Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

The Committee notes the Government's reports. It also notes the observations of the Bangladesh Workers' Federation (BWF) and of the Bangladesh Employers' Association (BEA).

For a number of years the Committee has raised 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; and

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

Managerial and administrative functions

The Committee has pointed out that section 2(b)(viii) of the Industrial Relations Ordinance, 1969 excludes from the definitions of "worker" and "workmen" persons who are employed in a managerial or administrative capacity or who exercise functions of a managerial or administrative nature. This has the consequence that such persons are denied the right of association which is set out in section 3(a) of the Ordinance. However, both the Government and the BEA have stated that such workers are covered by the definition of "employer" in section 2(b)(viii), whose right of association is protected by section 3(b) of the Ordinance. The Committee has pointed out, as it does in paragraph 131 of its 1983 General Survey, that forbidding such persons to join unions representing other workers may not be incompatible with the requirements of the Convention so long as they have the right to form and join their own organisations to defend their interests, and that the categories of managerial staff are not so "broadly defined that the organisations 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".

As in its previous observations, the BEA states that "if the supervisors and the supervised are allowed to jointly form trade unions then there will be no supervision and administration".

The Committee has repeatedly asked the Government and/or the BEA to provide details as to the numbers of workers affected by these exclusions, and as to the number and size of organisations which have been formed in order to represent the interests of such workers. In its report, the Government indicates that some 3 per cent of workers in the public sector are employed in a managerial or administrative capacity, but that no figures can be supplied in relation to the private sector. The Government has not provided any information in relation to the number or size of trade unions which have been established in order to represent the interests of managerial or administrative employees. In the continuing absence of any indication to the contrary, the Committee can only conclude that law and practice in Bangladesh in this regard are not in conformity with the guarantees provided by Article 2 of the Convention.

Right of association of public servants

The Committee has noted on several occasions that with certain limited exceptions, public servants are excluded from the scope of the Industrial Relations Ordinance. It is true that they are permitted to form and join associations for purposes of ventilating their grievances and promoting their interests - however, such associations are subject to certain constraints in relation to their activities which do not apply to other trade unions.

The Committee has repeatedly pointed out that these restrictions are not in conformity with the requirements of Articles 2 and 3 of the Convention, and has called upon the Government to introduce the changes necessary to bring the law and practice into full conformity with these provisions. In its report, the Government indicates that it has noted the observations of the Committee on this point, but it does not give any indication that it proposes to introduce the changes requested by the Committee. The Committee notes with regret this continued failure to give effect to the requirements of the Convention.

Restrictions upon the right to join or to hold office in trade unions

For a number of years the Committee has been asking the Government to amend section 7A(1)(b) of the Industrial Relations Ordinance by permitting a "reasonable proportion" of the officers of a trade union to be persons who are not current or former employees in the trade or industry concerned. The Government has consistently stated that, as amended in 1985, this provision is in conformity with the Convention. The Committee remains of the view that it is not, and again asks the Government to introduce amendments to provide for greater flexibility in relation to office-holding in trade unions.

The Government indicates that section 3 of Act No. 22 of 1990 provides that a worker who is dismissed for misconduct shall not be entitled to be a member or officer of a trade union. The Government considers that this provision is desirable in the interests of healthy industrial relations. The BEA also considers that statutory provision providing for the association of dismissed workers "obsessed with retaliation will defeat the very purpose of collective bargaining". The Government has not supplied a copy of Act No. 22 of 1990. The Committee asks it to do so at the earliest opportunity. In the meantime the Committee would point out that whilst it has accepted that 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 (1983 General Survey, paragraph 164), it considers that individuals should not be excluded from holding office simply because they have been dismissed from their employment for misconduct. A fortiori, the Committee considers that individuals should not be excluded from union membership simply because they have been dismissed for misconduct.

External supervision

The Committee had asked the Government to indicate whether 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 is subject to judicial review. The Government has indicated that the powers of the Registrar under section 10 of the Industrial Relations Ordinance are subject to judicial review by virtue of section 10(3), but it has not provided any reply in relation to the 1977 rules. It is asked to provide such a response in its next report.

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 these provisions have achieved their purpose of preventing the growth of a multiplicity of trade unions, and that section 7(2) is used by the unions themselves to keep the number of unions in each establishment or group of establishments to a maximum of three. The Government further indicates that section 7(2) has been amended so as to facilitate the grouping of establishments controlled by the same employer. It has not provided the text, or the date, of this amendment.

The Committee has consistently taken the view that where the law prescribes a minimum number of members for purposes of establishing a trade union that number "ought to be limited to a reasonable figure so that the establishment of organisations is not hindered" (1983 General Survey, paragraph 123). It has also taken the view that a 30 per cent figure is excessive for these purposes (ibid., paragraph 124). Accordingly, the Committee must again call upon the Government to introduce amendments to bring its law and practice relating to the registration of trade unions into conformity with what the Committee has always regarded as one of the most important principles enshrined in the Convention (ibid., paragraph 120). It also asks the Government to supply the text of the recent amendments to section 7(2) of the Industrial Relations Ordinance.

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

In its comments, the BWF states that section 11A of the Bangladesh Export Processing Zones Authority Act, 1980, denies workers in export processing zones the right to form and join trade unions. The Government confirms that this provision does indeed enable it to exempt a zone from the operation of all or part of the Industrial Relations Ordinance. It goes on to explain that employers in such zones are found to be paying wages and other benefits which are above the national average, and that accordingly "the Government does not consider it expedient to allow formation of trade unions for the time being". The Committee considers that this provision is not compatible with the guarantees provided by Articles 2 and 3 of the Convention and, in particular, with the right of all workers without distinction whatsoever to establish and join organisations of their own choosing, and it urges the Government to amend section 11A of the 1980 Act so as to bring it into conformity with the requirements of the Convention.

Denial of the right to organise of certain groups of workers

The BWF states that the Government has introduced legislation to prevent the establishment of trade unions by employees of the Rural Electrification Board, the Civil Aviation Authority and the Jute Research Institute. It also alleges that the Government had "decided to outlaw" the Bangladesh Bank Security Printing Press Workers and Employees Union.

The Government has not commented on the allegations relating to the Rural Electrification Board, the Civil Aviation Authority and the Jute Research Institute. It does confirm, however, that the Industrial Relations Ordinance was amended in 1990 so as to exclude from its operation any person employed by the Security Printing Press. This press is owned by the Government, and is responsible for printing bank notes and minting currency. In view of its importance to national security it was considered necessary to place the press outside the scope of the Industrial Relations Ordinance. Once this had been done it followed that the registration of the Bangladesh Bank Security Printing Press Workers and Employees Union had to be cancelled.

The Committee must point out 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. The employees of the Security Printing Press do not fall into either of these categories. Accordingly, the Committee must call upon the Government to restore to workers employed by the Security Printing Press the rights guaranteed by the Convention. It also asks the Government to indicate whether it is true that workers employed by the Rural Electrification Board, the Civil Aviation Authority and the Jute Research Institute have been denied the right to form or join the unions of their choice.

The Committee asks the Government to reconsider the situation as a whole in the light of the above comments and to report any measures that are taken in order to bring its law and practice into conformity with the Convention.

[The Government is asked to supply full particulars to the Conference at its 78th Session.]