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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bangladesh (Ratification: 1972)

Workers’ and employers’ organizations’ comments. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee notes the Government’s reply to the comments submitted by the International Trade Union Confederation (ITUC) on 4 and 31 August 2011 concerning allegations of arrests, harassment and detention of trade unionists and trade union leaders, notably in the garment sector. In this respect, the Committee notes that the Government indicates that: (1) the police and the law-enforcing agencies did their duties pursuant to the law and, according to them, there have not been illegal threats, police harassment or arrest and detention of trade unionists, and no death or illegal arrest has happened intentionally; the victims, if any, were accused for their misdeeds and criminal activities; (2) the law enforcement agencies had to interrogate some violence-creating persons to protect public property and to clear the blockade organized in the garment sector, but they did not harass anyone, nor did they have the aim of harassing trade union leaders or disrupting trade union activities; (3) law enforcement agencies are performing their duties under directives and close supervision of the Ministry of Home Affairs; (4) as to the alleged killings in an export processing zone (EPZ), agitated workers attacked members of the police, some of whom were seriously injured as a result (the police used water cannon, tear-gas shells and rubber bullets and a worker died of a heart attack while passing nearby); and (5) workers and employers in the garment sector are not fully aware of the benefits of implementing the principles of the Convention and training should be provided to them in this regard. As to the alleged refusal by the Registrar of Trade Unions to register new unions, the Government indicates that, although trade union activities were totally stopped during the Emergency period (from January 2007 to December 2008), the Labour Act 2006 establishes some legal and reasonable requirements for union registration and, if these are fulfilled, there is no reason to refuse registration of new trade unions. This registration procedure is logical and justified to maintain the discipline in the industrial relations field.

With respect to its request to indicate the status of the court case concerning the Bangladesh Garments and Industrial Sramik Federation (BGIWF) registration, the Committee notes the Government’s indication that the Department of Labour submitted the case for the cancellation of the registration of the BGIWF for violation of its constitution and unfair labour practice to the labour court in 2008 (No. 51 of 2008), that the case is still pending and that the next hearing will be on 18 September 2012. In this respect, the Committee expresses the firm hope that the ongoing procedure will conclude in the near future and requests the Government to indicate in its next report the status of the registration of the BGIWF.

The Committee notes the comments submitted by the ITUC on 31 July and 31 August 2012 concerning allegations of murder of a trade unionist, a union leader and two striking workers, violence and harassment of trade unionists in the pharmaceutical and EPZs, as well as the refusal to register unions in several sectors, including the telecom and garment sectors. The Committee requests the Government to take the necessary measures without delay to carry out investigations concerning these serious allegations with a view to determining responsibilities and punishing those responsible, and to provide information in this respect.

Right to organize in EPZs. In its previous comments, the Committee requested the Government to provide information and statistics on the number of workers’ welfare associations (WWAs) established in EPZs and on steps taken to amend legislation so that EPZ workers may fully exercise the rights guaranteed by the Convention. In this respect, the Committee notes the Government’s indication that referendums on WWAs were carried out in 246 out of 309 enterprises, and that 154 enterprises had formed WWAs up to 8 January 2012. The Government also states that these WWAs are actively performing their activities as collective bargaining agents. The Government indicates that the Bangladesh Export Processing Zone Authority (BEPZA) has been taking all the required steps to ensure the full implementation of the new EPZ Workers’ Welfare Associations and Industrial Relations Act 2010 (EWWAIRA) by issuing letters and distributing the Act to enterprises of EPZs for establishing WWAs. The Committee notes the allegation of the ITUC that at their peak, there were roughly 90 WWAs in EPZs, and that it is not clear whether the results of the referendums are reliable and reflect a fully informed vote on the part of the workers. The ITUC alleges that WWAs have been unable to function because employers failed to follow the law (e.g. refusing to provide meeting space, refusing to allow workers to hold meetings, refusing to review grievances, refusing to bargain) and BEPZA has failed to enforce it. The ITUC alleges that, as the initial trade union leaders have left or have been fired, new leaders have not taken their places. The ITUC further alleges that the formation of many WWAs in EPZs has been at the initiative of BEPZA which, through management of the affected enterprises, circulated a document to the workers to “demand” formation of WWAs; the entire procedure was allegedly effectively dictated by BEPZA in consultation with the respective employers. The ITUC claims that such a process is not consistent with workers’ right to establish and join organizations of their own choosing. The Committee requests the Government to provide its observations on the ITUC’s comments.

The Committee further recalls that it had previously commented on the EPZ Workers’ Associations and Industrial Relations Act 2004, which contained numerous and significant restrictions and delays in relation to the right to organize in EPZs, and that it had noted with deep regret the adoption of the EWWAIRA which does not contain any real improvement in relation to the previous legislation and which does not address any of its previous comments.

In these circumstances, the Committee once again requests the Government to take all the necessary measures to bring the following provisions of the EWWAIRA into conformity with the Convention:

• -section 16, which provides that a WWA will not be allowed in industrial units established after the commencement of the Act until a period of three months has expired after the start of commercial production in the concerned unit. The Committee notes the Government’s indication that this period is required for the initial understanding and preparation of both management and workers in order to ensure their rights and responsibilities;
• -section 17(1), which provides that there can be no more than one WWA per industrial unit. The Committee notes the Government’s indication that this requirement ensures more discipline and more harmonious industrial management within a company;
• -sections 6, 7, 9 and 12, which establish excessive and complicated minimum membership and referendum requirements for the establishment of a WWA (a WWA may be formed only when a minimum of 30 per cent of the eligible workers of an industrial unit seek its formation, and this has been verified by the Executive Chairperson of BEPZA, who shall then conduct a referendum on the basis of which the workers shall acquire the legitimate right to form an association under the Act, only if more than 50 per cent of the eligible workers cast their vote, and more than 50 per cent of the votes cast are in favour of the formation of the WWA). The Committee notes the Government’s indication that sections 6, 7, 9 and 12 were introduced to ensure willingness and spontaneous participation of the workers in organizing referendums and to ensure more transparency and accountability;
• -section 9(2), which confers excessive powers to the Executive Chairperson of BEPZA concerning the approval of the Constitution Drafting Committee of the WWA. The Committee notes the Government’s indication that the Executive Chairperson has always approved the Constitution Drafting Committee within five days, as required by section 9(2) which demonstrates that no excessive power is conferred to the Executive Chairperson;
• -section 8, which prevents a referendum from being held for the establishment of a WWA in the workplace for a period of one year, after a first attempt failed to gather sufficient support. The Committee notes the Government’s indication that this delay is required to ensure proper understanding among the workers and organize them more effectively;
• -section 27, which permits the deregistration of a WWA at the request of 30 per cent of the workers, even if they are not members of the association, and prevents the establishment of another WWA for one year after the previous one was deregistered. The Committee notes the Government’s indication that section 27 was enacted to prevent mala fide intentions, misleading and misuse of power by WWA members, which may affect workers’ welfare. To the knowledge of the Government, there has been no case of deregistration of a WWA;
• -sections 28(1)(c), (e)–(h) and 34(1)(a), which provide for the cancellation of the registration of a WWA on grounds which do not appear to justify the severity of this sanction (such as violation of any of the provisions of the association’s constitution). The Committee notes the Government’s indication that the aim of section 28 is to safeguard the interest of the workers in general, to ensure a congenial atmosphere among the workers as well as smooth production in an enterprise. As to section 34, it ensures transparency and accountability of WWAs;
• -section 46(3) and (4), which provides for severe restrictions of strike action, once authorized, and section 81(1) and (2) which establishes a total prohibition of industrial action in EPZs until 31 October 2013. The Committee notes that the Government indicates that section 46(3) and (4) has secured a smooth production atmosphere for greater interest of the company as well as workers;
• -section 10(2), which prevents a WWA from obtaining or receiving any funds from any outside source without the prior approval of the Executive Chairperson of BEPZA;
• -section 24(1), which establishes an excessively high minimum number of associations to establish a higher-level organization (more than 50 per cent of the WWAs in an EPZ), and section 24(3), which prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs;
• -sections 20(1), 21 and 24(4), which do not seem to afford guarantees against interference with the right of workers to elect their representatives in full freedom (e.g. the procedure of election is to be determined by BEPZA); and
• -section 80, which provides that WWAs are now prohibited from establishing any connection to any political parties or non-governmental organizations (NGOs). The Committee notes the Government’s indication that since BEPZA encourages the welfare of all workers and addresses their grievances through industrial relations officials, counsellors, conciliators, arbitrators, EPZ labour tribunals and EPZ labour appellate tribunals, connections with NGOs and political parties may delay the process of settlement of grievances. Furthermore, the Government emphasizes that workers may approach directly the Executive Chairman of the BEPZA, the labour tribunal and the labour appellate tribunal for settlement of their complaints, if any. The Committee recalls once again that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives, and provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are contrary to the principles of freedom of association.

Moreover, the Committee noted section 38(4) concerning check-off facilities which stipulates that “the executive council at the beginning of the calendar year shall, with the accounts statement of the previous year, submit for approval the current year’s revenue budget containing income expenditure to the Executive Chairman or to an officer authorized by him”. The Committee notes, once again, the Government’s indication that this section will ensure the transparency and accountability of WWAs. The Committee once again requests the Government to indicate the scope of application of this new subsection 4 of section 38 and its impact on check-off facilities.

The Committee further noted that a federation of WWAs cannot be legally formed until BEPZA has issued regulations. According to the ITUC, these regulations have yet to be issued. The Government indicates that, in order to streamline the formation of federations, BEPZA is preparing the necessary rules and regulations according to the Act. BEPZA has always supported the formation of WWA federations; but has yet to receive any formal request from a WWA to form a federation fulfilling requirements of the Act. The Committee once again requests the Government to indicate the measures taken or envisaged to issue the regulations concerning the right of WWAs to establish and join federations, in accordance with Article 5 of the Convention.

Other discrepancies between national legislation and the Convention. In previous comments, the Committee noted the adoption of the Bangladesh Labour Act 2006 (the Labour Act), which replaced the Industrial Relations Ordinance of 1969, and noted with deep regret that the Labour Act did not contain any improvements and, in certain regards, contained even further restrictions which were contrary to the provisions of the Convention. The Committee took note of the Government’s statement that a tripartite labour law review committee to identify the gaps and discrepancies in the Labour Act and suggest the necessary amendments had been constituted. The Committee notes that the Government indicates that the revision of the Labour Act with comments of all levels of stakeholders is under process by a 22-member high-power Tripartite Labour Law Review Committee (TLRQ) headed by the State Minister of Labour and Employment. The draft amendments have been submitted to the Tripartite Consultative Council (TCC) on 9 February 2012. The Committee notes that some of the proposed amendments would provide improvements to the current Labour Act (for example, by including “research institutions” into the scope of application of the Labour Act (section 1(4)); by repealing the provision requiring the Director of Labour to send the list of officers of a trade union to the employer (section 178(3)); and by offering the possibility of electing up to 20 per cent of the members of an executive committee from persons not employed in the establishment where the trade union is formed (section 180(b))). However, the proposed amendments do not take into account most of the observations previously raised by the Committee. The Government indicates that the draft amendments are being reviewed further and will be submitted again to the TCC for finalization. In these circumstances, the Committee expresses the firm hope that the review process of the Labour Act referred to above will be finalized in the near future and will take into account the following discrepancies between the Labour Act and the Convention:

• -the need to repeal provisions excluding managerial and administrative employees from the right to establish workers’ organizations (section 2(49) and (65) of the Labour Act) as well as new restrictions of the right to organize of firefighting staff, telex operators, fax operators and cipher assistants (exclusion from the provisions of the Act based on section 175). The Committee notes that the Government indicates that telex and fax operators are allowed to exercise their trade union rights. The Committee requests the Government to indicate the legal provisions that grant trade union rights to the abovementioned workers;
• -the need to either amend section 1(4) or adopt new legislation so as to ensure that the workers excluded in relation to trade union rights from Chapters XIII and XIV of the Labour Act enjoy the right to organize. The Committee notes the Government’s indication that sectors which have been excluded from the operation of the Act have been excluded in the interests of security, public administration and smooth environment and that the country is not in a position to amend section 1(4) considering the socio-economic, cultural and environment situation and practices;
• -the need to repeal provisions which restrict membership in trade unions and participation in trade union elections of those workers who are currently employed in an establishment or group of establishments, including seafarers engaged in merchant shipping (sections 2(65), 175 and 185(2));
• -the need to repeal or amend new provisions which define as an unfair labour practice on the part of a worker or trade union an act aimed at “intimidating” any person to become, continue to be or cease to be a trade union member or officer, or “inducing” any person to cease to be a member or officer of a trade union by conferring or offering to confer any advantage, and the consequent penalty of imprisonment for such acts (sections 196(2)(a) and (b) and 291). The Committee notes that the Government considers section 196(2)(a) and (b) to be justified in the national context where there is competition in enrolling members of trade unions that results in bloodshed, clashes and litigation. In order to prevent such untoward situations and to restore peace and a good environment, the Government considers these provisions to be sine qua non;
• -the need to repeal provisions which prevent workers from running for trade union office if they were previously convicted for compelling or attempting to compel the employer to sign a memorandum of settlement or to agree to any demand by using intimidation, pressure, threats, etc. (sections 196(2)(d) and 180(1)(a));
• -the need to lower the minimum membership requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments for initial and continued union registration, as well as the possibility of deregistration if the membership falls below this number (sections 179(2) and 190(f)); the need to repeal provisions which provide that no more than three trade unions shall be registered in any establishment or group of establishments (section 179(5)) and that only one trade union of seafarers shall be registered (section 185(3)); and the need to repeal provisions prohibiting workers from joining more than one trade union and the consequent penalty of imprisonment in case of violation of this prohibition (sections 193 and 300);
• -the need to modify section 179(1) which lists excessive requirements that must appear in the content of the constitution of a trade union in order for it to be entitled for registration;
• -the need to amend section 190(e) and (g) which provides that the registration of a trade union may be cancelled by the Director of Labour if the trade union committed any unfair labour practice or contravened any of the provisions of Chapter XIII of the Rules. The Committee considers that, while the decision of the Director of Labour can be appealed before the tribunal (section 191) which will have to apply the legislation in force, the criteria for dissolution are too broad and involve serious risks of interference by the authorities in the existence of trade unions;
• -the need to amend section 202(22) which provides that if any contesting trade union receives less than 10 per cent of the votes for the election of the collective bargaining agent, the registration of that union should be cancelled. The Committee considers that, while the 10 per cent requirement may not be deemed excessive for the certification of a collective bargaining agent, trade unions which do not gather 10 per cent of workers should not be deregistered and should be able to continue to represent their members (for instance, making representations on their behalf, including representing them in case of individual grievances);
• -the need to amend section 317(d), which empowers the Director of Labour to supervise the election of trade union executives, so as to allow organizations to freely elect their representatives;
• -the need to repeal provisions denying the right of unregistered unions to collect funds (section 192) upon penalty of imprisonment (section 299);
• -the need to modify section 184(1), which provides that workers engaged in any specialized and skilled trade, occupation or service in the field of civil aviation may form a trade union if such union is necessary for affiliation with an international organization in the same field, and section 184(4) which provides that the registration should be cancelled within six months if the trade union is not affiliated to the international organization concerned;
• -the need to amend sections 202(24)(c) and (e) and 204 which provide the collective bargaining agent in an establishment with some preferential rights (such as the right to declare a strike, to conduct cases on behalf of any individual worker or group of workers, and the right to check-off facilities), so that the distinction between a collective bargaining agent and other trade unions is limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations), in order for the distinction not to have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members for organizing their administration and activities, and formulating their programmes;
• -the need to lift several restrictions on the right to strike (concerning the majority required to consent to a strike (sections 211(1) and 227 (c)); the prohibition of strikes which last more than 30 days (sections 211(3) and 227(c)); the possibility of prohibiting strikes at any time if a strike is considered prejudicial to the national interest (sections 211(3) and 227(c)) or if it involves certain services (sections 211(4) and 227(c)); the prohibition of strikes for a period of three years in certain establishments (sections 211(8) and 227(c)); the penalties (sections 196(2)(e), 291 and 294–296); and interference in trade union matters (section 229));
• -the need to amend section 301, which imposes a penalty of imprisonment for failure to appear before the conciliator in the framework of settlement of industrial disputes;
• -the need to amend section 183(1), which provides that in a group of establishments no more than one trade union can be formed, so as to allow workers in any establishment or group of establishments to form organizations of their own choosing; and the need to amend section 184(2) which provides that only one trade union can be formed in each trade, occupation or service in a civil aviation establishment and if at least half of the total number of workers concerned apply in writing for registration. The Committee considers that the existence of an organization in a specific enterprise, trade, establishment, economic category or occupation should not constitute an obstacle for the establishment of another organization; and
• -concerning the draft amendment, the need to modify section 200(1) of the draft amendments which provides that any five or more trade unions, registered in more than one administrative division and formed in establishments engaged, or carrying on, in a similar or identical industry may constitute a federation, so that: (1) the requirement of an excessively high minimum number of trade unions to establish a federation does not infringe the right of trade unions to establish and join federations of their own choosing; (2) workers have the right to establish federations of a broader occupational or interoccupational coverage; and (3) trade unions should not need to belong to more than one administrative division in order to federate.

Finally, the Committee had previously requested the Government to indicate whether rule 10 of the Industrial Relations Rules 1977 (IRR), which previously granted the Registrar overly broad authority to enter trade union offices, inspect documents, etc. without judicial review, had been repealed by the entry into force of the Labour Act 2006. The Committee noted that the Government stated, in this regard, that rule 10 of the IRR remains valid, and that – as its purpose was to maintain discipline in trade union administrations – it was not in favour of repealing the said provision. The Government further indicated that the workers’ representatives in the tripartite review process towards the enactment of the Labour Act had raised no objections to the Registrar’s authority in these matters. The Government further indicates in its report that if any union or federation is aggrieved about the procedure and verification by the Registrar, it can appeal to the labour court. The Government adds that the Registrar does not go to the office of a trade union or federation for inspection unless their secretary or president applies to the Registrar for removal of irregularities, which is frequent. The Committee once again recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations. There is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should however always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 124 and 125). The Committee once again requests the Government to take the necessary measures to repeal rule 10 of the IRR or amend it so as to ensure that this provision granting the Registrar authority to supervise trade union internal affairs is in line with the principles mentioned above.

The Committee takes due note once again of the Government’s statement that it is fully committed to ensuring compliance with the Convention and the promotion of freedom of association in the country, and expects that all measures will be taken to bring the legislation into conformity with the Convention.

The Committee once again invites the Government to avail itself of the technical assistance of the Office in respect of all the matters raised above.