Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Articles 1 and 3 of the Convention. Protection of workers in export processing zones (EPZs) against anti-union discrimination. In its previous comments, the Committee had noted the comments submitted by the International Trade Union Confederation (ITUC) on 4 and 31 August 2011, concerning the dismissal of more than 5,000 employees in the garment sector in 2010 following their exercise of their trade union rights as well as several cases in which the leaders of worker welfare associations have been fired in retaliation for the exercise of trade union rights. The Committee notes the Government’s indication that the number of 5,000 fired garment workers is not based on findings of any survey nor is it established by research. It states that this type of exaggerated figure not only misleads the policy-makers but creates perplexity in the minds of all concerned. The Government indicates that the conflicts that have led to the dismissal of several leaders of worker welfare associations have been resolved. It further explains that in one case, the dismissed workers were involved in illegal activities and that a criminal case has been filed against them (345/2011, under trial at the Chief Judicial Magistrate Court, Dinajpur). The Committee requests the Government to provide information on the judicial proceedings in Case No. 345/2011.

Moreover, the Committee had noted that the ITUC referred to numerous problems concerning the application of the Convention in the EPZ sector, particularly in the garment industry. The ITUC further stated that although the law provides for the establishment of an EPZ labour tribunal and an EPZ labour appellate, these two bodies had yet to be established, thus denying workers access to the judicial system for their grievances. The Committee had requested the Government to provide information in respect of these matters, including information on the number of complaints of anti-union discrimination in the EPZ sector submitted to the competent authorities, as well as the outcomes of those complaints.

As concerns the establishment of an EPZ Labour Tribunal and an EPZ Labour Appellate, the Committee had previously noted that according to the Government, EPZ workers could seek judicial redress in cases of anti-union discrimination. The Committee noted that in August 2010, the Parliament passed the EPZ Workers’ Welfare Associations and Industrial Relations Act 2010 (EWWAIRA) which provides for the establishment of an EPZ Labour Tribunal and a Labour Appellate Tribunal. The Committee notes the Government’s indication that these bodies have been set up by notifications published in the Official Gazette on 16 August 2011. The Committee requests the Government to provide in its next report: (i) statistics on the number of complaints of anti-union discrimination presented by workers in the EPZs before the EPZ Labour Tribunal and the Labour Appellate Tribunal; (ii) a summary of the decisions reached by the two tribunals, including any remedies awarded; and (iii) a copy of the notifications published in the Official Gazette on 16 August 2011.

The Committee further noted that the Government indicated in its report that the intervention of counsellors is well established in all EPZs to deal with employees’ grievances (e.g. harassment, dismissal, violence) and that conciliators and arbitrators have the power to resolve disputes after counsellors, as per sections 40–45 of the EWWAIRA 2010. However, the Committee noted that according to the ITUC’s 2011 comments, the Bangladesh Export Processing Zones Authority (BEPZA) had not yet appointed new conciliators (when the 2004 Act expired, the Government did not extend the tenure of the EPZ conciliator who was appointed under that act) as required under the EWWAIRA 2010, thus hampering industrial dispute resolution in the EPZs. The Committee notes the Government’s indication that 60 counsellors work in different industries of different zones since 1 June 2005 to implement the EWWAIRA. It further notes the indication of the Government that it will appoint conciliators as soon as the “EPZ Workers’ Welfare and Industrial Relations Fund, Constitution and Operation Policy” is approved. General Managers, Officers of the Industrial Relations Department, and counsellors of the respective zones are scheduling frequent hearings between management and workers to mitigate problems. As a result, the Government indicates that the rate of grievances has reduced remarkably. The Committee requests the Government to provide information on the approval of the “EPZ Workers’ Welfare and Industrial Relations Fund, Constitution and Operation Policy” and on the appointment of conciliators.

Article 2. Lack of legislative protection against acts of interference. The Committee had previously noted that the Labour Act 2006 did not contain a prohibition of acts of interference designed to promote the establishment of workers’ organizations under the domination of employers or their organizations, or to support workers’ organizations by financial or other means with the object of placing them under the control of employers or their organizations, and had requested the Government to indicate the measures taken to adopt such a prohibition. The Committee noted the Government’s indication that protective measures are laid down in the Labour Act, particularly in sections 195 and 196 concerning “unfair labour practice on the part of the employer”, and that such act by the employer is an offence punishable under section 291 of the Labour Act, which provides for a prison term which may extend to two years or with a fine of up to 10,000 Bangladeshi taka (BDT), or both. The Committee notes that amendments to the Labour Act have been submitted to the Tripartite Consultative Council (TCC) on 9 February 2012. It notes that the proposed amendments do not seem to contain comprehensive prohibition that covers acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs. The Committee hopes that such a prohibition will be included in the amendments and once again requests the Government to send the latest draft amendments and to provide information on developments in this regard, including on the enactment of the proposed provisions and any complaints filed under them.

Article 4. Legal requirements for collective bargaining. In its previous comments, the Committee had referred to section 179(2) of the Labour Act, which provides that a trade union may only obtain registration if it represents 30 per cent of the workers in an establishment, as well as to section 202(15) of the Labour Act, which provides that if there is more than one trade union in an enterprise, the Director of Labour shall hold a secret ballot to determine the collective bargaining agent. The Committee recalled that the percentage requirements for registration of a trade union, and for the recognition of a collective bargaining agent set out in sections 179(2) and 202(15) of the Labour Act, 2006, may impair in certain cases, in particular in respect of large enterprises, the development of free and voluntary collective bargaining. The Committee notes the Government’s indication that the 30 per cent requirement opens the opportunity to workers to form three trade unions in an establishment and to join any of these trade unions. The Committee noted that the Government indicates in its report that the percentage requirement in section 202(15) has been repealed and that it is the trade union that secures the highest number of votes that is declared as the collective bargaining agent. In this regard, the Committee refers to its observations under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee further noted that according to the National Level Trade Union Federation of Workers (NCCWE), collective bargaining is limited as there is no legal provision for collective bargaining at the industry, sector or national levels. In this regard, the Committee noted the Government’s indications that: (i) sections 202 and 203 of the Labour Act, 2006, directly concerns collective bargaining; (ii) the settlement of disputes through bipartite negotiations is done at the industry level and that similarly, different issues are settled through bipartite negotiation or through conciliation at the sector level, such as tea sector, shrimp sector, etc.; (iii) collective bargaining was also done at the national level through consultation with the Workers’ Federation but such practice no longer prevails; and (iv) there are currently 7,297 trade unions registered with the Department of Labour, 32 national federations, 112 industrial federations and 36 garments industries federations and a total of 11 collective bargaining agreements. The Committee notes that the proposed amendments to the Labour Act, 2006, which will be examined again by a Tripartite Consultative Council (TCC), do not concern sections 202 and 203. The Committee once again requests the Government to amend sections 202 and 203 of the Labour Act, 2006, in order to provide clearly that collective bargaining is possible at the industry, sector and national levels. The Committee once again requests the Government to provide statistics on the number of collective agreements concluded at the industry, sector and national levels respectively in its next report.

Promotion of collective bargaining in the EPZs. In its previous comments, the Committee had requested the Government to provide information on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded and the number of workers they cover. The Committee notes the Government’s indication that in October 2011, there were 302 enterprises eligible for Workers Welfare Associations (WWAs) among 368 in operation and that workers’ associations referendums were held in 208 enterprises. Elections of WWAs were held in 146 enterprises and WWAs were formed. The activities of all executive committees of WWAs include being collective bargaining agents. However, no information was provided by the Government concerning the conclusion of collective agreements in the EPZs. The Committee noted that according to the ITUC, while elected WWAs (what, according to the ITUC, substitutes for trade unions in the absence of a legal right to form one) in the EPZs have been established, employers have failed to take the next step and bargain collectively as required by the EWWAIRA 2010. The Committee therefore requests the Government once again to provide information in its next report on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded since 2008, and the number of workers they cover.

The Committee further noted that according to the ITUC, there has been little progress on collective bargaining in the EPZs and that this is largely due to the BEPZA’s insistence that there is no room for collective bargaining on any working conditions above the minimum standards already established in the Labour Act and the BEPZA Instructions 1 and 2. The ITUC added that this largely eviscerates the bargaining provisions of the EWWAIRA 2010 and leaves no room for collective bargaining. The Committee recalls that excluding wages, working hours, rest periods, leave and conditions of works from the field of collective bargaining is not in harmony with Article 4 of the Convention. The Committee requests the Government once again to ensure that this principle is applied in practice in the EPZs and to provide a copy of the BEPZA Instructions 1 and 2.

Articles 4 and 6. Tripartite wages commissions in the public sector. The Committee recalls that in its previous comments, it had requested the Government to take the necessary legislative or other measures to end the 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). The Committee noted that the Government indicated in its report that this system does not prevent free and voluntary collective bargaining. Nevertheless, the Committee, while recognizing the singularity of the public sector which allows special modalities, considered that simple consultation with unions of public servants not engaged in the administration of the State does not meet the requirements of Article 4 of the Convention. The Committee underlines that the Government has not referred to any collective agreement in the public sector. The Committee therefore once again urges the Government to take the necessary measures, legislative or not, to end the practice of determining wage rates and other conditions of employment of public servants not engaged in the administration of the State by means of simple consultation in government appointed tripartite wages commissions, so as to favour free and voluntary negotiations between workers’ organizations and employers or their organizations. The Committee once again requests the Government to indicate any measures taken or contemplated in this regard and to provide statistics on the number and nature of collective agreements concluded in the public sector.