Caso individual (CAS) - Discusión: 1999, Publicación: 87ª reunión CIT (1999)

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

The Government has supplied the following information:

The Government of Bangladesh has already given detailed replies to the questions raised by the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations and reiterates the replies already furnished to these Committees. However, as desired by the Committee of Experts, the Government would like to give the following further clarification and information:

Managerial and administrative function

The personnel employed for managerial and administrative functions are part of management and as such during collective bargaining, with the workers' representatives (CBA), such staff shall be obliged to negotiate on behalf of the employers. Because of this law and practice position, the inclusion of managerial and administrative staff in the definition of "worker" permitting them to join trade unions (workers' organizations) should be incompatible with tripartism. Article 38 of the Constitution of the People's Republic of Bangladesh guarantees the right to freedom of association to all citizens including the managerial and administrative staff, subject only to reasonable restrictions imposed by law in the interests of morality or public order. The substance of the right to associate covers any legitimate profession, occupation, trade, vocation or calling, and no restrictions foreseen under article 38 of the Constitution have so far been applied. Managerial and administrative staff come within the definition of "employer" under section 2(viii) of the Industrial Relations Ordinance (IRO), 1969, and in that capacity they can form their trade union under section 2(vi) of the IRO as well. The Committee of Experts queries how, since article 38 of the Constitution applies to citizens only, non-citizens carrying out managerial or administrative functions are able to exercise the right of association. This is a complicated legal issue and needs to be examined in detail by the Ministry of Law, Justice and Parliamentary Affairs. The correct legal practice will be determined in consultation with this Ministry and will be transmitted to the Committee of Experts in due course. Information on the number and size of associations in the public and private sectors that have been established to further the occupational interests of those carrying out managerial and administrative functions is being collected and will be sent to the Committee of Experts in due course.

About the exclusion of the government servants and the workers of the Security Printing Press from trade unions, it is stated that all such matters are still under examination by the Labour Code Review Committee, a tripartite body which has been given the responsibility to review the draft Comprehensive Labour Code prepared by the National Labour Laws Reforms Commission. The Review Committee is working regularly, and its latest meeting was held on 4 March 1999. The Committee of Experts on the Application of Conventions and Recommendations has remarked that the Government has been referring to the making of the new Comprehensive Labour Code for a number of years. The Government hopes that the Committee appreciates that the proposed Labour Code will compile 44 labour laws into one comprehensive code and as such it is a gigantic task. About the exclusion of the staff of the Security Printing Press from trade unions, it is further said that they are engaged in confidential work and allowing them to form trade unions presents grave risks. Certain provisions in the Government Servants Conduct Rules, 1979, which require that government servants shall be obliged to receive prior permission from the authorities to issue publications on matters other than culture, sports, development works and scientific matters are also receiving the attention of the Labour Code Review Committee. In addition, the matter needs to be and will be examined by the Ministry of Establishment which is the competent authority to decide matters affecting the rights and privileges of government servants. The outcome of all such examination will be forwarded to the Committee of Experts in due course.

Restrictions regarding holding trade union office

The Committee of Experts has observed that section 7-A(I)(b) of the Industrial Relations Ordinance (IRO), 1969, prevents persons who are not current or former employees of an establishment or group of establishments during the previous year from becoming members or officers of a trade union in an establishment or group of establishments. It also noted that section 3 of Act No. 22 of 1990, which provides that a worker dismissed for misconduct shall not be entitled to become an officer of a trade union, entails the risk of interference by the employer through the dismissal of trade union members or leaders for exercising legitimate trade union activities. The Committee has urged the Government to take measures to amend the provisions to bring them into conformity with the Convention. The Committee is informed that the employer cannot dismiss a worker in an arbitrary manner without giving him an opportunity to show cause and without being heard. The IRO, 1969, does not give the employer any chance of arbitrary interference. Any dismissal of a worker for trade union activities, under section 15 of the IRO, 1969, would be an unfair labour practice and a punishable offence for the employer. Besides, an aggrieved worker can also have recourse to judicial redress in the labour court. The Government is of the opinion that the workers have full freedom to elect their representatives and consequently no amendment to the aforesaid legislative provisions is required. The Committee of Experts is urged to appreciate that there is no contradiction between the present Bangladesh law and the Convention. The Committee is also informed that this matter, too, will be placed before the Labour Code Review Committee for examination in the true spirit of tripartism.

Excessive external supervision

The Committee has expressed the view that there does not appear to be any limit on the powers of the Registrar of Trade Unions under Rule 10 of the Industrial Relation Rules, 1977, to enter trade union premises and inspect documents, etc., and that this power is not subject to judicial review. Accordingly, the Committee has asked the Government to amend this provision to bring it into conformity with the Convention. The Government again reiterates its replies that many times the general members of trade unions are deprived of their rights by union executives and it is to safeguard the interests of the general members of trade unions that Rule 10 was made. Besides, the abuse of authority and excesses, if any, of the Registrar of Trade Unions, are offences, and the aggrieved union can seek judicial redress in the appropriate court of law. The Registrar of Trade Unions has always used his powers of inspection with due discretion, and there has been no allegation about abuse of authority by the Registrar. While the rights of the trade unions to function freely are recognized, the necessity of regulating the trade union activities cannot be dispensed with in the interests of safeguarding the general workers' rights.

Registration requirements

The Committee has reiterated that sections 7(2) and 10(1)(g) of the Industrial Relations Ordinance, 1969, which impose a minimum membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments for initial and continued union registration is not in conformity with Article 2 of the Convention and, therefore, measures should be taken to rectify this. The Government reported that the 30 per cent membership requirement has checked the multiplicity of trade unions, whose mushroom growth is obviously counterproductive for workers. As such, amendment to the provisions would serve no useful purpose, the Government considers that the spirit of such provisions of the IRO conform to the Convention. The Committee of Experts has further pointed out that the Committee on Freedom of Association has raised other related concerns, namely, that there is no legal provision enabling the registration of a trade union on a nationwide basis and that, pursuant to a court decision, registration of unions comprising workers from different establishments owned by different employers is prohibited. The Committee would appreciate that such a judicial ruling given by the highest court, the Supreme Court, is binding upon the Government. However, such provisions of the IRO are also under examination by the Labour Code Review Committee.

Export processing zones

The Committee of Experts has held that the Export Processing Zones Authority Act, 1980, which has made the zones union free, is a serious violation of the important right to unionize and urged the Government to take measures without further delay to ensure that workers in Export Processing Zones (EPZs) are entitled to exercise all rights under the Convention.

The Committee of Experts is informed in this regard that although the workers employed in the Export Processing Zones cannot, at present, form trade unions, they have their associations and solve their grievances through direct dialogue. In fact, the workers in the EPZs enjoy much better service conditions and fringe benefits than workers in other areas. Experience has shown that the workers in EPZs never raised an issue against the employers in matters of wages, service conditions, etc. Union-free EPZs have attracted foreign direct investment which has resulted in considerable job creation (and employment), and workers are amongst the major beneficiaries. In view of the low level of development, EPZs in Bangladesh are an economic necessity. The principles set forth in the Declaration of Philadelphia are the basis of ILO Conventions and article V of this Declaration states, inter alia, that the manner of application of such principles must be determined with due regard to the stage of social and economic development reached by each people. Thus, in the economic interests of a least developed country like Bangladesh, union-free EPZs are considered essential for job creation and employment.

Restrictions on rights to strike

As regards the Committee's views on the restrictive provisions on strikes and its advice to the Government to amend the legislation to restrict the right to strike only in genuine crisis situations, the replies given on earlier occasions are reiterated. The Committee of Experts is also assured that trade union activities in the banking sector have not been suspended. In fact, no restrictions are imposed on legal strikes and the restrictions are applied on illegal strikes only. When strikes are prohibited by the Government, the Government must immediately refer the matter to the labour court for adjudication. Penalties, including imprisonment for illegal industrial action, can be imposed only after a judicial verdict is passed in accordance with law and, as such, the authorities cannot resort to any penal action arbitrarily.

Bangladesh's proneness to natural calamities is well known to the ILO. Even as late as 1998, the worst flood in the country caused massive damage to agricultural and physical infrastructures. Rehabilitation and reconstruction of the flood damage will take years. In such pressing circumstances, the restrictions on strikes and other forms of industrial action are quite justified and are in conformity with the justification permitted by the Committee of Experts.

The Committee will be provided with information about the reported rejection of several applications for registration by trade unions in the textile, metal and garment sectors, as requested.

Finally, the Government informs the Committee of Experts that all the points that it raised are being examined by the tripartite Labour Code Review Committee and the Committee of Experts will be informed of the decision in due course. The Government welcomes ILO technical assistance for advice as to how the Government can implement the Convention in its national situation.

In addition, a Government representative emphasized that Bangladesh was a pluralist and democratic country fully committed to the values of pluralism and democracy. In matters of the making and implementation of policy, it sought to operate in a system of total transparency, which was very much a part of its traditional cultural and political ethos. Although proud of this tradition, he was well aware that, like any other society, his country was not perfect. In the field covered by the Committee today, in Bangladesh, as elsewhere, much remained to be achieved. However, more than others, Bangladesh was cognizant of its deficiencies. It was also aware that some gaps still remained between elements of the existing legislation and the requirements of the Convention. It was, therefore, grateful to the Committee for having drawn attention to some of these issues, which it wished to address today with the utmost seriousness.

For that purpose, he informed the Committee that the Ministry of Labour had decided to establish a mechanism within the Ministry to thoroughly examine the issue and make recommendations to correct any discordance between the Convention and the existing legislation. He expressed confidence that this measure would take Bangladesh a long way forward towards the achievement of its goals. It had proven its good will by providing a point-by-point response to all the issues which had been raised by the Committee of Experts. He hoped that the answers would give satisfaction. However, if some of the members of the Committee were not satisfied by the information provided, that would not be due to any lack of intention or political commitment on the part of his country. It had to be appreciated that the constraints faced by the country were many and varied. However, he expressed the conviction that Bangladesh could achieve its desired goals, particularly since its authorities assigned the highest priority to democratizing every aspect of society. He then referred to the written information provided by the Government.

The Employer members thanked the Government representative for the information which he had provided. They noted that the Committee of Experts had been making comments on the case since 1983 and that the Conference Committee had discussed it in both 1995 and 1997. However, it still appeared that many of the elements of the case were the same as in 1995.

The Committee of Experts had raised several issues relating to various aspects of the labour law in the country. The first of these concerned the right of association of managerial and administrative personnel. The essential issue in this respect concerned the manner in which such categories of staff were determined. The Committee of Experts had also requested information on the situation in relation to foreign workers who were working at the managerial level. In the written information provided, the Government indicated that the issue would be examined by the Ministry of Law, Justice and Parliamentary Affairs. The comments of the Committee of Experts had given the impression that there were limitations on the right to associate of such personnel and the Government should, therefore, be requested to provide precise information in this regard. The issue revolved around the application of article 38 of the Constitution, which contained certain restrictions. However, the Government had stated that none of these restrictions had so far been applied. Information was needed on the actual situation in this regard.

The second question concerned the exclusion of public servants and workers in the Security Printing Press from the right to establish trade unions. The Government continued to state that this matter was still being reviewed by the tripartite Labour Code Review Committee, which was a mechanism designed to propose corrections in the law. However, the Government had been making the same statement for some time. How long would it be necessary to wait? Did the Government intend to change the law and, if so, when? It had been referring to the work of the Labour Code Review Committee in this respect for at least five years.

The third issue concerned the restrictions placed on the holding of trade union office. The Committee of Experts was concerned in particular by the restrictions on the holding of trade union office by workers who had been dismissed for misconduct, which raised the possibility of the arbitrary dismissal of trade union members. It would be necessary for the Committee to be provided with information on the practical impact of this provision in terms of the number of cases of arbitrary dismissal of trade union leaders.

A fourth problem concerned the powers of supervision of trade unions of the Registrar of Trade Unions. The principal concern raised by the Committee of Experts in this regard was that there did not appear to be any limits on the powers of the Registrar to enter premises and inspect documents and that these powers were not subject to judicial review. Although the Government representative had referred to the possibility of obtaining judicial redress, this did not constitute a limit on the exercise of these powers in the sense referred to by the Committee of Experts.

With reference to the requirement that a trade union have a minimum membership of 30 per cent of the total number of workers employed in the establishment or group of establishments for its initial and continued registration, the Employer members stated that the percentage was set at an arbitrarily high level and certainly constituted an obstacle to union representation, in particular where there was no system of exclusive representation. Once again, the Government had stated that the matter was under review by the Labour Code Review Committee.

On the question of the restrictions placed on the establishment of unions in export processing zones (EPZs), the Committee of Experts had underlined that freedom of association was a fundamental right which could not be denied, even temporarily. Once again, amendments had been proposed by the National Labour Laws Reforms Commission, but the questions remained as to how long the process would take.

With reference to the issue of the right to strike in Bangladesh, the Employer members referred to their well-known position on the question. The problem was once again that, on the matters of concern to the Committee of Experts, no information had been provided on the practical impact of the policy adopted by the Government. The information available did not permit any picture to be formed of the extent to which the right to strike was restricted in the country.

The large number of issues involved in the case did not lead to any easy conclusions. A number of the issues were being examined by various review bodies, but no concrete proposals appeared to have been made. It was clear that the Government could not continue to hide behind these review bodies forever as an excuse for legislative change. Something, therefore, needed to be done. In view of the lack of information to provide a basis for evaluating the impact of national policies on freedom of association in the country, the Government should be urged to provide verifiable and concrete information on the issue under examination.

The Worker members thanked the Government representative for the information he had provided to the Committee and assured him that the Worker members were fully aware of the challenges faced by his Government due to the low level of development of the country. However, they wished to remind him that the Convention established core human rights which applied equally to all countries, regardless of their level of development. Indeed, it was the long-held view of both the Worker members and the ILO as a whole that respect for freedom of association would contribute greatly to the development of Bangladesh, rather than posing an obstacle to it.

Having listened carefully to the statement of the Government representative, and despite his tone of sincerity, the Worker members were not convinced that any new information had been provided of which the Committee had not already been aware when the case had been discussed in both 1995 and 1997. Unfortunately, it appeared clear that none of the action promised by the Government in the past had materialized.

The tripartite National Labour Laws Reforms Commission referred to by the Government representative had been established in 1992. The Committee had been assured three years later in 1995 that the work of the above Commission was proceeding and in 1997 had expressed the hope that it would rapidly complete its work on revising the labour legislation and that the new Labour Code would take into account the numerous and repeated observations of the Committee of Experts and the Conference Committee. But another two years had elapsed without any further progress. Moreover, the Committee had been informed that another mechanism would be created within the Ministry of Labour to make recommendations to bring the law into compliance with the Convention. The relationship between this new mechanism and the National Labour Law Reforms Commission was unclear and the Worker members requested additional information from the Government in this regard.

The Committee of Experts had confirmed the lack of progress and had once again strongly criticized several discrepancies between national legislation and Articles 2 and 3 of the Convention. In particular, it had noted the denial of the right to organize for workers in EPZs, restrictions on the right of association of public servants, the absence of legislation granting the right to organize to persons carrying out managerial or administrative functions, and the requirement for unions to have a minimum membership of 30 per cent of the workers employed in the establishment in order to be registered. The Committee of Experts had also criticized the excessive external supervision by the authorities over the internal affairs of trade unions, as well as the requirement to be employed in an establishment or group of establishments in order to hold trade union office and the prohibition on workers who had been dismissed for misconduct from standing for trade union office. Further criticisms included the restrictions on the right of workers' organizations to organize their activities and formulate their programmes without interference by the public authorities and the impossibility to register a trade union on a nationwide basis or a union which was composed of workers from different establishments owned by different employers. In particular, the Committee of Experts had referred to the excessive restrictions on the right to strike. The Committee of Experts had been commenting for many years on this long list of serious violations.

With regard to the issue of excessive external supervision, the Worker members repudiated the Government's argument that the general members of trade unions were often deprived of their rights by union executives and that supervision was to safeguard their interests. The experience of many Worker members was that workers were normally very effective in controlling their leaders, provided that transparent and democratic trade union structures were in place. It was structures of this nature that the Government should be encouraging through its labour laws if it were truly serious about safeguarding workers against the abuse of power by union leaders.

The Worker members also found the comments made by the Government representative concerning EPZs to be troubling. The Government had insisted that it was in the economic interests of a least-developed country such as Bangladesh to have union-free EPZs for the purposes of job creation and attracting foreign direct investment. This statement was a blatant example of the downward pressure on labour standards produced by globalization when the rules governing the process were incomplete and did not address core labour standards. This was a matter of particular concern since a large and increasing segment of the manufacturing sector in Bangladesh, particularly in the textile and garment industry, was located in EPZs, which were multiplying rapidly throughout the country and employing hundreds of thousands of workers. The Committee on Freedom of Association had examined complaints of violations, particularly in the garment and textile sector, where trade unions were unable to obtain registration. Many of the factories in the sector were quite small and employed fewer than 100 workers. In addition to the absence of freedom of association in EPZs, the combination of the 30 per cent requirement for initial and continued registration as an enterprise trade union and the prohibition on organizing a union on a nationwide basis, or a union composed of workers from different establishments owned by different employers, effectively deprived much of the manufacturing sector of the right to freedom of association.

Another example of the downward pressure exerted by globalization on labour standards was the reports that the World Bank had urged the Government to take legislative measures to prevent bank workers organizing a trade union. Despite the assurances provided by the Government that trade union activities in the sector had not been suspended, there had been press reports that trade union activities in the Central Bank had been banned due to what the Government had termed excessive union activities. Problems had also been reported in other commercial banks, both private and public. The Worker members called on the Government representative to provide more up-to-date information on the matter.

The Committee of Experts had once again repeated the comments that it had been making for many years concerning the limitations on freedom of association in the public sector and had urged the Government to take the necessary measures without any further delay to ensure that all workers, without distinction whatsoever, were guaranteed the right to organize. Despite the request for the Government to indicate any progress made in this regard, the Worker members were not convinced that the Government was taking the recommendations of the Committee of Experts seriously.

Finally, with regard to the right to strike, the Worker members requested the Government representative to provide information on the number of legal economic strikes which took place in the country each year and on the number of occasions on which an employer had been punished for violating laws in relation to workers engaged in industrial actions, either legal or illegal. Such statistics would provide a clear indication in practice as to whether, as claimed by the Government representative, there were really no restrictions on legal strikes.

The Worker members recalled that Bangladesh had ratified the Convention 27 years ago. The lack of progress in its application in law and practice for so many years was deeply troubling, particularly in view of the indication provided once again today that the Government had no intention of applying the Convention in certain key areas which were not in conformity with its provisions. A credibility problem had now emerged in gauging the Government's true intentions. Unfortunately, its actions spoke louder that its words. In practice, freedom of association was restricted in the public sector, EPZs, much of the manufacturing sector and the services sector. These deep concerns should be stated in the Committee's conclusions in the strongest possible terms.

The Worker member of Japan recalled that the discrepancies between national law and the Convention noted by the Committee of Experts included the restrictions placed on the right of association of public servants. He emphasized in this respect that the Convention guaranteed the freedom of association of workers in both the public and private sectors, with the sole exceptions of such services as the army and the police. The Government had stated that the labour legislation was being reviewed, but the review in question had been going on for a number of years. No information had been provided as to whether this review process would include the principles of freedom of association in the public service. He urged the Government to complete the review as soon as possible, and to provide information on the specific aspects of freedom of association which needed to be guaranteed in law and practice.

He added that his trade union represented workers in the public service and that he had been dismayed to note that there had been no representative from Bangladesh at the recent Executive Committee meeting of Public Services International. The reason had been that the delegate in question had been unable to obtain an exit visa from Bangladesh. He, therefore, reminded the Government representative that the Convention guaranteed the right of affiliation to international organizations. This requirement of the Convention was clearly not being respected if trade union members were not permitted to participate in international meetings, which were of great importance to the workers' movement.

The Worker member of Pakistan, while appreciating the difficulties faced by the country and the efforts that were being made to promote democracy, drew the Government's attention to the need to apply the Convention in countries of all levels of development, since it contained principles which were the lifeblood of basic freedoms for all workers everywhere, including in EPZs. The country had undertaken the basic commitment to ratify the Convention and now needed to take the further step of implementing it fully. The Committee on Freedom of Association in a number of cases over the years had pointed to the gaps and contradictions between national law and practice and the principles of freedom of association. Although promises had been made that these shortcomings would be remedied and review bodies had been set up to examine the labour legislation, the same problems in relation to the application of the Convention continued to be listed by the Committee of Experts. Moreover, the Worker member of Japan had provided information which illustrated that the fundamental right of the affiliation of workers and employers to national and international organizations was not respected in practice. He, therefore, called upon the Government to take the necessary measures to give effect to its international obligations without delay.

A Worker member of Italy agreed that Bangladesh was a highly populated country, marked by economic difficulties and numerous natural catastrophes. However, the country had the possibility to go forward in development with respect to democracy. As made clear by the analyses and observations of the Committee of Experts, one of the pillars of democracy was the freedom of association. Out of 60 million workers in Bangladesh, 5 million were in the formal sector and, of these, 2 million were unionized but scarcely 20 per cent of these organizations at enterprise level were affiliated to registered, central national unions, authorized to bargain. A large part of the population did not have the right to organize and was thus excluded from collective bargaining: this section included public servants, tens of thousands of workers in export processing zones, all dependent workers in the informal sector and almost all workers in small and medium-sized enterprises. It was essential that the workers should be covered by a legislation which granted them the right to organize. This was essential for the stability and the democracy of the country. Bangladesh, which had ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), should work towards this end by exercising tripartism.

In reply, the Government representative thanked the Worker and Employer members for pointing to a number of issues which were a cause of common concern. It was not possible to hide such problems in a modern technological world in which information could be exchanged so easily. His country was, therefore, being very frank in facing up to certain discrepancies between its law and practice and the Convention and was showing the political will to address the related problems. On a more personal note, he informed the Committee that associations of high-level qualified personnel were gradually emerging as major actors in the country.

He assured the members of the Committee that he had taken note of the issues which had been raised, including the delay in the review procedure. Unfortunately, it was not possible to indicate a time-frame for the work of revising the national labour legislation. However, when he returned to his country he would convey the concerns which had been expressed to the appropriate authorities, which would undoubtedly have the effect of speeding up the process. Finally, with regard to the right to strike, he noted that democratization had progressed very greatly over the past ten years and that the workers in Bangladesh did exercise the right to strike.

The Employer members, while appreciating the goodwill expressed by the Government representative, feared that such goodwill merely served to mask a situation in which no progress was being made at all. The message that he should take back to his Government was that the Committee was looking for concrete steps and real action in the process of reviewing the labour legislation. Information needed to be provided on the real situation in relation to freedom of association in the country. If information were not provided to show that progress was being made, the Committee might have to adopt a different attitude to the case in the future.

The Committee noted the written information and the statement made by the Government representative and the discussion which took place in the Committee. It recalled with great concern that this case had been discussed by this Committee in 1995 and 1997. The Committee felt obliged to express its profound regret that serious discrepancies between national legislation and practice on the one hand, and the requirements of the Convention on the other hand, continued to exist. Deeply concerned by the total lack of progress regarding the application of this Convention ratified more than 25 years ago, the Committee firmly urged the Government to adopt measures on the following points: the prohibition on the right to organize of workers in export processing zones; the suspension of trade union activities in different sectors; the high requirements for registration of trade unions; the restrictions in respect of the holding of trade union office; the external supervision of the internal affairs of trade unions; the restrictions on the right of trade unions to formulate their programmes without interference on the part of the public authorities; and the restrictions on the right of association of public servants. The Committee strongly urged the Government to indicate in the very near future any substantial progress in the application of the Convention and to supply a detailed report to the Committee of Experts on the concrete measures taken to give full effect to the Convention in law and in practice. It encouraged the Government to avail itself of the technical assistance of the ILO.

The Committee once again expressed the firm hope that the National Labour Laws Reforms Commission would very soon conclude its work on revising the labour legislation and the Labour Code taking into account all the observations of the Committee of Experts and this Committee.