Practical problems & shortcomings relating to Bangladesh Labour Code, 2006: an agenda for the purpose of minimizing.
The Bangladesh Labour Code, 2006 is one of the very recent laws with major overhauling changes in the field of Labour Legislation. The laws which this code has replaced were made mostly during the British Colonial regime & Pakistan Period and they were as many as 50 in number. In many cases, these laws were outdated, scattered, inconsistent & often overlapping each other. In 1992, a Labour Law Commission was formed by the Government of the day which examined 44 Labour Laws and recommended to repeal 27 Laws & it prepared a draft Labour Code in 1994. This draft of Labour Code, 1994 underwent series of changes in its vetting stages & finally the Bangladesh Labour Code, 2006 was passed by the Parliament on October 11, 2006. Section 353 of the Code has repealed 25 previous Labour related laws. There are still 25 valid laws dealing with Labour & Industrial issues have not been repealed or consolidated and as such the Bangladesh Labour Code, 2006 although a Consolidated Act was not consolidated all the laws in the filed. Though the Bangladesh Labour Code, 2006 was enacted in 2006, still there are some practical problems and shortcomings relating to Labour Code, 2006.
Ø Collective Bargaining Agent (CBA):
CBA is a notion which improves the conditions of working life.
According to Hoxie- “Collective Bargaining (CB) is a mode of fixing the terms of employment by means of bargaining between an organized body of employees and employers or an association of employers usually acting through organized agents.”
CB is a major institutional mechanism for resolving the conflicts among the interested parties. CB is the combination of two words:
(a) Combination (i.e. Jointly) &
(b) Bargaining (i.e. offer & counter offer to reach a settlement)
So we can say that CB is a technique of resolving the existing conflicts between the employee and employer.
The object/end of collective bargaining is invariably to harmonise labour relations, to promote industrial peace by creating conditions whereby labour and capital are put on equal footing, while negotiating with the employer.
For a successful CBA, some conditions have to be fulfilled. But it’s a matter of sorrow that most of the conditions are not followed in Bangladesh. However, the preconditions for successful CBA are following as:
Democratic Attitude of the managements towards the workers & their unions should be ensured.
But unfortunately, in most of the present context/situation in industry, it is seen that the management side always try to dominate the workers as well as their unions.
Mutual trust, confidence & respect between the management and the trade union activities should be maintained.
Government must not interfere in the internal affairs of trade union and collective bargaining.
Devoted an unbriable leadership of the CBA or Trade Union (TU) should be encouraged.
But, in most of the situation, it is seen that the management authority offers bribe, or force to take bribe to the CBA, if the CBA doesn’t want to take it willingly.
Workers’ right to strike and collective bargaining must be ensured.
Need based training programme should be organized for increasing/enhancing the knowledge of bargaining skill of the TU Leaders as well as workers.
But in practically, we see/notice that most of the employers always try to dominate the workers as well as the TU. Because of it, the employers or management authorities don’t arrange need based training programmes for the workers as well as TU.
To ensure that CB functions properly unfair labour practices mentioned in Sec 195 & 196 of Bangladesh Labour Code, 2006 should be avoided & abandoned by both sides, and so on.
Ø Practical Problems relating to CBA:
As we know that there is no equal footing between employers & employee in Bangladesh. The reasons (i.e. practical problems) for weak bargaining position of workers are given below:
The frequent attempts by the ruling party (i.e. employers), to buy off or victimized trade union leaders by offering bribe to them.
The unfavorable or authority attitude of the management.
A weak industrial based and absence of real democratic practice in Bangladesh.
Politicization of TU, inter and intra rival reach, opportunism of trade union leaders, absence of experienced TU Leaders at plant level etc.
Practical Problem regarding the Labour Court in Bangladesh: There are some practical problems regarding the Labour Court in Bangladesh which are given below:
The number of Labour Court available in Bangladesh is not adequate as compare to the volume of cases.
So far I know that there are only Seven Labour Courts in Bangladesh. Out of Seven Labour Courts, three are in Dhaka, two in Chittagong, one each respectively in Rajshahi & Khulna.
Actually, it is not possible to maintain many labour related laws with a few numbers of courts. So the number of labour court should be increased as compared to the volumes of cases. Government has to take necessary initiatives in this regard.
The Chairman and the Members of the Court are not provided with reasonable facilities. So, it demotivates/discourages them than as such hampers the early disposal of cases.
So, a standard remuneration package along with admissible benefits should be offered to the Chairman and Members of the Court. It is believed that if lucrative remuneration is offered to someone, the speed of his work is also increased rapidly.
The Chairman & the Members of Labour Court are part time appointing.
I think that this is the main barrier to the backlogs of cases. Because part time appointed Chairman & the Members don’t pay proper attention in thisregard. So, the Govt. along with other organizations should come forward in this regard.
It is said in section 218 (11) of the Bangladesh Labour Code, 2006 that- “The Judgment of the Labour Appellate Tribunal shall be delivered within a period of not more than 60 days following the filing of the appeal.
Provided that, no such judgment shall be rendered invalid by reason only of any delay in its delivery.”
Because of this provision, to get a judgment, four to five years are expired. Because, there is a chance of time petition by the parties especially employers. Because of this lengthy process, the workers are reluctant to prefer an appeal.
So, I think, there should be included a clause and that is - the Judgment of the Labour Appellate Tribunal shall be delivered within a period of not more than 60 days following the filling of the appeal. Provided that, a further period of one year may be extended in this regard i.e. to deliver judgment.
The financial inability prevents the workers from filling cases against management. The frequent shifting of the date of the hearing makes aggrieved workers very frustrated.
The Government and other relevant agencies are reluctant in paying proper attention to the problem of Labour Court.
This is another reason for the barrier to the backlogs of cases. So to overcome this problem, the govt. along with other relevant agencies should come forward with a view to paying proper attention in thisregard.
“Termination Clause” is a black law which is still now remains in the Labour Code.
“Termination simpliciter” is considered the safest step for the employer to remove a worker. Though it is the safest step, it is the most expensive method of removing a worker in the sense that the employer will have to give a four month’s notice or wages in lieu of the same period and also compensation which is much higher compared to discharge and dismissal. Even though, there is a chance of employer to exercise his ill motive. Because, by this clause, a wide power is given to the employer for the purpose of removing a worker from his work. Now, a question arises whether four month notice is or wages in lieu of the same period sufficient to remove a worker from his service without any reasonable ground. A worker may not able to find out a suitable work for him within four months. Because of this termination clause, the employers try to use the great loopholes relating to Bangladesh Labour Code, 2006. So, this clause should be removed from the Bangladesh Labour Code, 2006. Though it was held in U.B. Datt & Co. vs. Workmen, AIR 1953 SC 411 that if the termination of service was a colorable exercise of the power or as a result of victimization or unfair labour practice, the labour court or tribunal would have jurisdiction to intervene and set aside such termination. Nevertheless, most of the time the workers don’t get natural justice (i.e. do not get back his job).
That’s why; I firmly believed that for the purpose of protecting the interest of workers, the ‘termination clause’ should remove from the Labour Code.
Ø Problems of Trade Union (TU) in Bangladesh:
For violating the interest of workers, only employer is not liable. Beside employer, worker as well as TU Leader is also liable for it. Some problems relating to TU in Bangladesh are frequently observed in the present context of Bangladeshi industries. These problems are given below:
Lack of requisite leadership including accountability of the TU leaders, competency or qualification of TU.
It is mainly happened due to ignorance as well as less education of TU leaders. Because of it, need based training programme should be organized for increasing/ enhancing the knowledge of bargaining skill of the TU Leaders as well as workers.
But in practically, we see/notice that most of the employers always try to dominate the workers as well as the TU. Because of it, the employers or management authorities don’t arrange need based training programmes for the workers as well as TU.
Politicization of TU.
It is also an important problem regarding the present situation at Bangladeshi Industries. Most of the time, it is seen in the industry that a particular class of worker only get enjoy benefit. It is occurred mainly because of politicization of TU.
Fragmentation (e.g. every CBA Leaders want to reform different TU).
So, the workers as well as TU Leaders should bear in mind that they don’t do anything which violates the interest of workers.
Limitation of the Labour Administration & Inspection Office: Ministry of Labour & Manpower has some agencies or departments. Department of Inspection for Factories & Establishments is one of those. There are some limitation relating to the Department of Inspection for Factories & Establishments which are given below:
Absence of provisions of inspecting factory construction works: To start activities, a factory has to fulfill some requirements. Say for example- prior written permission from the Chief Inspector (CI) is compulsory before setting up a factory as per the Labour Code.
The duty of Engineering Wing is to approve the plan which is attached. If plan is ok, then CI will provide a certificate of registration to the concerned employers who are want to make a factory.
As per section 326 of Bangladesh Labour Code, 2006- “If an application for permission accompanied by the plans & specification is sent to the CI & no order is communicated to the applicant within two months from the date of its receipt by the Chief Inspector, the permission applied for in the said application shall be deemed to have been granted.”
If the CI is refused to grant permission, then the aggrieved party, within 60 days of the date of such refusal, can appeal to the Government i.e. higher authorities of CI.
The main problem is in Bangladesh that there is no authority to supervise the soil test engineer. There is also no authority to supervise whether the tasks are implemented according to plan or not. That’s why there must be needed a checks and balance from the administration.
Absence of the Provisions of cancellation of the factory registration & license: As we know that the CI issues the certificate of Registration on the ground of fulfillment of some requirements. If the requirements are not fulfilled, then CI is not empowered to cancel the registration.
That’s why the CI has given a power to cancel the registration by taking permission from the Labour Court.
Because the employers think that once got registration is everything. No one can cancel their factories’ registration.
So, in this regard the CI should be given a power to cancel the registration.
Inspection office (IO) lacks manpower: Most of the time, IO is failed to execute the laws relating to factories. Their argument is the ‘lack of manpower’. There are 30 lakh shops, 170 tea gardens & 60 ship breaking yard industry in Bangladesh.
But there are only 200 inspectors in the department of inspection for factories and establishments. Literally, it is impossible to complete huge volume of works with such poor manpower.
IO thinks that if the number of IO can increase from 200 to 500, then it can carry out its responsibilities properly.
Lack of provisions of receiving Complaints & their disposals of at the Inspection Office: IO is only liable the manpower for their failure. But there are many problems the factory which remedy is lengthy.
IO can do it-“If, after they listening to the workers’ grievance (e.g. about wages) and gives order to the employer, then the employer is bound to pay wages to the worker.
Problems relating to the multi-standard definition of child labour in Bangladesh:
A ‘child’ has been defined in the United Nations Convention on the Rights of the Children (UNCRC) as a person under the age of 18 years. This includes infancy, early childhood, middle childhood & adolescence. This is the universally accepted definition of children though the convention allows every society to consider its own laws and customs.
ILO Convention 182 similarly recognizes all people under the age of 18 as a child. This definition is gaining acceptance all over the world. ‘
ILO Convention 182’ is a convention for the Worst Forms of Child Labour. It was ratified by Bangladesh in 2001.
The laws of Bangladesh have not followed a consistent pattern of definition of the child. For example, the ‘Employment of Children Act, 1938’ has defined child as a person who has not completed fifteen years. But it is said in section 353 of the Labour Code, 2006 that the law no 2 & 7 (i.e. The Children/Pledging of Labour) Act, 1933; The Employment of Children Act, 1938; The Factories Act, 1965 are repealed.
But ‘The Children Act, 1974’ was not repealed. It means this Act is shill now enforced. It is said in ‘The Children Act, 1974’ that child is a person who has not completed 16 years.
Moreover, the Contract Act, 1872 & the Majority Act defines a child as less than 18 years of age.
But as per section 2(63) of our Labour Code, 2006- “Child” means a person who has not completed his fourteenth year of age.
That means, the definition of child is inconsistent. The condition of the Bangladeshi working children can easily be presumed from this multi-standard definition of child under the laws of the country. Most of these difference amongst the legislation are on the age of the working children during appointment. Most of the child labour laws do not correspond with the definition of UNCRC and differ amongst themselves.
So, it is important to develop a uniform definition of child in line with UNCRC that will be applicable for all the purposes.
Mohammad Rayhan Uddin,
Department of Law,
LL.B. (Honors), LL.M. (9th Batch),
Premier University, Chittagong, Bangladesh.LL.B. (Honors), LL.M. (9th Batch),
Cell No: +8801914676110
