Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Workers’ and employers’ organizations comments. The Committee notes the Government’s reply to the comments submitted by the International Trade Union Confederation (ITUC) in previous years. With respect to ITUC allegations concerning acts of violence, physical assault and arrests of trade union leaders and trade unionists that participated in strikes in the garment sector, the Committee notes that the Government indicates that: (i) it is fully aware and committed to freedom of association free from violence, pressure or threats of any kind and that the labour situation has improved after lifting the state of emergency; (ii) some groups and persons were creating anarchy in industrial areas and were involved in criminal activities and in these circumstances, the police and intelligence agency have taken measures to maintain law and order situation and that people were arrested for criminal offences, not for taking part in trade union activities; (iii) to protect public properties and to clear the blockades organized in the garment sector, the law enforcement agencies had to interrogate some violence-creating persons, but they did not harass anyone, those actions were not aimed at harassing trade union leaders, nor to disrupt the trade union activities in the country and further, law enforcement agencies are performing their duties under directives and close supervision of the Ministry of Home Affairs; (iv) at that time, 350 women trade unionists, including the General Secretary of the Women’s Committee of the Jatiya Sramik League, were arrested as they were in the crowd but they were released after a while and no charges were brought against them; and (v) it believes that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind and that the laws do not allow any undue interference with trade union activities.

The Committee further notes the Bangladesh Employers’ Federation’s comments related to the ITUC’s allegations of acts of violence and that it indicated in particular that: (i) in the garment sector, trade unions are affiliated to different political parties and they act according to the instigated instruction of those political parties; (ii) killing, assaults and arrests are not at all desirable in workplaces; (iii) the reason of such undesirable acts is unawareness on the part of trade unions about the principle of freedom of association and that, therefore, workers carry out acts of vandalism, damage and blockade of the roads and highways for the realization of demands instead of negotiation or bipartite discussions; (iv) in such situation, the law enforcement authority has to enforce the law; and (v) under such circumstances, the workers as well as employers of the garment sector need to be educated through a process of training and awareness raising, which should explain the benefits of freedom of association to the workers’ and employers’ organizations. The Committee understands that the Government is availing itself of ILO technical assistance to raise awareness of freedom of association rights in the sector, and expects that this assistance will promote the full realization of these rights in the sector.

With respect to its request to indicate the status of the court case concerning the Bangladesh Garments and Industrial Sramik Federation (BGIWF) registration, the Committee notes that the Government indicates that the Department of Labour submitted the case for the cancellation of the registration of the BGIWF for violation of its constitution and unfair labour practice to the labour court in 2008 (No. 51 of 2008), and that the next hearing date was fixed on 16 November 2011. The Committee requests the Government to indicate in its next report the status of the registration of the BGIWF.

Finally, the Committee notes the comments submitted by the ITUC on 4 and 31 August 2011, concerning allegations of killings and physical assaults of protesters and arrests, detention, harassment and violence against trade union leaders notably in the garment sector, the maritime sector, the shrimp cultivation and processing industry and Export Processing Zones (EPZs) as well as the refusal by the Registrar of Trade Unions (RTU) to register new unions in the garment sector. The Committee requests the Government to take the necessary measures without delay to carry out investigations concerning these serious allegations with a view to determining responsibilities and punishing those responsible, and to provide full particulars in this respect.

Right to organize in EPZs. The Committee had previously noted the ITUC’s allegation that the Bangladesh Export Processing Zones Authority (BEPZA) continued to raise obstacles to the establishment of workers’ associations in EPZs. The Committee notes that in its 2011 comments, the ITUC indicates that, although the EPZ Workers’ Association and Industrial Relations Act (2004) provided for the formation of trade unions in the EPZs, an amendment of this law in 2010, only replaced the term “Workers’ Association” by “Workers’ Welfare Society”, which means that the right to form trade unions in EPZs remains far off. The Committee notes that the Government indicates that the BEPZA is doing its utmost to ensure that Workers’ Welfare Societies are established in all enterprises within the shortest possible time. The Committee requests the Government to: (i) provide information and statistics on the number of workers’ welfare societies established in the EPZs; and (ii) inform of all steps taken to amend legislation so that EPZ workers may fully exercise the rights guaranteed by the Convention.

The Committee further recalls that it had previously commented on the EPZ Workers’ Associations and Industrial Relations Act 2004, which contains numerous and significant restrictions and delays in relation to the right to organize in EPZs. The Committee noted that according to the Government, the BEPZA was aware of the Committee’s comments in this regard, which would be taken into consideration in the present review and amendment process of the EPZ Workers’ Associations and Industrial Relations Act 2004. The Committee notes with deep regret that in August 2010, the Parliament passed the EPZ Workers’ Welfare Society and Industrial Relations Act 2010 (EWWSIRA) without addressing any of its previous comments and that the EWWSIRA does not contain any real improvement in relation to the previous legislation.

In these circumstances, the Committee once again requests the Government to take all the necessary measures to bring the following provisions of the EWWSIRA into conformity with the Convention:

• -section 16, which provides that the Workers’ Welfare Society 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 17(1), which provides that there can be no more than one Workers’ Welfare Society per industrial unit;
• -sections 6, 7, 9 and 12, which establish excessive and complicated minimum membership and referendum requirements for the establishment of Workers’ Welfare Society (a Workers’ Welfare Society 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 the 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’ Welfare Society);
• -section 9(2), which confers excessive powers to the Executive Chairperson of the BEPZA concerning the approval of the Constitution Drafting Committee;
• -section 8, which prevents steps for the establishment of a Workers’ Welfare Society in the workplace for a period of one year after a first attempt failed to gather sufficient support in a referendum;
• -section 27, which permits the deregistration of a Workers’ Welfare Society 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 Workers’ Welfare Society for one year after the previous one was deregistered;
• -sections 28(1)(c), (e)–(h) and 34(1)(a), which provide for the cancellation of the registration of a Workers’ Welfare Society 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);
• -section 46(3) and (4), which establishes a total prohibition of industrial action in EPZs until 31 October 2013 (section 81(1) and (2)) and 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 10(2), which prevents a Workers’ Welfare Society from obtaining or receiving any funds from any outside source without the prior approval of the Executive Chairperson of the BEPZA;
• -section 24(1), which establishes an excessively high minimum number of associations to establish a higher level organization (more than 50 per cent of the Workers’ Welfare Societies in an EPZ);
• -section 24(3), which prohibits a federation from affiliating in any manner with federations in other EPZs and beyond EPZs; and
• -sections 20(1), 21 and 24(4), which do 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 is to be determined by the BEPZA).

The Committee also notes new subsection 4 of section 38 concerning check off facilities which stipulates that “the executive council at the beginning of the calendar year shall, with the accounts statement of the previous year, submit for approval the current year’s revenue budget containing income-expenditure to the Executive Chairman or to an officer authorized by him”. The Committee recalls that measures of supervision over the administration of trade unions may only be useful if they are employed to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. Measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions. The Committee requests the Government to indicate the scope of application of this new subsection 4 of section 38 and its impact on check-off facilities.

Moreover, the Committee notes that under section 80 of the EWWSIRA, Workers’ Welfare Societies are now prohibited from establishing any connection to any political parties or non-governmental organizations. The Committee recalls that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives and provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade unions purposes are contrary to the principles of freedom of association. The Committee therefore requests the Government to take the necessary measures to repeal section 80 of the EWWSIRA.

The Committee further notes that a federation of the Workers’ Welfare Societies cannot be legally formed until BEPZA has issued regulations. According to the ITUC’s comments, to date, BEPZA has yet to issue these regulations, thus deliberately preventing the workers’ associations to form a federation in EPZs. The Committee requests the Government to indicate the measures taken or envisaged to issue the regulations concerning the right of Workers’ Welfare Societies to establish and join federations, in accordance with Article 5 of the Convention.

Other discrepancies between national legislation and the Convention. The Committee once again recalls that for many years it had been referring to serious discrepancies between the national legislation and the Convention. In previous comments, the Committee noted the adoption of the Bangladesh Labour Act 2006 (the Labour Act), which replaced the Industrial Relations Ordinance of 1969, and noted with deep regret that the Labour Act did not contain any improvements in relation to the previous legislation and, in certain regards, contained even further restrictions which were contrary to the provisions of the Convention. The Committee took note of the Government’s statement that a tripartite labour law review committee to identify the gaps and discrepancies in the Labour Act and suggest the necessary amendments had been constituted, as well as its indication that the workers excluded from the Labour Act’s provisions were not covered by other legislation. The Committee notes the Government indicates in its report that the revision of the Labour Act with comments of all levels of stakeholders is under process and that a 22 member’s high-power tripartite committee headed by the State Minister of Labour and Employment has been constituted. The Committee once again requests the Government to provide information on any developments with regard to the review process referred to, including a copy of any relevant draft amendment, and expresses the firm hope that the Labour Act will soon be amended to remove the discrepancies previously identified, which it repeats as follows:

• -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 firefighting staff, telex operators, fax operators and cipher assistants (exclusion from the provisions of the Act based on section 175 of the Labour Act). The Committee notes that the Government indicates that the telex and fax operators are allowed to exercise their trade union rights. The Committee requests the Government to indicate the legal provisions that grant trade union rights to the abovementioned workers;
• -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;
• -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 engaged in merchant shipping (section 2 LXV, 175 and 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), 291 and 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 had previously requested the Government to indicate whether rule 10 of the Industrial Relations Rules 1977 (IRR), which previously granted the RTU overly broad authority to enter trade union offices, inspect documents, etc. without judicial review, had been repealed by the entry into force of the Labour Act 2006. The Committee noted that the Government stated, in this regard, that rule 10 of the IRR remains valid, and that – as its purpose was to maintain discipline in trade union administrations – it was not in favour of repealing the said provision. The Government further indicated that the workers’ representatives in the tripartite review process towards the enactment of the Labour Act had raised no objections to the RTU’s authority in these matters. In this respect, the Committee once again recalled that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations. There is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should however always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 124–125). The Committee notes that the Government reiterates its previous comments in this regard. In these circumstances, the Committee once again requests the Government to take the necessary measures to repeal rule 10 of the IRR or amend the latter so as to ensure that this provision granting the RTU authority to supervise trade union internal affairs is in line with the principles mentioned above.

The Committee takes due note once again of the Government’s statement that it is fully committed to ensuring compliance with the Convention and the promotion of freedom of association in the country. The Committee once again invites the Government to avail itself of the technical assistance of the Office in respect of all the matters raised above.