Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 337, Junio 2005

Caso núm. 2371 (Bangladesh) - Fecha de presentación de la queja:: 15-JUL-04 - Cerrado

Allegations: The complainant alleges that: the 1969 Industrial Relations Ordinance (IRO) is incompatible with the right of workers to form and join organizations of their own choosing; the application for registration of the Immaculate (Pvt.) Ltd. Sramik Union was unlawfully and unreasonably refused by the Registrar of Trade Unions (RTU); and that seven of the most active workers in the union were dismissed for anti-union reasons

214. The complaint is contained in a communication from the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 15 July 2004.

1. 215. The Government sent its observations in a communication dated 21 October 2004.
2. 216. 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 complainant’s allegations

1. 217. In its communication dated 15 July 2004, the complainant lodged a complaint on behalf of the Bangladesh Independent Garments Workers’ Union Federation (BIGUF) in relation to the refusal of registration of the union representing workers at Immaculate (Pvt.) Ltd., a garment factory in Mirpur, Dhaka. The complainant stated that on 4 July 2003, the Immaculate (Pvt.) Ltd. Sramik Union was formed. It was stated that 242 of the total workforce of 620 workers at the factory joined, amounting to 40 per cent of the total workforce and thus well over the 30 per cent requirement contained in the 1969 industrial relations ordinance (IRO). The complainant stated that on 18 July, the union adopted its constitution, elected an executive committee, and authorized its president and secretary to take all the necessary steps to register the union.
2. 218. The complainant stated that on 24 September 2003, the union submitted its application for registration to the registrar of trade unions (RTU). On 6 October 2003, the RTU wrote to the union, stating that it found the application deficient and citing its objections. The complainant attached its transcript of this letter, which contained a list of the following ten “defects and shortfalls found in the papers attached with the application”:
3. (1) Copies of the notices of the general meetings dated 4 July 2003 and 18 July 2003, have not been submitted.
4. (2) Any copy containing the signatures, to prove that workers were present in the general meetings of 4 July 2003 and 18 July 2003, has not been submitted.
5. (3) Copies of appointment letters/identity cards of the workers whose names have been stated in the P-form have to be submitted to prove that such workers are in the employment of the Immaculate (Pvt.) Ltd.
6. (4) To determine 30 per cent, a certificate to the effect that how many workers are in the employment in the factory has to be submitted after obtaining the same from the employer.
7. (5) The permanent address of the organizing secretary has not been mentioned in the list of the executive committee.
8. (6) Only one copy of the list of the general members has been submitted. Another copy has to be submitted.
9. (7) In article 7 of the Constitution it has been stated if a member commits any anti-constitutional activity, a fine of taka 500 shall be imposed. This sentence has to be deleted.
10. (8) In the Constitution it has been stated in some places as two-thirds and in some places 51 per cent which are contradictory and have to be corrected.
11. (9) D-forms filled in by the workers whose names have been stated in the P-form have to be submitted for scrutiny/examination.
12. (10) The resolution book, notice book, cash book and member registrar of the proposed union have to be submitted for inspection/examination.
13. 219. The RTU advised the union to correct the defects and shortfalls and to submit the amended papers within 15 days of receipt of the letter, following that time, “there shall be no scope to consider your registration application”.
14. 220. The complainant noted that the letter included a request to provide copies of letters of appointment for the workers named in the request for registration, as well as placing the requirement on the union to obtain the certificate regarding the total number of employees at the factory, and stated that such demands appeared excessive. Firstly, the complainant stated that the company did not provide such identity cards or letter of appointment and so the union had to resort to making copies of attendance cards. Secondly, the complainant alleged that the onus should be on the RTU, not on the union, to obtain the certificate indicating the number of employees. Finally, the complainant stated that, for a number of years now the Committee on Freedom of Association has been asking the Government to review the IRO provision requiring a union to represent 30 per cent of the workforce before it can obtain registration, yet the Government has failed to take any action in this regard.
15. 221. The complainant explained that, it replied to the registrar responding to each of the points raised, in a letter dated 22 October, within the 15-day time limit, a transcript of which was attached to the complaint. The following matters were submitted:
16. (1) Copies of the notices of the general meetings dated 4 July 2003 and 18 July 2003, are submitted herewith.
17. (2) Copies containing the signatures of the general meetings of 4 July 2003 and 18 July 2003, are submitted herewith.
18. (3) This is for your information that the management of the Immaculate (Pvt.) does not provide appointment letters/identity cards to the workers. But the photocopies of the attendance cards provided by the employer (which are taken back by the management every month) are submitted herewith. For your information it may further be mentioned here that membership in the union has been provided keeping conformity with the provision of section 7A of IRO and article 4 of the Constitution (of which you have no objection). It is necessary for you to take into consideration of the correct interpretation of section 7A of IRO.
19. (4) Certificate could not be obtained from the management. To determine 30 per cent, photocopy of the concerned page of the garment directory of BGMEA (owners’ association) are submitted herewith for your information.
20. (5) The permanent address of the organizing secretary is mentioned herein in the list of the executive committee.
21. (6) Another one copy of the list of the general members is submitted herewith.
22. (7) Concerned part of article 7 of the Constitution has been deleted.
23. (8) Except for the provision of raising no-confidence motion, all areas have been corrected as “two-thirds”.
24. (9) D-forms filled in by the workers are submitted herewith.
25. (10) Resolution book, notice book, cash book and member registrar of the proposed union are submitted herewith.
26. 222. On 15 January 2004 the complainant stated that, following the expiry of the deadline for registration and in the absence of any reply from the RTU, the union appealed to the labour court in Dhaka under section 8(3) of the IRO which provides that “in case the Registrar, after settlement of the objections, has delayed disposal of the application beyond the period of sixty days, the trade union may appeal to the Labour Court”.
27. 223. The complainant indicated that, in his written statement to the court dated 15 February 2004, the RTU stated that he had rejected the application for registration in a letter to the union dated 27 October 2003. The BIGUF stated that it had not received this letter, nor any other information regarding its application for registration; the complainant indicated that it was trying to obtain from the court a copy of the letter dated 27 October 2003. According to the complainant, in that written statement to the court, the RTU gave the grounds upon which he refused the application, as the facts that the union did not submit copies of the resolutions with signatures of members of the union’s general meetings on 4 and 18 July 2003, and “in response to the letter dated 6 October 2003 of the RTU, the appellant union did not submit the reply and the papers of the amendments properly”. The complainant alleged that these grounds were baseless, as the various documents were provided despite the fact that the signatures of members present are not required under the provisions of the IRO, and that the detailed response of the union dated 22 October, shows that the union did respond to the RTU’s letter.
28. 224. In addition, the complainant alleged that the management of the company, once it came to know about the workers’ involvement with BIGUF and the effort to form a union, terminated seven of the most active workers in the union. Further, according to the complainant, the management told union supporters that even if they tried for their whole lives, they would not be able to establish a union in the factory or obtain a wage increase.
29. 225. In conclusion, the complainant stated that the complaint comprised three issues. Firstly, that the provisions of the IRO are not compatible with the right of workers to form and join the organizations of their own choosing. Secondly, although the union had complied with the IRO requirements, its application for registration was rejected by the RTU. The union never received the letter advising of the rejection and it was forced to appeal to the labour court to try to secure registration. Thirdly, the protracted registration procedure gave the company the opportunity to discriminate against the union.
30. B. The Government’s reply
31. 226. In a communication dated 21 October 2004, the Government stated that Immaculate (Pvt.) Ltd. employed 620 workers, some of which had organized themselves to form a trade union which they subsequently sought to have registered by the RTU, Dhaka division.
32. 227. The Government explained that section 7(1)(f) of the IRO provides for the maintenance of a list of the members of the trade union, and of adequate facilities for the inspection thereof by the officers and members of the trade union. It also referred to section 7(2) of the IRO which states that, a trade union shall not be entitled to registration unless it has a minimum membership of 30 per cent of the total number of workers employed in the establishment, or group of establishments in which it is formed.
33. 228. The Government stated that section 5(4)(a) of the industrial relations rules which is related, provides that every registered trade union shall maintain the particulars of officers and statement of particulars of paid members in their union, in the appropriate forms. The Government asserted that the combination of these provisions makes it obligatory for a trade union to maintain a list of paid members which is also a requirement for registration of a trade union.
34. 229. The Government indicated that, the union gave at the time of submission of documents for registration, a list of 160 workers as paid members of the union, and this number is below the required 30 per cent of total workers. The Government stated that, after scrutinizing the documents, the application for registration was rejected and the decision was communicated by post to the president/secretary of the proposed union, in due time. The Government explained that the union was asked to provide copies of appointment letters and other evidence only to ensure that the requirements for registration were met and that it is the responsibility of the applicants applying for registration to prove that they have all supporting evidence.
35. 230. The Government asserted that BIGUF’s allegations were not correct. The Government added that the applicant cannot claim to be the general secretary of the said union, as her leadership has been challenged by her colleagues and a lawsuit is pending in court. In addition, the Government stated that international bodies such as the ITGLWF should show respect for the law of the land, such as the 30 per cent requirement for registration of a trade union and in any case, the Government asserted that the requirement protects the interests of workers in Bangladesh by ensuring genuine and proper representation, and restraining the mushroom growth of trade unions formed by unscrupulous persons.
36. 231. Finally, the Government noted that the union has filed an appeal before the First Labour Court, Dhaka, regarding the refusal of registration and consequently the Ministry of Labour and Employment shall wait for the judgement of the court with which it will duly comply.

C. The Committee’s conclusions

1. 232. The Committee notes that this complaint concerns allegations of incompatibility between the IRO and the principles of freedom of association, the unlawful and unreasonable refusal of registration of the Immaculate (Pvt.) Ltd. Sramik Union by the RTU, and the anti-union dismissal of seven of its members.
2. 233. Concerning the allegation in relation to the IRO requirement that a union represents at least 30 per cent of total workers in order to obtain registration, the Committee notes that the complainant referred to comments by the ILO supervisory bodies on this point and that the Government indicated that the law of the land should be respected and, in this case, that the 30 per cent requirement was in the interests of Bangladeshi workers.
3. 234. In this regard, the Committee recalls that when examining an earlier complaint brought against the Government of Bangladesh, the Committee on Freedom of Association requested the Government to amend its legislation concerning the 30 per cent requirement for initial or continued registration as a trade union, in sections 7(2) and 10(1)(g) of the IRO [Case No. 1862, 306th Report, para. 102]. Although the complainant contends in any event that it had met this requirement of the IRO, the Committee would once again urge the Government, in consultation with the workers’ and employers’ organizations concerned, to amend the legislation so as to avoid the obstacles that can be created by the minimum membership requirement to the formation of workers’ organizations.
4. 235. Concerning the allegation that the application for registration of the union was rejected despite it having conformed with all the requirements of the IRO, the Committee notes that while the complainant stated that the union’s application complied with both the IRO and the letter of the RTU demanding further particulars and amendments, the Government has maintained that the application was rejected from the outset for, in particular, non-compliance with the 30 per cent requirement.
5. 236. While the Government, in referring to the 30 per cent minimum membership requirement for registration of the trade union, stated that the union had only referred to 160 paid members in its initial submission (a figure which did not meet the minimum membership requirement), the complainant stated that 242 workers joined the union, that is 40 per cent of the workforce. The Committee notes that both the Government and the complainant have stated that the company employs a total workforce of 620 workers. The Committee further notes that the complainant indicated that the grounds given by the RTU in his submission to the labour court referred more generally to non-submission of certain copies and that certain papers had not been submitted properly, without any specific reference to a breach of the 30 per cent requirement. The complainant disputes both of the grounds raised in the RTU submission, stating that it submitted a full reply which included copies of the appropriate resolution with signatures. Finally, the Committee notes that the letter which the RTU indicated had been sent to the union on 27 October 2003 rejecting its application for registration, is still unknown to the complainant and the union and has not been referred to by the Government.
6. 237. In these circumstances, the Committee is not certain whether the union’s request for registration was denied on the basis of the 30 per cent membership requirement as the Government seems to assert in its reply – a requirement that has long been criticized by the ILO supervisory bodies – or whether, as the RTU reportedly indicated to the court, the documentation accompanying the application was insufficient. In any event, the Committee recalls the importance it attaches to the principle according to which the formalities prescribed by law for the establishment of a union should not be applied in such a way as to delay or prevent the setting up of occupational organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, op. cit., para. 249]. Therefore, in the light of this principle, and taking into account the Committee’s previous request to the Government to amend the minimum membership requirement, the Committee urges the Government to take the necessary steps immediately so that the union is registered promptly. The Committee requests the Government to keep it informed of all progress made in this regard.
7. 238. Finally, the Committee notes that the Government has not replied to the allegation that seven of the more active members of the union were dismissed upon the company learning that a union was being established. In this regard, the Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and that it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee further recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754].
8. 239. The Committee accordingly requests the Government to convene an independent inquiry to thoroughly and promptly consider these allegations of anti-union discrimination and to ensure that appropriate measures are taken in response to any conclusions reached. The Committee requests the Government to ensure that, if it appears in the independent inquiry that the dismissals did occur as a result of involvement by the workers concerned in the establishment of a union, those workers will be reinstated in their jobs, without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation so as to constitute sufficiently dissuasive sanctions is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.

The Committee's recommendations

1. 240. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government, in consultation with the workers’ and employers’ organizations concerned, to amend the legislation so as to avoid the obstacles that can be created by the minimum membership requirement to the formation of workers’ organizations.
   • (b) The Committee urges the Government to take the necessary steps immediately so that the Immaculate (Pvt.) Ltd. Sramik Union is registered promptly. The Committee requests the Government to keep it informed of all progress made in this regard.
   • (c) The Committee requests the Government to convene an independent inquiry to thoroughly and promptly consider the allegation that seven members of the union were dismissed by the company upon it learning that a union was being established and to ensure that appropriate measures are taken in response to any conclusions reached in relation to these allegations of anti-union discrimination. The Committee requests the Government to ensure that, if it appears in the independent inquiry that the dismissals did occur as a result of involvement by the workers concerned in the establishment of a union, those workers will be reinstated in their jobs, without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation so as to constitute sufficiently dissuasive sanctions is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.