Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Bangladesh (Ratification: 1972)

Autre commentaire sur C087

Observation

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The Committee takes note of the observations provided by the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2016. The Committee takes notes of the response of the Government to the 2015 ITUC observations and requests the Government to provide its comments on the latest ITUC communication with regard to issues covered by the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2016 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government to: (i) undertake amendments to the 2013 Labour Act to address the issues relating to freedom of association and collective bargaining identified by the Committee of Experts, paying particular attention to the priorities identified by the social partners; (ii) ensure that the law governing the export processing zones (EPZs) allows for full freedom of association, including the ability to form employers’ and workers’ organizations of their own choosing, and to allow workers’ organizations to associate with workers’ organizations outside the EPZs; (iii) investigate as a matter of urgency all acts of anti-union discrimination, ensure the reinstatement of those illegally dismissed, and impose fines or criminal sanctions (particularly in cases of violence against trade unionists) according to the law; and (iv) ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set forth in the law. The Conference Committee also invited the Government to implement the recommendations of the 2016 high-level tripartite mission together with the social partners. The Committee also takes note of the report of the high-level tripartite mission.

Civil liberties. In its previous comment, the Committee expressed trust that all perpetrators and instigators responsible for violence against trade unionists would be identified, brought to trial and punished so as to prevent the repetition of such acts, and requested the Government to provide information on the outcome of the ongoing trials and investigations, including in relation to the 2012 murder of a trade unionist and the alleged violence against the secretary-general of another trade union. The Committee notes the Government’s statement that any reported case of violence against trade unionists is handled by law enforcement agencies in line with the national legislation, but that in situations of violence or vandalism public and private property must be protected and those involved in such acts must be interrogated. The Government adds that measures are taken during such proceedings to avoid any form of harassment or disruption of trade union activities. The Committee regrets that, despite having replied to the 2015 ITUC observations, the Government does not address the specific incidents of violence against trade unionists alleged therein and fails to provide concrete information on the results of investigations or proceedings in this regard, including in relation to the 2012 murder of a trade unionist. The Committee further notes with concern the new allegations of specific incidents of violence and use of force against trade unionists in the latest ITUC communication, as well as its general allegations that since 2013, trade union leaders have suffered violent retaliation by their employers, have been harassed and intimidated and that the police routinely fail to carry out credible investigations into such cases of anti-union violence. The Committee requests the Government to provide detailed information on the outcome of investigations and trials into serious allegations of violence and harassment, including those reported by the ITUC in its 2015 and 2016 communications.

In its previous comment, the Committee also noted the development of a helpline for submission of labour-related complaints targeting the ready-made garment (RMG) sector in the Ashulia area and requested the Government to provide further information on its expansion into other geographical areas and statistics on its use, the precise nature of the follow-up to calls and the number of cases resolved. The Committee notes the Government’s indication that between December 2015 and May 2016, a total of 490 complaints were received through the helpline from RMG sector workers in the targeted area. The Government adds that many complaints were also received from other geographical areas and industrial sectors and that the operation of the helpline should be expanded to all sectors. Welcoming this information, the Committee requests the Government to continue to provide information on further expansion of the helpline, as well as statistics on its use, including the precise nature of the follow-up to calls, the number and nature of investigations undertaken and violations found and the number of cases resolved.

Article 2 of the Convention. The right to organize. Registration of trade unions. In its previous comments, the Committee expressed trust that the online registration system would facilitate resolution of registration applications expeditiously and requested the Government to continue to provide statistics on the registration of trade unions and the specific legislative obstacles invoked for causes of denial. The Committee notes the Government’s indication that: (i) the amendment of the Bangladesh Labour Act (BLA) in 2013 simplified the registration process and, up to August 2016, a total of 960 new trade unions have been registered, out of which 385 in the RMG sector, and 21 new trade union federations until August 2016; (ii) from March 2015, when the online registration system was introduced, a total of 512 online applications were received; and (iii) in 2016, the percentage of successful registration applications amounted to 58 per cent in the Dhaka Division and 38 per cent in the Chittagong Division, which presented an increase in comparison to previous years. While taking due note of the reported increase in the percentage of trade unions registered in 2016, the Committee observes that according to this information almost half of trade union applications in the Dhaka Division and almost three quarters of applications in the Chittagong Division have been rejected over the past year. Furthermore, the Committee notes that according to the ITUC, the approval of trade union applications remains at the absolute discretion of the Joint Director of Labour (JDL) and, even when registration is granted, factory management often seeks injunctive relief from courts to stay union registration, thus freezing union activity for several months pending the final hearing on the issue. The Committee also observes that the high-level tripartite mission, which visited Bangladesh in April 2016, noted that the procedure for registration of trade unions and its practical application were heavily bureaucratic and had the likelihood of discouraging trade union registration and of intimidating workers, especially the extensive steps taken by the Ministry of Labour and Employment with respect to name verification (comparison of signatures in the registration application and the employers’ list of workers, as well as individual interviews with workers to verify authenticity of their signatures). The report of the mission further observed that the combination of the broad discretionary powers of the JDL when processing applications for registration, the lack of transparency on the reasons for rejection and delays in judicial proceedings have led to an increased rejection of registration requests and a decreasing registration of trade unions over the past few years. The Committee requests the Government to provide information on the reasons for which such a high number of registration applications were refused in 2016 and to continue to provide statistics on the registration of trade unions and the use of the online registration application. The Committee further requests the Government to take any necessary measures to ensure that the registration process is a simple formality, which should not restrict the right of workers to establish organizations without previous authorization. In this regard, it recalls the recommendations of the high-level tripartite mission that invited the Government to devise standard operating procedures to render the registration process a simple formal requirement not subjected to discretionary authority and to establish a public database on registration to improve transparency in handling registration applications. The Committee trusts that when taking measures to facilitate the registration process, the Government will take fully into account the Committee’s comments, as well as the conclusions of the Conference Committee and the high-level tripartite mission.

Minimum membership requirements. As regards the existing 30 per cent of the enterprise minimum membership requirement in the BLA, the Committee requested the Government to review sections 179(2), 179(5) and 190(f) of the BLA with the social partners with a view to their amendment and to provide information on the progress made in this regard. Regretting the absence of Government information on this point, the Committee must again recall its deep concern that workers are still obliged to meet this excessive requirement for initial and continued union registration; and that unions whose membership falls below this number will be deregistered. Emphasizing that such a high threshold for merely being able to form a union and maintain registration violates the right of all workers, without distinction whatsoever, to form and join organizations of their own choosing provided under Article 2 of the Convention, the Committee reiterates its previous request to the Government.

The Committee also noted that Rule 167(4) of the Bangladesh Labour Rules appeared to introduce a new minimum membership requirement of 400 workers to establish an agricultural trade union, a requirement which was not set out in the BLA itself. It therefore requested the Government to clarify the implications of this Rule and, if it was shown that it restricted the right to organize of agricultural workers, to modify the Rule so as to align it with the BLA and in any case to lower the requirement to ensure conformity with the Convention. The Committee notes the Government’s indication that the 2013 amendment of the BLA provided agricultural workers the right to form trade unions and that Rule 167(4) is applicable to workers engaged in field crop production who can form groups of establishments. According to the Government, any inconsistency with the Convention can be corrected through consultation with the stakeholders. The Committee requests the Government once again to clarify whether Rule 167(4) of the Bangladesh Labour Rules establishes a minimum membership requirement of 400 workers, and if so, to align it with the BLA and in any event lower it to ensure conformity with the Convention. The Committee requests the Government to report on all developments in this regard.

Articles 2 and 3. Right to organize, elect officers and carry out activities freely. For a number of years, the Committee had requested the Government to review the following provisions of the BLA to ensure that restrictions on the exercise of the right to freedom of association and related industrial activities are in conformity with the Convention and to indicate steps taken to this effect: scope of the law (sections 1(4), 2(49) and (65), and 175); restrictions on organizing in civil aviation and for seafarers (sections 184(1), (2) and (4), and 185(3)); restrictions on organizing in groups of establishments (section 183(1)); restrictions on trade union membership (sections 2(65), 175, 185(2), 193 and 300); interference in trade union activity (sections 196(2)(a) and (b), 190(e) and (g), 192, 229(c), 291 and 299); interference in trade union elections (sections 196(2)(d) and 317(d)); interference in the right to draw up their constitutions freely (section 179(1)); excessive restrictions on the right to strike (sections 211(1), (3), (4) and (8), and 227(c)), accompanied by severe penalties (sections 196(2)(e), 291, and 294–296); excessive preferential rights for collective bargaining agents (sections 202(24)(c) and (e), and 204); and cancellation of trade union registration (section 202(22)) as well as excessive penalties (section 301). The Committee deeply regrets that the Government has once again failed to provide information on the steps taken to review the abovementioned provisions of the BLA and notes that the Government simply indicates that the review of the BLA in 2013 involved tripartite consultations with workers and employers, as well as the ILO, and that both the BLA and the Bangladesh Labour Rules were framed in a manner to better fit the socio-economic conditions of the country. The Committee, also noting the conclusions of the Conference Committee, urges the Government, in consultation with the social partners, to review and amend the mentioned provisions to ensure that restrictions on the exercise of the right to freedom of association are in conformity with the Convention.

Bangladesh Labour Rules. In its previous comment, the Committee also raised a number of issues concerning the conformity of the Bangladesh Labour Rules with the Convention. The Committee noted with concern that Rule 188 provided a role for the employer in the formation of the election committees to conduct the election of worker representatives to participation committees in the absence of a union. The Committee also noted that Rule 202 restricted, in a very general manner, the actions that can be taken by trade unions and participation committees, and that there was no rule providing appropriate procedures and remedies for unfair labour practice complaints. Observing the Government’s commitments undertaken within the framework of the implementation of the European Union, United States and Bangladesh Sustainability Compact, the Committee requested the Government to indicate steps taken to ensure that workers’ organizations were not restricted in the exercise of their internal affairs and that unfair labour practices were effectively prevented. The Committee also requested the Government to clarify the impact of Rule 169(4) (eligibility for membership to the union executive committee), which refers to the notion of permanent workers, on the right of workers’ organizations to elect their officers freely. The Committee notes the Government’s indication that its commitments undertaken within the Sustainability Compact are regularly monitored and that any intervention in the exercise of internal affairs or unfair labour practices is notified immediately. The Committee also notes, as indicated by the ITUC, that Rule 190 prohibits casual workers, apprentices, seasonal and subcontracted workers from voting for the worker representatives to participation committees, and Rule 350 gives the Director of Labour broad powers to enter union offices to inspect the premises, books and records and to question any person about the fulfilment of the union’s objectives. In this regard, the Committee recalls that the rights under the Convention are granted to all workers without distinction or discrimination of any kind, including to apprentices, temporary and subcontracted workers; and that the autonomy, financial independence, protection of the assets and property of organizations are essential elements of the right to organize administration in full freedom (supervision is compatible with the Convention only when it is limited to the obligation of submitting annual financial reports, verification based on serious grounds to believe that the actions of an organization are contrary to its rules or the law and verification called for by a significant number of workers; it would be incompatible with the Convention if the law gave authorities powers to control which go beyond these principles, or which over-regulate matters that should be left to the trade unions themselves and their bylaws – see General Survey of 2012 on the fundamental Conventions, paragraphs 109–110). In the absence of concrete information from the Government on the issues raised, the Committee requests the Government to undertake any necessary measures to ensure that, under the Bangladesh Labour Rules, workers’ organizations are neither restricted nor subject to interference in the exercise of their activities and internal affairs, that unfair labour practices are effectively prevented and that all workers, without distinction whatsoever, may participate in the election of representatives.

Article 5. The right to form federations. The Committee had previously noted the Government’s indication that section 200(1) of the BLA, which sets the requirement of the minimum number of trade unions to form a federation to five, was a result of tripartite consensus and requested the Government to provide information on the right of trade unions to form federations, including on the number of federations formed since the amendment of the BLA and as to whether any complaints have been made in relation to the impact that this provision has had on the right of workers’ organizations to form the federation of their own choosing. The Committee notes the Government’s indication that since the amendment of the BLA in 2013 until August 2016, 21 new trade union federations have been registered.

Right to organize in EPZs. In its previous comments, the Committee urged the Government once again to resubmit the law governing the EPZs for full consultations with the workers’ and employers’ organizations in the country with a view to enacting new legislation for the EPZs in the near future, which would be fully in conformity with the Convention. The Committee notes the Government’s indication that: (i) up until June 2016, out of 409 eligible enterprises in the EPZs, referendums were held in 304 enterprises, and workers in 225 enterprises opted to form a workers’ welfare association (WWA); (ii) WWAs are actively performing as collective bargaining agents and from January 2013 to December 2015 submitted 260 charters of demands, which were all settled amicably and concluded by the signing of agreements; (iii) after a wide range of consultations with the elected worker representatives in the EPZs, investors and other relevant stakeholders, adoption of a comprehensive Bangladesh EPZ Labour Act is at the final stage – the draft Act was approved by the Cabinet and is in the process of adoption by Parliament; and (iv) the opinions put forward by the social partners were addressed within the limits of the socio-economic conditions in the country in conformity with international labour standards. While recognizing that the draft EPZ Labour Act represents an effort to provide the zones with protection similar to that provided outside the zones and in many areas reproduces the provisions of the BLA, the Committee observes that the sections concerning freedom of association and unfair labour practices mainly transpose into the draft the EPZ Workers’ Association and Industrial Relations Act (EWWAIRA) of 2010, which has been addressed by this Committee for a number of years due to its non-conformity with the Convention and that, according to the ITUC, workers’ representatives were not consulted in the process. Further observing that the scheme of industrial relations in the EPZs is more restrictive than the one outside the zones under the BLA, the Committee notes that the following provisions of the draft EPZ Labour Act are not in conformity with the Convention: the imposition of a trade union monopoly at enterprise and industrial unit levels (sections 94(2) and 106); excessive minimum membership and referendum requirements to create a WWA – 30 per cent of workers have to demand formation of a WWA, 50 per cent of eligible workers have to cast a vote in the referendum and more than 50 per cent of the votes cast must be in favour of formation of a WWA (sections 95(1), 96(2)–(3)); prohibition to establish a WWA during one year after a failed referendum (section 98); interference of the Zone Authority in internal union affairs: formation of a committee to draft the constitution (section 99(2)); approval of funds from an outside source (section 100(2)); approval of WWAs constitutions (section 101); organization and conduct of elections to the Executive Council of WWAs (sections 97(1) and 109(1)); approval of the Executive Council (section 110), and determination of the legitimacy of a WWA (section 119(c)); restriction of WWA activities to zones thus banning any engagement with actors outside the zones, including for training or communication (section 108(2)); legislative determination of the tenure of the Executive Council (section 111); elimination of the possibility for WWAs to join together in a federation (section 108(3) and the deletion of previous draft section 113); possibility to deregister a WWA at the request of 30 per cent of eligible workers even if they are not members of the association (section 115(1)); prohibition to establish WWAs during one year after the deregistration of a previous WWA (section 115(5)); cancellation of a WWA on grounds which do not appear to justify the severity of the sanction (section 116(1)(c) and (e)–(h)); prohibition to function without registration (section 118); prohibition of strike or lock-out for four years in a newly established industrial unit and imposition of obligatory arbitration (section 135(9)); excessive penalties, including imprisonment, for illegal strikes (sections 160(1) and 161); severe restrictions on the exercise of the right to strike – possibility to prohibit strike or lock-out after 15 days or at any time if the continuance of the strike or lock-out causes serious harm to productivity in the Zone or is prejudicial to public interest or national economy (section 135(3)(4)); prohibition of activities not specified in the Constitution and prohibition of any connection with any political party or any non-governmental organization (section 177(1)–(2)); the power of the Zone Authority to exempt any employer from the provisions of the Act making the rule of law a discretionary right (section 182); excessive requirements to form an association of employers (section 121); prohibition of an employer association to maintain any relation with another association in another zone or beyond the zone (section 121(2)); and excessive powers of interference in employers’ associations’ affairs (section 121(3)). The Committee also notes that section 199 provides the possibility for the Zone Authority to establish regulations, which may further restrain the right of workers and their organizations to carry out legitimate trade union activities without interference, and that Chapter XV on administration and labour inspection, including the maintenance of counsellor-cum-inspector under the supervision of the Zone Authority, run counter to the notion of independent government authority to apply the laws fairly. In light of these considerations, the Committee is of the view that the mentioned provisions of the draft EPZ Labour Act would need to be significantly amended or replaced in order to be brought into conformity with the Convention. Recalling that both the Conference Committee and the high-level tripartite mission requested the Government to ensure that any new legislation for the EPZs allows for full freedom of association, including the right to form free and independent trade unions and to associate with the organizations of their own choosing, and emphasizing the desirability of a harmonization of the labour law throughout the country which would ensure that the rights, inspection, judicial review and enforcement are equal for all workers and employers, the Committee requests the Government to address all the issues noted, encouraging it to consider replacing Chapters IX, X and XV of the draft Act by Chapter XIII of the BLA (as revised in line with the Committee’s comments), thereby providing equal rights of freedom of association to all workers and bringing the EPZs within the purview of the labour inspectorate (Chapter XX of the BLA). The Committee requests the Government to provide information on any measures taken to bring the draft EPZ Labour Act into conformity with the Convention.

In its previous comment, the Committee requested the Government to indicate which labour laws were applicable to Special Economic Zones (SEZs) and ensured the rights under the Convention. Noting the Government’s indication that pending the enactment of a new law, the EWWAIRA is applicable to these zones, the Committee expresses concern at the fact that the EWWAIRA, which has been repeatedly addressed by the Committee due to its non-conformity with the Convention, is rendered applicable to other designated economic zones, rather than seeking to guarantee full freedom of association rights to all workers under a common legal regime. In view of its comments concerning the draft EPZ Labour Act and of concerns raised as to the limitation of freedom of association rights through the proliferation of special legal regimes, the Committee invites the Government to reconsider the adoption of a separate labour law for the SEZs and to opt instead for the application of the BLA, as revised in line with the Committee’s comments. The Committee trusts that, irrespective of the legislation applicable, all freedom of association rights under the Convention will be fully guaranteed to workers in SEZs.

In view of the above, the Committee once again recalls the critical importance which it gives to freedom of association as a fundamental human and enabling right and expresses its firm hope that significant progress will be made in the very near future to bring the legislation and practice into conformity with the Convention.

[The Government is asked to reply in full to the present comments in 2017.]