Observation (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes the Government's report.

1. Legal restrictions on termination of employment

In comments made for a number of years the Committee has noted that under the Essential Services (Maintenance) Act, No. LIII of 1952, it is an offence punishable with imprisonment for up to one year, for any person in employment (of whatever nature) under the central Government to terminate his employment without the consent of his employer, notwithstanding any express or implied term in his contract providing for termination by notice (section 3, section 5(1)(b), Explanation 2, and section 7(1)). Pursuant to section 3 of the Act, these provisions may be extended to other classes of employment. Similar provisions are contained in the Essential Services (Second) Ordinance, No. XVI of 1958 (sections 3, 4(a) and (b), and 5). The Committee asked the Government to indicate the measures taken or envisaged in respect of these provisions to ensure the observance of the Convention.

In its report the Government once again has indicated that there are sufficient protective measures in the provisions of the Factory Act, the Payment of Wages Act, the Shops and Establishments Act, and the Essential Services (Maintenance) Act, No. LIII of 1952. The Government refers in particular to the notice to be given and wages to be paid in lieu of notice by employers terminating employment of a permanent worker. The Committee takes due note of these legal requirements. As it has previously pointed out, however, these tend to protect workers in case of dismissal, while the Convention is concerned with a different situation, namely, the case of workers wishing to leave their employment on their own initiative.

The Committee notes the Government's statement that temporary restrictions on termination of employment to secure the supply of community services should not be construed as forced or compulsory labour and are permissible under Article 9 of the Convention.

In this respect, the Committee observes that under Article 1, paragraph 1, of the Convention, each Member of the ILO which ratifies it undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period; Article 9 of the Convention is part of a whole set of provisions establishing the conditions and guarantees under which, in exceptional cases and with a view to its complete suppression, forced labour could be used during a transitional period (Article 1, paragraph 2, and Articles 4 to 24 of the Convention). Since the Convention, adopted in 1930, calls for the suppression of forced labour within the shortest possible period, to invoke at the current time (67 years after its adoption) that certain forms of forced or compulsory labour comply with one of the requirements of this set of provisions, is to disregard the transitional function of these provisions and contradict the spirit of the Convention.

In the view of the Committee, use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention.

The Committee notes the Government's statement that, as advised by the Committee, the legislation will be re-examined. The Committee hopes that the Government will, without further delay, take the measures necessary to bring the Essential Services (Maintenance) Act, No. LIII of 1952, and the Essential Services (Second) Ordinance, No. XLI of 1958, into conformity with the Convention.

2. Children in bondage

Child domestic workers

In its previous comments the Committee referred to information brought before the Working Group on Contemporary Forms of Slavery of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, alleging that children of underprivileged classes were exploited, inter alia, as domestic workers in private houses, bidi and tobacco factories and that the protective legislative and constitutional provisions were not implemented.

The Committee expressed the hope that the Government would provide information on measures taken or envisaged, following the Asian Regional Seminar on Children in Bondage (Pakistan, 23-26 November 1992), when the programme of action against child bondage was adopted, as concerns the situation, for instance, of children working "unseen" as domestic servants. Referring to Article 25 of the Convention, under which measures must be taken to ensure that penalties imposed by law are really adequate and strictly enforced, the Committee expressed the hope that the Government would provide detailed information on inspections carried out, on proceedings brought and convictions made, and on penalties imposed on the child labour exploiters.

The Committee notes that in its latest report, the Government states that Bangladesh has no bonded labour; however, in order to eliminate the "insignificant amount" of child labour in the garment sector, it signed a Memorandum of Understanding (MOU) with the ILO/International Programme on the Elimination of Child Labour (IPEC) in October 1994. The Government further indicates that under IPEC, 24 projects had been implemented since 1995, and that 24 other projects were under implementation in various fields in 1996. The Government points out that the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) has signed a separate MOU with UNICEF and the ILO with a view to rehabilitating terminated child workers from the garment sector. According to the Government, various programmes under this MOU are also being implemented under the supervision of ILO/IPEC, UNICEF and the Government.

The Committee has taken note of the concluding observations by the United Nations Committee on the Rights of the Child on the report submitted by Bangladesh (UN doc. CRC/C/66, 6 June 1997). That Committee expresses its concern (paragraph 147) "about the large number of children who are working, including in rural areas, as domestic servants as well as in other areas of the informal sector. It is concerned that many such children work in hazardous and harmful conditions, and are often vulnerable to sexual abuse and exploitation".

The Committee has also taken note of a communication dated 29 October 1997 through which the World Confederation of Labour submitted comments on the application of the Convention, and to which it attached a number of documents, including "Child domestic workers: Is servitude the only option?", published by Shoishab Bangladesh. A copy of this communication was dispatched to the Government on 13 November 1997 so that it could make any comments it deemed appropriate.

According to these allegations, the phenomenon of child domestic workers in Bangladesh is a complex situation that evolves from certain social practices that have remained unchallenged, and from the socio-economic realities of the country. The age of the child domestic workers ranges from 8 to 16. However, if a mother is a domestic servant in a household, often her very young children get drawn into child domesticity before they know of any other lifestyle. Child domestic workers are predominantly female. The tasks expected or demanded of them are open-ended or, at best, ill-defined. Working hours are equally vague, and often remuneration is not discussed clearly and openly. The child domestics' relationship with their employers varies widely. However, in all cases, the employer has total power over all aspects of their lives.

According to the allegations, the phenomenon of child domesticity in Bangladesh needs to be considered with the situation of domestic workers in general. In this well-developed subculture there are several categories of workers, including the bandha, the chhuta, skilled domestics, and the pichchis. The bandha domestic workers are live-in and full time. "Bandha" literally means "tied-down". These are servants who are exclusively engaged in one household, having wide-ranging activities, and almost no limit to their working hours. They are provided accommodation, often within the household. The quality of accommodation depends on the economic conditions and social attitudes of the employer. This group includes all categories, i.e., children (boys and girls), men and women. Depending on gender and age, the range of their work may vary, but they are expected to be involved in every chore, indoor and outdoor. The category of chhuta, meaning "non-bound", consists of domestic workers who work part time, do several specific and usually well-defined activities, and have their own households, as do skilled domestics. The pichchis, or "tiny ones", have an independent association with the employers. They run various errands for all members of the family and have no other specific or defined responsibilities. Their major problem is that this work is perceived as not being substantial, while they face constant conflicting demands from different members of the family throughout the day. The pichchis are made up of comparatively more boys than girls, are live-in servants with food provided, and usually receive no regular cash payments. All child domestics really fall within the categories of bandha and pichchis.

The allegations indicate that child domestics have very wide-ranging activities which are difficult to classify into well-defined categories. However, one can arrive at a simplified classification of two broad areas: labour-intensive tasks and the running of errands. Labour-intensive tasks may stretch over all waking hours of the day, and include sweeping, washing, dusting, floor polishing, cooking and helping to cook, grinding spices, washing clothes, etc. As for running errands, child domestics are always on call by every family member to perform any task. These jobs are often tedious, but child domestic workers are expected always to be on their toes, never be tired, and always on their best behaviour. As these are small and isolated activities, they are never perceived as real work.

The child domestic workers are perceived as servants with endless working hours. According to the allegations, even when domestic workers have completed their assigned chores, such as washing clothes, cleaning the house, washing kitchen utensils, cooking or grinding spices, employers still have power over their time. They cannot plan to utilize their "free" time according to their needs or wishes, because they are always on call for all types of large and small jobs, even fetching a glass of water. They can be called upon at any time throughout the day or night. Even young girls can be awakened in the middle of the night for any type of job, from providing food for unexpected guests to helping care for a sick baby throughout the night. According to the allegations, child domestic workers do not have any regular holidays or any days off. No one recognizes a child domestic's need or right to have any time or means for recreation. Even if the employer's family goes on a holiday, the domestic accompanies them in her usual role.

The allegations indicate that no matter what the socio-economic conditions of the employing families, the age of the domestic workers, or the strenuousness of the chores, the workers' daily routine is the same. They wake before anyone else in the household and are the last to go to sleep. When the family goes out on social visits, the employer will offer the services of the domestic worker to the host family, which can be seen as an extension of social courtesy on the part of the guest family. Society sees the children as the property of the employer, and 24 hours a day, 365 days a year, the domestic servant's status remains unchanged. The allegations indicate that, from a very impressionable age, domestic workers live within a family, totally devoid of any rights, surrounded by their own loneliness. This is the definition of child domestic work. In exchange for this lifestyle of duties, they get food, shelter, clothing and treatment depending on the socio-economic status of the employing family, as well as their attitudes and beliefs. The child domestics are often the recipients of all forms of verbal abuse and sometimes even physical abuse. They are also often under threat of dismissal and being thrown into the street to a vagrant life.

According to the allegations, the employer holds total power and control over the lives of child domestic workers, and the key perception of child domestics of themselves is that this life of servitude is their fate.

The Committee requests the Government to provide full information on these allegations. It urges the Government to take strong and effective measures to eradicate forced labour of children and to report on the measures adopted or contemplated.

3. Trafficking

The Committee has taken note of the report submitted by the Government of Bangladesh to the United Nations Committee on the Elimination of Discrimination against Women (UN doc. CEDAW/C/BGD/3-4, 1 April 1997), in which the Government states that "the phenomenon of trafficking seems to be increasing" (paragraph 2. 5), and that "in most cases trafficking is for prostitution or leads to prostitution". The Government, referring to a non-governmental source, reports that "about 200,000 women and children have been trafficked to the Middle East in the last 20 years. Different human rights activists and agencies estimate 200-400 young women and children are smuggled out every month, most of them from Bangladesh to Pakistan". The Government reports that trafficking "is carried out by regional gangs who are well organized and who have links with the various law-enforcing agencies, which is why only a very small percentage of the traffickers are caught or the victims recovered".

The Government states that it "is aware of the problem of trafficking and has taken up measures to prevent it. One such measure is the strengthening of border posts ... Another measure is the strengthening of legislation and increasing punishments for trafficking". It adds that "there is a need for stronger action against members of law-enforcing authorities who are themselves involved in trafficking" (paragraph 2.5.1 of the same document). The Committee notes that, according to the Government's report, the penalties imposed under section 8 of the Women and Child Repression (Special Provisions) Act, 1995, for trafficking and associated offences include life imprisonment and fines.

The Committee notes from the IPEC Trimester report (May 1997) that the Ministry of Women and Children's Affairs, in collaboration with ILO-IPEC and UNICEF, agreed in early 1997 to implement a country-wide programme on trafficking of children, and that the Government has participated in a number of recent national or local seminars, workshops, and conferences, including a workshop on trafficking of children in February 1997.

The Committee has taken note of the concluding observations by the United Nations Committee on the Rights of the Child on the report submitted by Bangladesh (UN doc. CRC/C/66, 6 June 1997). In its conclusions the Committee expresses "its serious concern about the occurrence of trafficking and sale of children". The Committee considers that "(l)ack of enforcement and failure to implement existing legislation at all levels, from law-enforcement agencies to the judiciary, need to be addressed".

Referring to Article 25 of the Convention, under which the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and the ratifying State must ensure that penalties imposed by law are really adequate and strictly enforced, the Committee requests the Government to provide full information on penalties imposed, copies of court decisions, and the results achieved through the different initiatives taken by the Government to ensure that not only the legislation but also its implementation complies with the provisions of the Convention.

4. Allegations concerning the situation in the garment industry

The Committee also notes allegations presented by the World Confederation of Labour in the communication mentioned above, relating to the situation in the garment industry. According to the trade union's allegations, "the Bangladesh garment industry employs more than 1 million workers, mainly women and children ... The legal minimum wages are rarely ever paid; forced overtime is commonplace but is compensated at below the legal rate. Bangladesh workers have a legal right to Friday as a holiday, but employers do not observe it and they frequently fire workers who demand it; and workers go for months on end without receiving any salary".

The Committee asks the Government to provide detailed comments on these allegations.