Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

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 latest report. It 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 and the denial of the right to organize of certain groups of workers in a number of sectors of the economy, inter alia, rural electrification, civil aviation, jute research, bank security printing press;

-- 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.

The Committee notes with interest that the Government has been undertaking a review of its labour legislation by a tripartite National Labour Law Commission (NLLC) and that a new Labour Code has been drafted which would appear to extend coverage of the labour legislation, including the right to organize, to certain categories of workers previously excluded, such as the workers employed by the Civil Aviation Authority and those working at the Jute Research Institute. The Committee notes with regret, however, that a number of provisions in the previous legislation which were not in conformity with the Convention have remained unchanged in the draft Labour Code. It therefore expresses the firm hope that the Government will take the necessary measures to bring its legislation into conformity with the provisions of the Convention with respect to the following points.

Managerial and administrative functions

In its previous comments, the Committee had noted the Government's statement that, while persons carrying out managerial or administrative functions are excluded from the definition of "worker" in the Industrial Relations Ordinance, 1969, and thus denied the right of association set out in section 3(a) of the Ordinance, such persons can form associations in order to further their professional interests. The Committee recalled that forbidding such persons from joining unions representing other workers was not necessarily incompatible with the requirements of the Convention provided that they had the right to form their own organizations to defend their interests, and that the categories of managerial staff were not so broadly defined that the organizations of other workers in the establishment or branch of activity were weakened by being deprived of a substantial proportion of their actual or potential membership (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 87). The Committee once again requests the Government to indicate which legislative provisions ensure that persons carrying out managerial and administrative functions may establish and join their own associations to further their occupational interests, and to provide information on the number and size of such associations as well as their functions.

Right of association of public servants

The Committee notes the Government's indication 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 Industrial Relations Ordinance, 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, while noting that the draft Labour Code extends its coverage to workers in the Civil Aviation Authority and the Jute Research Institute, the draft 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 noted that section 7-A(1)(b) of the Industrial Relations Ordinance prevents persons who are 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 Industrial Relations Ordinance which provides that a dismissed worker shall not be entitled to become an officer of a trade union, the Committee considered that the provisions are contrary to the right of workers' organizations to elect their representatives in full freedom. It expresses the hope that, following the review of the labour laws, the Government will amend these provisions to provide for greater flexibility in relation to office-holding in trade unions 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 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 draws the Government's attention in this regard to paragraph 125 of its General Survey on Freedom of Association and Collective Bargaining in which it has considered that there is no infringement of the right of organizations to organize their administration if the supervision by the public authorities of the organization's financial situation is limited to the obligation to submit periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. In any event, the Committee has 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. Noting that there appear to be no limits to the Registrar's power under Rule 10(2) to inspect the account books of a registered union and that this power is not subject to any judicial review, the Government is requested to amend this provision according to the above-mentioned principles.

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 Industrial Relations Ordinance which impose, respectively, a membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments concerned for a union to be registered, and permit dissolution if membership falls below that level, in order to bring them into conformity with Article 2 of the Convention. The Government has once again indicated that it considers this requirement reasonable and adds that it helps check multiplicity of trade unions which adversely affects workers' interests. It adds, however, that the recommendation of the NLLC in this respect is being studied. The Committee, considering that these provisions extensively 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

The Committee notes with regret from the Government's report that the amendments proposing the extension of the provisions of the Industrial Relations Ordinance and other related laws to workers in export processing zones (EPZs) have not yet been adopted. While noting that some workers in these zones seem to have been allowed to form trade unions in anticipation of these amendments, the Committee once again requests the Government to indicate the number of workers' organizations which have already been set up in the EPZs, the size of their memberships and their functions, as well as to indicate the progress made in extending the coverage of the Industrial Relations Ordinance to these workers.

Restrictions on the right to strike

The Committee notes the statement in the Government's report that the economic condition of the country does not permit workers to go on frequent strike as this would pose a threat to maintaining their livelihood and cripple the economy. Nevertheless, the Committee must recall the concerns which it has been raising over a number of years with respect to several provisions in the Industrial Relations Ordinance which limit strikes and other forms of industrial action in a manner which is 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.

Mindful of the difficulties which might arise during acute national crises, the Committee recalls that it has always recognized that in such cases the right to strike may be circumscribed for a limited period of time. Furthermore, strike action may 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 considers, however, that the above-mentioned restrictions on strikes and other related actions in the Industrial Relations Ordinance go beyond the above situations and categories of workers. It 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.

The Committee would also remind the Government that the assistance of the International Labour Office is available on any of these points if so desired.