Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes with regret that the Government’s report has not been received and takes note of the discussion that took place at the Conference Committee on the Application of Standards in June 2008.

The Committee recalls that in its previous comments it took note of an extensive list of serious violations of workers’ basic civil liberties which, according to the International Trade Union Confederation (ITUC), had been committed in 2006 in the context of a strike and a riot in the garment sector and a reported harsh crackdown by the army’s rapid action battalion; the ITUC had also referred to the death of a striking worker, numerous arrests of trade union leaders, the raiding of trade union offices and police harassment.

The Committee takes note of the comments made by the ITUC in a communication dated 29 August 2008, with regard to alleged violations committed in 2007 including the arrest and detention of the General Secretary of Dhaka University Teachers’ Association (DUTA) and intimidation of unions by the military and security forces, the Government and employers. The Committee also notes that despite a tripartite agreement signed on 12 June 2006 to withdraw cases lodged against the workers in 2006 and release the arrested persons in Gazipur, Tongi, Savar and Ashulia Police Stations, Cases Nos 49/06, 50/06 and 51/06 against workers which are under the jurisdiction of the Joydevpur Police Station are yet to be withdrawn.

The Committee notes from the statement of the Government representative to the Conference Committee that all those arrested had been released on bail and the Government was not actively pursuing their cases. There were over 5,000 factories in the country with 2.5 million workers and it was not easy to maintain law and order in all of the factories. The Government was committed to ensuring law and order in factories with the utmost restraint.

The Committee regrets that the Government has not provided full particulars in respect of all the allegations of arrest, harassment and detention of trade unionists and trade union leaders as requested by the Conference Committee. Recalling that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular, the Committee once again requests the Government to provide full particulars in respect of all the allegations of arrest, harassment and detention of trade unionists and trade union leaders.

Furthermore, the Committee reiterates its previous requests for information on: (i) measures taken, including instructions given to the law enforcement authorities, so as to avoid the danger of excessive violence in trying to control demonstrations, and ensure that arrests are made only where criminal acts have been committed; (ii) the charges brought in 2004 against 350 women trade unionists, including the General Secretary of the JSL’s Women’s Committee, Shamsur Nahar Bhuiyan and all judicial decisions taken in this matter; and (iii) the measures taken to ensure the prompt registration of Immaculate (Pvt) Ltd Sramik Union.

The Committee notes that according to the latest communication by the ITUC, throughout 2007 the Joint Director for Labour (JDL) who is responsible for registering new trade unions refused to take any actions on pending union registration applications, particularly in the textiles sector, thereby effectively denying workers their right to association and bargain collectively; the ITUC also refers to processes initiated to deregister the Bangladesh Garments and Industrial Sramik Federation (BGIWF) and threats to deregister two other federations which cooperated with the petition of the AFL–CIO lodged before the Office of the US Trade Representative seeking the revocation of Generalized System of Preferences (GSP) privileges for Bangladesh. The Committee requests the Government to provide its observations in this regard and to indicate the number of trade unions registered in 2007, particularly in the textile sector, as well as the current status of the BGIWF.

The Committee also recalls that its previous comments concerned the following issues.

Right to organize in export processing zones (EPZs). The Committee notes that according to the previous comments made by the ITUC, the Bangladesh Export Processing Zones Authority (BEPZA) continued to raise obstacles to the establishment of workers’ associations in EPZs after the deadline of
31 October 2006 set in section 13(1) of the Industrial Relations Act 2004; although after this deadline, workers had the right to apply to form workers’ associations the BEPZA allegedly failed to devise and provide the prescribed form needed by the workers to this effect, thus preventing in practice the establishment of such associations; the ITUC adds in its latest communication that following the filing of the AFL–CIO petition on the revocation of GSP privileges, delaying tactics at BEPZA relented and workers were provided the opportunity to register their intent to form workers’ associations and participate in elections to formally establish them; in the final months of 2007, many workers’ associations went through the election process, frequently with over 90 per cent of the workers in favour; nevertheless, employers continued to refuse to substantively accept their role or to enter into negotiations with them. The Committee requests the Government to communicate its observations in this regard and to provide statistical information on the number of workers’ associations established in the EPZs after 1 November 2006.

The Committee further recalls that the EPZ workers’ associations and Industrial Relations Act 2004, contains numerous and significant restrictions and delays in relation to the right to organize in EPZs and, in particular:

(i)     provides that workers’ associations will not be allowed in industrial units established after the commencement of the Act, until a period of three months has expired after the commencement of commercial production in the concerned unit (section 24);

(ii)     provides that there can be no more than one workers’ association per industrial unit (section 25(1));

(iii)    establishes excessive and complicated minimum membership and referendum requirements for the establishment of workers’ associations (a workers’ association may be formed only when a minimum of 30 per cent of the eligible workers of an industrial unit seek its formation, and this has been verified by the Executive Chairperson of BEPZA, who shall then conduct a referendum on the basis of which the workers shall acquire the legitimate right to form an association under the Act, only if more than 50 per cent of the eligible workers cast their vote, and more than 50 per cent of the votes cast are in favour of the formation of the workers’ association (sections 14, 15, 17 and 20);

(iv)    confers excessive powers of approval of the constitution drafting committee to the Executive Chairperson of the BEPZA (section 17(2));

(v)    prevents steps for the establishment of a workers’ association in the workplace for a period of one year after a first attempt failed to gather sufficient support in a referendum (section 16);

(vi)    permits the deregistration of a workers’ association at the request of 30 per cent of the workers even if they are not members of the association and prevents the establishment of another trade union for one year after the previous trade union was deregistered (section 35);

(vii)   provides for the cancellation of the registration of a workers’ association on grounds which do not appear to justify the severity of this sanction (such as contravention of any of the provisions of the association’s constitution) (sections 36(1)(c), (e)–(h) and 42(1)(a));

(viii)  establishes a total prohibition of industrial action in EPZs until 31 October 2008 (section 88(1) and (2)); provides for severe restrictions of strike action, once recognized (possibility to prohibit a strike if it continues for more than 15 days or even before this deadline, if the strike is considered as causing serious harm to productivity in the EPZ (section 54(3) and (4));

(ix)    prevents workers’ associations from obtaining or receiving any fund from any outside source without the prior approval of the Executive Chairperson of the BEPZA (section 18(2));

(x)    establishes an excessively high minimum number of trade unions to establish a higher level organization (more than 50 per cent of the workers’ associations in an EPZ (section 32(1));

(xi)    prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs (section 32(3)); and

(xii)   does not seem to afford guarantees against interference with the right of workers to elect their representatives in full freedom (e.g. the procedure of election shall be determined by the BEPZA, etc. (sections 5(6) and (7), 28(1), 29 and 32(4)).

The Committee once again requests the Government to take the necessary measures to amend the EPZ workers’ associations and Industrial Relations Act so as to bring it into conformity with the Convention and to provide detailed information in its next report in this respect.

Other discrepancies between national legislation and the Convention. The Committee recalls that for many years it had been referring to serious discrepancies between the national legislation and the Convention. It now notes the adoption of the Bangladesh Labour Act 2006 (the Labour Act) which replaced the Industrial Relations Ordinance 1969 (section 353(1)(x)).

The Committee notes with deep regret that the new Act does not contain any improvements in relation to the previous legislation and in certain regards contains even further restrictions which run against the provisions of the Convention. Thus, the Committee notes the following:

–      the need to repeal provisions on the exclusion of managerial and administrative employees from the right to establish workers’ organizations (section 2 XLIX and LXV of the Labour Act) as well as new restrictions of the right to organize of fire-fighting staff, telex operators, fax operators and cipher assistants (exclusion from the provisions of the Act based on section 175 of the Labour Act);

–      the need to either amend section 1(4) of the Labour Act or adopt new legislation so as to ensure that the workers in the following sectors, which have been excluded from the scope of application of the Act including its provisions on freedom of association, have the right to organize: offices of or under the Government (except workers in the Railway Department, Posts, Telegraph and Telephone Departments, Roads and Highways Department, Public Works Department and Public Health Engineering Department and the Bangladesh Government Press); the security printing press; establishments for the treatment or care of the sick, infirm, aged, destitute, mentally disabled, orphans, abandoned children, widows or deserted women, which are not run for profit or gains; shops or stalls in public exhibitions which deal in retail trade; shops in any public fair for religious or charitable purposes; educational, training and research institutions; agricultural farms with less than ten workers; domestic servants; and establishments run by the owner with the aid of members of the family. In case any of the above sectors are already covered by existing legislation, the Committee requests the Government to provide information in this respect;

–      the need to repeal provisions which restrict membership in trade unions and participation in trade union elections to those workers who are currently employed in an establishment or group of establishments, including seafarers currently engaged in merchant shipping (section 2 LXV and 175, 185(2) of the Labour Act);

–      the need to repeal or amend new provisions which define as an unfair labour practice on the part of a worker or trade union, an act aimed at “intimidating” any person to become, continue to be or cease to be a trade union member or officer, or “inducing” any person to cease to be a member or officer of a trade union by conferring or offering to confer any advantage and the consequent penalty of imprisonment for such acts (sections 196(2)(a) and (b) and 291 of the Labour Act); the Committee considers that the terms “intimidating” or “inducing” are too general and do not sufficiently safeguard against interference in internal trade union affairs, since, for instance, a common activity of trade unions is to recruit members by offering advantages, including with regard to other trade unions;

–      the need to repeal provisions which prevent workers from running for trade union office if they were previously convicted for compelling or attempting to compel the employer to sign a memorandum of settlement or to agree to any demand by using intimidation, pressure, threats, etc. (sections 196(2)(d) and 180(1)(a) of the Labour Act);

–      the need to lower the minimum membership requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments for initial and continued union registration, as well as the possibility of deregistration if the membership falls below this number (sections 179(2) and 190(f) of the Labour Act); the need to repeal provisions which provide that no more than three trade unions shall be registered in any establishment or group of establishments (section 179(5) of the Labour Act) and that only one trade union of seafarers shall be registered (section 185(3) of the Labour Act); finally, the need to repeal provisions prohibiting workers from joining more than one trade union and the consequent penalty of imprisonment in case of violation of this prohibition (sections 193 and 300 of the Labour Act);

–      the need to repeal provisions denying the right of unregistered unions to collect funds (section 192 of the Labour Act) upon penalty of imprisonment (section 299 of the Labour Act);

–      the need to lift several restrictions on the right to strike: requirement for three-quarters of the members of a workers’ organization to consent to a strike (sections 211(1) and 227(c) of the Labour Act); possibility of prohibiting strikes which last more than 30 days (sections 211(3) and 227(c) of the Labour Act); possibility of prohibiting strikes at any time if a strike is considered prejudicial to the national interest (sections 211(3) and 227(c) of the Labour Act) or involves a public utility service including the generation, production, manufacture, or supply of gas and oil to the public, as well as railways, airways, road and river transport, ports and banking (sections 211(4) and 227(c) of the Labour Act); prohibition of strikes for a period of three years from the date of commencement of production in a new establishment, or an establishment owned by foreigners or established in collaboration with foreigners (sections 211(8) and 227(c) of the Labour Act); penalties of imprisonment for participation in – or instigation to take part in unlawful industrial action or go-slow (sections 196(2)(e) and 291, 294–296 of the Labour Act);

–      the need to repeal provisions which provide that no person refusing to take part in an illegal strike shall be subject to expulsion or any other disciplinary measure by the trade union, so as to leave this matter to be determined in accordance with trade union rules (section 229 of the Labour Act);

–      the need to amend new provisions which define as an unfair labour practice on the part of workers, an act of compelling or attempting to compel the employer to sign a memorandum of settlement or to accept or agree to any demand by using “intimidation”, “pressure”, “threat” so as to ensure that there is no interference with the right of trade unions to engage in activities like collective bargaining or strikes, and to repeal the consequent penalty of imprisonment for such acts (sections 196(d) and 291(2) of the Labour Act);

–      the need to amend provisions which impose a penalty of imprisonment for failure to appear before the conciliator in the framework of settlement of industrial disputes (section 301 of the Labour Act).

The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to bring the Labour Act 2006 into full conformity with the provisions of the Convention.

The Committee also notes that it is not clear from the provisions of the Labour Act whether rule 10 of the Industrial Relations Rules 1977 (IRO) which previously granted the Registrar of Trade Unions overly broad authority to enter trade union offices, inspect documents, etc., without judicial review, has been repealed. It would appear from section 353(2)(a) that the rule remains in force, as the section in question provides that any rule under any provision of the repealed laws (including the IRO) shall have effect until altered, amended, rescinded or repealed, so far as it is not inconsistent with the provisions of the Labour Act 2006. The Committee requests the Government to indicate in its next report whether rule 10 of the IRO has been repealed by the entry into force of the Labour Act 2006 and, if not, to indicate the measures taken or contemplated with a view to its repeal or amendment.