of their own members. The Committee noted the Government’s statement, reiterated in the Government’s report, according to which the existing shortcomings (if any) will be removed through the provisions laid down in the future labour code. The Committee notes however with regret that, at the Conference Committee, the Government representative of Bangladesh maintained the position that the IRO 30 per cent requirement does not contravene the intent of the provisions of the Convention or the rights of workers to form trade unions as this requirement’s aim is to ensure broader and more representative workers’ bodies, to maintain the unity of the workers in the establishment and to promote effective representation of the workers. The Committee requests the Government to lower the percentage requirements set for registration of a trade union and for the recognition of a collective bargaining agent and to keep it informed in this respect.

4. Practice of determining wage rates and other conditions of employment in the public sector by means of government-appointed tripartite wages commissions (section 3 of Act No. X of 1974). In its previous comments, the Committee had requested the Government to amend the legislation and to modify the practice of determining wage rates and other conditions of employment in the public sector by means of government-appointed tripartite wages commissions. The Committee notes the statement of the Government according to which tripartism is the most reasonable way of determining wages, particularly in the less viable industries, as otherwise there will be chaos for the Government as employer; the Committee notes that in its report, the Government reiterates that the collective bargaining agent at the enterprise or sector level has the right to bargain with their employer (and this usually happens in practice) for the effective implementation of matters settled by the wages commission; the present system safeguards the interests of workers in less viable industries and achieves a fair and equitable wage structure. The Committee once again recalls that, in line with the Convention, free and voluntary collective bargaining should be conducted between directly interested workers’ organizations and employers or their organizations, which should be able to appoint freely their negotiating representatives. The Committee requests once again the Government to amend the legislation and to modify the present practice in order to bring it into conformity with the Convention.

5. Workers excluded from collective bargaining. The Committee notes from the ICFTU’s comments that, being deprived of the right to organize, workers in the public sector and state enterprises with the exception of railway, postal and telecommunication services cannot exercise the right to collective bargaining through trade unions.

6. The Committee notes that it has been commenting for a number of years on the need to finalize the draft Labour Code. The Committee notes that the Government stated once again at the Conference Committee and in its comments to the ICFTU’s observations, that the suggestions received from different stakeholders on the draft Labour Code have been reviewed by a tripartite committee, and that the Code is finalized. The Committee notes that in its report, the Government indicates that the Labour Code has recently been passed by the Parliament and that it believes that the Committee’s observations are duly reflected in the legislation. The Committee urges the Government to ensure that the above comments are duly taken into consideration and hopes that they have been taken into account in the draft Labour Code. The Committee requests the Government to keep it informed of any progress made in this respect. The Committee recalls that the technical assistance of the Office is at the Government’s disposal.