Observación (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Bangladesh (Ratificación : 1972)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019 referring to matters addressed in this comment.

The Committee notes that a complaint under article 26 of the ILO Constitution alleging non-compliance by Bangladesh with this Convention, as well as the Labour Inspection Convention, 1947 (No. 81), and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), submitted by several Workers’ delegates to the 2019 International Labour Conference, was declared receivable and is pending before the Governing Body.

The Committee notes the 2018 amendment of the Bangladesh Labour Act, 2006 (BLA) and the adoption of the 2019 Export Processing Zones Labour Act (ELA).

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee requested the Government to provide detailed statistics on the number of complaints of anti-union discrimination received by the relevant authorities and their follow-up and to take the necessary measures, after consultation with the social partners, to increase the penalties envisaged for unfair labour practices and acts of anti-union discrimination, and to indicate the outcome of 39 mentioned complaints that gave rise to criminal cases. It also expressed its expectation that the measures taken by the Government would contribute to an expedient, efficient and transparent handling of anti-union discrimination complaints. The Committee notes with interest the addition of section 196(A) in the BLA explicitly prohibiting anti-union activities by the employer and providing for the establishment of standard operating procedures (SOPs) for investigating such acts. The Committee notes the Government’s statement that in case of alleged anti-union activities at enterprise level, it generally intervenes through tripartite consultations, including by setting up dedicated committees for rapid and effective remedial measures, which proved effective in the national industrial relations context, and that in case of serious allegations, there is scope for on-site investigation and referral to the labour courts. It also notes the details provided by the Government on the procedure established under the SOPs to follow up complaints received, which consists of seven stages (written complaint, verification, communication with the employer, investigation, resolution, record with recommendations and referral to labour courts). The Committee further notes the Government’s indication that: (i) following the adoption of the SOPs on anti-union discrimination, the handling of complaints has become easier and more transparent and the SOPs are referred to in the 2018 BLA amendment (sections 195(2), 196(4) and 196(A); (ii) the upgrade of the Directorate of Labour (DOL) to a Department of Labour has been completed, resulting in an increase of manpower from 712 to 921, a considerable increase in the DOL budget, and the creation of two additional divisional labour offices; (iii) the software for the publicly available online database on anti-union discrimination is currently being upgraded, but once completed, the database will include information on, among others, trade union related court cases, conciliation, election of collective bargaining agents, anti-union discrimination and information on participation committees; (iv) from 2013 to July 2019, 257 complaints regarding anti-union discrimination and unfair labour practices were submitted to the labour office, of which 203 were addressed (51 cases referred to labour courts and 152 disposed of amicably through reinstatement, compensation, memorandums of understanding, arrear wages, etc.) and 54 are undergoing investigation; and (v) of 51 criminal cases referred to labour courts (39 in the previous report), 48 are pending and three were settled – two in favour of the employer and one in favour of the workers. The Committee also notes the details provided by the Government on the type of anti-union practices referred to in the complaints and the remedies applied, as well as information on training and capacity-building activities provided to the concerned stakeholders and workers, including through the workers’ resource centre. Taking due note of the information provided, the Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see the 2012 General Survey on the fundamental Conventions, paragraph 190). The Committee requests the Government to continue to provide detailed statistics on the number of complaints of anti-union discrimination received by the relevant authorities and their follow-up, including time taken to resolve the disputes, remedies imposed, the number of complaints settled amicably compared to those referred to labour courts, the results of judicial proceedings and the sanctions ultimately imposed following full proceedings. The Committee encourages the Government to continue to provide the necessary training to labour officials on dealing with anti-union and unfair labour practices complaints with a view to ensuring their efficient and credible handling and to inform about the functioning in practice of the workers’ resource centre. While noting the technical challenges encountered, the Committee expects the online database on anti-union complaints to be fully operational in the near future so as to ensure transparency of the process and at the same time ensuring protection of personal data of the workers concerned.

The Committee regrets that despite its previous request to increase the penalties envisaged for unfair labour practices and acts of anti-union discrimination by employers, the applicable fines remained unchanged and, as a result, are not sufficiently dissuasive (a fine of maximum 10,000 Bangladeshi taka (BDT) which equals US$120 – section 291(1) of the BLA). The Committee further notes that the penalty of imprisonment has been reduced through the 2018 BLA amendment from two years to one year (section 291(1) of the BLA). While noting that the BLA has been recently amended, in order to ensure that acts of anti-union discrimination give rise to a just reparation and sufficiently dissuasive sanctions, the Committee requests the Government once again to take the necessary measures, after consultation with the social partners, to increase the amount of the fine imposable for acts of anti-union discrimination.

Helpline for submission of labour-related complaints. In its previous comment, the Committee requested the Government to continue to provide detailed updates on the functioning of the helpline for submission of labour-related complaints targeting the ready-made garment (RMG) sector in the Ashulia area and to clarify the status of the 1,567 complaints mentioned that had not been settled. The Committee notes the detailed information provided on the functioning of the helpline: complaints are received through the helpline by a tele consultant group and are then transferred to district offices of the Department of Inspection for Factories and Establishments (DIFE) and investigated by a labour inspector. Mitigation of the complaints is done in three ways: (1) through tripartite meetings (section 124A of the BLA); (2) communication of the complaint to the factory management, who then resolves the issue; or (3) legal action by the DIFE through filing of cases to labour courts. The Government informs that the DIFE received a total of 3,559 complaints between March 2015 and August 2019, of which 3,529 were resolved and 30 complaints are pending, and that the time for resolving the complaints depends on the nature and complexity of the issue. Taking due note of the information, the Committee requests the Government to clarify the outcome of the 3,529 complaints that have been resolved, to indicate the number or the percentage of complaints specifically related to anti-union practices, and to provide information on whether any steps are taken to ensure anonymity of the complainants so as to prevent reprisals against helpline users. Observing that the helpline has been in service since 2015, the Committee encourages the Government to formally expand the helpline to other geographical areas and industrial sectors, in line with its previously expressed commitment.

Allegations of anti-union discrimination following the 2016 Ashulia incident and the 2018 minimum wage protests. In its previous comment, the Committee requested the Government to ensure that any pending proceedings in relation to the Ashulia incident are concluded without delay, that all workers dismissed for anti-union reasons who wish to return to work are reinstated, and expressed its expectation that measures would be taken to prevent repeated and institutionalized acts of anti-union discrimination. The Committee notes the information provided by the Government that, in relation to the Ashulia incident, all those in custody were immediately released, no worker was imprisoned and after primary investigation, all cases were concluded without framing any charge against any worker and observes that the Committee on Freedom of Association had noted the Government’s indication that no worker had been removed for participation in activities related to the Ashulia strike but that a number of workers resigned upon receipt of their due payments (see 388th Report, March 2019, Case No. 3263, paragraph 202). With regard to the 2018 minimum wage protests, the Committee notes the Government’s indication that while the social partners provided a list of 12,436 workers dismissed from 104 factories, after primary verification by the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) and the Bangladesh Knitwear Manufacturers and Exporters Association (BKMEA), it was found that 94 factories were involved and 4,489 workers were terminated from 41 factories. The Government clarifies that all terminated workers received benefits according to the existing provisions of the BLA, two factories were found closed, memorandums of understanding were signed between workers’ federations and the employer in ten factories and collection of information from 12 factories is in progress. Noting with concern the massive dismissals of workers following their participation in the 2018 minimum wage protests, the Committee observes that investigations into these allegations do not seem to be conducted by an independent entity but by employers’ organizations concerned. In view of the above, the Committee requests the Government to clarify its involvement in the ongoing investigations into the massive dismissals of workers following the 2018 minimum wage protests and to provide information on whether an investigation, by an independent entity, has taken place in this regard. The Committee firmly expects that any future investigations into concrete allegations of anti-union discrimination will be done in full independence and impartiality and that the Government will continue to take all necessary measures to prevent repeated and institutionalized acts of anti-union discrimination. Further recalling that in case of dismissal by reason of trade union membership or legitimate trade union activities, reinstatement should be included among the range of measures that can be taken to remedy such a situation and that, if compensation or fines are imposed, these should be sufficiently dissuasive, the Committee requests the Government to provide information on the concrete remedies applied in all cases of termination of workers in the above incidents for which it has been found that they had occurred for anti-union reasons.

Case concerning dismissed workers in the mining sector. In its previous comments, the Committee requested the Government to provide information on the outcome of the judicial proceedings concerning dismissed workers in the mining sector who were charged with illegal activities (case No. 345/2011) once the judgment of the District Sessions Court, Dinajpur has been rendered. Noting the Government’s statement that no hearing has yet been held but observing that the case has been pending for several years, the Committee emphasizes the importance of ensuring expeditious examination of allegations of anti-union discrimination so as to ensure adequate protection against such acts in practice. The Committee expects the case to be completed rapidly and requests the Government to provide information on its outcome once the judgment of the District Sessions Court, Dinajpur has been rendered.

Protection of workers in export-processing zones (EPZs) against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to provide clarification on several aspects of inspection and hearings conducted by the Bangladesh Export Processing Zones Authority (BEPZA or Zone Authority) and on the application of the RMG helpline to EPZ workers. It requested the Government to establish an online database for anti-union discrimination complaints specific to the EPZs and to continue to provide statistics on anti-union discrimination complaints. The Committee notes the Government’s clarification that the RMG helpline established by the DIFE is not applicable to EPZ factories but that there is an individual helpline and independent help desk in eight EPZs where labour-related complaints can be easily submitted, and that the establishment of an online database for workers’ complaints is in process. It also notes the detailed information provided on the inspection and monitoring of the working conditions, complaints and grievances of workers by BEPZA, which includes: spontaneous visits to enterprises; possibility to submit anonymous complaints to counsellor-cum-inspectors, industrial relation officers, general manager of the concerned zone or BEPZA executive office which are investigated neutrally; an enquiry option on the BEPZA official website where anyone can drop a message, query or complaint; a complaint box in each EPZ office where workers can drop a complaint and get assistance from the Zone Authority; and the possibility of posting updates and getting information on the social media website. Taking due note of the detailed information provided but observing that no statistics were submitted in this regard, the Committee requests the Government once again to provide detailed statistics on the number of anti-union discrimination complaints brought to the competent authorities, their follow-up and the remedies and sanctions imposed.

The Committee also previously requested the Government to bring the EPZs within the purview of the Ministry of Labour and the Labour Inspectorate. The Committee notes with interest the Government’s indication that the inspection and administration system of EPZs have been brought in line with the BLA (Chapter XIV of the ELA), that section 168 of the ELA allows the Chief Inspector and other inspectors appointed under the BLA to undertake inspections of EPZs and that several joint inspections have already taken place. The Committee refers to its more detailed comments in this regard made under Conventions Nos 81 and 87.

While noting the Government’s indication that radical changes have been made to bring the ELA in line with the BLA and improve protection against anti-union discrimination, the Committee observes that, in terms of ensuring adequate protection against acts of anti-union discrimination, there is a further need to continue to review the law to ensure its conformity with the Convention regarding the following matters: specific categories of workers continue to be excluded from the law (workers in supervisory and managerial positions – sections 2(48)) or from Chapter IX dealing with workers’ welfare associations (WWAs), and thus from protection against anti-union discrimination (members of the watch and ward or security staff, drivers, confidential assistants, cipher assistants, casual workers, workers employed by kitchen or food preparation contractors and workers employed in clerical posts (section 93), as well as workers in managerial positions (section 115(2)); broad power of the Executive Chairperson to rule on the legitimacy of a transfer or termination of a WWA representative (section 121(3)-(4)); broad exception to protection against anti-union discrimination (section 121(2) paragraph 2); lack of specific measures to remedy acts of anti-union discrimination except in case of WWA officials covered by section 121; insufficiently dissuasive fines for unfair labour practices – a maximum of US$600 (section 151(1)) and for anti-union discrimination during an industrial dispute – a maximum of US$120 (section 157). Taking due note of the fact that the ELA has been adopted in February 2019 but observing that the above provisions need to be further amended to ensure their conformity with the Convention, the Committee expects that the discussion on the revision of the ELA will continue in the near future, in consultation with the social partners, to address the issues highlighted above in a meaningful manner so as to ensure that all workers covered by the Convention are adequately protected against acts of anti-union discrimination. The Committee trusts that the Government will be able to report progress in this regard.

Finally, the Committee observes with concern the allegations communicated by the ITUC referring to widespread anti-union practices in the country and illustrated by the dismissal of 36 workers in two EPZ factories in April 2019 following unsuccessful attempts at collective bargaining. The Committee requests the Government to provide its reply to these allegations.

Articles 2 and 3. Lack of legislative protection against acts of interference in the BLA and the ELA. The Committee previously emphasized the importance of providing for explicit provisions in the BLA granting full protection against acts of interference. While noting the Government’s emphasis on the 2018 BLA amendments and noting that sections 195(1)(g) and 202(13) prohibit employer’s interference in the conduct of elections for a collective bargaining agent and Rule 187(2) of the Bangladesh Labour Rules (BLR) prohibits interference in elections of workers’ representatives to participation committees, the Committee observes that these provisions do not cover all acts of interference prohibited under Article 2 of the Convention, such as acts designed to promote the establishment of workers’ organizations under the domination of the employer, to support workers’ organizations by financial or other means with the objective of placing them under the control of an employer or an employers’ organization, to exercise pressure in favour or against any workers’ organization, etc. Similarly, while noting that the ELA contains certain provisions prohibiting acts of interference (sections 115(1)(f) and 116(3)), the Committee observes that they do not cover all acts of interference prohibited under Article 2 of the Convention. The Committee therefore requests the Government to take all necessary measures to broaden the current scope of protection against acts of interference in the BLA and the ELA, so as to ensure that workers’ and employers’ organizations are effectively protected against all acts of interference both in law and in practice. The Committee trusts that, in the meantime, efforts will be made to ensure that, in practice, workers’ and employers’ organizations will be protected from any acts of interference against each other.

Article 4. Promotion of collective bargaining. The Committee previously requested the Government to inform about the application in practice of section 202A(1) of the BLA providing for assistance from specialists in the context of collective bargaining. The Committee notes the Government’s explanation that there is currently no uniform procedure for the use of experts in collective bargaining but that the issue may be considered during the revision of the BLR, that out of nine collective bargaining agreements concluded at the national level and seven at the sectoral level between 2017 and 2019, support of experts was used in five cases and that the assistance of experts facilitates decision-making on collective agreements with confidence.

The Committee also requested the Government to ensure that Rule 4 of the BLR giving the Inspector General total discretion to shape the outcome of service rules and determine their conformity with the law was not used to limit collective bargaining and to provide information on the application in practice of Rule 202, which prohibits certain trade union activities in a way that could impinge on the right to freedom of association and collective bargaining. In relation to Rule 4, the Government informs that the management of factories prepares service rules together with trade unions and in case of any objection, tripartite meetings are arranged to address the objection and only then does the DIFE verify the conformity of the service rules with the law, thus not hampering collective bargaining. It also states that amendment of Rule 202 may be discussed in the next revision of the BLR. The Committee encourages the Government to consider amending Rule 202, in consultation with the social partners, during the next revision of the BLR in order to ensure it does not unduly impinge on the right to collective bargaining.

Higher-level collective bargaining. The Committee previously requested the Government to consider amending sections 202 and 203 of the BLA to clearly provide a legal basis for collective bargaining at the industry, sector and national levels and to continue to provide statistics on the number of higher-level collective agreements concluded. While noting the amendments made to section 202 of the BLA, the Committee observes that these do not address its previous concerns about the lack of a legal basis for higher-level collective bargaining. The Committee notes the statistics provided by the Government on the number of collective agreements concluded, the number of workers covered and the sectors to which they relate but observes that these agreements appear to have been concluded at the level of the enterprise and not at sectoral or national levels. It recalls in this regard the need to ensure that collective bargaining is possible at all levels, both at the national level, and at enterprise level; it must also be possible for federations and confederations (see the 2012 General Survey, paragraph 222). In view of the above, the Committee requests the Government to consider, in consultation with the social partners, to further revise sections 202 and 203 of the BLA so as to clearly provide a legal basis for collective bargaining at the industry, sector and national levels. Observing that the information provided by the Government lacks certain elements previously called for, the Committee requests the Government to continue to provide statistics on the number of higher-level collective agreements concluded (at the sectoral and national levels), the areas of industry to which they apply and the number of workers covered.

Collective bargaining in the agricultural sector. The Committee notes the information provided by the Government in reply to the Committee’s comments made under the Right of Association (Agriculture) Convention, 1921 (No. 11), in particular that, through bipartite or tripartite negotiations, trade unions and associations of agricultural workers conclude agreements with employers every three years concerning terms and conditions of work, welfare facilities, insurance, safety, security and other matters. The Committee requests the Government to indicate whether statistics are available on the number of collective agreements concluded in the agricultural sector, the type of activity concerned and the number of workers covered, and if so, to provide details in this regard. It also requests the Government to clarify the functioning in practice of tripartite negotiations in this sector.

Determination of collective bargaining agents. In its previous comment, the Committee requested the Government to provide clarification on the exact requirements for a trade union to become a collective bargaining agent. The Committee notes the Government’s explanation that there has not yet been a situation where, among several existing unions, no union received the required percentage of votes (one third of the total number of workers employed in the establishment concerned) and recalls that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention insofar as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. The Committee wishes to clarify that it is not requesting the Government to remove the one third majority requirement for the acquisition of the exclusive bargaining agent status but recalls that if no union in a specific negotiating unit meets the required threshold of representativeness to be able to negotiate on behalf of all workers, the existing unions should be able to negotiate, jointly or separately, at least on behalf of their own members. The Committee therefore requests the Government to clarify whether, in case where no union reaches the required threshold to be recognized as the exclusive collective bargaining agent under section 202 of the BLA, the existing unions are given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members.

Promotion of collective bargaining in the EPZs. In its previous comment, the Committee requested the Government to provide information on any cases where the BEPZA Executive Chairperson rejected the legitimacy of a WWA and its capacity to act as a collective bargaining agent, to take the necessary measures to ensure that the determination of collective bargaining agents in EPZs is the prerogative of an independent body and to continue to provide statistics on the number of collective bargaining agreements concluded. The Committee notes the Government’s statement that a WWA registered under the Act in an industrial unit is the collective bargaining agent for that industrial unit (section 119) of the ELA, that there has been no case of rejection of the legitimacy of a WWA and its capacity to act as a collective bargaining agent so far under section 180(c) and that this provision is a safeguard of legitimate WWAs and collective bargaining agents. Taking due note of the explanation, the Committee recalls, however, that the determination of bargaining agents should be carried out by a body offering every guarantee of independence and objectivity. The Government further informs that all 237 elected and registered WWAs are actively performing their activities with full freedom and that during the last five years they had submitted 521 charters of demands, all of which had been negotiated successfully and collective bargaining agreements or memorandums of understanding had been signed. Welcoming the Government’s commitment to take the necessary measures to maintain yearly statistics in this regard, the Committee requests the Government to continue to provide statistics on the number of collective bargaining agreements concluded in the EPZs, the sectors and the number of workers covered, along with some sample agreements. The Committee requests the Government to endeavour to further amend section 180 of the ELA, in consultation with the social partners, to ensure that the determination of collective bargaining agents in EPZs is the prerogative of an independent body, such as the Department of Labour. The Committee also requests the Government to clarify the implications in practice of section 117(2) which does not allow any proceedings before a civil court for the purpose of enforcing or recovering damages for breach of any agreement.

Compulsory arbitration in the BLA and the ELA. The Committee welcomes the Government’s indication, in reponse to its previous request, that the proposed amendment to section 210(10) of the BLA that would enable a conciliator to refer an industrial dispute to an arbitrator even if the parties do not agree was finally not included in the amended BLA. The Committee observes, however, that the ELA allows for unilateral referral of a dispute to the EPZ Labour Court which could result in compulsory arbitration (sections 131(3)–(5) and 132 read in conjunction with section 144(1)). Recalling that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crisis, the Committee expects that, during the next revision of ELA, the Government will address this issue in a meaningful manner, in consultation with the social partners.

Articles 4 and 6. Collective bargaining in the public sector. The Committee previously requested the Government to clarify what specific categories of workers in the public sector can bargain collectively, to indicate the criteria based on which this right is granted and to provide examples of collective agreements concluded in the public sector. The Committee notes the Government’s indication that there are 408 public sector trade unions, including in various sector corporations, city corporations and municipalities, port authorities, secondary and higher secondary education boards, water development boards, energy sectors, various banks and financial institutions, power sectors, jute mills and sugar mills. Observing that the Government’s reply refers to the right to form trade unions without indicating whether, in the various sectors mentioned, these organizations have the right to undertake collective bargaining, the Committee requests the Government to indicate whether this is indeed the case, and if so, to provide examples of collective bargaining agreements concluded in the public sector.

The Committee further observes the Government’s statement that only staff of autonomous organizations have the right to form trade unions and not the officers, and that neither officers nor staff of public sector organizations other than public autonomous organizations have the right to form trade unions. The Committee recalls in this regard that, in accordance with Article 6, only public servants engaged in the administration of the State (civil servants in Government ministries and other comparable bodies, and ancillary staff) may be excluded from the scope of the Convention and that a distinction must thus be drawn between, on the one hand, this type of public servants and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. The Committee therefore requests the Government to provide a list of public sector services or entities where collective bargaining is not allowed. For those autonomous public sector organizations where collective bargaining is permitted, the Committee requests the Government to indicate the criteria used to distinguish between staff and officers for the purposes of collective bargaining.