Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

Convenio sobre la inspección del trabajo, 1947 (núm. 81) - Bangladesh (Ratificación : 1972)

The Committee notes the Government’s reports for 2008 and 2010. According to the Government, the latest report incorporates the comments of the Bangladesh Employers’ Federation (BEF). The Committee also notes the observations of the National Coordination Committee for Workers’ Education (NCCWE) transmitted with the Government’s report, as well as the communications of the Bangladesh Free Trade Union Congress (BFTUC) dated 31 August 2008 and 26 August 2010, which are based on the 2010 report of the Bangladesh Occupational Safety, Health and Environment Foundation (OSHE).

Further to its previous comments, the Committee notes with satisfaction that the level of penalties to be imposed for violations of labour legislation has significantly increased (see below, Article 18): The Bangladesh Labour Act (BLA) now provides for a maximum fine of 25,000 taka (approximately US$356) whereas the repealed 1965 Factories Act only provided for a maximum fine of 1,000 taka (approximately US$14).

Articles 1, 2 and 4 of the Convention. Safety and health legislation and functioning of the system of labour inspection. The Committee notes with interest that the BLA came into force in October 2006 and replaced 26 Acts, 14 Ordinances and about 35 rules and regulations, repealing among others, the 1965 Factories Act. The Act has considerably enlarged the scope of the Factories Act 1965, which applied only to factories. The new Act applies to all “establishments” defined very widely to include “shops, commercial establishments, industrial establishments or premises in which workers are employed for the purpose of carrying on any industry” (section 2(31)); “industry” is defined as meaning “[a]ny business, trade, manufacturer, calling service employment or occupation” (section 2(69)); the Act also applies to the construction industry (section 6(61)(i)). In particular, the Committee notes with interest that section 2(7) extends the scope of labour inspection to factories employing more than five workers (in contrast with the previous Act, which only covered factories employing more than ten workers).

According to the BFTUC’s comments in 2008 and 2010, while the wider scope of application of the BLA, which is currently under revision, has considerable additional impact in terms of other obligations relating to payment of wages and trade union rights, it does not represent a reform in terms of safety and health obligations. In the view of the BFTUC, the safety and health obligations in the BLA are not relevant to the conditions of workplaces other than factories (construction sites, shops, offices, etc.), due to the fact that these obligations are worded in terms almost identical to those of the Factories Act and no additional provisions which take into account the specific safety and health requirements in the various sectors now covered by the BLA have been included in the Act. The Committee requests the Government to make any observations it considers relevant in relation to the comments of the BFTUC and NCCWE and to indicate the impact of the BLA in terms of the labour inspection activities by economic sector, in particular, numbers of visits and their outcomes, as well as statistics of the violations detected, sanctions imposed and occupational accidents and diseases recorded. The Committee also requests the Government to forward any legal text adopted in the process of reviewing the BLA.

Construction sector. According to the 2010 communication of the BFTUC, at the same time as the BLA was enacted, the Government also “gazetted” the Bangladesh National Building Code (BNBC), which was drafted as early as 1993. The BNBC became law in November 2006. It contains specific health and safety provisions for the construction sector and provides for the establishment of an agency responsible for the enforcement of the code, which does not come under the responsibility of the Department of Inspection for Factories and Establishments at the Ministry for Labour and Employment (DIFE). However, the BFTUC indicates that such an inspectorate or agency has not been established so far despite the high number of fatal casualties in the sector (106 registered deaths in 2009). The Committee requests the Government to make any comments it deems appropriate in relation to the allegations of the BFTUC. It also requests the Government to furnish a copy of the BNBC and to specify its relationship to the BLA. Please also indicate the measures taken or envisaged to ensure that the construction sector is effectively inspected, and provide relevant statistical data regarding inspection visits and their outcomes, as well as occupational accidents and diseases in this sector.

Labour inspection in export processing zones (EPZs). The Committee notes that, according to the NCCWE, EPZs are totally excluded from the labour law and there is a separate Act for workers in EPZs, which includes limitations for inspection. The Committee requests the Government to make any observations it considers relevant to the comments of the BFTUC and NCCWE, to specify the body responsible for inspection in EPZs, to give an overview of its activities (inspection visits, violations reported, legal provisions concerned, types of sanctions imposed) and to provide relevant statistical data.

Article 3(1)(b) and (c). Provision of technical advice to workers and employers. The Committee notes that the BFTUC continues to deplore that labour inspectors fail to provide sufficient advice and guidance to employers and indicates that no advice or guidance literature for workers and employers has been produced by the Government. It points out that the BLA – in the same way as the repealed Factories Act 1965 – does not explicitly entrust labour inspectors with the function of providing advice and guidance to employers and workers. However, the Committee notes from an annotated version of the BLA available at the ILO that, as a result of case law, inspectors are expected to give advice and guidance in the course of the discharge of their enforcement duties. Recalling that enforcement and the provision of information and advice are two inseparable functions of a labour inspection system, the Committee requests the Government to provide detailed information on the activities of the labour inspectorate in relation to the provision of information and advice and to indicate the legislative and practical measures taken or envisaged to promote a more active role of labour inspectors in guiding and advising workers and employers, especially on the recently adopted labour legislation.

In this context, and further to its previous comments (in 2006), the Committee once again asks the Government to provide copies of the basic texts of the project “Improvement of the working environment, health and safety in factories” carried out in collaboration with the World Health Organization, together with information on the progress made in the framework of this project in terms of cooperation with the social partners to improve health and safety conditions at work and in terms of reducing the number of industrial accidents and cases of occupational disease.

Article 3(2). Additional functions entrusted to labour inspectors. The Committee notes that, according to Chapter XX, section 317(3)(e) of the BLA, labour inspectors are entrusted with the function of conciliation in industrial disputes. As indicated in paragraphs 72–74 of the General Survey of 2006 on labour inspection, the Committee would like to stress that conciliation is not among the duties of the labour inspectorate as defined in Article 3(1) of the Convention. It recalls the importance of avoiding overburdening inspectorates with tasks which by their nature may be understood as incompatible with their primary function of enforcing legal provisions, as provided for in Article 3(2). The assignment of the conciliation of industrial disputes to any other body or officials would enable labour inspectors to carry out their supervisory function more consistently, resulting in better enforcement of labour legislation and hence a lower incidence of labour disputes. In this regard, the Committee draws the Government’s attention to Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), according to which “the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes”. The Committee thus requests the Government to take all the necessary legislative and practical measures to relieve labour inspection staff of all conciliation duties and to enable labour inspectors to devote themselves more fully to supervising the legislation on working conditions and the protection of workers, in conformity with Article 3(2).

Article 5(b) Collaboration with workers’ and employers’ organizations. The Committee notes that section 323 of the BLA provides for the establishment of a tripartite national council for industrial health and safety and that section 323(2)(j) provides that the current labour chief inspector will be a member and secretary of this council. It further notes with interest that, according to the communication of the BFTUC in 2010, the Tripartite National Industrial Health and Safety Council has been set up and has elaborated a national policy for occupational safety and health in industrial establishments. The Committee would be grateful if the Government would provide a copy of any document relating to the national policy for occupational safety and health, together with information on its application in practice. It asks the Government to provide information on any other activities of the Council in relation to labour inspection and a copy of any relevant documentation.

Article 14. Notification of industrial accidents and occupational diseases. Further to its previous comments, in which it asked the Government to take steps to secure the adoption of legal provisions setting forth the instances and the manner in which the labour inspectorate must be informed of cases of occupational diseases, the Committee notes with interest that the BLA contains, in sections 80 and 82, a reporting obligation for employers with regard to both occupational accidents and occupational diseases and provides in section 290 for a penalty for the failure of employers to give notice of an occupational accident. It further notes that, whereas section 80 provides for the period in which the labour inspectorate must be informed of industrial accidents, as far as the reporting of occupational diseases is concerned, section 82 provides that the form and time limits for the notification of occupational diseases shall be regulated by rules. The Committee notes, however that, according to information communicated by the BFTUC in 2008, the reporting of occupational accidents does not function well in practice and that the registered numbers do not seem to correspond with actual fatalities. The Committee requests the Government to make any comment it considers relevant on the points raised by the BFTUC. It asks the Government to indicate the measures taken or envisaged, including the rules to be issued under section 82 of the BLA, for the notification of occupational diseases, and to provide information on any progress in the development of a relevant system and its implementation in practice. The Committee would like to draw the Government’s attention in this regard to the ILO code of practice on the recording and notification of occupational accidents and diseases, published in 1996, which contains useful recommendations intended for those responsible for the reporting, recording and notification of occupational accidents and diseases and which can be found at: www.ilo.org/safework/normative/codes/lang--en/docName--WCMS_
107800/index.htm.

Articles 6 and 15(c). Probity of labour inspectors and duty of confidentiality in relation to complaints. Further to their previous comments, the BFTUC and the NCCWE continue to question the probity of inspectors who, after the reform of the BLA, are still under no legal obligation to refrain from disclosing the identity of the author of a complaint or from indicating that an inspection took place as a result of a complaint. While the Government states that, in practice, inspectors do not disclose the identity of the complainant, the trade unions indicate that workers prefer not to report breaches of the law by employers for fear of reprisals. The Committee recalls that the granting of the appropriate status and conditions of service to labour inspectors, including appropriate wages and career prospects, in accordance with Article 6, and the obligation for labour inspectors to comply with the duty of confidentiality, under Article 15(c), are essential safeguards against improper behaviour. It notes that, although under the terms of section 334 of the BLA inspectors shall be deemed to be public servants, there has been no apparent progress with regard to the issues raised previously by the BFTUC concerning the level of their salary and the absence of career prospects. The Committee asks the Government to indicate the measures taken or envisaged to ensure that the conditions of service of inspectors are such that they are assured of stability of employment and independence from any improper external influence, especially through appropriate wage levels and career prospects. Furthermore, the Committee requests the Government to take, without delay, appropriate steps aimed at supplementing the law to ensure that the duty of confidentiality regarding the existence of a complaint and its source is duly respected by labour inspectors. It asks the Government to keep the ILO informed of the progress made and to provide any text governing the conditions of service of labour inspectors.

Articles 7, 10, 11 and 16. Human and material resources of the labour inspectorate. Training of labour inspectors. According to the BFTUC, while the budget allocation to labour inspection has further increased, it represents a mere 0.004 per cent of total government expenditure. The BFTUC is of the view that the lack of financing of the labour inspectorate has less to do with the lack of resources and more with the lack of interest and commitment over the years to improving workers’ safety. The NCCWE also refers to the lack of authority and accountability of the labour inspection department. While a table included in the observations made by the BTFUC shows that the number of labour inspectors has risen from 78 in 2006 to 93 in 2010, the trade union regrets the absence of significant progress in giving effect to the repeated commitments of the Government to increase labour inspection staff, and especially the staff of the occupational safety and health inspectorate where numbers have remained the same over the last 26 years. The Committee notes that the Government, in its 2010 report, acknowledges that the number of labour inspectors is insufficient in relation to the number of workplaces liable to inspection which, according to the 2010 communication by the BTFUC, has further increased, without providing information concerning its indication in its 2008 report that 48 new labour inspectors would be recruited.

Moreover, according to the comments made by the BFTUC and the NCCWE in 2010, the Government has failed to take any visible steps to modernize the infrastructure of the labour inspectorate. Despite the acquisition of some new sound and light equipment through an international donor, there continues to be a lack of logistical support (transport facilities, training materials, necessary equipments for examinations or testing). With regard to the allegations previously made by the BFTUC, the Government acknowledges the lack of proper vehicles, but refers, in a general manner, to the provision of travelling allowances to labour inspectors and denies that employers cover any travelling expenses of labour inspectors.

Finally, the Committee notes that the BFTUC again refers to the inadequacy of training in the light of the rapid changes in technology and methods of work in all sectors of the economy. It notes in this regard the information provided by the Government in 2008 and 2010 that, in addition to the initial one-month training at the Industrial Relations Institute (IRI) and the 15 days’ in-house training offered by the senior officials of the DIFE, labour inspectors are provided with regular training courses by the IRI and other government training institutions, as well as training financed by organizations such as the German Society for Technical Cooperation (GTZ) or the ILO. It, however, acknowledges that inspectors are not sufficiently trained for the discharge of their duties. The Committee encourages the Government to do its utmost to furnish the labour inspectorate with the resources that it needs to operate effectively, if necessary within the framework of international financial cooperation, in order to ensure that the number of labour inspectors is adequate in relation to the number of workplaces liable for inspection (Article 10 of the Convention), that they are provided with the material means and transport facilities necessary for the performance of their duties (Article 11) and that they receive adequate training for the performance of their duties (Article 7(3)). The Government is requested to provide information on:

–           the total number of labour inspectors and their distribution at headquarters and in the various field, regional and branch offices, in relation to the number of workplaces liable to inspection and the workers employed therein, as provided for in Article 10(a)(i) and (ii);

–           the amounts and conditions for the reimbursement of travel costs and allowances to labour inspectors, including a copy of a reimbursement form; and

–           the frequency, content and duration of training, as well as the number of participants and the practical impact of such training.

Article 12(1). Right of inspectors to enter workplaces freely. The Committee notes the repeated indications by the BFTUC that employers are informed of the date of intended inspection visits. The Committee would like to draw the Government’s attention to the fact that it is important that there should be no prior notification of inspection visits to the employer or her or his representative, unless the labour inspector deems such notification necessary for the effectiveness of the control to be performed. The Committee asks the Government to take the necessary steps to secure the full effect in law and in practice of Article 12(1) of the Convention and to provide a copy of any relevant legal or administrative text adopted to this end.

Article 17. Prompt legal proceedings. Modifications in the procedure for the prosecution of violations of national labour provisions. The Committee notes that there have been some modifications in the procedure for the prosecution of violations of national labour provisions. Whereas, under section 107(2) of the 1965 Factories Act, only the magistrate’s court had jurisdiction over an offence under this Act or any rules or orders made thereunder, section 313(1) of the BLA now establishes the jurisdiction of labour courts for offences under the BLA. Further, whereas under section 107(1) of the Factories Act, prosecutions could only be initiated by labour inspectors, under section 313(2) of the BLA, aggrieved workers and trade unions can now also initiate court proceedings. The Committee notes the suggestions made by the BFTUC with regard to the prosecution of breaches of labour law, namely: (i) the creation of more labour courts, in addition to the seven labour courts already existing in the country, which might be far away from the main office; and (ii) the recruitment of lawyers to represent inspectors in the filing and prosecuting of cases which, according to the BFTUC, is a function that is extremely time consuming. The Committee further notes that the trade union regrets that no prosecutions involving breaches of health and safety duties have been filed under the BLA in three of the seven labour courts. The Committee asks the Government to provide information on the total number of cases filed by labour inspectors, and to provide particulars of the classification of such infringements according to the legal provisions to which they relate, and to ensure that this information is included in the annual report sent to the ILO. Further, the Committee would be grateful if the Government would send any information or comments in reply to the suggestions made by the BFTUC.

Article 18. Adequate penalties. With regard to the increase of the level of penalties noted at the beginning of this comment, the Committee further notes that the BLA also introduces new offences for violations, for example as regards the causing of fatalities and serious bodily injuries by employers through the breach of an obligation under the BLA, or the failure by employers to report an occupational accident. The Committee asks the Government once again to provide available information on the number and level of the penalties imposed for offences reported by labour inspectors and to ensure that this information is included in the annual report sent to the ILO. Please also indicate the impact of the increased penalties on the observance of labour law.

Articles 20 and 21. Publication of an annual report. According to the Government, the collection of comprehensive data for the publication of regular annual reports is hampered by the low number of labour inspectors and inspection visits. Noting, however, that the Government is aware of the importance of keeping registers containing useful data, the Committee would like to stress that one of the aims of Articles 20 and 21 is to allow the central inspection authority to gather the information needed to determine, in the light of the social and economic objectives of labour inspection, the resources required to operate the services efficiently and to submit appropriate budgetary proposals for the attainment of these objectives. Referring to its comment under Articles 7, 10, 11 and 16, the Committee once again emphasizes the importance of increasing the budget allocated to the labour inspectorate. It again asks the Government to take the necessary measures for the establishment of a register of workplaces liable to inspection and of the workers employed therein (particularly through inter-institutional cooperation as recommended in its 2009 general observation), and to provide information on any measures taken for this purpose, with a view to the fulfilment by the central inspection authority of its obligation to publish and transmit to the International Labour Office an annual report in accordance with Articles 20 and 21 of the Convention.