Observación (CEACR) - Adopción: 2017, Publicación: 107ª reunión CIT (2018)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Bangladesh (Ratificación : 1972)

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Observación

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 referring to matters addressed below and the Government’s reply thereto. The Committee also notes the Government’s comments on the 2015 and 2016 ITUC observations submitted under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the information provided to the 2017 Conference Committee on the Application of Standards, when examining the individual case of Bangladesh under Convention No. 87, to the extent that they address matters falling within the scope of the present Convention.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee requested the Government to continue to provide training and capacity building to labour officers to bolster their capacity to inquire into allegations of anti-union discrimination and to provide detailed statistics on the number of complaints filed, their follow-up in the labour inspectorate and sanctions imposed. The Committee notes the Government’s indication that: (i) from 2013 to 2017, 112 complaints were lodged with the Joint Director of Labour (JDL), out of which 103 were settled (39 criminal cases filed and 64 complaints settled amicably) and nine are under investigation (in 2016, all 71 cases were settled, bringing the disposal rate to 100 per cent); (ii) an online database was created on the website of the Directorate of Labour (DoL) to make the process publicly available and more transparent and it currently contains information on the status of 76 cases of anti-union discrimination or unfair labour practices (51 settled cases and 25 ongoing); (iii) the database will include detailed information as to the evolution of the complaint, including time taken to resolve a case, remedies imposed, numbers of reinstatement with or without back pay, number of remedies accepted by the employer versus appealed to courts, time taken for judicial proceedings, percentage of cases where employers’ appeals succeeded and sanctions ultimately imposed; (iv) standard operating procedures (SOPs) for anti-union discrimination and unfair labour practices were recently adopted in order to facilitate and accelerate the handling and investigation of such allegations in a transparent manner following a uniform procedure, and will be piloted in 500 enterprises; and (v) the Government has initiated the upgrading of the DoL to a department, which will result in an increase of manpower from 712 to 921. The Committee further notes the detailed information provided by the Government on the type and number of training and capacity-building activities provided to labour officials, judges, lawyers, workers and employers on matters relevant to the Convention and welcomes, in particular, the specialized and regular training activities conducted to bolster the capacity of labour officials to investigate allegations of anti-union discrimination and unfair labour practices, to develop a credible, efficient and transparent system of arbitration and conciliation and to facilitate effective labour management relations, collective bargaining and prompt and efficient settlement of labour disputes. The Committee also notes the envisaged establishment of a Workers’ Resource Centre, which will act as a centre for excellence for training and awareness-raising of labour officials, workers and employers on conciliation, anti-union discrimination and unfair labour practices. Noting with interest the development of the SOPs and the establishment of a publicly available database on anti-union discrimination, as well as the ongoing training activities conducted for labour officials and the envisaged increase of manpower of the DoL, the Committee expects that all of these measures will contribute to an expedient, efficient and transparent handling of anti-union discrimination complaints.

While taking note of the information provided on the number of complaints lodged to the JDL, the Committee observes that the Government did not indicate the particulars previously requested by the Committee in relation to the handling of complaints of anti-union discrimination and their follow-up in the labour inspectorate (time taken to resolve the disputes, remedies imposed, including the number of cases of reinstatement, the number of remedies accepted by the employers versus appealed to judicial proceedings, time taken for judicial proceedings and the percentage of cases where employers’ appeals succeeded, and sanctions ultimately imposed following full proceedings) but notes that these elements are explicitly enumerated in the SOPs and should, according to the Government, form part of the online database. The Committee requests the Government once again to provide detailed statistics on the number of complaints of anti-union discrimination received by the relevant authorities and their follow-up, including all of the abovementioned elements, so as to demonstrate the effectiveness of the SOPs with regard to complaints of anti-union discrimination and unfair labour practices. Further observing that penalties envisaged for unfair labour practices and acts of anti-union discrimination are not sufficiently dissuasive (a fine of maximum 10,000 Bangladeshi taka (BDT) which equals US$120 – section 291(1) of the Bangladesh Labour Act, 2006 (BLA)), the Committee requests the Government to take the necessary measures, after consultation with the social partners, to increase the penalties envisaged for such acts, so as to ensure their sufficiently dissuasive character. The Committee also requests the Government to indicate the outcome of the 39 mentioned complaints that gave rise to criminal cases.

In its previous comment under Convention No. 87, the Committee had requested the Government to continue to provide information on the helpline for submission of labour-related complaints targeting the ready-made garment (RMG) sector in the Ashulia area and its expansion to other industrial sectors and geographical areas. The Committee notes the Government’s indication that as of September 2017, a total of 2,068 complaints (mostly concerning issues of wages, overdue payments and job termination) were received from the RMG sector workers in Ashulia, out of which 501 were settled. The Government indicates that the Department of Inspection for Factories and Establishments (DIFE) is already dealing with complaints from other geographical areas and industrial sectors, that once sufficient experience is gained, the model will be formally expanded, and that a system is also being developed to prioritize, record and forward labour disputes to the relevant authority, as well as to update statistics to improve transparency and governance in dealing with complaints. Taking due note of this information, the Committee requests the Government to continue to provide detailed updates on the functioning of the helpline, including the number and nature of allegations raised, the nature of the follow-up to calls, including steps taken to prevent reprisals against helpline users and preserve their anonymity, the number and nature of investigations undertaken and their outcome. The Committee also requests the Government to clarify the status of the 1,567 complaints that have not been settled.

The Committee further recalls that the Conference Committee had called on the Government to continue to investigate, without delay, all alleged acts of anti-union discrimination, including in the Ashulia area, ensure the reinstatement of those illegally dismissed, and impose fines or criminal sanctions according to the law. The Committee notes the Government’s indication that: (i) the law enforcement authority is empowered to arrest any person considered to be involved in an unrest and seek redress through courts, which may result in an individual being arrested; (ii) the employer can terminate a worker if it is deemed appropriate following the legal procedures; and (iii) all those who were arrested after the Ashulia incident were released on bail, eight out of 11 cases were disposed of after investigation and the remaining three cases are being investigated. The Committee further notes the information provided by the Government on the role of the Ready-Made Garment Sector Tripartite Consultative Council (RMG TCC) in investigating allegations of anti-union violence and discrimination in two garment factories in Chittagong, in particular that a five-member tripartite investigating committee interviewed the concerned parties, examined relevant documents and prepared a final report and that the situation in the concerned garment factories is currently calm. The Committee also observes that, according to the ITUC, baseless criminal charges remain pending against workers for their involvement in the Ashulia incident and there is little prospect of reinstatement for workers not covered by the agreement concluded after the incident between the Government and IndustriALL. The ITUC also expresses concerns as to the long-standing pattern of unlawful and violent acts, including illegal dismissals of trade union leaders, in a garment group in Chittagong and alleges that the investigating committee established by the RMG TCC, despite being tripartite, showed serious flaws, irregularities and pro management bias both in its investigating process and the final report. The Committee recalls in this regard that allegations of systematic anti-union retaliation were also addressed by the Committee on Freedom of Association (see 382nd Report of the Committee on Freedom of Association, Case No. 3203, paragraphs 170–171). The Committee requests the Government to take the necessary measures to ensure that any pending proceedings in relation to the Ashulia incident are concluded without delay and that all workers dismissed for anti-union reasons who wish to return to work are reinstated. The Committee requests the Government to provide information on any progress made in this regard. The Committee expects that any future investigations into concrete allegations of anti-union discrimination will be done in full independence and impartiality and that the Government will continue to take all necessary measures to prevent repeated and institutionalized acts of anti-union discrimination.

In its previous comments, the Committee also requested the Government to provide information on the outcome of the judicial proceedings concerning dismissed workers in the mining sector who were charged with illegal activities (Case No. 345/2011). The Committee notes the Government’s indication that while the first instance court acquitted the accused workers, an appeal for cancellation of this judgment was filed to the District Sessions Court, Dinajpur, and was granted but to date, the defendants have not attended court. The Committee requests the Government to provide information on the outcome of the case once the judgment of the District Sessions Court, Dinajpur has been rendered.

Protection of workers in export processing zones (EPZs) against acts of anti-union discrimination. In its previous comments, the Committee requested the Government to consider setting up a publicly accessible database specific to the EPZs to render the treatment of anti-union discrimination complaints more transparent; to clarify the role of counsellors-cum-inspectors in addressing such complaints; to provide the Bangladesh Export Processing Zones Authority (BEPZA or Zone Authority) circular on the application of section 62(2) of the Export Processing Zones Workers’ Welfare Associations and Industrial Relations Act, 2010 (EWWAIRA); and to provide statistics on the number of anti-union discrimination complaints brought to the competent authorities, their follow-up and the remedies and sanctions imposed. The Committee notes the Government’s indication that: (i) there are no reported cases of anti-union discrimination in the RMG sector but if evidence of such actions is found, appropriate action will be taken; (ii) no workers’ welfare association (WWA) leader or member has ever been dismissed by the Zone Authority for the exercise of their labour rights, WWA members are protected under section 62(2) of the EWWAIRA and to avoid any discrimination, the Zone Authority conducts neutral investigations and personal hearings of the concerned workers, who also have full freedom to submit a complaint to the EPZ Labour Tribunals or the EPZ Labour Appellate Tribunal; (iii) counselor-cum-inspectors are engaged in regular monitoring of compliance issues and handling of labour disputes and there are currently 60 counsellors-cum-inspectors, three conciliators and a panel of arbitrators to resolve allegations of unfair labour practices; (iv) the labour inspection system established by the Zone Authority is effective, transparent, accountable and scalable and assists workers and employers in solving disputes through the Alternative Dispute Resolution (ADR) method; (v) through massive structural changes, the administration system of the EPZs has been brought in line with the BLA and both workers and investors are satisfied with the existing inspection and administration system and consider that involvement of another authority could create dual administration issues, confusion among the parties and even unrest; and (vi) as of May 2017, 161 cases were filed to the EPZ Labour Tribunals and the EPZ Labour Appellate Tribunal, out of which 86 were settled. Noting the Government’s affirmation that there are no reported cases of anti-union discrimination in the RMG sector but observing that, to avoid discrimination, the Zone Authority conducts hearings of the concerned workers, the Committee requests the Government to clarify whether such hearings are done on a preventive basis or as a follow-up to complaints filed by workers. The Committee requests the Government once again to establish an online database for anti-union discrimination complaints specific to the EPZs, so as to ensure full transparency of the process, and to continue to provide statistics on the number of anti-union discrimination complaints brought to the competent authorities, their follow-up and the remedies and sanctions imposed. The Committee also requests detailed information on whether the Government’s helpline for submission of labour-related complaints targeting the RMG sector is fully operational for EPZ workers. Further recalling that according to the information provided by the Government to the Conference Committee, administration and inspection of factories in EPZs would fall under the BLA, the Committee requests the Government once again to take the necessary measures to bring the EPZs within the purview of the Ministry of Labour and the Labour Inspectorate. The Committee is also obliged once again to request the Government to provide a copy of the BEPZA circular on the application of section 62(2) of the EWWAIRA.

The Committee further notes the Government’s indication that Chapters IX, X and XV of the draft Bangladesh Export Processing Zones Labour Act (EPZ Labour Act) have been redrafted through tripartite consultations on the basis of ILO observations and comments of collective bargaining agents and investors but observes the need to continue to review the draft law to ensure its conformity with the Convention regarding the following matters: specific categories of workers continue to be excluded from the law (workers in supervisory and managerial positions – section 2(49)) or from Chapter IX dealing with WWAs (members of the watch and ward, drivers, confidential assistants, cipher assistants, casual workers, workers employed by kitchen or food preparation contractors and workers employed in clerical posts – section 93); power of the Executive Chairperson to rule on the legitimacy of a transfer or termination of a WWA representative (section 120); lack of specific measures to remedy acts of anti-union discrimination except in case of WWA officials covered by section 120; insufficiently dissuasive fines for unfair labour practices – a maximum of US$600 (section 150(1)); and Chapter XIV (previously Chapter XV) on administration and labour inspection runs counter to the notion of an independent public authority to apply the laws fairly. In this regard, the Committee also refers to its detailed comments made under Convention No. 87. In view of the above, the Committee requests the Government to take the necessary measures, in the framework of the ongoing revision of the draft EPZ Labour Act and in consultation with the social partners, to ensure that all workers covered by the Convention are adequately protected against acts of anti-union discrimination, including through recourse to an independent authority, adequate remedies and sufficiently dissuasive sanctions.

Articles 2 and 3. Lack of legislative protection against acts of interference. For several years, the Committee has been requesting the Government, in consultation with the social partners, to review the BLA with a view to including adequate protection for workers’ organizations against acts of interference by employers or employers’ organizations, which would also cover financial control of trade unions or trade union leaders and acts of interference in internal affairs. The Committee notes that the Government reiterates that legislative reform is a continuous process which has to take into account feedback from the stakeholders and the changing socio-economic context of the country. The Committee further notes the Government’s indication that a Tripartite Technical Committee (TTC) was recently established to suggest and identify areas for amendment of the BLA and that after several meetings, an initial draft of the BLA was prepared. The Government states that in November 2017, a further tripartite committee for amendment of the BLA was formed by the Ministry of Labour and Employment (MOLE) and prepared a report with recommendations on how to address the pending ILO observations. While welcoming these initiatives to review the BLA, the Committee regrets that the proposed amendments do not address the Committee’s long-standing concerns with regard to comprehensive protection against acts of interference and that, as a result, protection in this regard remains limited: section 202(13) of the BLA prohibits employer’s interference in the conduct of elections for a collective bargaining agent and Rule 187(2) of the Bangladesh Labour Rules (BLR) prohibits interference in elections of workers’ representatives to participation committees but these provisions do not cover all acts of interference prohibited under Article 2 of the Convention. The Committee requests the Government to take all necessary measures to ensure that the need for explicit provisions granting full protection against acts of interference is given adequate attention in the ongoing review of the BLA, so as to ensure that workers’ and employers’ organizations are effectively protected against acts of interference both in law and in practice. The Committee expects that the social partners will be fully consulted in this process and firmly hopes that the Government will be able to report progress in this regard in the near future.

Lack of legislative protection against acts of interference in the EPZs. In its previous comment, having observed that neither the EWWAIRA nor the EPZ Labour Act contained a comprehensive protection against acts of interference in trade union affairs, the Committee requested the Government to take the necessary measures, in consultation with the social partners, to review the relevant legislation in this respect. The Committee welcomes the initiative to review the EPZ Labour Act mentioned above and notes that while the draft contains certain provisions prohibiting interference by workers’ and employers’ organizations in each other’s internal affairs (sections 114(1)(f) and 115(3)), they do not cover all acts of interference prohibited under Article 2 of the Convention. The Committee requests the Government to take the necessary measures to continue to review the relevant legislation, in consultation with the social partners, so as to ensure a comprehensive protection against all acts of interference of workers’ and employers’ organizations in each other’s establishment, functioning or administration, including acts designed to promote the establishment of workers’ organizations under the domination of an employer, to support workers’ organizations by financial or other means with the objective of placing them under the control of an employer or an employers’ organization, to exercise pressure in favour or against any workers’ organization, etc.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee requested the Government to provide information on the practical application of section 202A(1) of the BLA, which enables collective bargaining agents and employers to contact experts for assistance in collective bargaining. The Committee notes that the Government simply reiterates the content of the provision without providing any information as to its application in practice. The Committee, therefore, requests the Government once again to indicate whether and how section 202A(1) of the BLA has been used in practice in the context of collective bargaining.

The Committee further notes the information provided by the Government in relation to the Committee’s previous concerns as to the possible undermining of trade unions by participation committees, in particular that section 205(6a) of the BLA was adopted to redress the interests of workers in an establishment where there is no trade union and their function is thus to improve workers’ welfare and not to substitute for trade unions, that under the proposed amendment to section 205 of the BLA, there will be no need to establish a participation committee where there is a trade union and that should any concrete allegations of participation committees undermining trade unions be brought to the Government’s attention, it will take the necessary measures to remedy the situation.

The Committee also observes that, according to the ITUC, Rule 4(4) of the BLR gives the Inspector General total discretion to shape the outcome of service rules and determine their conformity with the law, whereas such rules are often the subject of collective bargaining in enterprises with trade unions, and that Rule 202, which prohibits certain trade union activities is drafted so broadly as to impinge on the right to freedom of association and collective bargaining, as any bargaining on wages, hiring and transfers could constitute a prohibited action. The Committee requests the Government to provide information on the application of Rule 202 in practice, in particular, to indicate whether collective bargaining has been prohibited, suspended or penalized as a result of the application of this provision and to ensure that Rule 4(4) is not used to limit collective bargaining in enterprises where trade unions are established.

Higher-level collective bargaining. The Committee had previously requested the Government to consider, in consultation with the social partners, amending sections 202 and 203 of the BLA in order to clearly provide a legal basis for collective bargaining at the industry, sector and national levels and to continue to provide statistics on the number of higher-level collective agreements concluded, the areas of industry to which they apply and the number of workers covered. The Committee notes that the Government reiterates that there is no restriction on settlement of disputes and different issues through bipartite negotiation or conciliation at industry, sector or national levels and indicates that between September 2013 and 2016, 41 collective bargaining agreements were concluded. While taking note of the information provided, the Committee observes that no legislative changes have been introduced to the relevant provisions despite the ongoing review of the BLA and requests the Government once again to consider, in consultation with the social partners, amending sections 202 and 203 of the BLA to clearly provide a legal basis for collective bargaining at the industry, sector and national levels. Further observing that the information provided by the Government lacks certain elements previously called for, the Committee requests the Government to continue to provide statistics on the number of higher-level collective agreements concluded (at the sectoral and national levels), the areas of industry to which they apply and the number of workers covered.

Determination of collective bargaining agents. The Committee had previously noted that where there is more than one trade union in an enterprise, a collective bargaining agent will be determined, upon application by a trade union or the employer, through a secret ballot and that the trade union that secures the highest number of votes will be declared as the collective bargaining agent, providing that it obtains the votes of at least one third of the total workers employed in the establishment (section 202(15) of the BLA). The Committee had recalled that such percentage requirements for the recognition of a collective bargaining agent could impair in certain cases, in particular in large enterprises, the development of free and voluntary collective bargaining but had observed the Government’s indication that the percentage requirement had been repealed. The Committee observes, however, that section 202(15) still provides that a trade union may not become a collective bargaining agent unless it obtains the votes of at least one third of the total number of workers employed in the establishment. The Committee therefore requests the Government to provide clarification on the exact requirements for a trade union to become a collective bargaining agent and recalls that if, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, unions should be able to bargain collectively, at least on behalf of their own members.

Compulsory arbitration. The Committee observes that according to the proposed amendments to section 210(10)–(12) of the BLA, if an industrial dispute is not settled through conciliation, the conciliator shall refer the dispute to an arbitrator, whose award is final without any possible appeal. The Committee recalls in this regard that the imposition of arbitration with compulsory effects in cases where the parties have not reached an agreement is one of the most radical forms of intervention by the authorities in collective bargaining and is contrary to Article 4 of the Convention which aims at promoting free and voluntary collective bargaining. Arbitration with compulsory effects should only be possible where both parties agree to it, or in essential services in the strict sense of the term, in disputes in the public service involving public servants engaged in the administration of the State (Article 6 of the Convention) or in the event of acute national or local crisis. The Committee requests the Government to take the necessary measures to ensure that any proposed amendment takes into account the situations enumerated above.

Promotion of collective bargaining in the EPZs. In its previous comment, the Committee requested the Government to provide examples of collective bargaining agreements concluded in the EPZs and to continue to provide statistics in this regard. The Committee notes the Government’s indication that as of November 2017, WWAs have been formed and are active in 74 per cent of eligible enterprises and that during the last four years, WWAs submitted 411 charters of demands, all of which were settled amicably and agreements were signed, thus demonstrating that EPZ workers enjoy the right to collective bargaining. Further observing that section 175(c) of the draft EPZ Labour Act allows the Executive Chairperson of the Zone Authority to determine the legitimacy of any WWA and its capacity to act as a collective bargaining agent, the Committee recalls that the determination of bargaining agents should be carried out by a body offering every guarantee of independence and objectivity. The Committee requests the Government to provide information on any cases where the Executive Chairperson rejected the legitimacy of a WWA and its capacity to act as a collective bargaining agent, and further requests the Government to take the necessary measures to ensure that the determination of collective bargaining agents in EPZs is the prerogative of an independent body. The Committee requests the Government to continue to provide statistics on the number of collective bargaining agreements concluded in the EPZs and the number of workers covered, along with some sample agreements.

Emphasizing the desirability of providing equal protection to workers in EPZs and outside the zones in terms of the right to organize and bargain collectively, the Committee requests the Government to continue to review the draft EPZ Labour Act, in consultation with the social partners, to bring it in line with the BLA (as revised in line with the Committee’s comments) and the Convention.

Articles 4 and 6. Collective bargaining in the public sector. In its previous comments, the Committee requested the Government to provide details on the manner in which organizations of public servants not engaged in the administration of the State can bargain collectively and copies of any agreements reached. The Committee notes the Government’s statement that in some public sector organizations, agencies and corporations, employees below the rank of officers who usually perform non-administrative jobs are allowed to negotiate through employees’ associations, whose elected representatives can submit claims to the competent authority, which evaluates them in the socio-economic context of the country. According to the Government, this system of negotiation has been practiced for a long time without any major objection from the employees, an administrative appellate tribunal has been established to settle disputes in the public service and aggrieved persons may also appeal to High Courts and Supreme Courts. Observing that, according to the Government, collective bargaining only takes place in some public sector organizations and agencies and is only allowed for lower ranking officers, the Committee recalls that recognition of the right to collective bargaining is general in scope and all workers in the public and private sectors must benefit from it, with the only possible exception of the armed forces, the police and public servants engaged in the administration of the State. In view of the above, the Committee requests the Government to clarify what specific categories of workers in the public sector can bargain collectively and to indicate the criteria based on which this right is granted. The Committee requests the Government to take the necessary measures to endeavour to extend the right to collective bargaining to all public sector workers covered by the Convention and to provide examples of collective agreements concluded in the public sector.