Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Forced child labour and trafficking of children. In its earlier comments the Committee raised its concern 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, often in hazardous and harmful conditions, and in conditions that resemble servitude. The Committee urged the Government to examine the situation of child domestic workers in light of the Convention, to communicate all information on the working conditions of child domestic workers and on the modalities of their employment, as well as on all measures taken or envisaged to protect such children from forced labour. The Committee also expressed its concern about the alarming increase of child trafficking from Bangladesh, primarily to India, Pakistan and certain other countries, largely for purposes of forced prostitution, although in some cases for labour servitude, and asked the Government to provide information on measures to prevent child trafficking and to combat it.

The Committee has noted the Government’s reply to its previous observation on the subject, as well as the communication received in September 2002 from the International Confederation of Free Trade Unions (ICFTU) concerning the issue of trafficking. It notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), and has already sent its first report on the application of that Convention. In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee is of the view that the issues of trafficking of children and forced labour of children working as domestics can be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to refer to its comments on the application of Convention No. 182.

Trafficking in persons. The Committee previously noted that the Ministry of Women and Children Affairs, in collaboration with the ILO-IPEC and UNICEF, had adopted a countrywide programme on the prevention of trafficking of women and children. It also noted the adoption of the Supervision of Violence Against Women and Children Act, 2000, which repealed the Oppression of Women and Children (Special Provisions) Act of 1995.

In its latest report, the Government indicates that continuous programmes are being adopted by organizing seminars, workshops, conferences, etc., in order to make people aware of the problem of trafficking and measures to be taken to prevent it, and that radio, television and newspapers publish news and articles with current information to increase awareness of the people. The Committee requests the Government to describe such programmes in more detail and communicate copies of any relevant reports, articles, etc., as well as any other information concerning awareness-raising and prevention measures.

Law enforcement. As regards law enforcement, the Committee previously noted from the 2001 report of the United Nations Special Rapporteur on violence against women, its causes and consequences, submitted to the United Nations Commission on Human Rights at its 57th Session (E/CN.4/2001/73/Add.2), that "though the law provides severe penalties for trafficking, few perpetrators are punished. … Exact numbers of charges against traffickers are difficult to obtain and traffickers are usually charged for lesser crimes, such as crossing the border without the correct documentation" (paragraph 63). The Committee has also noted that in the communication received in September 2002 from the ICFTU referred to above, the ICFTU shares the concern of the United Nations Special Rapporteur and expresses the view that the legislation has not been effective in preventing trafficking of women and children from Bangladesh, partly because of the fact that the legislation is not being properly enforced.

Recalling that, under Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced, the Committee hopes that appropriate measures will be taken by the Government in order to strengthen the law enforcement mechanism and that the Government will supply information on the number of trafficking offences reported, the number of prosecutions initiated and the number of convictions obtained, indicating the penalties imposed. The Government is also asked to provide information on the manner in which the Suppression of Violence Against Women and Children Act, 2000, is applied in practice, and to supply a copy the Act.

The Committee requests the Government to continue to provide information on the progress achieved in the implementation of the multisectoral action programme against trafficking of the MOWCA and on the progress of the Law Commission it has set up to review existing laws and enact new ones to safeguard women’s rights and to prevent violence against women including trafficking.

Restrictions on freedom of workers to terminate employment. In its earlier comments, the Committee has drawn attention to the fact that, under the Essential Services (Maintenance) Act, No. LIII of 1952, termination of employment by any person employed by the central Government without the consent of the employer is punishable with imprisonment for up to one year, notwithstanding any express or implied term in the contract of employment providing that the employee may freely, and with notice, terminate his or her employment (sections 3, 5(1)(b) and Explanation 2, and section 7(1)). Pursuant to section 3 of the Act, these provisions apply to every employment under the central Government and to any employment or class of employment declared by the Government to be an essential service. Similar provisions are contained in the Essential Services (Second) Ordinance, No. XLI of 1958 (sections 3, 4(a) and (b) and 5).

The Committee referred to the explanations provided in paragraphs 67 and 116 of its General Survey of 1979 on the abolition of forced labour, where it pointed out that workers may be prevented from leaving their employment in emergency situations within the meaning of Article 2, paragraph 2(d), of the Convention, i.e. any circumstances that would endanger the life, personal safety or health of the whole or part of the population; but, even regarding employment in essential services whose interruption would endanger the existence or the well-being of the whole or part of the population, provisions depriving workers of the right to terminate their employment by giving notice of reasonable length are not in conformity with the Convention.

The Committee has noted the Government’s indication in the report that the proposed new Labour Code which is now under active consideration will help to resolve many ILO queries and to bring national provisions into conformity with the ratified Conventions. It expresses firm hope that the necessary measures will at last be taken to repeal or amend the Essential Services (Maintenance) Act, No. LIII of 1952, and the Essential Services (Second) Ordinance, No. XLI of 1958, and that legislation will be brought into conformity with the Convention on this point.