Rapport intérimaire - Rapport No. 241, Novembre 1985

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

1. 806. The World Federation of Teachers' Unions presented a complaint of violations of trade union rights in a communication dated 3 April l985. The Sramik Karmachari Okkya Parishad, jointly with the following l4 Bangladeshi trade union federations, presented its complaint on 27 May l985: Bangladesh Workers Federation, Bangladesh Trade Union Sangha, Bangladesh Federation of Labour, Bangladesh Trade Union Kandra, Jatio Sramik Federation, Ganatantrik Sramik Andolon, Jatio Sramik League, Samaj Tantrik Sramik Federation, Jatio Sramik Jote, Sangukta Sramik Federation, Jatio Sramik League - Bangladesh, Bangla Sramik Federation, Bangladesh Sramik Federation, Jatiotabadi Sramik Dal. The Government replied in a communication dated 29 June l985.
2. 807. Bangladesh has ratified both the Freedom of Association and Protection of the Right to Organise Convention, l948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No.08); it has not ratified the Labour Relations (Public Service) Convention, l978 (No. 151).

A. The complainants' allegations

1. 808. In its communication of 3 April l985, the World Federation of Teachers' Unions alleges the detention, at the beginning of March, 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 complainant states that they have been sentenced to one month's detention by application of the Special Power Act No. 74. It points out that Mr. Shareful Islam has already suffered, in the past, several months' imprisonment because of his trade union activities. It denounces the Government of Bangladesh for violations of Conventions Nos. 87, 98, 151 and the joint ILO/UNESCO Recommendation on the Status of Teachers of l966. It fears that the detention will be extended and requests the cessation of proceedings and the release of the imprisoned teachers.
2. 809. In the communication of 27 May 1985 presented jointly by a total of l5 Bangladeshi trade union federations, it is alleged that the Government has violated Conventions Nos. 87 and 98 by the introduction of martial law on l March l985. According to the federations, under martial law, trade union activities are banned as are the holding of meetings, collective bargaining and strikes.
3. 810. The complainants state that the Government has arrested many trade unionists without giving reasons and has held them in custody over the last few months without trial.
4. 811. More specifically, the complainants refer to the following legislation as infringing freedom of association: the Industrial Relations Ordinance of l969 (which restricts the right to join trade unions of public servants and management staff and which restricts election to union office to those employed in the particular establishment); Rule 10 of Industrial Relations Regulations of l977 (which empowers the Registrar of Trade Unions to enter trade union premises and inspect or seize any union record). The complainants also allege that public sector employees and public servants are denied the right to bargain collectively.

B. The Government's reply

1. 812. In its communication of 29 June l985, the Government states that there is no registered trade union in Bangladesh named the "Bangladesh College Teachers' Association" and that Mr. Shareful Islam and Mr. Abdul Mannan are not known in the trade union sphere as trade union leaders.
2. 813. Moreover, according to the Government, the law prohibits any trade union activity by any organisation which has not been registered under the Industrial Relations Ordinance and such activity would be a penal offence. Nevertheless, no prosecution proceedings have been commenced by the Registrar of Trade Unions against the persons in question. The Government states that it is examining the case very carefully and will furnish detailed information shortly.

C. The Committee's conclusions

1. 814. The Committee notes that this case concerns the re-imposition of martial law in Bangladesh on l March l985 and the alleged consequent arrest of several teachers including two teachers' union leaders, Mr. Shareful Islam and Mr. Abdul Mannan. The complainants also allege that the current labour legislation infringes the principles of freedom of association.
2. 815. The Committee observes that, although one of the complainants infers that Mr. Shareful Islam was arrested because of his trade union activities, the Government denies that the two named individuals are known in the trade union sphere as trade union leaders and that proceedings have been instituted against them by the Registrar of Trade Unions. It also points out that there is no registered trade union of the name of their organisation, namely the Bangladesh College Teachers' Association. In this respect, the Committee recalls that it has already had occasion to examine similar allegations against the Government of Bangladesh concerning Mr. Shareful Islam when he was Secretary-General of the Bangladesh College Teachers' Association (Case No. 1246 examined in the Committee's 234th Report, paras. 66 to 74, approved by the Governing Body at its 226th Session, May-June l984). In that case the Government recognised both the existence of the trade union association involved and Mr. Islam's role in it.
3. 816. The Committee regrets that the complainant organisations, despite having opportunities to do so, did not supply more detailed information as to the circumstances surrounding the alleged arrests, in particular the arrest of Mr. Abdul Mannan and Mr. Islam. However, in view of the fact that at least in the case of Mr. Islam, his trade union role and activities have been put forward as the sole basis for the action taken against him, the Committee would stress that, in such cases, it has considered it incumbent upon the Government to show that the measures taken were in no way occasioned by the trade union activities of the individual concerned. (See, for example, 103rd Report, Case No. 536 (Gabon), para. 292.) Given that the Government has undertaken to supply further information, the Committee hopes that details will be forthcoming as to whether any arrests took place (and, if so, for what reasons and on the basis of which legislation, i.e. under the Special Power Act No. 74, under the Industrial Relations Ordinance or other legislation), so as to enable it to reach conclusions on this aspect of the case in full knowledge of the facts.
4. 817. As regards the alleged restrictions on trade union rights consequent on the re-introduction of martial law and the specific restrictions on the freedom of association and collective bargaining rights of public employees contained in the labour legislation, the Committee notes that the ILO Committee of Experts on the Application of Conventions and Recommendations, in its 1985 examination of the Government's compliance with its obligations under Conventions Nos 87 and 98, pointed to several discrepancies between the rights guaranteed under these Conventions and the present legislation.
5. 818. In particular, the Committee of Experts on its observation concerning Convention No. 87 noted that, under section 2(viii)
   • b) of the Industrial Relations Ordinance, the definition of a worker excludes a person who is employed in a managerial or administrative capacity. It noted the Government's statement that it is not possible to determine the nature of the employment covered by this provision or the number of persons concerned. The Committee of Experts pointed out that, by virtue of Article 9 of Convention No. 87, only the armed forces and the police may be excluded from the scope of the Convention and that the rights it sets forth must, therefore, also be recognised to public servants and managerial staff. It requested the Government to adopt appropriate measures to guarantee the application of the principles of the Convention to these categories of workers. The Committee of Experts also observed that section 7A(l)(a)(ii) and b) of the Industrial Relations Ordinance limits the right to be a member or officer of a trade union to persons actually employed in an establishment or group of establishments concerned. It considered that a provision of this kind restricts the right of workers to establish and to join organisations of their own choosing (Article 2 of Convention No. 87), to elect their representatives in full freedom and to organise their administration and activities (Article 3). It noted with interest the Government's statement that it was prepared to examine these provisions and that measures to ease them are under study, and pointed out that the free exercise of the right to establish and to join unions implies the free determination of the structure and composition of unions. It also considered that restrictive conditions attached to trade union office constitute interference in the internal affairs of the unions. The Committee of Experts, therefore, hoped that these provisions would be repealed in the near future. In addition, the Committee of Experts noted that, under Rule 10 of the Industrial Relations Regulations, l977, the Registrar or any other officer authorised by him may enter the premises of a trade union or federation of trade unions and inspect and seize any record, register or other document. This procedure, under which an administrative authority has wide powers of supervision over the internal affairs of a trade union, is, according to the Committee of Experts, incompatible with the right of workers to organise their administration (Article 3 of Convention No. 87). The Committee again requested the Government to reconsider this provision.
6. 819. In its 1985 observation concerning Bangladesh's observance of Convention No. 98, the Committee of Experts emphasised that, under Article 4 of this Convention, it is the responsibility of the Government to take appropriate measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation, and noted that it had previously observed that, under the State-Owned Manufacturing Industries Act, No. X of l974, the Government may determine wages and other conditions of employment (leave) for any worker employed in this sector. Referring to its General Survey submitted to the 69th (l983) Session of the International Labour Conference, particularly paragraph 311, the Committee of Experts pointed out that the right to negotiate wages and conditions of employment freely with the employers and their organisations is a fundamental aspect of freedom of association and that if, for compelling reasons of national economic interest, a government considers that wage rates cannot be fixed freely through collective agreements, such a restriction should be imposed as an exceptional measure and only so far as is necessary, without exceeding a reasonable period and should be accompanied by adequate safeguards to protect the living standards of the workers. It accordingly requested the Government to reconsider the situation in the light of these comments, with a view to restoring voluntary bargaining in the sector concerned.
7. 820. Despite the lack of a specific reply from the Government on the legislative aspect of the case, the Committee can only recall the Committee of Experts' request that the Government reconsider the legislative situation with a view to bringing the legislation into conformity with the principles of freedom of association. It reaches this decision in particular since, in past cases (See 235th and 237th Reports, Cases Nos. 997, 999 and 1029 (Turkey) , paras. 33 and 36), the Committee has stressed that martial law is incompatible with the full exercise of trade union rights.

The Committee's recommendations

1. 821. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following 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 l985 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.