Rapport définitif - Rapport No. 243, Mars 1986

Cas no 1326 (Bangladesh) - Date de la plainte: 02-AVR. -85 - Clos

1. 140. The Committee already examined these complaints at its November l985 meeting (see 24lst Report, paras. 806 to 821, approved by the Governing Body at its 231st Session, November l985) when it presented interim conclusions. The Government supplied further information in communications dated 22 and 23 December l985.
2. 141. Bangladesh has ratified both the Freedom of Association and Protection of the Right to Organise Convention, l948 (No.087) and the Right to Organise and Collective Bargaining Convention, l949 (No.098); it has not ratified the Labour Relations (Public Service) Convention, l978 (No. l5l).

A. Previous examination of the case

1. 142. During its previous examination of this case the Committee noted that the World Federation of Teachers' Unions had alleged the detention, at the beginning of March l985, of several teachers including Mr. Shareful Islam and Mr. Ppal Abdul Mannan, President and Secretary-General respectively of the Bangladesh College Teachers' Association (BCTA), an affiliate of this complainant, after the reimposition of martial law on 1 March l985. The Government denied the existence of BCTA and trade union status of the two individuals.
2. 143. The second complaint, presented jointly by a total of 15 Bangladeshi trade union federations, alleged that the Government had violated Conventions Nos. 87 and 98 by the introduction of martial law on 1 March l985, under which trade union activities were banned. It also stated that the Government had arrested many trade unionists without giving reasons and had held them in custody over the last few months without trial, and that the current labour legislation infringed the principles of freedom of association. The Government replied that further detailed information would be furnished shortly.
3. 144. The Governing Body, on the Committee's recommendation, approved the following interim conclusions:
   • a) in view of the lack of information from both the complainants and the Government concerning the alleged arrest of two named teachers' union leaders, the Committee hopes that the further reply promised by the Government will shed light on the circumstances so as to enable it to reach conclusions on this aspect of the case in full knowledge of the facts;
   • b) the Committee recalls the Committee of Experts' request - made in the context of its 1985 examination of the Government's application of Conventions Nos. 87 and 98 - that the Government reconsider the legislative situation regarding the right to organise of managerial and administrative employees, election to trade union office, administrative powers of supervision over the internal affairs of unions and collective bargaining in state-owned manufacturing industries, so as to bring the legislation into conformity with the principles of freedom of association.
4. 145. It reached this latter decision in particular since in past cases the Committee had stressed that martial law is incompatible with the full exercise of trade union rights.

B. The Government's replies

1. 146. In its communication of 22 December l985, the Government first observes that the Sramik Karmachari Okkya Parishad is not a registered trade union. It states that, in the face of a violent law and order situation, it had to place certain restrictions on political and trade union activities by the imposition of martial law on 1 March l985. It stresses that these restrictions are temporary and will be withdrawn shortly with the gradual improvement in the law and order situation. According to the Registrar of Trade Unions, no trade unionist has been arrested and held in custody for trade union activities; those arrested on political grounds have since been released.
2. 147. As regards the specific allegations concerning Bangladeshi labour legislation, the Government points out that under s. 1(3) of the Industrial Relations Ordinance, l969, the following persons are excluded from that Ordinance: police, defence personnel, employees in the administration of the State except in the railways, posts, telegraph and telephone departments. Moreover, s. 29 of the Government Servants (Conduct) Rules, l979, provides that "no government servant shall be a member, representative or officer of any association unless ... membership of the association and its office bearers are confined to a distinct class of government servants". Secondly, the Government observes that managerial staff fall into the category of employers who have the right to form unions of their own choosing under s. 3 b)of the Ordinance. Thirdly, the Government explains that the provision of the Ordinance restricting election to union office to employees in the particular establishment was aimed at enabling plant-level workers to assume leadership of their own unions in preference to leaders coming from outside; it points out that election of outsiders to office in federations is allowed under this provision. Fourthly, as regards the powers of the Registrar of Trade Unions to enter trade union premises and inspect or seize any union record, the Government states that this is intended to help unions maintain proper records and not to interfere in their functioning. Lastly, the Government explains that in public sector industries the conditions of service are set by awards of the Wages Commission, appointed from time to time by the Government.
3. 148. In its letter of 23 December l985, the Government states that Messrs. Shareful Islam and Abdul Mannan were released from custody on 2 and 18 June l985, respectively.

C. The Committee's conclusions

1. 149. The Committee notes with interest the information it has received that the martial law ban on trade union activities was lifted on l January l986.
2. 150. It also notes that the two named teachers' union leaders were released in June l985. It regrets that the Government did not supply any information (as it was specifically asked to do in the previous examination of this case) on the reasons for the other arrests in March l985 and as to whether any charges had been brought against these union leaders or court proceedings initiated against them. It recalls that since the detention of union leaders may involve serious interference with trade union rights and because of the importance which it attaches to the principle of fair trial, the Committee has pressed governments to bring detainees to trial in all cases, irrespective of the reasons put forward by governments for their detention (see, for example, 236th Report, Cases Nos. ll57 and ll92 (Philippines), para. 298).
3. 151. As regards the legislative aspects of this case, the Committee notes the Government's explanation of the limited right to organise of government servants. It recalls that the Committee of Experts, in its l983 General Survey, paras. l30-1, examined the restriction on managerial public servants of associating with other categories of workers in trade unions, and concluded that: "Forbidding these persons to join trade unions representing other workers is not necessarily incompatible with freedom of association, but only on two conditions: first, that they have the right to form their own organisations to defend their interests and, second, that the categories of managerial staff and employees in positions of confidence are not so broadly defined that the organisations of other workers in the enterprise or branch of activity are weakened by depriving them of a substantial proportion of their present or potential membership." On the more general restriction limiting all public servants to union membership confined to that category of workers, the Experts (see, idem, para. l26) noted that it is admissible for first-level organisations of public servants to be limited to that category of workers on condition that their organisations are not also restricted to employees of any particular ministry, department or service, and that the first-level organisations may freely join the federations and confederations of their own choosing.
4. 152. Since the legislation applicable to public servants does not limit the restriction on membership of mixed unions to managerial government servants, and makes no exception to this limitation for membership of federations or confederations, the Committee can only recall the Committee of Experts' observation - made in 1985 under Convention No. 87 - that the Government adopt appropriate measures to guarantee the full application of Article 2 of the Convention to government servants.
5. 153. As regards the right to organise of managerial staff, the Committee notes that the Government views such employees as "employers" who have the right to form organisations of their own choosing under s. 3(b) of the Industrial Relations Ordinance. Given this definition, the Committee invites the Government to supply information in its next report to the Committee of Experts on the question of whether such staff are excluded from the Ordinance (s. 2(xxviii)(b)) and to indicate the names and membership of any organisation in existence covering such staff.
6. 154. The Committee notes the Government's statement as regards the requirement of belonging to the particular establishment(s) for election to union office. It must, however, recall that the Committee of Experts has commented on this provision of the Industrial Relations Ordinance because it is contrary to Article 3 of Convention No. 87. It accordingly hopes, as does the Committee of Experts, that s. 7A(1)(a) and (b) will be repealed in the near future, or at least amended to admit as candidates for union office persons who have previously been employed in the occupation concerned and to exempt from the occupational requirement a reasonable proportion of the officers of an organisation (see General Survey, l983, para. l58).
7. 155. As regards the powers of the Registrar of Trade Unions to enter union premises and inspect or seize any document, the Committee notes the Government's statement but recalls the Committee of Experts' conclusion that this vests an administrative authority with too broad powers to interfere in the internal affairs of a union, contrary to Article 3 of the Convention. It would again request the Government to reconsider Rule l0 of the Industrial Relations Rules, l977, so as to limit these supervisory powers to exceptional cases, when they are justified by special circumstances such as presumed irregularities that are apparent from annual financial statements or complaints reported by members of the trade union. Furthermore, in order to guarantee the impartiality and objectivity of the procedure, these controls should be conducted subject to review by the competent judicial authority (see General Survey, l983, para. l88).
8. 156. As regards the infringement of Article 4 of Convention No. 98 raised by the complainant organisation, the Committee notes the Government's reference to the role of the Wages Commission in the setting of conditions of service in certain industries in the public sector. The Committee would recall, however, that the role played by this Commission has been raised by another Bangladeshi workers' federation in the context of article 23 of the ILO Constitution (see the Committee of Experts' 1985 observation under this Convention). The Committee would therefore draw the Government's attention to the comments made by the Committee of Experts concerning collective bargaining and, in particular, to the principle that the right to negotiate wages and conditions of employment freely with employers and their organisations is a fundamental aspect of freedom of association.
9. 157. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 158. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions:
   • a) The Committee notes with interest the information it has received that the martial law ban on trade union activities was lifted on l January l986.
   • b) While noting that the two named teachers' union leaders were released last June, it regrets that the Government has not supplied any information on the reasons for the other arrests and as to whether any charges have been brought against these union leaders or court proceedings initiated against them.
   • c) As regards the limited right of public servants to form and join organisations confined to that category of workers, the Committee can only recall the Committee of Experts' observation that the Government adopt appropriate measures to guarantee the full application of Article 2 of Convention No. 87 to government servants.
   • d) As regards the right to organise of managerial staff, the Committee invites the Government to supply information in its next report to the Committee of Experts on the question of whether such staff are excluded from the labour legislation. Specific information on the names and membership of any organisations in existence covering such staff should be specified in this report.
   • e) The Committee - as has the Committee of Experts - hopes that the provision of the legislation on eligibility for union office will be repealed in the near future. At least it should be amended to admit as candidates for union office persons who have previously been employed in the occupation concerned and to exempt from the occupational requirement a reasonable proportion of the officers of an organisation.
   • f) The Committee recalls the Committee of Experts' conclusion on the powers of the Registrar of Trade Unions to enter union premises and inspect or seize any document therein, and requests the Government to reconsider this provision.
   • g) As regards the role of the Wages Commission, the Committee draws the Government's attention to the principle that the right to negotiate wages and conditions of employment freely with employers and their organisations is a fundamental aspect of freedom of association.
   • h) The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.