Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bangladesh (Ratification: 1972)

Other comments on C098

Observation

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The Committee notes the information provided by the Government in its report and particularly the amendments made to the Bangladesh Labour Act, 2006, (hereinafter, the BLA) on 22 July 2013.

The Committee notes the comments made by the International Organisation of Employers (IOE) and the Bangladesh Employers’ Federation (BEF) concerning the application of the Convention and requests the Government to provide its observations thereon with its next report.

Articles 1 and 3 of the Convention. Protection of workers in export processing zones (EPZs) against anti-union discrimination. In its previous comments, the Committee had noted the comments submitted by the International Trade Union Confederation (ITUC) on 4 and 31 August 2011, concerning mass dismissal of workers in the garment sector in 2010 following the exercise of their trade union rights, as well as the Government’s observations thereon. The Committee further notes from the communication of the ITUC under Convention No. 87 that, while the registration of 45 new unions in the ready-made garment sector can be seen as positive, it has a number of concerns relating to reports of anti-union acts. The ITUC also raises concern about the potentially broad interpretation that might be given to “disorderly behaviour” which has been added to the instances where an employer may fire a worker without notice and without compensation (section 23(4)(g)).

The Committee further notes the Government’s indication that the Bangladesh Export Processing Zone Authority (BEPZA) protects the rights of workers in EPZs and denies the existence of discrimination. According to the Government, there is no real evidence of discrimination and the BEPZA officers are constantly on the lookout for such behaviour. If any such was brought to the notice of the authority, actions are taken for reinstatement of members of the Workers’ Welfare Associations (WWA). The Government refers to section 62(2) of the EPZ Workers’ Welfare Association and Industrial Relations Act (hereinafter, the EWWAIRA), 2010, which provides that officers of the WWA shall not be dismissed without prior approval of the BEPZA Executive Chairmen, and indicates that a circular has been sent to all enterprises within the zones for the application of this section.

As regards the allegations of anti-union discrimination due to the employer’s knowledge of union officers seeking registration, the Committee notes with interest that section 178(3) of the BLA has been amended so as to repeal the provision requiring the Director of Labour to send the list of officers of trade unions requesting registration to the employer.

As regards the functioning of the EPZ labour tribunal and the EPZ labour appellate tribunal under the EWWAIRA, the Committee notes the Government’s indication that the EPZ Labour Tribunal and the EPZ Labour Appellate Tribunal have been established through Statutory Regulatory Orders (SRO) Nos 264-Law/2011 and 265-Law/2011 of 16 August 2011, and that there is no complaint of anti-union discrimination presented by EPZ workers before these courts.

The Committee further takes due note of information provided by the Government in relation to the constitution of the EPZ Workers’ Welfare Fund, effective from February 2013, which will cover the expenses of counsellors, conciliators and arbitrators, as well as the establishment of the tribunals. According to the Government, while the BEPZA had already appointed conciliators and arbitrators, they did not continue as there were very few cases requiring their attention. Now, appointment of the conciliators as per the newly established fund is under process. In its report under Convention No. 87, the Government provides further information from the BEPZA that 90 counsellors under the BEPZA authority are working with a prescribed form to look after labour-related issues.

The Committee requests the Government to provide its observations on the points raised by the ITUC concerning an increase in anti-union discrimination and trusts that the national mechanisms will be bolstered, including with an online database, so that workers may confidently report any such acts and seek an appropriate remedy. It requests the Government to provide information in its next report on the steps taken in this regard and on the role played by the counsellors mentioned above. It further requests the Government to send a copy of the BEPZA circular on section 62(2) of the EWWAIRA (which was not attached to its report) and available statistics concerning any complaints of anti-union discrimination, the BEPZA response and the sanctions taken and/or remedies awarded.

As regards the judicial proceedings concerning the dismissed workers who were charged with illegal activities (345/2011, Chief Judicial Magistrate Court, Dinajpur), the Committee notes the Government’s indication that this case is still pending and requests the Government to provide information on the outcome once the judgment has been rendered.

Article 2. Lack of legislative protection against acts of interference. In its previous comments, the Committee had requested the Government to take steps when reviewing the BLA to include a comprehensive prohibition against acts of interference which would cover acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs. According to the comment of the IOE and the BEF, workers and employees of Bangladesh can freely exercise the right of association without hindrance, but outsiders interfere with their activities and mislead them for the purpose of political gain. Observing that the recent amendments to the BLA do not appear to address its previous request, the Committee once again requests the Government, in consultation with the social partners, to review the BLA with a view to including adequate protection for workers’ organizations against such acts of interference by the employer or employers’ organizations and to indicate the progress made in this regard in its next report.

Article 4. Promotion of collective bargaining. The Committee notes with interest the amendments made to the BLA with the inclusion of section 202a, which enables unions and employers to contact experts for assistance in collective bargaining, and requests the Government to indicate how this is applied in practice and whether there have been any disputes under section 202a(2).

In its previous comments, the Committee had noted that according to the National Level Trade Union Federation of Workers (NCCWE), collective bargaining was limited as there was no legal provision for collective bargaining at the industry, sector or national levels. While observing the information provided by the Government in its last report that the settlement of disputes through bipartite negotiations was done at the industry level and that similarly, different issues were settled through bipartite negotiation or through conciliation at the sector level, such as tea sector, shrimp sector, etc., the Committee had once again requested the Government to amend sections 202 and 203 of the BLA in order to clearly provide that collective bargaining was possible at the industry, sector and national levels. The Committee further notes that the Government’s latest report indicates that three elections for collective bargaining agents have taken place as of November 2013. The Committee also notes the comments from the IOE and the BEF indicating that the BLA has been framed so as to encourage the employees to promote full development and utilization of collective agreements to regulate terms and conditions of employment. Observing that the amendments adopted in July 2013 do not address this issue, the Committee once again requests the Government to consider, with the social partners, the necessary measures to ensure that collective bargaining can effectively take place at all levels and to continue to provide statistics in its next report on the number of collective agreements concluded at the industry, sector and national levels respectively.

Finally, the Committee notes the concerns raised in the ITUC comment relating to the amendments on participation committees (section 205 of the BLA), especially the concern that section 205(6)(a), which provides that “For an establishment where there is no trade union, until a trade union is formed, the workers’ representatives to the Participation Committee shall run activities related to workers’ interests in the establishment concerned”, could undermine trade unions and usurp their role. The Committee requests the Government to provide its observations on this point and to indicate any measures taken to ensure that participation committees are not used to undermine the role of trade unions.

Promotion of collective bargaining in the EPZs. The Committee recalls that in its previous comments it had observed that, despite the creation of WWAs in various enterprises in the EPZs, no information had been provided concerning the conclusion of collective agreements in the EPZs. The Committee further recalled, with reference to BEPZA Instructions 1 and 2, that excluding wages, working hours, rest periods, leave and conditions of work from the field of collective bargaining was not in harmony with Article 4 of the Convention. The Committee takes due note of the comments made by the IOE and the BEF indicating that the Government may think over the need to leave room for collective bargaining in the EPZs and take action in conformity with Article 4 of the Convention. The Committee further notes the information provided by the Government that out of a total of 421 enterprises operating in the zones, referendums were held for WWAs in 283 giving rise to collective agreements in 192 enterprises. The Committee requests the Government to transmit in its next report a few representative examples of these agreements, indicating the number of workers covered.

Encouraged by the discussion in the Committee on the Application of Standards in June 2013 concerning the application by Bangladesh of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which the Government expressed its willingness to review the EWWAIRA and consider the manner in which EPZ workers could be brought under the coverage of the BLA, the Committee requests the Government to indicate the progress made in this regard.

Articles 4 and 6. Tripartite wages commissions in the public sector. In its previous comments, the Committee had requested the Government to take the necessary legislative or other measures to end the practice of determining wage rates and other conditions of employment in the public sector through simple consultation by means of government appointed tripartite wages commissions (section 3 of Act No. X of 1974) and had observed that the Government had not referred to any collective agreement in the public sector. The Committee notes the information provided by the Government in respect of the commissions and boards charged with reviewing minimum wages, all of which are constituted in accordance with tripartite principles. Taking due note of the Government’s indication that there is no bar on the development of free and voluntary collective bargaining, the Committee requests the Government to provide statistics on the number and nature of collective agreements concluded in the public sector, including the approximate number of workers covered under each agreement.