Observación (CEACR) - Adopción: 1994, Publicación: 81ª reunión CIT (1994)

The Committee notes the information supplied by the Government in its reports as well as the observations of the Bangladesh Workers' Federation (BWF) and of the Bangladesh Employers' Association (BEA). It recalls that its previous comments concerned the following points:

- the right of association of persons carrying out managerial and administrative functions;

- the right of association of public servants;

- restrictions on the range of persons who can hold office in trade unions;

- the extent of external supervision of the internal affairs of trade unions;

- the "30 per cent" requirement for initial or continued registration as a trade union;

- denial of the right to organize of workers in export processing zones; and

- denial of the right to organize of certain groups of workers in a number of sectors of the economy, inter alia, rural electrification, civil aviation, jute research, bank security printing press).

Managerial and administrative functions

The Committee has noted on previous occasions that section 2(b)(viii) of the Industrial Relations Ordinance, 1969, excludes from the definitions of "worker" and "workmen" persons who exercise functions of a managerial or administrative nature, which has the consequence that such persons are denied the right of association set out in section 3(a) of the Ordinance and hence not entitled to the protection of the Ordinance.

The Committee notes from the Government's report that, while persons carrying out managerial and administrative functions do not join trade unions of workers, they can form their own associations for the advancement of their rights and interests. The Government further states that, since the number of persons engaged in managerial and administrative functions is limited to around 2 per cent of the total employed, they do not form their own associations in each establishment; instead they establish these associations at the national level. Some of these persons join associations of different professional groups, such as the Institute of Chartered Accountants and the Institution of Engineers, in order to further their professional interests.

The Committee has recognized in paragraph 66 of its 1994 General Survey on Freedom of Association and Collective Bargaining that forbidding such persons to join unions representing other workers is not necessarily incompatible with the requirements of the Convention provided that they have the right to form their own organizations to defend their interests, and that the categories of managerial staff are not so broadly defined that the organizations of other workers in the establishment or branch of activity are weakened by being deprived of a substantial proportion of their present or potential membership. The Committee requests the Government to indicate which legislative provisions entitle persons carrying out managerial and administrative functions to join associations to further their occupational interests. The Committee notes, moreover, that the Government does not mention the number and size of organizations which have been formed, in practice, in order to represent the interests of such workers. It would therefore request the Government once again to provide information in its next report on the number and size of such associations.

Right of association of public servants

The Government indicates that although public servants are excluded from the coverage of the Industrial Relations Ordinance, they are allowed to form their own associations to advance their causes. Moreover, these associations have their own executive committees, offices and funds, and meetings are held with a view to mitigating grievances of members. These associations also formulate charters of demands for submission to the Government and for negotiation on them.

While noting the Government's statement, the Committee observes that such associations are subject to certain interference by public authorities in relation to their activities, through the Government Servants (Conduct) Rules, 1979. It would point out once again that these restrictions are not in conformity with the requirements of Articles 2 and 3 of the Convention, and requests the Government to take the necessary steps to bring its law and practice into full conformity with these provisions by removing the excessive restrictions.

Restrictions on the range of persons who can hold office in trade unions

The BWF states that section 7A(1)(b) of the Industrial Relations Ordinance, which disqualifies a worker from being a member or officer of a trade union formed in any establishment if he is not or was never employed or engaged in that establishment, restricts workers' freedom to elect their representatives. The Government indicates in its report that though formulated as a negative sentence, this provision facilitates the joining of workers in unions of a given establishment or a group of establishments.

The Committee would nevertheless point out that this provision prevents persons who are not current or former employees in the trade or industry concerned from becoming officers of a trade union, which is contrary to the right of workers' organizations to elect their representatives in full freedom. It therefore requests the Government once again to introduce amendments to provide for greater flexibility in relation to office-holding in trade unions by admitting as candidates persons who have previously been employed in the occupation and by exempting from occupational requirements a reasonable proportion of the officers of an organization.

The Government points out that the provision whereby a worker who is dismissed for misconduct shall not be entitled to be a member or officer of a trade union (section 3 of Act No. 22 of 1990) is desirable, since the induction of such dismissed workers into a trade union, either as members or as office-bearers, may hinder normal trade union activities as well as industrial peace and productivity. The BEA reiterates its earlier views that workers who have been dismissed for misconduct should not be able to hold trade union office, since such persons "being obsessed with retaliation would defeat the very purpose and spirit of collective bargaining". The Committee would first of all once again request the Government to supply a copy of Act No. 22 of 1990. It would further point out that, whilst it may be permissible to exclude from office-holding persons who have been convicted of criminal offences which call into question the integrity of the person concerned and which are of such a character as to be prejudicial to the exercise of trade union office (1994 General Survey, op. cit., para. 120), it considers that individuals should not be excluded from holding office simply because they have been dismissed from their employment for misconduct, and asks the Government to take steps to amend this provision accordingly.

External supervision

The Committee notes that the powers of the Registrar of Trade Unions to enter trade union premises, inspect documents, etc. under rule 10 of the Industrial Relations Rules 1977 are not subject to judicial review. The Committee would remind the Government that legislation which empowers the administrative authorities to investigate the internal affairs of a union at their entire discretion does not conform to the principles of the Convention (1994 General Survey, op. cit., paras. 125, 126 and 135). It therefore requests the Government to take steps to amend this provision so that the controls conducted by the Registrar are subject to review by the competent judicial authority.

The 30 per cent requirement

For some years the Committee has been asking the Government to review sections 7(2) and 10(1)(g) of the Industrial Relations Ordinance in order to bring them into conformity with Article 2 of the Convention. The first of these provisions is to the effect that no trade union may be registered unless it has a minimum membership of 30 per cent of the total number of workers employed in the establishment or group of establishments in which it is formed. The second gives the Registrar of Trade Unions the power to cancel the registration of a union where its membership has fallen below the 30 per cent threshold.

In its report, the Government indicates that, while this minimum membership requirement has prevented the growth of a multiplicity of trade unions, it has not hindered the establishment of organizations in different workplaces. The Government has nevertheless noted the Committee's previous observations in this respect. Therefore, it has referred the relevant labour laws to a Labour Law Commission set up in 1992 for review and reformulation in the light of national conditions and international labour standards.

The Committee welcomes these developments and trusts that the above-mentioned review will bring law and practice relating to the registration of trade unions into conformity with Article 2 of the Convention under which workers have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing. It requests the Government to keep it informed of any progress made in this respect in the work of the Labour Law Commission.

Denial of the right to organize of workers in export processing zones

With reference to its previous comments, the Committee notes with interest from the Government's report that it has already decided to review the provisions of the Bangladesh Export Processing Zones Authority Act, 1980, which denies workers in export processing zones the right to form and join trade unions. The Government indicates that amendment proposals covering the extension of the provisions of the Industrial Relations Ordinance and other related laws have been submitted to the competent authority. Moreover, some of the establishments in these zones have already allowed their workers to form trade unions in anticipation of the amendment of the existing law.

The Committee requests the Government to supply a copy of the relevant amendments to the 1980 Act and to indicate the number of organizations that have already been set up in export processing zones as well as the size of their respective membership.

Denial of the right to organize of certain groups of workers

The Government states that workers employed by the Civil Aviation Authority and the Jute Research Institute enjoy the right to organize. The trade union of workers in the Security Printing Press is also registered, although the authorities have initiated an amendment of the relevant law to prevent undue trade union activity in the press. In any case, the Government indicates that all legislative provisions relating to the right to organize and the exclusion of establishments from the purview of the Industrial Relations Ordinance are being reviewed by the Labour Law Commission.

The Committee takes note of this information and recalls that the only groups of workers who may be denied the guarantees embodied in the Convention are those mentioned in Article 9 thereof - namely members of the armed forces and the police. Therefore, it trusts that the above-mentioned legislative amendments will be in conformity with the requirements of the Convention and requests the Government to provide details of these amendments once they have been elaborated by the Labour Law Commission.