Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Articles 1 and 3 of the Convention. Adequate protection of workers against acts of anti-union discrimination. The Committee notes with concern the observations of the International Trade Union Confederation (ITUC) submitted under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), alleging numerous instances of anti-union discrimination, slowness of the labour inspectorate in responding to such allegations and the lack of adequate sanctions in practice, as well as a serious lack of commitment to the rule of law in this respect. The Committee also notes the conclusions of the high-level tripartite mission that visited Bangladesh in April 2016, which noted with concern the numerous allegations of anti-union discrimination and harassment of workers, including dismissals, blacklisting, transfers, arrests, detention, threats and false criminal charges combined with insufficient labour inspection, lack of remedy and redress and delays in judicial proceedings. The Committee further recalls that the Conference Committee, when examining the individual case of Bangladesh under Convention No. 87 in June 2016, 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. In light of these considerations, the Committee trusts that all complaints of anti-union discrimination will be dealt with expeditiously and effectively. The Committee requests the Government to continue to provide training and capacity building to labour officers to bolster their capacity to inquire into allegations of anti-union discrimination and ensure adequate protection in this respect. The Committee requests the Government to provide statistics on the number of complaints filed, their follow-up in the labour inspectorate, including time taken to resolve them, the remedies imposed, including the number of cases of reinstatement with or without back pay, the number of remedies accepted by employers versus appealed to judicial proceedings, time taken for judicial proceedings and the percentage of cases where employers’ appeals succeed, and sanctions ultimately imposed following full proceedings.

Protection of workers in export processing zones (EPZs) against acts of anti-union discrimination. The Committee had previously requested the Government to reply to the 2011 ITUC allegations of an increase in anti-union discrimination and expressed trust that the national mechanisms would be bolstered, including with an online database, so that workers could confidently report such acts. It also requested the Government to provide: the available statistics concerning complaints of anti-union discrimination, their follow-up and sanctions imposed; information on the role of counsellors-cum-inspectors; and the Bangladesh Export Processing Zones Authority (BEPZA) circular on section 62(2) of the EPZ Workers’ Welfare Association and Industrial Relations Act (EWWAIRA). The Committee notes the Government’s indication that: (i) to address allegations of unfair labour practices and handle labour disputes, conciliators, arbitrators, 60 counsellors-cum-inspectors, seven labour courts and one labour appellate tribunal are active in the EPZs; (ii) any aggrieved party, including individual workers and job-separated workers, have the right to file a case before the labour courts; (iii) since their establishment in 2011, a total of 161 cases were filed before the EPZ labour courts, out of which 86 were settled and there are currently no complaints of anti-union discrimination pending; and (iv) BEPZA carries out intensive training programmes on issues related to sound industrial relations, grievance handling procedures and social dialogue. Observing the discrepancy between, on the one hand, the ITUC’s allegations of numerous acts of anti-union discrimination and, on the other, the Government’s indication that there are currently no complaints pending in this regard, the Committee once again requests the Government to consider setting up a publicly accessible database in order to render the treatment of anti-union discrimination complaints more transparent; to clarify the role of counsellors-cum-inspectors in addressing such complaints; and to provide the BEPZA circular on the application of section 62(2) of the EWWAIRA. The Committee further requests the Government to continue to provide statistics on the number of anti-union discrimination complaints brought to the competent authorities, their follow-up and the remedies and sanctions imposed.

The Committee also requested the Government to provide information on the outcome of the judicial proceedings concerning the dismissed workers who were charged with illegal activities (Case No. 345/2011, Chief Judicial Magistrate Court, Dinajpur). The Committee notes the Government’s statement that all the main issues of the conflict have been resolved through tripartite agreement, that there is currently no unrest or grievance of the workers and that Case No. 345/2011 is still pending. The Committee requests the Government to provide information on the outcome of the case once the judgment has been rendered.

Article 2. Lack of legislative protection against acts of interference. For several years, the Committee had requested the Government, in consultation with the social partners, to review the Bangladesh Labour Act (BLA) with a view to including adequate protection for workers’ organizations against acts of interference by employers or employers’ organizations, which would also cover acts of financial control of trade unions or trade union leaders and acts of interference in internal affairs. The Committee notes the Government’s statement that the 2013 amendment of the BLA was a tripartite process resulting in consensus, that its implementation and enforcement following the adoption of the 2015 Bangladesh Labour Rules requires sufficient time and space and that while legal reform is a continuous process, it should be in line with the industrial development of a country. Observing that the high-level tripartite mission was alerted to alleged close links between factory owners, on the one hand, and government members, parliamentary members and local political figures, on the other, often resulting in interference in trade union affairs, the Committee regrets that no effective action has been taken to address the Committee’s concerns. Therefore, the Committee reiterates its previous request that the Government take the necessary measures to enact legislation as soon as possible to provide adequate protection for workers’ organizations against acts of interference by employers or employers’ organizations.

Lack of legislative protection against acts of interference in the EPZs. The Committee observes that a similar legislative lacuna exists in both the EWWAIRA and the draft EPZ Labour Act, neither of which contains a comprehensive protection against acts of interference in trade union affairs. The Committee, therefore, requests the Government to take the necessary measures, in consultation with the social partners, to review the relevant legislation in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee requested the Government to indicate how section 202(a) of the BLA, which enables unions and employers to contact experts for assistance in collective bargaining, was applied in practice and whether there have been any disputes in respect of such experts under section 202(a)(2) of the BLA. Noting the Government’s indication that no cases of disputes have been observed in this regard, the Committee requests the Government once again to provide information on the practical application of section 202(a)(1) of the BLA.

Referring to sections 202 and 203 of the BLA, the Committee requested the Government to consider, with the social partners, the necessary measures to ensure that collective bargaining could effectively take place at all levels and to continue to provide statistics on the number of collective agreements concluded at the industry, sector and national levels. The Committee notes the Government’s indication that there is no restriction on the settlement of disputes and other issues through bipartite negotiation or conciliation at the industry, sector and national levels, that as of August 2016, 358 elections for collective bargaining agents were held in 15 sectors (ready-made garment (RMG) sector: 311; tea sector: one; shrimp sector: 16; other sectors: 30) and that there are instances of collective bargaining in the RMG, tea and shrimp sectors. The Committee further notes the information provided by the Government to the high-level tripartite mission, indicating that while collective bargaining generally took place at the factory level, there were strong trade unions in the leather and tea sectors, some of which had negotiated branch-level collective bargaining agreements. The Committee, however, notes that the high-level tripartite mission also received information alleging the absence of a legislative basis for branch-level collective bargaining, the lack of social dialogue and only a limited number of functioning collective bargaining agreements. Welcoming the Government’s openness towards higher-level collective bargaining, the Committee requests it once again to consider, in consultation with the social partners, amending sections 202 and 203 of the BLA in order to clearly provide a legal basis for collective bargaining at the industry, sector and national levels. The Committee requests the Government to continue to provide statistics on the number of higher-level collective agreements concluded, the areas of industry to which they apply and the number of workers covered, and invites the Government to encourage collective bargaining at all levels.

The Committee also requested the Government to provide its comments on the ITUC’s concern that section 205(6)(a) of the BLA, which provides that workers’ representatives in the participation committees will run activities related to workers’ interests in an establishment where there is no trade union and until a trade union is formed, could undermine trade unions and usurp their role, and requested it to indicate any measures taken to ensure that participation committees are not used in this manner. The Committee notes that, according to the Government, the BLA does not restrict the formation of trade unions and the participation committees are not alternate but complementary to trade unions and, therefore, do not undermine trade union activities. The Committee trusts that should any concrete allegations of participation committees undermining trade unions be brought to its attention, the Government will take the necessary measures to remedy the situation.

Promotion of collective bargaining in the EPZs. In its previous comments, the Committee requested the Government to transmit a few representative examples of collective bargaining agreements concluded in enterprises in the EPZs. The Committee notes the Government’s indication that: (i) up until June 2016, referendums had been held in 304 out of 409 eligible enterprises in the EPZs and workers in 225 enterprises had opted to form workers’ welfare associations (WWAs), which have been registered and are actively performing as collective bargaining agents; and (ii) from January 2013 to December 2015, the WWAs submitted 260 charters of demands, all of which were settled amicably and concluded by the signing of agreements, thus demonstrating the workers’ right to collective bargaining. The Committee regrets, however, that the Government failed to provide copies of such agreements and, therefore, requests it once again to provide examples of collective bargaining agreements concluded in the EPZs and to continue to provide statistics in this regard.

The Committee also requested the Government to indicate progress made with regard to the revision of the EWWAIRA and the manner in which workers in the EPZs could be brought under the coverage of the BLA. The Committee notes the Government’s statement that after a wide range of consultations with the social partners and other relevant stakeholders, a comprehensive draft Bangladesh EPZ Labour Act was approved by the Cabinet and is in the process of adoption by the Parliament. The Committee observes, however, that in relation to matters of unfair labour practices and collective bargaining (Chapter X), the draft Act mainly reflects the text of the EWWAIRA. Emphasizing the desirability of providing equal protection to workers in the EPZs and outside the zones in terms of the right to organize and bargain collectively, the Committee hopes that the Government, in consultation with the social partners, will pursue its efforts in this regard.

Articles 4 and 6. Collective bargaining in the public sector. For a number of years, the Committee urged the Government to take the necessary legislative or other measures 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 consultations in government-appointed tripartite wages commissions, so as to favour free and voluntary negotiations between workers’ organizations and employers or their organizations. In its last comment, the Committee requested the Government to provide statistics on the number and nature of collective agreements concluded in the public sector, including the number of workers covered. The Committee notes the Government’s indication that: (i) public sector employees are outside the scope of the BLA and there are no tripartite commissions in purely public enterprises, which only consist of two parties – the employees and the Government; (ii) wages and other benefits in the public sector are determined under free and open discussions and voluntary negotiations within the Wage Commission for the officers and employees employed in the Republic or the Wage and Productivity Commission for public sector enterprises. The Committee recalls that all workers, with the only possible exception of the armed forces, the police and public servants engaged in the administration of the State, should enjoy the right to free and voluntary collective bargaining. The Committee requests the Government to provide further details on the manner in which organizations of public servants not engaged in the administration of the State can bargain collectively and copies of any agreements reached.

[The Committee requests the Government to reply in full to the present comments in 2017.]