Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Bangladesh (Ratificación : 1972)

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC), in 2006. It also takes note of the adoption of the Bangladesh Labour Act, 2006, which replaced the Industrial Relations Ordinance, 1969, and on which it comments further below.

The Committee also notes the comments sent by the ITUC in a communication dated 27 August 2007 with regard to legislative issues already raised by the Committee and serious allegations of civil rights violations committed in 2006: (i) the killing of a striker by the police on 23 May 2006 in the context of a strike in the garment sector at Gazipur, which led to a riot on the same day, in particular in the Savar EPZ and the districts of Uttara, Mirpur, Kafrul, Old Dhaka, and Tejgaeon; according to the ITUC, the riot was followed by a harsh crackdown by the army’s rapid action battalion with hundreds of workers arrested; (ii) the raiding of the offices of the Bangladesh Independent Garment Workers’ Union Federation (BIGUF) on the same day (23 May 2006), the arrest of two BIGUF union organizers (Rashedul Alom Faju and Rebecca Khatun) and an office staff person (Minara) and their physical abuse while in police custody; their subsequent charging with destruction of property, vandalism and other charges connected to the labour unrest of that day; (iii) the arrest on the same day (23 May 2006) of Moshrefa Mishu, President of the Garment Workers’ Union Forum and her detention for five days (allowed bail on 26 May) and the filing of 19 charges against her in connection with the same events; (iv) the arrest on 13 October 2006 of Chandon, International Secretary of BIGUF and his interrogation throughout the night about BIGUF’s activities to organize workers in the EPZs; (v) police harassment against the American Center for International Labor Solidarity, set up by AFL–CIO, after publishing a pamphlet for EPZ workers; (vi) the arrest of three top leaders of the Bangladesh Cha Sramik Union (BCSU) on 24 March 2006 on charges which had already been investigated and found groundless the year before (released on bail on 13 April 2006) and brutal dispersion by the police of the BCSU members gathered outside the police station; (vii) assault against and serious injury of Roy Ramesh Chadra, General Secretary of the Bangladesh National Council of Textile, Garment and Leather Workers and an executive committee member of ITGLWF-TWARO on 14 April 2006; (viii) shots fired on 10 May 2006 against Mohammed Firoz Mia, President of the Bangladesh Telejogajog Sramik Karmochari Union which represents workers at the Bangladesh Telephone and Telegraph Board, who was actively campaigning against privatization. Recalling that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular, the Committee requests the Government to communicate its observations on the very serious comments made by the ITUC.

With regard to additional civil liberties violations communicated by the ICFTU in previous communications, including harassment of unions by the intelligence authorities, police violence against protesting workers, arrest of trade unionists, as well as the difficulty in establishing trade unions in the ship recycling industry, the Committee notes the Government’s observations according to which trade unions have not been harassed by the law enforcement agencies but rather the law enforcement agencies were obliged to perform their duties in cases where trade union leaders leading a procession, rally or demonstration were not in control of the mob so that unruly people would start to rampage, damage property, barricade highways, etc.; moreover, although workers in any sector have the right to establish trade unions under the new Labour Law of 2006, workers in the shipbreaking sector are casual workers and do not get an opportunity to form unions, because of the limited period of their employment (connected to the breaking of a specific ship). The Committee recalls that Article 8 of the Convention provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land and that the law of the land shall not be such as to impair, nor shall it be so applied so as to impair, the guarantees provided for in this Convention. In this regard, the Committee wishes to emphasize that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. Furthermore, the Committee recalls that, by virtue of  Article 2 of the Convention, workers without distinction whatsoever, including casual and informal sector workers in the shipbreaking industry, shall have the right to establish and join organizations of their own choosing. The Committee requests the Government to indicate in its next report any measures taken, including instructions given to the law enforcement authorities, so as to avoid the danger of excessive violence in trying to control demonstrations, and ensure that arrests are made only where criminal acts have been committed.

With regard to its previous comments concerning the arrest of 350 women trade unionists including the General Secretary of the JSL Women’s Committee, the Committee notes from the Government’s report that in 2004, in order to maintain law and order, the law enforcement agencies had to detain a few women from a mob while they were on a rampage, damaging a number of factories, barricading a highway, etc.; specific charges had been brought against them immediately after the incident as per the law of the land. The case (No. 7 of 2004) is still pending and a copy of judicial decisions may be communicated to the Committee as and when pronounced. The Committee requests the Government to communicate details as to the charges brought in 2004 against 350 women trade unionists, including the General Secretary of the JSL’s Women’s Committee, Shamsur Nahar Bhuiyan and to provide a copy of all judicial decisions taken in this matter. Moreover, noting with regret that the Government does not provide any information on the registration of Immaculate (Pvt.) Ltd Sramik Union despite previous requests to this effect, the Committee once again requests the Government to report on the measures taken to ensure the prompt registration of the union.

The Committee further recalls that its previous comments concerned the following issues:

1. Right to organize in export processing zones (EPZs). The Committee recalls that the EPZ Workers’ Associations and Industrial Relations Act, 2004, contains numerous and significant restrictions and delays in relation to the right to organize in EPZs and in particular: (i) contained a blanket denial of the right to organize in EPZs until 31 October 2006 after which workers’ associations may be established (section 13(1)); the Committee notes that this deadline has been met and takes note of the latest communication of the ITUC, according to which, on 1 November 2006, workers had the right to apply to form workers’ associations but the Bangladesh Export Processing Zones Authority (BEPZA) failed to devise and provide the prescribed form needed by the workers to this effect, thus preventing in practice the establishment of such associations; (ii) provides that workers’ associations will not be allowed in industrial units established after the commencement of the Act, until a period of three months has expired after the commencement of commercial production in the concerned unit (section 24); (iii) provides that there can be no more than one workers’ association per industrial unit (section 25(1)); (iv) establishes excessive and complicated minimum membership and referendum requirements for the establishment of workers’ associations (a workers’ association 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 workers’ association sections 14, 15, 17 and 20); (v) confers excessive powers of approval of the constitution drafting committee to the Executive Chairperson of the BEPZA (section 17(2)); (vi) prevents steps for the establishment of a workers’ association in the workplace for a period of one year after a first attempt failed to gather sufficient support in a referendum (section 16); (vii) permits the deregistration of a workers’ association 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 trade union for one year after the previous trade union was deregistered (section 35); (viii) provides for the cancellation of the registration of a workers’ association on grounds which do not appear to justify the severity of this sanction (such as contravention of any of the provisions of the association’s constitution) (section 36(1)(c), (e)–(h) and 42(1)(a)); (ix) establishes a total prohibition of industrial action in EPZs until 31 October 2008 (section 88(1) and (2)); (x) prevents workers’ associations from obtaining or receiving any fund from any outside source without the prior approval of the Executive Chairperson of the BEPZA (section 18(2)); (xi) provides for severe restrictions of strike action, once recognized (possibility to prohibit a strike if it continues for more than 15 days or even before this deadline, if the strike is considered as causing serious harm to productivity in the EPZ – section 54(3) and (4)); (xii) establishes an excessively high minimum number of trade unions to establish a higher level organization (more than 50 per cent of the workers’ associations in an EPZ – section 32(1)); (xiii) prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs (section 32(3)); and (xiv) does 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 shall be determined by the BEPZA, etc. – sections 5(6) and (7), 28(1), 29, 32(4)). Noting that the Government’s report does not provide any new information in respect of the above, the Committee once again requests the Government to take the necessary measures to amend the EPZ Workers’ Associations and Industrial Relations Act so as to bring it into conformity with the Convention and to provide detailed information in its next report in this respect. It also requests the Government to provide its observations on the comments made by the ICFTU concerning obstacles to the establishment of workers’ associations in EPZs after 1 November 2006 and to provide statistical information on the number of workers’ associations established in the EPZs after that date.

2. Other discrepancies between national legislation and the Convention. The Committee recalls that for many years it had been referring to serious discrepancies between the national legislation and the Convention. It now notes the adoption of the Bangladesh Labour Act, 2006 (the Labour Act) which replaced the Industrial Relations Ordinance, 1969 (section 353(1)(x)).

The Committee notes with deep regret that the new Act does not contain any improvements in relation to the previous legislation and in certain regards contains even further restrictions which run against the provisions of the Convention. Thus, the Committee notes the following:

–           the need to repeal provisions on the exclusion of managerial and administrative employees from the right to establish workers’ organizations (section 2 XLIX and LXV of the Labour Act) as well as new restrictions of the right to organize of fire-fighting staff, telex operators, fax operators and cipher assistants (exclusion from the provisions of the Act based on section 175 of the Labour Act);

–           the need to either amend section 1(4) of the Labour Act or adopt new legislation so as to ensure that the workers in the following sectors, which have been excluded from the scope of application of the Act including its provisions on freedom of association, have the right to organize: offices of or under the Government (except workers in the Railway Department, Posts, Telegraph and Telephone Departments, Roads and Highways Department, Public Works Department and Public Health Engineering Department and the Bangladesh Government Press); the security printing press; establishments for the treatment or care of the sick, infirm, aged, destitute, mentally disabled, orphans, abandoned children, widows or deserted women, which are not run for profit or gains; shops or stalls in public exhibitions which deal in retail trade; shops in any public fair for religious or charitable purposes; educational, training and research institutions; agricultural farms with less than ten workers; domestic servants; and establishments run by the owner with the aid of members of the family; in case any of the above sectors are already covered by existing legislation, the Committee requests the Government to provide information in this respect;

–           the need to repeal provisions which restrict membership in trade unions and participation in trade union elections to those workers who are currently employed in an establishment or group of establishments, including seamen currently engaged in merchant shipping (section 2 LXV and 175, 185(2) of the Labour Act);

–           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 of the Labour Act); the Committee considers that the terms “intimidating” or “inducing” are too general and do not sufficiently safeguard against interference in internal trade union affairs, since, for instance, a common activity of trade unions is to recruit members by offering advantages, including with regard to other trade unions;

–           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) of the Labour Act);

–           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) of the Labour Act); 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) of the Labour Act) and that only one trade union of seamen shall be registered (section 185(3) of the Labour Act); finally, 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 of the Labour Act);

–           the need to repeal provisions denying the right of unregistered unions to collect funds (section 192 of the Labour Act) upon penalty of imprisonment (section 299 of the Labour Act);

–           the need to lift several restrictions on the right to strike: requirement for three-quarters of the members of a workers’ organization to consent to a strike (sections 211(1) and 227(c) of the Labour Act); possibility of prohibiting strikes which last more than 30 days (sections 211(3) and 227(c) of the Labour Act); possibility of prohibiting strikes at any time if a strike is considered prejudicial to the national interest (sections 211(3) and 227(c) of the Labour Act) or involves a public utility service including the generation, production, manufacture, or supply of gas and oil to the public, as well as railways, airways, road and river transport, ports, and banking (sections 211(4) and 227(c) of the Labour Act); prohibition of strikes for a period of three years from the date of commencement of production in a new establishment, or an establishment owned by foreigners or established in collaboration with foreigners (sections 211(8) and 227(c) of the Labour Act); penalties of imprisonment for participation in – or instigation to take part in unlawful industrial action or go-slow (sections 196(2)(e) and 291, 294–296 of the Labour Act);

–           the need to repeal provisions which provide that no person refusing to take part in an illegal strike shall be subject to expulsion or any other disciplinary measure by the trade union, so as to leave this matter to be determined in accordance with trade union rules (section 229 of the Labour Act);

–           the need to amend new provisions which define as an unfair labour practice on the part of workers, an act of compelling or attempting to compel the employer to sign a memorandum of settlement or to accept or agree to any demand by using “intimidation”, “pressure”, “threat” so as to ensure that there is no interference with the right of trade unions to engage in activities like collective bargaining or strikes, and to repeal the consequent penalty of imprisonment for such acts (sections 196(d) and 291(2) of the Labour Act);

–           the need to amend provisions which impose a penalty of imprisonment for failure to appear before the conciliator in the framework of settlement of industrial disputes (section 301 of the Labour Act).

The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to bring the Labour Act, 2006 into full conformity with the provisions of the Convention.

The Committee also notes that it is not clear from the provisions of the Labour Act whether Rule 10 of the Industrial Relations Rules, 1977 (IRO) which previously granted the Registrar of Trade Unions overly broad authority to enter trade union offices, inspect documents, etc., without judicial review, has been repealed. It would appear from section 353(2)(a) that the rule remains in force, as the section in question provides that any rule under any provision of the repealed laws (including the IRO) shall have effect until altered, amended, rescinded or repealed, so far as it is not inconsistent with the provisions of the Labour Act, 2006. The Committee requests the Government to indicate in its next report whether Rule 10 of the Industrial Relations Rules, 1977 has been repealed by the entry into force of the Labour Act, 2006 and, if not, to indicate the measures taken or contemplated with a view to its repeal or amendment.