Definitive Report - Report No 230, November 1983

Case No 1214 (Bangladesh) - Complaint date: 17-JUN-83 - Closed

1. 335. By a communication dated 17 June 1983 the following national trade union federations presented a complaint of violations of trade union rights in Bangladesh: submitted a similar complaint. The Government sent its observations in a communication dated 21 August 1983.
2. 336. 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. The complainants' allegations

1. 337. In their letter of 17 June 1983, the 11 national trade union federations allege that certain martial law ordinances violate Conventions Nos. 87 and 98, ratified by Bangladesh. In particular they refer to the Industrial Relations (Regulation) Ordinance (No. XXVI) of 30 August 1982 and the "guidelines for determination of collective bargaining agents" published under that Ordinance on 6 September 1982.
2. 338. The complainants cite the following provisions of the Ordinance: section 4 (prohibition of any election for determination of collective bargaining agents; discretion of the Registrar of Trade Unions to declare any registered trade union as collective bargaining agent; no appeal of declaration to the courts); section 4(3) (to be declared as collective bargaining agent a trade union must cover not less than one-third of the total number of employees in the establishment(s); section 7 (prohibition on the holding of any meeting, including a meeting for the election of the executive committee, without the prior permission of the Government; any breach punishable with a maximum of two years' imprisonment or a maximum fine of 5,000 Taka or both); section 8 (prohibition of strikes and lockouts; any breach punishable with a maximum of two years' imprisonment or a maximum fine of 5,000 Taka or both).
3. 339. The complainants cite the following provision of the "Guidelines"; section 2(d) (where, in the course of verifying membership claims for the determination of a collective bargaining agent, dual membership of unions is detected, the determining factor shall be the most recent membership date).
4. 340. In addition, the complainants refer generally to other legislative restrictions on trade union rights; the Registrar of Trade Unions can arbitrarily cancel the registration of any union having less than one-third of the total number of employees in the establishments) concerned; government employees and those in "essential services" are denied trade union rights; prohibition on non-employees of that undertaking from holding trade union office or joining the union concerned; no appeal to a higher court from labour court decisions, only to the Chief Martial Law Administrator.
5. 341. Lastly, the complainants state generally that trade union members and activists are arrested and kept in custody without trial and that since martial law has been introduced, there have been no meetings of the National Tripartite Committee, of which the 11 national federations are members.
6. 342. The WCL, in its communication of 19 July 1983, repeats the above allegations made against Ordinance No. XXVI and requests the authorities to repeal this law and lift all measures which have the effect of restricting the trade union rights and freedoms of workers.

B. The Government's reply

1. 343. In its letter of 21 August 1983, the Government states that the restrictive provisions in question are temporary in nature and are under constant review with a view to relaxations/amendments, as well as to ultimate withdrawal which would coincide with the revival of the Constitutional provisions in the country.

C. The Committee's conclusions

1. 344. The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, at its meeting in March 1983, examined the legislation at issue in this case and addressed an observation to the Government of Bangladesh concerning the incompatibility of the Industrial Relations (Regulation) Ordinance (No. XXVI) of 30 August 1982 with Articles 2, 3, 8 and 10 of Convention No. 87. The Committee further notes that the Committee of Experts addressed a direct request to the Government in the same connection under Convention No.
2. 345. Despite the Government's assurance that the restrictive provisions in question are temporary in nature and are under constant review with a view to relaxation/amendments, the Committee, on examining these provisions, cannot but fully endorse the Committee of Experts' request, made in its 1983 observation on Convention No. 87, that the Government amend this legislation to bring it into conformity with the principles of freedom of association.
3. 346. More specifically, the Committee would draw the Government's attention to the following aspects of Ordinance No. XXVI;
   • - section 4 deprives workers of their right to choose their representatives for collective bargaining purposes in full freedom;
   • - section 4(3) imposes an unnecessarily high membership proportion (one-third) for trade unions to be eligible to be declared as collective bargaining agents;
   • - section 7 deprives workers of freedom of assembly which is indispensible to the free exercise of trade union rights and, moreover, deprives workers of the right to elect their representatives in full freedom and to organise their administration and activities; taken further, such a prohibition denies workers the right to establish and join organisations of their own choosing;
   • - section 8 deprives workers of the right to strike by providing a direction to submit labour disputes directly to labour courts from which appeals can only go to the Chief Martial Law Administrator. The right to strike is one of the essential means available to workers of promoting and defending their occupational interests and section 8, when read with section 6 (compulsory arbitration to settle industrial disputes), results in a severe limitation on the workers' right to organise their activities and formulate their programmes;
   • - this prohibition on the right to strike and discretion to submit disputes directly to labour courts by-passing conciliation has a further drawback in view of the complainants' allegation that appeals from labour court decisions may, under martial law, only go to the Chief Martial Law Administrator, a Government authority. This is contrary to one of the longstanding principles of freedom of association, according to which the final review of labour disputes must be by judicial bodies, not martial law authorities.
4. 347. The Committee notes that the complainants allege other legislative restrictions on trade union rights without citing the specific laws. The Committee observes, however, that these allegations are particularly serious: the Registrar of Trade Unions can arbitrarily cancel the registration of any union having less than one-third of the total number of employees in the establishment(s) concerned; government employees and those in "essential services" are denied trade union rights; prohibition on non-employees of that undertaking from holding trade union office or joining the union of the undertaking.
5. 348. The Committee of Experts has also commented on these restrictions. In particular, that Committee requested the Government to amend the one-third membership rule (section 10(g) of the Industrial Relations Ordinance, 1969) and asked the Government to reconsider the prohibition on non-employees from holding trade union office (section 7A(l)(a)(ii) and (b) of the 1969 Ordinance, as' amended). The Committee of Experts also requested the Government to provide further information on the right of public servants to form unions. The Committee would endorse these comments and requests.
6. 349. In view of the lack of specificity in the allegations of arrests without trial of trade unionists under martial law and the lack of meetings in the National Tripartite Committee, as well as the Government's silence on these points, the Committee can only recall generally that one of the civil liberties essential to the free exercise of trade union rights' is the right to a fair trial by an independent and impartial tribunal. As regards the lack of tripartite meetings, the Committee would remind the Government of its obligation under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - recently ratified by Bangladesh - to ensure effective consultations.

The Committee's recommendations

1. 350. In these circumstances the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:
   • (a) In view of the fact that the Committee of Experts on the Application of Conventions and Recommendations has recently examined the Industrial Relations (Regulation) Ordinance (No. XXVI) of 1982, as well as the other legislative restrictions which are the subject of this complaint, finding them to be incompatible with the principles of freedom of association contained in Conventions Nos. 87 and 98, ratified by Bangladesh, the Committee endorses the Experts' request that the Government amend its legislation, particularly those provisions prohibiting strikes and freedom of assembly.
   • (b) The Committee would generally refer the legislative aspect of this case to the Committee of Experts for continued supervision within the framework of the regular ILO supervisory machinery.
   • (c) In view of the lack of specificity in the allegation of arrest without trial of trade unionists under martial law and the Government's silence on this point, the Committee can only recall generally that one of the civil liberties essential for the free exercise of trade union rights is the right to a fair trial by an independent and impartial tribunal.
   • (d) Again, in view of the lack of specificity in the allegation of the lack of tripartite meetings and the Government's silence on this point, the Committee can only remind the Government of its obligation to ensure effective consultations that it undertook upon ratifying the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).