Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bangladesh (Ratification: 1972)

The Committee notes the information provided by the Government in its report, as well as the oral information supplied by the Government to the Conference Committee in June 1995 and the detailed discussion which took place thereafter. The Committee recalls that its previous comments concerned 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;

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

- denial of the right to organize of workers in export processing zones; and

- restrictions on the right to strike.

Managerial and administrative functions

In its previous observation, the Committee had noted the Government's statement that, while persons carrying out managerial or administrative functions were excluded from the definition of "worker" in the Industrial Relations Ordinance, 1969 (IRO), and thus denied the right of association set out in section 3(a) of the IRO, such persons could form associations in order to further their professional interests. The Committee had requested the Government to indicate which legislative provisions granted the right of association to persons carrying out managerial and administrative functions, and to provide information on the number and size of such associations.

The Government states in its report that the Bangladesh Civil Service Administration Association has about 6,000 members and the Bangladesh Civil Service Economic Association about 600 members, while other such associations exist for difference cadres and non-cadres.

The Committee notes, however, that the Government still does not indicate which legislative provisions grant the right of association to persons carrying out managerial and administrative functions in the private sector and requests it to do so in its next report. The Committee notes moreover that apart from providing some information on the two main associations, the Government confines itself to stating that "other such associations exist for different cadres and non-cadres". The Committee would once again request the Government to provide specific information in its next report on the number and size of "other such associations".

Right of association of public servants

The Committee notes the Government's reiteration that its legislation is in conformity with the requirements of the Convention with respect to public servants. In its previous comments, the Committee had noted the Government's statements that public servants, while not covered by the IRO, do have the right to form associations to advance their causes. The Committee had recalled, however, that such associations were subject to certain restrictions relating to their activities (in particular, as regards their rights to issue publications) by virtue of the Government Servants (Conduct) Rules, 1979, which were not in conformity with Articles 2 and 3 of the Convention. The Committee recalls that measures which impose prior restraint on the subject matter of trade union publications are contrary to the right of workers' organizations to organize their administration and activities and to formulate their programmes without interference from public authorities. The Committee requests the Government to indicate the measures taken or envisaged to bring these rules into conformity with the requirements of the Convention.

Furthermore, the Committee notes that the draft Labour Code would appear to continue to exclude workers at the Security Printing Press and public servants. The Committee expresses the firm hope that the necessary measures will be taken in the near future to ensure that all workers, without distinction whatsoever, are guaranteed the right to organize and requests the Government to indicate the progress made in this regard.

Restrictions on the range of persons who can hold office in trade unions

In its previous comments, the Committee had noted that section 7-A(1)(b) of the IRO prevented persons who were not current or former employees of an establishment or group of establishments from becoming members or officers of a trade union in such an establishment or group of establishments. Furthermore, with reference to section 3 of Act. No. 22 of 1990 amending the IRO which provides that a worker dismissed for misconduct shall not be entitled to become an officer of a trade union, the Committee had considered that the provisions were contrary to the right of workers' organizations to elect their representatives in full freedom.

According to the statement made by the Government representative to the Conference Committee, the admission of workers dismissed for misconduct, either as union members or officers, would hinder normal union activities as well as industrial peace and productivity. In the Government's view, section 7-A(1)(b) of the IRO promoted rather than restricted the right of workers to choose their representatives.

The Committee points out to the Government, however, that such legislation entails the risk of interference by the employer through the dismissal of trade union members or leaders for exercising legitimate trade union activities with the result (or even the intention) of depriving them in the future from holding a position as a trade union officer. The Committee therefore once again expresses the firm hope that the Government will ensure that these provisions are amended to provide for greater flexibility in relation to membership and the holding of trade union office by admitting as candidates persons who have previously been employed in the occupation (including workers who have been dismissed) or by exempting from occupational requirements a reasonable proportion of the officers of an organization.

External supervision

In its previous comments, the Committee had noted that 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, were not subject to judicial review. The Committee had drawn the Government's attention in this regard to paragraph 125 of its General Survey on freedom of association and collective bargaining in which it had considered that there was no infringement of the right of organizations to organize their administration if the supervision by the public authorities of the organization's financial situation was limited to the obligation to submit periodic financial reports or if there were serious grounds for believing that the actions of an organization were contrary to its rules or the law. In any event, the Committee had concluded that the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity.

The Government states in its report that any action of the Registrar can be challenged in a court of law.

The Committee requests the Government to indicate, in its next report, the legislative provisions that limit the Registrar's powers of supervision to verifying that the law and the organization's rules are respected. It further requests the Government to indicate the provisions that subject such powers of supervision to judicial review.

The 30 per cent requirement

For several years now, the Committee has been asking the Government to review sections 7(2) and 10(1)(g) of the IRO 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.

The Government states once again that this requirement helps check the multiplicity of trade unions in Bangladesh which would adversely affect workers' interests. In any event, in an establishment meeting this requirement, up to three unions could be registered. Moreover, there were provisions for determining a collective bargaining agent. It adds, however, that the recommendation of the National Labour Laws Commission (NLLC) in this regard is being considered by the Government.

The Committee, considering that these provisions restrict the right of all workers to organize, hopes that the necessary measures will be taken in the near future to ensure full conformity with Article 2 of the Convention and requests the Government to keep it informed of any progress made in this regard.

Denial of the right to organize in export processing zones

In its previous comments, the Committee had noted that amendments proposing the extension of the provisions of the IRO and other related laws to workers in export processing zones (EPZs) had not yet been adopted although some workers in these zones seemed to have been allowed to form trade unions in anticipation of these amendments.

The Committee notes from the Government's report that the NLLC has submitted a report on this issue which is being studied by the Government. This report would eventually be submitted as a Bill to Parliament. The Committee expresses the firm hope that the NLLC report recommends the complete extension of the provisions of the IRO and other related laws to workers in EPZs. It requests the Government to provide detailed information in this respect in its next report.

Restrictions on the right to strike

In its previous comments, the Committee had recalled the concerns which it had been raising over a number of years with respect to several provisions in the IRO which limited strikes and other forms of industrial action in a manner which was not in conformity with the principles of freedom of association. In particular: (i) the necessity for three-quarters of the members of a workers' organization to consent to a strike (section 28); (ii) the possibility of prohibiting strikes which last more than 30 days (section 32(2)) and of prohibiting a strike at any time if it is considered prejudicial to the national interest (section 32(4)) or involve a "public utility service" (section 33(1)); and (iii) the nature of the penalties which may be imposed in respect of participation in unlawful industrial action (sections 57, 58 and 59), including the possibility of imprisonment.

The Committee nevertheless had indicated that it was mindful of the difficulties which might arise during acute national crises. It had recalled that it had always recognized that in such cases the right to strike could be circumscribed for a limited period of time. Furthermore, strike action could be restricted or prohibited in relation to public servants exercising authority in the name of the State or for workers in essential services in the strict sense of the term, that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population or in the case of an acute national crisis. The Committee had considered, however, that the above-mentioned restrictions on strikes and other related actions in the IRO went beyond the above situations and categories of workers.

The Government states in its report that it has taken note of the Committee's comments in relation to this issue. The Committee expresses the firm hope that the Government will take the necessary steps in the near future to amend these provisions in order to bring them into full conformity with the Convention. It requests the Government to keep it informed of developments in this regard.

The Committee had noted previously that the tripartite National Labour Law Commission (NLLC) had undertaken a review of labour legislation and that a new Labour Code had been drafted. The Committee trusts that this draft Labour Code will fully take into account the Committee's comments on all of the points raised above. In this respect, it reminds the Government that the technical assistance of the International Labour Office is at its disposal if it so wishes.