Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s reply to the comments on the application of the Convention made by the International Trade Union Confederation (ITUC) in 2009. It further notes the comments submitted by the National Level Trade Union Federation of Workers (NCCWE), sent along with the Government’s report, stating that there is a weak implementation of labour law in general, and more particularly an unwillingness of employers to recognize trade unions and collective bargaining. The Committee requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection of workers in export processing zones (EPZs) against anti-union discrimination. In its previous comments, the Committee had noted that in its 2009 communication, the ITUC referred to numerous problems concerning the application of the Convention in the EPZ sector, particularly in the garment industry. The ITUC further stated that although the law provides for the establishment of an EPZ labour tribunal and an EPZ labour appellate, these two bodies had yet to be established, thus denying workers access to the judicial system for their grievances. The Committee had requested the Government to provide information in respect of these matters, including information on the number of complaints of anti-union discrimination in the EPZ sector submitted to the competent authorities, as well as the outcomes of those complaints.

As concerns the 2009 ITUC comments on harassment, dismissal and violence against workers in the EPZ sector, the Committee notes that the Government indicates in its report that the Bangladesh EPZ Authority (BEPZA) is not aware of any harassment, dismissal and violence against workers in the EPZ sector.

As concerns the establishment of an EPZ Labour Tribunal and an EPZ Labour Appellate, the Committee had previously noted that according to the Government, EPZ workers could seek judicial redress in cases of anti-union discrimination. The Committee notes that the Government indicates in its present report that it has decided to allow the existing labour courts of the country (established under the Labour Act, 2006) to dispose of EPZs industrial disputes and settle the workers’ complaints, by incorporating necessary modifications in sections 56 and 59 of the EPZ Workers Welfare Association and Industrial Relation Act (EWAIR Act 2004) (the EPZ labour law). In this respect, the Committee further notes that the EWAIR Act 2004, as amended by the EWAIR Act 2010 is now in the process of being adopted by the Parliament. In these circumstances, the Committee requests the Government to indicate any development in this regard in its next report and to provide a copy of the EWAIR Act 2010, once adopted.

Article 2. Lack of legislative protection against acts of interference. The Committee had previously noted that the Labour Act 2006 did not contain a prohibition of acts of interference designed to promote the establishment of workers’ organizations under the domination of employers or their organizations, or to support workers’ organizations by financial or other means with the object of placing them under the control of employers or their organizations, and had requested the Government to indicate the measures taken to adopt such a prohibition. The Committee notes the Government’s indication that protective measures are laid down in the Labour Act, particularly in sections 195 and 196 concerning “unfair labour practice on the part of the employer”, and that such act by the employer is an offence punishable under section 291 of the Labour Act, which provides that such offence is punishable by imprisonment for a term which may extend two years or with a fine of up to 10,000 Taka, or both. The Committee further notes the Government’s indication that the Tripartite Labour Law Review Committee (TLLRC) may consider adopting a more comprehensive prohibition, as requested by the Committee. In these circumstances, the Committee requests the Government to indicate in its next report the measures taken or contemplated so as to adopt a comprehensive prohibition that covers acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs. The Committee hopes that as a first step, the TLLRC will include in its recommendations that a comprehensive prohibition covering acts of financial control of trade unions or trade union leaders, as well as acts of interference in internal trade union affairs should be adopted.

Article 4. Legal requirements for collective bargaining. In its previous comments, the Committee had referred to section 179(2) of the Labour Act, which provides that a trade union may only obtain registration if it represents 30 per cent of the workers in an establishment, as well as to section 202(15) of the Labour Act, which provides that if there is more than one trade union in an enterprise, the Director of Labour shall hold a secret ballot to determine the collective bargaining agent. The Committee notes that according to the Government, there is no percentage requirement for the recognition of a collective bargaining agent. However, the Committee notes that section 202(15)(e) of the Labour Act provides that the trade-union that secures the highest votes is declared as the collective bargaining agent, providing that no trade union shall be declared to be the collective bargaining agent unless it obtains the votes of at least one third of the total workers employed in the establishment. The Committee recalls once again that the percentage requirements for registration of a trade union, and for the recognition of a collective bargaining agent set out in sections 179(2) and 202(15) of the Labour Act 2006, may impair in certain cases, in particular in respect of large enterprises, the development of free and voluntary collective bargaining. The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all unions in this unit, at least on behalf of their own members (see the General Survey, paragraph 241). In these circumstances, the Committee requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that, where no union represents one third of the employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

The Committee further notes that according to NCCWE, collective bargaining is limited as there is no legal provision for collective bargaining at the industry, sector or at national levels. The Committee requests the Government to provide its observations in this regard.

Promotion of collective bargaining in the EPZs. In its previous comments, the Committee had requested the Government to provide information on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded and the number of workers they cover. The Committee notes the Government’s indication that 274 enterprises are eligible for workers’ associations among 325 in operation and that workers’ associations referendums were held in 198 enterprises – or 72.3 per cent of the total number of eligible enterprises. However, no additional information was provided by the Government concerning the conclusion of collective agreements. The Committee therefore requests the Government to provide information in its next report on the extent of collective bargaining in the EPZ sector, including statistics on the number of collective agreements concluded since 2008, and the number of workers they cover.

Tripartite wages commissions in the public sector. The Committee recalls that in its previous comments, it had requested the Government to take the necessary legislative or other measures to end the practice of determining wage rates and other conditions of employment in the public sector by means of government-appointed tripartite wages commissions (section 3 of Act No. X of 1974). The Committee notes that the Government indicates in its report that this system does not prevent free and voluntary collective bargaining. Nevertheless, the Committee, while recognizing the singularity of the public sector which allows special modalities, considers that simple consultation with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. Therefore, the Committee urges the Government to take the necessary measures to end the practice of determining wage rates and other conditions of employment of public servants not engaged in the administration of the State by means of government-appointed tripartite wages commissions, so as to favour free and voluntary negotiations between workers’ organizations and employers or their organizations. The Committee once again requests the Government to indicate any measures taken or contemplated in this regard.