Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the Government’s reply to the comments submitted by the International Trade Union Confederation (ITUC) in 2008. As concerns the ITUC’s allegations of violations of the Convention in the garment sector, the Committee notes that the Government indicates that the present Government was committed to ensuring workers’ freedom of association rights and intends to take all measures to protect workers’ rights, health and safety in the workplace, and that the establishment of the Minimum Wages Board to enhance garment workers’ minimum wages was in progress. The Government states that the aggrieved workers have the legal right to submit grievances to their employers, to lodge a complaint with the Government Inspection Department or in the Department of Labour, and to sue in the labour court if necessary. Moreover, in early 2008, a crisis management committee in the garment sector was constituted to face the crisis and solve the relevant issues amicably through negotiations. The Government further indicates, in this respect, that all citizens of Bangladesh have the right to seek the shelter of the law to protect their lives or property, and that it was closely monitoring the issues so that employers may not fire innocent workers at will.

With regard to the 2008 ITUC allegations concerning the arrest and detention of the General Secretary of the Dhaka University Teachers’ Association (DUTA) and four other professors, the Committee notes the Government’s indication that the cases have been concluded and the teachers released. In respect of the allegation that, despite a tripartite agreement signed on 12 June 2006 to withdraw cases lodged against the workers in 2006 and release the arrested persons in Gazipur, Tongi, Savar and Ashulia Police Stations, Cases Nos 49/06, 50/06 and 51/06 against workers which were under the jurisdiction of the Joydevpur Police Station were yet to be withdrawn, the Committee notes the Government’s statement that it was taking initiatives to withdraw all three cases under the Joydevpur Police Station’s jurisdiction – which concerned a total of 41 persons – in accordance with the 2006 tripartite agreement.

Previously, the Committee had requested the Government to provide its observations on the ITUC’s allegation that the Joint Director for Labour (JDL), who is responsible for registering trade unions, refused to take any action on pending union registration applications in 2007, particularly in the textiles sector. It had also requested the Government to indicate the status of the Bangladesh Garments and Industrial Sramik Federation (BGIWF), which according to the ITUC had faced deregistration. The Government indicates, in this regard, that due to the declaration of an emergency in 2007 some constitutional and labour law provisions relating to trade union formation and registration were suspended – thus rendering trade union registration impossible that year. The Government adds that since January 2009, 73 trade unions have been registered. As concerns the BGIWF, the Government states that the Registrar of Trade Unions had applied to the Court seeking the cancellation of the BGIWF’s registration; while the case was presently under examination the BGIWF remains a registered organization under the law and is freely pursuing its activities. The Committee requests the Government to indicate in its next report the status of the court case concerning the BGIWF’s registration, the reason for the cancellation request by the Registrar and to provide a copy of the court’s judgement should it have been rendered.

The Committee recalls that in its previous comments, it had requested information on: (i) the measures taken, including instructions given to the law enforcement authorities, so as to avoid the danger of excessive violence in trying to control demonstrations, and ensure that arrests are made only where criminal acts have been committed; (ii) the charges brought in 2004 against 350 women trade unionists, including the General Secretary of the JSL’s Women’s Committee, Shamsur Nahar Bhuiyan and all judicial decisions taken in this matter; and (iii) the measures taken to ensure the prompt registration of Immaculate (Pvt) Ltd Sramik Union. The Committee notes that the Government indicates that: (1) it is fully aware and committed to freedom of association free from violence, pressure of threat of any kind, and that the necessary provisions are laid down in the laws. Arrests, furthermore, are only made pursuant to the law and when crimes are committed; (2) the law enforcement authorities are to avoid unnecessary violence, and the situation is monitored through monthly meetings of the Crisis Management Committee, comprised of officials of different law enforcement authorities. Moreover, at present there is no worker or trade union leader arrested for participation in demonstrations; (3) the charges brought in 2004 against the 350 women trade unionists had been dropped – they are presently free and enjoying the exercise of their trade union rights; and (4) the Director of Labour, who is responsible for trade union registration, is still awaiting the application for registration of the Immaculate (Pvt) Ltd Sramik Union; the Department of Labour (DOL) would take prompt measures to register the union upon receipt of its application. In these circumstances, the Committee expresses the hope that, once the Immaculate (Pvt) Ltd Sramik Union’s application is received, the Government will actively pursue measures to ensure the union’s prompt registration.

The Committee notes the comments submitted by the ITUC in a communication dated 26 August 2009. The ITUC alleges additional violations of the Convention in 2008. In particular, the ITUC refers to the following violations in the garment sector: the arrest of and bringing of charges (later dropped) against members and leaders of the Bangladesh Independent Garment Workers Union Federation (BIGWUF), the Shawdhin Bangla Garments Sramik Karmachari Federation (SBGSKF), the Textile Garments Workers Federation (TGWF), the Bangladesh Posak Shilpo Sramik Federation (BPSSF), and the National Garment Workers Federation (NGWF); the imprisonment from September to December of the President of the New Modern Garment Workers and Employees Union (NMGWEU); the beating of female garment workers for having participated in a strike; and arrests, detentions and physical assault by the police against numerous workers from more than a dozen garment factories. The Committee recalls once again that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee notes with concern these allegations and requests the Government to provide full particulars in respect of the ITUC’s allegations.

Right to organize in export processing zones (EPZs). The Committee had previously noted the ITUC’s allegation that the Bangladesh Export Processing Zones Authority (BEPZA) continued to raise obstacles to the establishment of workers’ associations in EPZs – even though section 13(1) of the Industrial Relations Act 2004 provided that workers had the right to apply to form workers’ associations after the deadline of 31 October 2006 – and had requested the Government to provide statistical information on the number of workers’ associations established in the EPZs after 1 November 2006. The Government indicates that it has, through a letter sent to all enterprises, encouraged the formation of workers’ associations as of 1 November 2006. To date, workers’ associations have been established in 188 enterprises, or 75.20 per cent of all the eligible enterprises. In this connection, the Committee notes that in its 2009 comments the ITUC alleges a number of restrictions on freedom of association rights in the EPZ sector. The Committee requests the Government to provide its observations in this respect.

The Committee further recalls that it had previously commented on the EPZ Workers’ Associations and Industrial Relations Act 2004, which contains numerous and significant restrictions and delays in relation to the right to organize in EPZs. The Committee notes that according to the Government, the BEPZA is aware of the Committee’s comments in this regard, which would be taken into consideration in the present review and amendment process of the EPZ Workers’ Associations and Industrial Relations Act 2004. In these circumstances, the Committee expresses the hope that the review and amendment process referred to by the Government would soon bring the following provisions of the said Act into conformity with the Convention, in line with its previous comments:

–      section 24, which provides that workers’ associations will not be allowed in industrial units established after the commencement of the Act until a period of three months has expired after the commencement of commercial production in the concerned unit;

–      section 25(1), which provides that there can be no more than one workers’ association per industrial unit;

–      sections 14, 15, 17 and 20, which establish excessive and complicated minimum membership and referendum requirements for the establishment of workers’ associations (a workers’ association may be formed only when a minimum of 30 per cent of the eligible workers of an industrial unit seek its formation, and this has been verified by the Executive Chairperson of the BEPZA, who shall then conduct a referendum on the basis of which the workers shall acquire the legitimate right to form an association under the Act, only if more than 50 per cent of the eligible workers cast their vote, and more than 50 per cent of the votes cast are in favour of the formation of the workers’ association);

–      section 17(2), which confers excessive powers of approval of the Constitution Drafting Committee to the Executive Chairperson of the BEPZA;

–      section 16, which prevents steps for the establishment of a workers’ association in the workplace for a period of one year after a first attempt failed to gather sufficient support in a referendum;

–      section 35, which permits the deregistration of a workers’ association at the request of 30 per cent of the workers even if they are not members of the association and prevents the establishment of another trade union for one year after the previous trade union was deregistered;

–      sections 36(1)(c), (e)–(h) and 42(1)(a), which provide for the cancellation of the registration of a workers’ association on grounds which do not appear to justify the severity of this sanction (such as contravention of any of the provisions of the association’s constitution);

–      sections 54(3) and (4), which establish a total prohibition of industrial action in EPZs until 31 October 2008 (section 88(1) and (2)); provides for severe restrictions of strike action, once recognized (possibility to prohibit a strike if it continues for more than 15 days or even before this deadline, if the strike is considered as causing serious harm to productivity in the EPZ);

–      section 18(2), which prevents workers’ associations from obtaining or receiving any fund from any outside source without the prior approval of the Executive Chairperson of the BEPZA;

–      section 32(1), which establishes an excessively high minimum number of trade unions to establish a higher level organization (more than 50 per cent of the workers’ associations in an EPZ);

–      section 32(3), which prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs; and

–      sections 5(6) and (7), 28(1), 29, and 32(4), which do not seem to afford guarantees against interference with the right of workers to elect their representatives in full freedom (e.g. the procedure of election is to be determined by the BEPZA).

The Committee further requests the Government to indicate any developments concerning the amendment and review process in its next report.

Other discrepancies between national legislation and the Convention. The Committee recalls that for many years it had been referring to serious discrepancies between the national legislation and the Convention. In its previous comment, the Committee noted the adoption of the Bangladesh Labour Act 2006 (the Labour Act), which replaced the Industrial Relations Ordinance of 1969, and noted with deep regret that the Labour Act did not contain any improvements in relation to the previous legislation and, in certain regards, contained even further restrictions which were contrary to the provisions of the Convention. The Committee takes note of the Government’s statement that a tripartite labour law review committee to identify the gaps and discrepancies in the Labour Act and suggest the necessary amendments had been constituted, as well as its indication that the workers excluded from the Labour Act’s provisions were not covered by other legislation. The Committee requests the Government to inform it of developments with regard to the review process referred to and expresses the firm hope that the Labour Act will soon be amended in line with the discrepancies previously identified, which it repeats as follows:

–      the need to repeal provisions on the exclusion of managerial and administrative employees from the right to establish workers’ organizations (section 2 XLIX and LXV of the Labour Act) as well as new restrictions of the right to organize of firefighting staff, telex operators, fax operators and cipher assistants (exclusion from the provisions of the Act based on section 175 of the Labour Act);

–      the need to either amend section 1(4) of the Labour Act or adopt new legislation so as to ensure that the workers in the following sectors, which have been excluded from the scope of application of the Act including its provisions on freedom of association, have the right to organize: offices of or under the Government (except workers in the Railway Department, Posts, Telegraph and Telephone Departments, Roads and Highways Department, Public Works Department and Public Health Engineering Department and the Bangladesh Government Press); the security printing press; establishments for the treatment or care of the sick, infirm, aged, destitute, mentally disabled, orphans, abandoned children, widows or deserted women, which are not run for profit or gains; shops or stalls in public exhibitions which deal in retail trade; shops in any public fair for religious or charitable purposes; educational, training and research institutions; agricultural farms with less than ten workers; domestic servants; and establishments run by the owner with the aid of members of the family.

–      the need to repeal provisions which restrict membership in trade unions and participation in trade union elections to those workers who are currently employed in an establishment or group of establishments, including seafarers currently engaged in merchant shipping (section 2 LXV and 175, 185(2) of the Labour Act);

–      the need to repeal or amend new provisions which define as an unfair labour practice on the part of a worker or trade union, an act aimed at “intimidating” any person to become, continue to be or cease to be a trade union member or officer, or “inducing” any person to cease to be a member or officer of a trade union by conferring or offering to confer any advantage and the consequent penalty of imprisonment for such acts (sections 196(2)(a) and (b) and 291 of the Labour Act); the Committee considers that the terms “intimidating” or “inducing” are too general and do not sufficiently safeguard against interference in internal trade union affairs, since, for instance, a common activity of trade unions is to recruit members by offering advantages, including with regard to other trade unions;

–      the need to repeal provisions which prevent workers from running for trade union office if they were previously convicted for compelling or attempting to compel the employer to sign a memorandum of settlement or to agree to any demand by using intimidation, pressure, threats, etc. (sections 196(2)(d) and 180(1)(a) of the Labour Act);

–      the need to lower the minimum membership requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments for initial and continued union registration, as well as the possibility of deregistration if the membership falls below this number (sections 179(2) and 190(f) of the Labour Act); the need to repeal provisions which provide that no more than three trade unions shall be registered in any establishment or group of establishments (section 179(5) of the Labour Act) and that only one trade union of seafarers shall be registered (section 185(3) of the Labour Act); finally, the need to repeal provisions prohibiting workers from joining more than one trade union and the consequent penalty of imprisonment in case of violation of this prohibition (sections 193 and 300 of the Labour Act);

–      the need to repeal provisions denying the right of unregistered unions to collect funds (section 192 of the Labour Act) upon penalty of imprisonment (section 299 of the Labour Act);

–      the need to lift several restrictions on the right to strike: requirement for three-quarters of the members of a workers’ organization to consent to a strike (sections 211(1) and 227(c) of the Labour Act); possibility of prohibiting strikes which last more than 30 days (sections 211(3) and 227(c) of the Labour Act); possibility of prohibiting strikes at any time if a strike is considered prejudicial to the national interest (sections 211(3) and 227(c) of the Labour Act) or involves a public utility service including the generation, production, manufacture, or supply of gas and oil to the public, as well as railways, airways, road and river transport, ports and banking (sections 211(4) and 227(c) of the Labour Act); prohibition of strikes for a period of three years from the date of commencement of production in a new establishment, or an establishment owned by foreigners or established in collaboration with foreigners (sections 211(8) and 227(c) of the Labour Act); penalties of imprisonment for participation in – or instigation to take part in unlawful industrial action or go-slow (sections 196(2)(e) and 291, 294–296 of the Labour Act);

–      the need to repeal provisions which provide that no person refusing to take part in an illegal strike shall be subject to expulsion or any other disciplinary measure by the trade union, so as to leave this matter to be determined in accordance with trade union rules (section 229 of the Labour Act);

–      the need to amend new provisions which define as an unfair labour practice on the part of workers, an act of compelling or attempting to compel the employer to sign a memorandum of settlement or to accept or agree to any demand by using “intimidation”, “pressure”, “threat” so as to ensure that there is no interference with the right of trade unions to engage in activities like collective bargaining or strikes, and to repeal the consequent penalty of imprisonment for such acts (sections 196(d) and 291(2) of the Labour Act);

–      the need to amend provisions which impose a penalty of imprisonment for failure to appear before the conciliator in the framework of settlement of industrial disputes (section 301 of the Labour Act).

The Committee had previously requested the Government to indicate whether rule 10 of the Industrial Relations Rules 1977 (IRR), which previously granted the Registrar of Trade Unions (RTU) overly broad authority to enter trade union offices, inspect documents, etc., without judicial review, had been repealed by the entry into force of the Labour Act 2006. The Committee notes that the Government states, in this regard, that rule 10 of the IRR remains valid, and that – as its purpose was to maintain discipline in trade union administrations – it was not in favour of repealing the said provision. The Government further indicates that the workers’ representatives in the tripartite review process towards the enactment of the Labour Act had raised no objections to the RTU’s authority in these matters. In this respect, the Committee must once again recall that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular, autonomy and financial independence and the protection of the assets and property of these organizations. There is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should however always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity [see General Survey on freedom of association and collective bargaining, 1994, paragraphs 124 and 125]. The Committee therefore once again requests the Government to take the necessary measures to repeal rule 10 of the IRR or amend the latter so as to ensure that the Registrar of Trade Unions’ (RTU) authority to supervise a trade union’s internal affairs conforms to the principles mentioned above.

The Committee takes due note of the Government’s statement that it was fully committed to ensuring compliance with the Convention and the promotion of freedom of association in the country. The Committee invites the Government to avail itself of the technical assistance of the Office in respect of all the matters raised above.