Cas individuel (CAS) - Discussion : 1995, Publication : 82ème session CIT (1995)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Bangladesh (Ratification: 1972)

A Government representative stated that the Government of Bangladesh had replied to all the issues raised by the Committee of Experts last year and understood that the Committee of Experts had examined these replies as well as some further queries which appeared in this year's report. The Government had received a direct request and would attempt to reply by the required date. As to the observation made by the Committee of Experts, he noted that Bangladesh had a law allowing workers and employers to form trade unions without requesting prior authorization. Union membership was open to persons working in factories, businesses, industries, shops and public sector corporations. Public servants of the Department of Telephone and Telegraphs and the Department of Railways were also covered by this law. Public servants of other government offices were not covered by this Industrial Relations Ordinance.

The Committee of Experts had raised six objections, the first of which concerned persons performing managerial and administrative functions: they could not join workers' trade unions. These white-collar employees, comprising approximately 2 per cent of the workforce, could form associations for the advancement of their rights or interests. Due to their small numbers, they did not form associations in each establishment, but rather at the national level or along professional lines, such as the Institute of Chartered Accountants or the Institute of Engineers. In this way, the guarantees provided under Article 2 of Convention No. 87 were exercised by persons in this professional category. He noted that the Committee of Experts had requested the Government to provide the legislation which allowed these groups of managerial staff to form their associations. The speaker confirmed that his Government would provide this information with its report in due time.

He then commented on the Committee of Experts' observations on freedom of association for public servants, who were excluded from the scope of the industrial relations law allowing workers and employers to form trade unions. There were, however, associations of different levels of cadres through which they promoted their own causes. The Bangladesh Civil Service Administration Association had the largest number of members, while another association existed for the non-cadres. Some staff, such as accountants and stenographers also had their own associations. These committees held meetings, discussed problems faced by members and formulated a charter of demands for submission to the Government for negotiation.

Recently, the speaker noted, the Government had been in contact with associations of public employees, both towards meeting demands and implementing government decisions regarding salaries and other benefits recommended in 1991. He then referred to the observation of the Committee of Experts concerning restrictions on eligibility for holding office in a trade union. Except for workers dismissed for misconduct or convicted of embezzlement of union funds, moral turpitude, or unfair labour practices, each worker was eligible to join a trade union of his choice and to hold elected office in the union, regardless of age, sex, caste, etc. The speaker noted that a worker dismissed for misconduct might seek revenge against the management. He considered that the admission of such dismissed workers, either as union members or officers, might hinder normal union activities as well as industrial peace and productivity. This might also defeat the very purpose of the union and of collective bargaining. In practice, in Bangladesh, dismissed workers were not elected to office in trade unions. The speaker considered that section 7-A(1)(b) of the Industrial Relations Ordinance, 1969, promoted rather than restricted the right of workers to choose their representatives.

In reply to the Committee of Experts' observations on external supervision, the speaker noted that, in Bangladesh, the Industrial Relations Ordinance conferred certain quasi-judicial functions on the Registrar of Trade Unions. Any act of the registrar could be challenged in a court of law. He further noted that the Registrar of Trade Unions was not allowed to revoke a union's registration without prior authorization from the labour court.

With regard to the 30 per cent requirement for initial or continued registration of a trade union, the speaker noted that the Committee of Experts had been informed on several occasions that this practice was necessary to check the multiplicity of trade unions in Bangladesh. Nevertheless, in an establishment meeting the 30 per cent requirement, up to three unions could be registered and there were provisions for determining a collective bargaining agent. The speaker considered that the multiple union registration provision brought the legislation into conformity with Convention No. 87.

The speaker then referred to the observation in which the Committee of Experts noted with regret that the law did not cover workers in the export processing zones. He noted that the National Labour Law Commission 1992 submitted a report on this question which was still being studied by the Government. Ultimately, this report would be submitted as a bill to Parliament.

The speaker concluded by mentioning that his Government would try to reply as accurately as possible to the points raised by the Committee of Experts this year.

The Employers' members stated that it was the first time that Convention No. 87 was being discussed in the case of Bangladesh and thanked the Government representative for having addressed directly the seven points raised by the Committee of Experts. They referred to the information contained in the report of the Committee of Experts concerning a review of labour legislation by a National Tripartite Commission, as well as the draft of a new Labour Code dealing with specific questions that had raised some doubts.

With reference to the seven points raised by the Experts they indicated that they continued to pose problems. As to persons carrying out managerial or administrative functions who were permitted to form their own associations, these persons were still subject to restrictions. Consequently, it was necessary to know whether this category of employees had, in reality, the possibility to freely form their own organizations. The Employers' members therefore hoped that the Government would provide detailed information in this regard in its report.

In addition, they requested that the Government indicate the specific restrictions on the rights of public servants to issue publications, as well as the extent of these restrictions in light of the comments of the Committee of Experts.

With respect to restrictions on the categories of persons who could hold office in trade unions, they believed that the text was too general and it was unacceptable that all dismissed workers were prevented from holding office.

In relation to excessive external supervision by the Registrar of Trade Unions to supervise trade union activities, they understood that the State would want to maintain some form of control such as supervision over the finances of trade unions. However, the general control should not be too broad. They requested further information on the legal recourse available to trade unions if such control had been too extensive.

In relation to the 30 per cent requirement, they noted that when workers wished to form a trade union organization in an establishment or in a group of enterprises, the Government believed that there was a danger of multiplicity of trade unions and this was the reason for the 30 per cent requirement. With regard to the risk of such proliferation, Convention No. 87 did not specifically address this issue but did provide that workers were free to set up organizations of their own choice. If workers formed too many organizations, they would weaken their own positions. The Employers' members wondered to what extent a State had the duty to protect workers from themselves. In a free society, such state protection should be strictly limited. The Government should review this issue and consider the recommendations made by the National Tripartite Commission in this regard.

As to export processing zones, they noted that the Government added very little to this issue and therefore it was necessary to wait for the information that it would provide in its report.

With regard to restrictions on the right to strike, which in the opinion of the Experts went beyond the envisaged situations and categories of workers, the Employers' members believed that the criterion of "essential services was too narrow". The State was responsible for the welfare of its citizens, and in developing countries, especially in difficult periods, a strike could cause unacceptable consequences even if the strike would not endanger life. For this reason a democratic State should assume its responsibilities and set the restrictions on the right to strike when essential services were jeopardized. Furthermore, Convention No. 87 did not contain any provisions in this regard.

Lastly, there were matters which needed careful thought and required legislative revision. For this reason, the Employers requested the Government to provide in its report detailed information on all of the points raised and stressed how important it was for the Office to provide Bangladesh with assistance.

The Workers' members emphasized that even if the Committee were examining the case of Bangladesh for the first time on the application of Convention No. 87, the Committee of Experts has been commenting on important points as to the limitations on trade union freedom in Bangladesh for quite a number of years. These were points that every country must respect, regardless of its degree of economic development.

The legislative review in progress which was given to a national tripartite committee along with the preparation of a new Labour Code undoubtedly marked the beginning of a positive change in attitude. Nevertheless, two major concerns were expressed. First of all, the effective implementation of the conclusions of the national tripartite committee should help to revise national legislation and practice as indicated in the remarks of the Experts. In this respect, there was a second concern as the Committee of Experts had taken note that while the new draft code satisfied some of its criticisms, it nevertheless included significant parts of the present code which the Experts had indicated, violate trade union freedom. In this respect, the comments of the Experts had been the same for quite some time.

The Workers' members then commented on the state of trade union freedom in Bangladesh, as described in the report of the Committee of Experts and in light of the information supplied by the Government representative. Concerning freedom of association for persons in managerial positions, they insisted on the necessity of guaranteeing that these categories of workers might enjoy and effectively exercise the right to form unions and to join the union of their choice, including unions of other categories of workers. Moreover, it was necessary, as the Committee of Experts had noted, that the concept of "managerial functions" be defined strictly in order to ensure that other unions were not weakened. As for the intervention of public authorities in the setting-up, creation and operation of unions, the Workers' members emphasized the risks of arbitrary supervision. Excessive limitation on the setting-up and maintaining of unions posed problems, especially in terms of organizational recognition based totally or for a large part on company unions in which workers of small and medium-sized businesses risked being excluded. They insisted on the need to adopt procedures and texts facilitating freedom of association.

As for export processing zones, the Workers' members stated that the guarantee of effective exercise of freedom of association was not assured and this constituted a major concern for the national and international union movement.

As for restrictions on the right to strike, the Workers' members felt, on reading the report of the Committee of Experts, that the procedures for exercising this right were such that, in practice, the very principle of the right to strike was called into question. They declared that it was unacceptable that the Government was able to ban strikes if it judged that the strike was contrary to the national interest or would harm the economy of the country. Fundamental rights should be guaranteed regardless of the political system and degree of economic development of a country. The concerns and the points of view expressed by the Committee of Experts on this point were shared by the Workers' members.

They requested that the Labour Code and other relevant legislation be reworked in order to take into account all of the comments of the Experts and the conclusions of this Committee, as the violations mentioned were significant and had very serious repercussions on the exercise of the fundamental rights of workers.

The Workers' members joined with the Employers' members in requesting that all information provided by the Government representative, as well as other additional information, be forwarded shortly for review by the Committee of Experts. They suggested that the Government call upon the assistance of the Office in order to settle the remaining problems.

The Workers' member of Japan believed this was a case of serious and complex restrictions on freedom of association. He agreed with the Committee of Experts' concern over the draft Labour Code which still apparently excluded a wide section of workers from the scope of the right to organize. Among those who were denied full freedom of association were public servants whose right to issue publications was subject to restrictions.

He pointed out the need for further information on measures the Government has envisaged to amend the Industrial Relations Rules which grant government officials excessive power - not subject to any judicial review - in supervising trade unions. He also requested more information on a union's right to appeal administrative decisions.

The speaker then focused on the denial of the right to organize in export processing zones (EPZs), in contravention of the Convention which guarantees freedom of association to all workers regardless of where they work. Citing an ILO survey, he noted that EPZs were an issue not only in Bangladesh but also in an increasing number of countries, particularly in Asia, where EPZs employed more than three-quarters of all workers. A market economy was acceptable as long as it respected human rights, trade union rights and fair rules of competition. This was not the case of export processing zones in general and in EPZs in Bangladesh in particular.

The Workers' member of the Netherlands drew attention to the fact that all of the questions discussed last year concerning the application of Convention No. 98 arose again this year in regard to the application of Convention No. 87. Consequently, this year the Committee of Experts had not raised any new issues.

Last year the Workers' group called for cautious optimism with regard to the proposed changes in the labour legislation and expressly requested that this year there be changes with respect to the external supervision of trade union affairs and export processing zones. Last year the Government expressed the hope that the problems would be solved in 1995. This year, however, the Government stated that it was in line with ILO standards and that the remaining queries were under review. The speaker believed that since the same problems continued, in essence, the Government was not willing to take concrete action to solve the problems. He asked for clarification on the existence of a tripartite labour committee headed by the Minister of Labour and Manpower and a parliamentary standing committee on labour matters which the Government referred to last year.

Noting that there had been no major changes in the legislation, he requested the Committee to address this insufficiency. He believed that the Workers' group wrongly expressed their cautious optimism and that the Employers' group was correct in stating that amending the relevant law would take time. He believed the Government had not been forthright last year, nor this year, and again referred to the available option of technical assistance to overcome difficulties in applying the Convention both in law and in practice.

The Government representative stated that he might have been misunderstood. His Government attached great importance to the observations of the Committee of Experts and intended to comply with its requests.

As concerned the Labour Code, he observed that it had not yet been passed by Parliament and there was, at present, just a recommendation by the National Law Commission to draft a Labour Code.

The Committee noted the observation of the Committee of Experts, the statements made by the Government representative and information provided on the application of the Convention, as well as the discussion that took place thereafter. The Committee observed that a tripartite National Labour Law Commission had begun to review the labour legislation. While welcoming this information, the Committee continued to be concerned with the situation both in law and in practice regarding trade union matters. The Committee urged the Government to adopt, at a very early date, the necessary measures to bring this legislation into conformity with the Convention. In particular, the Committee urged the Government to guarantee the right of managerial and administrative employees to organize, to assure judicial review of intervention by public authorities in unionization, to remove the restrictive provisions on registration of trade unions, and to ensure that modalities and procedures as regards strike action do not nullify this basic right. It also insisted on the necessity to apply the Convention in export processing zones. The Committee expressed the firm hope that it would be able to take note, at its next examination of the case, of substantial progress in the application of the Convention, if necessary, with the technical assistance of the ILO and asked the Government to furnish more detailed information on all these matters and report to the Committee of Experts.