Professional Documents
Culture Documents
Introduction
Labour law (or labor, or employment law) is the body of laws, administrative rulings, and
precedents which address the legal rights of, and restrictions on, working people and their
organizations. As such, it mediates many aspects of the relationship between trade unions,
employers and employees. In Canada, employment laws related to unionized workplaces are
differentiated from those relating to particular individuals. In most countries however, no such
distinction is made. However, there are two broad categories of labour law. First, collective labour
law relates to the tripartite relationship between employee, employer and union. Second,
individual labour law concerns employees rights at work and through the contract for work.
The labour movement has been instrumental in the enacting of laws protecting labour rights in
the 19th and 20th centuries. Labour rights have been integral to the social and economic
development since the industrial revolution.
Labour law arose due to the demands for workers for better conditions, the right to organize, and
the simultaneous demands of employers to restrict the powers of workers many organizations
and to keep labour costs low. Employers costs can increase due to workers organizing to win
higher wages, or by laws imposing costly requirements, such as health and safety or equal
opportunities conditions. Workers organizations, such as trade unions, can also transcend purely
industrial disputes, and gain political power which some employers may oppose. The state of
labour law at any one time is therefore both the product of, and a component of, struggles
between different interests in society.
What is ILO :
The International Labour Organization (ILO) is devoted to advancing opportunities for women and
men to obtain decent and productive work in conditions of freedom, equity, security and human
dignity. Its main aims are to promote rights at work, encourage decent employment opportunities,
enhance social protection and strengthen dialogue in handling work-related issues.
International Labour Code :
One of the principal functions of the ILO is setting international labour standards through the
adoption of conventions and recommendations covering a broad spectrum of labour-related
subjects and which, together, are sometimes referred to as the International Labour Code. The
topics covered include a wide range of issues, from freedom of association to health and safety
at work, working conditions in the maritime sector, night work, discrimination, child labour, and
forced labour. The term code is somewhat a misnomer insofar as adoption of new standards
and revision of old ones has not resulted in an entirely integrated and homogeneous body of law.
This is not the case. Nevertheless, the broad scope of the subjects covered by the ILOs
standards suggests that the term code would be appropriate to use.
History
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 and Pakistan period and they were as many as 50 in
number. In many cases these laws were outdated, scattered, inconsistent and 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 and it prepared a draft Labour
Code in 1994. This draft of Labour Code, 1994 underwent series of changes in its vetting stages
and 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 and -industrial issues have not been repealed or consolidated and
as such the Bangladesh Labour Code 2006 although a consolidated Act has not consolidated all
the laws in the filed. Furthermore, although the name of the law is Bangladesh Labour Code,-in
fact, it is not a Code rather a consolidating legislation only.
A recent tendency of legislative drafting by the government bodies has been that most of the laws
are drafted in Bengali and so has been the case of the Bangladesh Labour Code, 2006.
Conclusion
Bangladesh being a member of International Labor Organization has been trying to maintain
international standard in enacting laws relating to labor rights. The Bangladesh Labor Law 2006
is a complete code to protect the rights of labor in Bangladesh working in various factories and
industries with maintaining the requirements of International Conventions of ILO. As a third World
County it has been ratified most of conventions of ILO and assisting to promote more efficient
operation of those treaties with implementing the laws relating to labor. Though it is not possible
to maintain highest standard through its enactment and practical implementation of labor laws
due to many social and economical restriction but the continuing process is somehow demands a
lot of gratitude from international community.
Submitted by:
Kishore Kumar Mondal
Reg. No# 10209015
Batch #3rd
http://www.assignmentpoint.com/arts/law/labour-law-bangladesh.html
to increases the burning power of labour legislation is necessary to encourage the formation of
trade unions.
(1.4) Scope and Limitation of Study
The discussion of this dissertation will be limited within the scope of the Origin and historical
development of Labour law of Bangladesh, the Problems of Labour law of Bangladesh, problems
of Labour education in Bangladesh and some case studies. The system of enrolment in the Bar
Council also discussed. There will be discussed about some nature of crimes committed usually.
(1.5) Methodology of Study
The methodology used in the thesis is Qualitative Methodology. Our research works are based on
1. Historical Study and 2. Analytical Study.
1. Historical Study: It has a historical back ground of workers movement for the establishment of
their rights. The workers movement becomes successful. Now the modern world, Modern state
and United Nations Organization highlighted the worker in their dignity, honor, position,
participation social work political activity etc.
In Bangladesh the workers retrenchment are guaranteed in their constitution, state laws, and
social and state activities. Through the historical revolution the workers right has come to this
position. The history workers movement started from 1971 after successful victory of the
Bangladesh war of Independence. So, to write this thesis we have to use historical study.
2. Analytical Study: In this thesis the formation development and solutions regarding workers
right and retrenchment are to be discussed. In this process of analysis the laws related to the
subject and solutions from the judicial process are to be discussed. The enforcement of workers
right is judicial matter. So in this process of study the analytical study is necessary and important
for this thesis. For our research works we followed the analytical study.
The main object of the study is to evaluate effects and importance on persons, society and the
state. The study is mainly qualitative in nature because, the impact that the study has searched
would not be possible to assess without qualitative data. Legal issues, judicial rulings and
administrative management of the government and the public, all are related with the issues. The
research work is involved with the legal matter, administrative matter and judicial decision of the
workers retrenchment. Under these circumstances a regulated research work will be suitable to
solve the problems after investigating different variables such as laws relating to A Study on
Workers Retrenchment under Labour Law: Bangladesh Perspective.
Normally researchers depend on different methodological approaches. Research method is an
important factor for all kinds of study. There are two kinds of empirical research methods namely.
1.
Qualitative
Research
Method
and
2.Quantitative
Research
method.
following
1.
Case
2.
3.
methodologies
study
Judicial
Ground
4.
method,
method,
theory
Sociological
method.
Method,
5. Statistical Method.
Method Used in this thesis:
The method is used in this dissertation is action oriented. The study has been conducted on the
basis of two principal sources of data collection. These are: 1. Primary Source, 2. Secondary
source.
The basic data has been collected from the administrative source, legislative laws and historical
events. Other data has been collected from judicial rulings and affected persons information. By
focusing efforts on critical issues of authority concern, and the victim persons concern are the
important sources of data collection.
(1.6) Organization of Thesis
Labour Law is very importance in Bangladesh perspective. Labour law of Bangladesh is
developed by origin and historically. There are many problem of labour law of Bangladesh,
problems also labour education in Bangladesh and some cases studies. I try organized this
thesis and mentioned that condition for a valid retrenchment of labour. I include procedure of
retrenchment of Bangladesh and retrenchment compensation with studies. I also try includes
Labour court and Labour appellate tribunal.
In the first chapter I tried to include Introduction, Objectives of the study, Importance of Study,
Scope and Limitation of Study, Methodology of study and Organization of Thesis. It is the
introductory chapter of the thesis.
In the second chapter I tried to discuss about Labour laws in Bangladesh like Employment
Conditions, Labour Laws, Settlement of Labour Disputes, Wages and Fringe Benefits, Leave &
Holidays, Social Security and Labour Union for the better improvement of industrial sector of
Bangladesh.
In the third Chapter I tried to discuss about retrenchments including Conditions for a valid
Retrenchment, Procedure of retrenchment, Retrenchment compensation, Re-employment of
retrenched workers, Condition of re-employment for retrenchment workers and Distinction
between lay-off and retrenchment.
In the fourth chapter I discussed about 10 cases like M/S Caltex oil (Pakistan) Ltd. vs. The
chairman second labour Court, Aminul Islam vs. James Finlay Co.Ltd, Bangladesh tea estate ltd
vs. Bangladesh tea estate staff union, Banks & Another vs. Coca-Cola SA, Oosthuizen vs.
Telkom SA Ltd., Perumal & another vs. Tiger Brands, Zero Appliances (Pty) Ltd vs. CCMA &
Others, Leppan and Suretrade 110 CC t/a Bra Boutique, Retrenchment: breakdown of trust
relationship14-MAY-08 Zietsman & others vs. Transnet Limited, Thekiso vs. IBM South Africa
(Pty) Ltd [Redundancy & EEA requirement etc.
Chapter
LABOUR
LAW
IN
BANGLADESH:
2.1
Employment
Conditions
2.2
Labour
Laws
2.3
2.4
2.5
Settlement
Wages
of
Labour
Disputes:
and
Fringe
Benefits
Leave
2.6
&
Social
2.7
Holidays
Security
Labour
Union
Law
in
Bangladesh:
Bangladesh offers an abundant supply of disciplined, easily trainable and low-cost work force
suitable for any labor-intensive industry. Of late, there is an increasing supply of professionals,
technologists and other middle and low level skilled workers. They receive technical training from
universities, college, technical training centers, polytechnic institutions etc. The expenditure
incurred by an employer to train his employee is exempted from income tax.
(2.1). Employment Conditions
The minimum age for workers in Bangladesh is 16 years in factories and establishments.
Contracts are made in the form of a letter of offer. Workers may also be engaged on verbal
agreements. In government organizations and in some private organizations as well, a probation
period exists for skilled or semi-skilled workers varying between three months to one year and
during this period either party may serve one months notice for Termination from or giving up to
the job. In the private sector, the dignity of labor is ensured in accordance with the principles
enunciated in the ILO convention and recommendations.
(2.2). Labour Laws
In Bangladesh 47 labour laws are now in operation. These relate to (a) wages and employment,
(b) trade union & industrial disputes, (c) working environment and (d) labour administration and
related
matters.
The
Workmens
main
Compensation
Payment
of
Maternity
Employment
Shops
labor
Act,
Wages
Labour
&
Factories
1936
Act,
(Standing
1936
Orders)
Establishments
Act,
are:
1923,
Act,
Benefit
of
laws
Act,
Act,
1965
1965
1965
Leave & holidays of the workers & employees are regulated by the Factories Act, 1965 and
shops Establishment Act, 1965.
(2.6). Social Security
Workmen Compensation, Maternity Benefit (Tea Estate) Act, 1950, Maternity Benefit Act, 1939,
Employment of Labour (standing orders) Act, 1965 etc. deal with provident fund and gratuity.
(2.7). Labour Union
Industrial Relations Ordinance, 19691 deals with trade union in Bangladesh. In any industrial and
commercial establishment, a trade union may be formed with 30% of the total number of workers
employed. If there is more than one union in any establishment, Collective Bargaining Agent is
determined by the Registrar of Trade Union through sector ballot for a term of two years. Only the
Collective Bargaining Agent is authorized to raise industrial disputes and negotiate with the
management. The Director of Labor of the government acts as the Registrar of Trade Union in
Bangladesh. Till December 1996; 4955 trade unions (workers union 4104 & employers
association- 851) exits in Bangladesh having 17, 30, 927 members.
Industrial Relations Ordinance, 1969 and The Industrial Relations Rules, 19772 provides that any
worker or employer/ has the right to form a union/association without previous authorization. But
such a union/association can not function as a trade union without being registered under the
law.
(2.8). Working Hours
Workers in the public or private sector remain at their job for eight and a half hours daily
(including half an hour for meal or rest) with Friday as weekly holiday marking 48 working hours a
week. Work in excess of these, is paid as overtime. The rate of overtime is 2 hours pay for 1-hour
job.
1.
Industrial
Relations
Ordinance,
1969(Ordinance
No.
XXIII
of
1969)
-3
RETERNCHMENTS
3.1
3.2
Retrenchment
Conditions
3.3
for
Procedure
3.4
3.5
3.6
valid
of
retrenchment
Retrenchment
Re-employment
Condition
of
compensation
of
re-employment
Retrenchment
retrenched
for
retrenchment
workers
workers
(3.1) Retrenchment
Section 2(11) define the term retrenchment as the termination by the employer of service of
workers not as a measure of punishment inflict by way of discipline action but on the ground of
redundancy. Retrenchment means the termination by the employer of the services of workers
on the ground of redundancy {sec. 2(q)}. Thus retrenchment measure to remove surplus staff it
results in a complete severance of employer relationship. The definition also makes it clear that
retrenchment is a kind of termination but every termination is not retrenchment. To be
retrenchment the termination must be on the ground of sedentary. 1
(3.2) Conditions for a valid Retrenchment
According to section 20 read with section 2(11) the conditions of a valid retrenchment are as
follows:
1. The workers to be retrenchment must be given one months notice;
2. The notice must be given in writing;
3. the notice must be contain reasons for retrenchment;
4. alternative to condition (2) above, instead of giving one months, a worker may be retrenched
instantly by giving him payment of wages for the period of notice;
5. a copy of the notice of retrenchment must be send to the chief inspector;
6. a copy of the notice must be send to the CBA;
7. there must be termination of services of a workman on the ground of redundancy or surplus
labour;
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.76
(3.3) Procedure of retrenchment
Section 20 of the code incorporates the well recognized principle of retrenchment in industrial
law1, namely, the last come first go or first come last go. The principal laid down in section 20
for retrenchment procedure are to be adhered to by every employer. The conditions which this
section prescribes for the procedure of retrenchment are as follows:
1. The claiming the protection of retrenchment procedure under section 20 must be a worker
within the definition in clause(65) of secion2;
2. The person must belong to a particular category of workers in the establishment concerned;
3. There should not be any agreement between the employer and employee contrary of last
come
first
go.
4. The employer is bound to comply with all the above conditions while retrenching a worker.
However, the employer can deviate from this procedure on justifiable reasons which must be
recorded.
(2) The worker must offer himself for re-employment in response to the notice by the employer;
(3) Workers will have priority according to the length of his service under the employer;
(3.7) Distinction between lay-off and retrenchment
(1) In case of lay-off there is failure, refusal or inability of the employer to give employment to a
workman for a temporary period while in retrenchment the workman is deprived of his
employment permanently by his employer.
(2) The grounds of lay-off are May. In lay-off the failure refusal or inability to give employment is
on account of one or more of the reasons specified in section 2(58) such as shortage of coal
shortage of power, raw materials, break down of machinery etc. while in retrenchment the
termination of service is on the ground of surplus labour only. Thus the ground of retrenchment
and lay-off are completely different.
(3) The reasons of lay-off are completely different as compared to reasons of retrenchment. The
situation of surplus labour may arise due to economic drive, rationalisation in the industry
installation of new labour saving machinery etc. But in lay-off reasons of non-employment are
mainly non-availability of power raw materials, coal or break down of machinery etc.
(4) In lay-off labour force is not surplus but in retrenchment labour force is surplus which is to be
retrenched.
(5) In lay-off employment relationship of employer and employer and employers is not terminated
but suspended while in retrenchment relationship is terminated. 1
1.Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.79
Chapter
CASE
4.1
STUDIES
M/S
4.2
4.3
Caltex
oil
Aminul
tea
Banks
4.5
estate
ltd
&
Zero
4.8
Leppan
Bangladesh
and
chairman
tea
estate
Ltd
vs.
CCMA
Suretrade
110
CC
t/a
of
trust
SA
Brands
&
Bra
union
Ltd
Tiger
(Pty)
breakdown
staff
SA
vs.
labour
Co.Ltd
Coca-Cola
Telkom
another
second
Finlay
vs.
vs.
Appliances
Retrenchment:
vs.
&
The
James
Another
Perumal
4.7
vs.
vs.
Oosthuizen
4.6
Ltd.
Islam
Bangladesh
4.4
(Pakistan)
Others
Boutique
relationship
14-MAY-08
4.9
Zietsman
&
others
vs.
Transnet
4.10 Thekiso vs. IBM South Africa (Pty) Ltd [Redundancy & EEA requirement
Limited.
(4.1)
M/S
Caltex
oil
(Pakistan)
Ltd.
Vs.
The
chairman
Hakim
Khan
S.D
Ahmed
Heard
on:
3rd,
and
6th,
Abdul
7th
March
1967
one of the two petitioners without any order as to costs. Judge Abdul Hakim Khan also agrees
with.
(4.2)
Aminul
Islam
Vs
James
Finlay
Co.
Aminul
Islam
Vs
James
Finlay
Co.
Ltd
26DLR
(SC)
33
virtually amounted to dismissal under the cloak of the tram termination . But his contention does
not hold good as on examination of the impugned order it has been found that the termination
simpliciter under section 19 and as such he was no longer a worker within the meaning of the
Act.
(4.3)Bangladesh
tea
estate
ltd
Bangladesh
tea
estate
staff
union
On appeal by the employer company the high court of East Pakistan made an elaborate
discussion of evidence and dismissed the appeal on the ground that Nurul Abser was victimized
for his trade union activities. Because of his participation in trade union activities the order of
termination was passed by the management in disapproval of such activities.
The employer company obtained leave from the supreme court of Pakistan.
Issues:
1. Whether the question of termination under section 19 should only be decided under section 25
of the standing orders act 1965 and cannot be raised as an industrial dispute under the labour
dispute
act
or
it
can
be
raised
as
an
industrial
dispute.
2. Can the court go behind the order of termination to see if it is really victimization or not.
Judgment:
The ratio decldendi of the two cited decision reported in 25 DLR (SC) 85 and in 13 DLR (SC) 280
(PDL 1961 (SC) 403) appear to be that the employer has a right to terminate the service of a
worker under section 19 of the standing order act without disclosing any cause and that the court
should not go behind an order of termination simpliclter to find out whether the order was
malafide or not.
1. Bangladesh tea estate ltd v Bangladesh tea estate staff union (1976)28DLR (AD) 190
There is however an exception to the rule that court not to go behind the order of a service of the
termination to see if it really was victimization. This exception is contained in section 19, itself
when read with section 25. it says that if purported termination is in reality victimization of an
officer of a registered trade union for his trade union activities the court can go behind the order
to see the real purpose of termination and grant such relief as it thinks fit. The two propositions
should be read together in order to arrive at the true import of section 19 of the standing orders
act.
Labour dispute is broad enough to include a dispute of a terminated worker under section 19 of
the standing act 1965 if the dispute centres round the victimization of the worker for his trade
union activates. It is to be remembering that section 25 of the standing orders act has clearly
provided that an individual worker can claim relief before the labour court under the said act
unless the grievance ha was raised as labour dispute under labour dispute act (IRO). Through
section 25 bars all complaints against the order of termination under section 19 of the said act yet
it authorized the worker to claim relief if the termination is of an officer of the registered trade
union for his trade union activities or the worker is deprived of his benefits under section 19. The
two acts are pair material and the provision in section 25 indicates that if the termination of a
worker is for his trade union actives and if he is an officer of a registered trade union his code
may be raised as an industrial dispute.
(4.4)Banks & Another v Coca-Cola SA 1
Case
No.
Award
1114
Date
Jurisdiction
29
Labour
07
June
Court
2007
Johannesburg
Banks
&
Summary
Another
of
Coca-Cola
SA
facts:
The two applicants, both senior executives were dismissed due to operational requirements after
the process of consultation had broken down. Two and a half months later they approached the
Labour Court for relief in terms of Section 189A (13) and sought compensation in the event that
the court found that their dismissal had been procedurally unfair.
The allegations of the process being a shambles was denied by the Respondent Company and
the disputes were therefore factual and material to the issue.
The notice of termination was due to take place on the 30 June 2007 and therefore the urgency
of the matter being heard to interdict the employer from dismissing the applicants and directing
the respondent to commence the consultation process afresh as required by Section 189 of the
Act.
The facts as alleged by the applicants on the consultation process used by the Respondent were
very comprehensive and the basis of the claim was that the respondent failed to engage in any
meaningful individual consultations about a structure that could save their jobs and that the
consultation process was nothing less than a shambles, that vague and subjective selection
criteria were applied, that the respondent made a decision on restructuring and sought to consult
thereafter and that it failed to make a proper severance proposal.
The respondent alleged that the applicants referral was opportunistic and that the applicants are
seeking to do no more than secure themselves reinstatement for the purposes of negotiating a
more generous severance package.
Summary
of
Three
Judgment:
considerations
were
apparent.
The first was a material dispute of fact, the second was the time passed since the breakdown of
consultations and the launching of the application and the third is the acrimonious relationship
between the parties, best described as a hostile stand-off, in so far as is relevant to the remedy
sought by the applicants.
It was held that no purpose would be served by requiring the respondent and applicants to go
back to square one in the process and it was held that Section 189A would not serve its purpose
if the court would grant an interdict against dismissal and issue directions on how the parties
should conduct themselves in a resurrected consultation process.
The court did not make a finding on the papers before court as to whether either party had
discharged their obligations in terms of Section 189 and held that the inevitability of a future
referral to the court on the substantive fairness of the dismissal, that the procedural and
substantive aspects of the dispute are dealt with simultaneously in a trial action.
The order granted by the court was therefore:
1. The application in terms of section 189A (13) was referred to the trial roll for hearing of oral
evidence.
2. The application in terms of section 189A (13) to be enrolled simultaneously with any action that
the applicants may institute in relation to the substantive fairness of the dismissal. Should the
applicants not institute this action then the application made in terms of section 189A (13) should
be enrolled on the trial role.
(4.5) Oosthuizen v Telkom SA Ltd 1
Case
Judgment
Jurisdiction
No.
PA
Date
Labour
5
29
Appeal
/
June
Court,
04
2007
Johannesburg
of
Facts:
The appellant had been retrenched by the respondent. He lodged a claim in the Court that
partially rested on the fact that the respondent had not negotiated with him personally but with a
union that was representative at the workplace. The Court dismissed the applicants claim.
The appellant appealed to the LAC on the basis that (1) the respondent ought to have avoided
the redundancy by redeploying to one of the positions that he applied for and (2) on the basis that
the respondents selection criteria was unfair.
1.
Oosthuizen
Summary
Telkom
SA
of
Ltd
Judgment:
On the issue of redeployment, the Court noted that the appellant had applied for 26 positions,
some of which he was short listed for. The respondent led no evidence at to why he was not
appointed to those positions and the Court found that it had failed to justify the dismissal of the
appellant. Interestingly, the Court found that if the appellant required training to be suitable for an
alternative position, that the respondent must arrange such training as part of its obligations to
look for alternatives to redundancy.
On the issue of the selection criteria, the respondents evidence was that skills, suitability and
employment equity policy were the criteria adopted. The respondent did not take into account
length of service, which was a significant issue given the appellant had been employed for 30
years with the respondent. The Court did not making any findings on this point, having already
ruled that the dismissal was substantively unfair because the appellant could have been
redeployed. The LAC did appear to find that the length of service was also relevant to the
obligation
to
redeploy.
The LAC ordered that the appellant be reinstated. It also made specific orders about the need for
a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus
because of the reinstatement. Costs were awarded against the respondent.
(4.6) Perumal & another v Tiger Brands
Case
No.
Judgment
D
Date
Jurisdiction
987
1
Labour
/
June
04
2007
Court,
Durban
Judge Pillay J
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment
Issue:
In what circumstances can an employee allege that in the Labour Court that his or her dismissal,
as part of a mass redundancy (necessitating s.189A procedures), is procedurally unfair?
1.
Summary
Perumal
&
another
of
vs.
Tiger
Brands
Facts:
The applicant challenged the substantive and procedural fairness of her redundancy.
The respondent contended that the provisions of the LRA prohibited the applicant from disputing
the
procedural
fairness
in
this
instance.
In relation to substantive unfairness, the applicant alleged that the respondent had applied its
selection criteria in an unfair manner, a contention denied by the respondent.
Summary
of
Judgment:
In respect of procedural fairness, the Court agreed with the respondent. It found that s.189A (18)
of the LRA operates to bar procedural challenges from being raised in s.191 (5) (b)(ii) disputes
(relating to dismissals for operational requirements), because s.189A(13) allows for challenges to
procedural defects by way of an order compelling the employer to conform to fair procedure. In
other words, because the applicant had not brought the procedural flaws to the attention of the
employer via s.189A (13), she forfeited the right to challenge the procedural fairness altogether.
In respect of the substantive fairness, the Court noted that the respondent had subjected the
applicant and her colleagues to a competency test and also required them to attend a meeting
held by an interviewing panel. The Court found that in both the test and the interview, the
respondent had acted in a biased manner towards the applicant. Accordingly, it found that the
dismissal was substantively unfair. It ordered that the applicant be reinstated, paid compensation
of 12 months with a partial costs order against the respondent
(4.7) Zero Appliances (Pty) Ltd v CCMA & Others 1
Case
No.
Judgment
JR
Date:
Jurisdiction:
805
28
Labour
06
March
Court,
2007
Johannesburg
Judge: Rampai AJ
Subject: Practice and Procedure/Appeal and Review
Issue:
The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment
1.
Zero
Summary
Appliances
(Pty)
Ltd
vs.
CCMA
of
&
Others
Facts:
The applicant employer implemented a redundancy program that included, at the unions request,
the appointment of a facilitator from the CCMA and the execution of a facilitation agreement.
Some three months after they have been made redundant, 63 employees lodged unfair dismissal
claims alleging procedural unfairness. The employer alleged that the referral was out of time and
had been directed at the wrong body. Nevertheless, a CCMA commissioner condoned the later
referral and issued a certificate to the effect that the dispute remained unresolved.
The employer approached the Court to have the commissioners condonation and the certificate
set aside.
Summary
of
Judgment:
The Court found that the mere fact that the CCMA had been involved during the facilitation phase
of the retrenchment did not entail the transfer of jurisdiction over the dispute.
The Court noted that it is the correct forum for lodging disputes about the procedural fairness of
mass retrenchments pursuant to s.189A(13). The employees had embarked on the wrong
dispute referral procedure. Accordingly, the Court held that the certificate was issued in error and
set
it
aside.
As to the condensation, the Court noted that the retrenched employees did not dispute or
question the retrenchment process while it was in progress and only did so 97 days after their
contracts were terminated, which raised serious questions about their bona fides. It took the
employees 238 days, from date of termination of their contracts, to raise the dispute in the Court.
It also found that the employees provided no explanation and had not applied for condensation.
Finally, the Court assessed the employers chances of success as excellent. The condensation
was also set aside.
Costs were awarded against the employees.
(4.8)
Leppan
Retrenchment:
and
Suretrade
110
breakdown
CC
of
t/a
trust
Bra
Boutique
relationship
14-MAY-08 1
Case
Award
No.
Date
Jurisdiction
KNDB
04
6002-07
February
CCMA,
2008
Durban
of
Facts:
The Employer was a close corporation in which the Employee held a 15% membership. Other
members were his mother (15%), Andre Dippenaar (40%), and Lynette and Kim Thompson (each
15%).
The Employee had also been the general manager for a period of 2 years. When a fellow
employee complained about him to the CEO, Ian Thompson (not a member of the CC),
Thompson suspended him.
The Employee then called a meeting with all the members where he pointed out that Thompson
was an un rehabilitated insolvent, and as a result, not allowed to act as the CEO, with the result
that Thompson was removed from this position.
Dippenaar, the majority shareholder then indicated that he would take over as CEO and the
employee indicated that he was not prepared to back Dippenaar in this position.
He failed to return to work and attempted to negotiate an exit package via his attorneys. This was
followed by another letter from his attorneys, indicating that he would return to work under certain
conditions. The conditions were not accepted by the new CEO, and indicated that he was not
prepared to work with the Employee.
1. Leppan and Suretrade 110 CC t/a Bra Boutique Retrenchment: breakdown of trust relationship
14-MAY-08
The Employer then invited the Employee to participate in consultation pending a dismissal for
operational reasons. No agreement was reached and the Employee was retrenched.
Summary
of
Award:
The Commissioner held that, with reference to the LC decision in Rand Water v Bracks NO &
others, she did not have jurisdiction to adjudicate the procedural fairness of the dismissal. The LC
held in that matter that: As soon as the procedural fairness of the dismissal is put in issue by a
single employee, I am satisfied that section 191(12) of the LRA must be interpreted as meaning
that such cases must still be referred to the Labour Court and that the CCMA will not have
jurisdiction to hear them.
She held, however, that she was entitled to split the issues and make a finding in the substantive
fairness of the dismissal. In this regard she held that the wording: requirements based on the
economic, technological, structural or similar needs of an employer in section 213 of the LRA
was wide enough to include a breach of trust or a breakdown in the relationship.
In this matter, the Employee was unable to function in a harmonious work environment with the
CEO and a breakdown in the employment relationship resulted. The breakdown was mutual in
this case.
The Commissioner held that there does not need to be a long history of problems for trust to be
damaged, particularly at a senior level and where parties are co-members of a close corporation.
As a result, the dismissal was held to have been substantively fair
(4.9) Zietsman & others v Transnet Limited 1
Case
No.
Judgment
JS
614
Date
Jurisdiction
21
/
June
Labour
Court,
06
2007
Johannesburg
Judge Molahlehi J
Subject: Retrenchment: Severance Pay
1.Zietsman
&
others
Transnet
Limited
Issue:
The Employees sought a determination on whether the calculation of the severance pay by the
Employer should have included the dealer bonuses of each of the Employees as provided for in a
bonus scheme agreed to by the Employer.
The court held that as long as the Employer complied with the statutory minimum payments,
there was no additional entitlement to other payments.
Summary
of
Facts:
The 3 applicant Employees were retrenched by the Employer. They had all participated in a
bonus scheme in terms of which bonuses were paid to them bi-annually.
When they were retrenched they were paid a severance package of 2 weeks salary for each
completed year of service. The Employees claimed that their severance packages were
calculated incorrectly as the bonuses were excluded from the quantum of remuneration on which
the 2 weeks severance pay was calculated.
Summary
of
Judgment:
In exercising powers given to him in terms of section 35(5), the Minister published a schedule
indicating payments to be included in an employees remuneration for the purposes of calculating
pay for severance pay in terms of section 41 of the Act.
In terms of this notice discretionary payments not related to an employees hours of work or
performance do not form part of the remuneration for the purpose of calculating severance pay.
The court held that where an employer paid more than what section 41 of the Act required, a
section 35(5) calculation would not apply. In this case, the Employees severance packages
exceeded what they would have received had they been paid the statutory minimum calculated to
include the bonuses.
As the Employees received more than what was provided for in section 41 of the Act and in the
absence of an agreement to use the formula provided for in section 35, the court held that the
Employer had complied with the requirement of the Act and that the Employees were not entitled
to payment of their bonuses.
(4.10)
Thekiso
IBM
South
Africa
(Pty)
Ltd
No.
Judgment
Date
Jurisdiction
JS415/05
18
October
Labour
2006
Court,
Johannesburg
of
Facts:
The applicant worked in the employers asset management division which lost a number of
contracts that necessitated redundancies. Positions in the division were made redundant and
affected employees were invited to apply for a more complex post of asset administrator. The
applicant applied but was unsuccessful. The employer appointed a white male.
The applicants claim for inadequate consultation relied on the fact that the employer commenced
consultation meetings on the same day that she was given a s.189 letter.
Interestingly, the applicant initially pleaded that her dismissal was automatically unfair because of
direct discrimination (on the grounds of race and gender). During the hearing, by leave of the
Court, she amended her claim to plead that the employer failed to consider the obligations of the
EEA when determining parties for retrenchment. The applicant relied on s.15 of the EEA.
1.
Thekiso
IBM
South
Summary
Africa
(Pty)
of
Ltd
[Redundancy
&
EEA
requirement]
Judgment:
The Court dismissed the applicants contention that she had not been adequately consulted,
noting that the applicant, when asked to attend a meeting on the same day as receiving her s.189
letter, had not objected or asked for more time. A number of consultation meetings were also held
subsequent to the initial meeting.
On the issue of the selection criteria, the Court found against the employee, noting that a
retrenching employer that has one post to fill is not required to debate the merits of each
employee with the others before making the selection.
The Court noted that the applicant relied on the EEA to claim that the employer was obliged to
retain the applicant (a black woman) in preference to a white male provided she was suitably
qualified for the available position.
The Court was quick to reject this claim, referring to its earlier decision of Dudley y City of Cape
Town in which it was determined that the EEA does not bring about an individual right to
affirmative action. The applicant had submitted to the Court that Dudley was wrongly decided
and should not be followed.
The Court did not agree and it noted, the obligation imposed by the EEA obliges designated
employers to take measures to retain and develop people from designated groups does not
mean that designated employees should be afforded a preference when it comes to selection in
the retrenchment context.
Chapter-5
LABOUR COURT AND LABOUR APPELLATE TRIBUNAL
5.1
Basic
Idea
5.2
Application
of
the
Labour
court
5.3
Jurisdiction
of
the
labour
court
5.4
Power
5.5
and
status
of
labour
the
court
labour
is
court
in
trying
civil
offences
court
worker may go on strike or the employer may declare lock out. However the parties raising the
dispute may either before or after the commencement of a strike or lock out make an application
to the labour court for adjudication of the matter (section 211)
(2) Again if a strike or lock out lasts for mare than 30 days the government may prohibits such
strike or lock out and in that case the government must refer the dispute to the labour court 1
(section 211,(3,4,5))
(3) Again under section 213 any collective bargaining agent or any employer or worker may apply
to the labour court for the enforcement of any right guaranteed or secured to it or him by or under
this code or any award settlement.
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.280
(5.3) Jurisdiction of the labour court
Under section 214(10) a labour court shall have exclusive jurisdiction to
(1) Adjudicate and determine an industrial dispute which has been referred to or brought before it
under this code;
(2) Enquire into and adjudicate any matter relating to the implementation or violation of a
settlement which is referred to it by the government
(3) Try offences under this code
(4) Exercise and perform such other powers and functions as are or may be conferred upon or
assigned to it by under this code or any other law.
(5.4)Power and status of the labour court in trying offences
Section 215 and 216 of the code provides the procedure and powers of labour court which is may
be of two types; 1
(1) Power and status in trying offences and
(2) Power and status in civil maters
(a) The labour court shall follow as nearly as possible summary procedure as prescribed under
the code of criminal procedure 1898 (Act V of 1898)
(b) A labour court shall for the purpose of trying an offence under the code have the same powers
as are vested in the court of a magistrate of the first class under the code of criminal procedure.
(c) The labour court shall for the purpose of inflicting punishment have the same powers as are
vested in Court of Session under that code.
(d) A labour court shall while trying an offence hear the case without the members.
(5.5) Labour court is a civil court
In the case of Pubali Bank V the Chairman 1st labour court 44DLR(AD)40 the question was
raised whether a labour court is a civil court or not their. Lordship of
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.282
the appellate division upon consideration of relevant provision of the industrial relations ordinance
1969 held that the labour court acts as civil court for limited purpose but not a civil court at all it is
only by a legal fiction or a statutory hypothesis that it is to be treated as a civil court.
Labour Appellate tribunal Constitution
(1) The labour Appellate tribunal shall consist 1 of a chairman or the government deems fit of a
chairman and such number of members as determined by the government additional judge of the
high court division (section 218(1))
(2) The chairman of the tribunal shall be from amongst persons who is or has been a judge or an
additional judge of the Supreme Court or is or has been a district judge for at least three years.
(3) If the chairman is absent or unable to the tribunal the chairman any reasons the senior the
senior member of the tribunal if any shall discharge the functions of the chairman.
(4) An appeal or any matter before the tribunal may be heard and disposed of by the tribunal
sitting as a whole or by any bench thereof.
(5.6) Power and function of the tribunal 2
(1) Subject to this code, the tribunal shall follow as nearly as possible such procedure as are
prescribed under the code of civil procedure, for hearing of an appeal by and appellate court from
original decrees.
If the members of a bench are divided in their opinion as to the decision to
be given on any point(a)The same shall be decided according to the opinion of the majority, if any
(b) If the member of the bench is equally divided, they shall state the point on
which they differ and the case shall be referred
by them
and
chairman
or
such
member
point
or
shall
majority
be
of
decided
the
according
members
to
hearing
the
the
opinion
of
the
points,
as
the
The
Labour
Code
of
Bangladesh
2006,
{section
218(1)}
2. Md. Abdul Halim, The Bangladesh Labour Code, 2006, CCB Foundation, Ed.1, p.287
(2) Where a bench includes the chairman of the tribunal as one of its members and there is a
difference of opinion among. The members and the members are equally divided, the Decision of
the chairman shall prevail and the decision of The Bench shall be expressed in terms of the
opinion of the Chairman.
(3) The judgment of the tribunal shall be delivered within a period of not more then 60 days
following the filing of the appeal.
(4) The tribunal shall have authority to punish for contempt of its authority, or that of any labour
court as if its were a high court division of the Supreme Court.
(5) The tribunal may, on its own motion or on the application of any party, transfer a case from
one labour court to another.
(6) The tribunal shall have superintendence and control over all labour courts.
Chapter
CONCLUSION
6.1
Findings
6.2
Recommendations
For this reason, they retrenched by the employee as the employers wish. Very often, they
retrenched with out any legal process. This is injustice and in human. This should be protected
for the interest of industrialisation in Bangladesh. Proper and strict provisions should be included
in Labour laws and state laws. The labours should not be deprived. Their rights should be
protected.
Illegal retrenchment by the employer is inhuman and increased the suffering of the labours. In
this respect he following action should be taken:
1. The cause of retrenchment should genuine and proper in the eye of law.
2. Proper notice for three months should be given to the respective labour for his self defence,
3. If not the labour should be paid three months salary and other benefits allowable as per law.
(6.3) Scope of the further study
The discussion of this thesis will be limited within the scope of the origin and historical
development of Labour law of Bangladesh, the problems of Labour law of Bangladesh, problems
of Labour education in Bangladesh and some case studies.
In Bangladesh perspective we find that there are several problems remain related with Labour
disputes, Workers Problem, Trade Union Problems, Employments problems, Working Hour
Schedule etc. So we think further study may be done on the following issues:
1.
2.
Labour
Trade
disputes
Union
Problems
solution
and
process.
their
functions
http://www.assignmentpoint.com/arts/theis-on-workers-retrenchment-under-labourlaw-in-bangladesh-perspective.html
2. to bring about industrial peace which could in its turn accelerate production activity of
the country resulting in its prosperity.
Labour has a vital role in increasing productivity, and management has to help create
condition in which workers can make their maximum contribution towards this objective.
In free India, the labour movement and the trade unions should be in a position to
assume larger responsibilities one of the main tasks in the five year plans is to evolve
practical ways in which they can make an increasing contribution to national
development and national policy. The growth of the public sector provides opportunities
for working out new concepts of labour relations and the association of labour in
management of industry[4].
Labour Laws in Bangladesh before ,2006
The present shape of labour law has not been evolved by one day. It has been evolved
day by day . The practice of labour law was started for the first time in ancient Rome.
For the first time in Rome,the charge of several professionals like: artist, doctor, animal
farmer, were fixed. Then after thousands of year the present shape of law has
evolved.The first effective Labour Legislation in this sub-continent is the Indian
Factories Act, 1881. The act was passed on the basis oa a report of Major Moore
inspector-in-chief of the Bombay Cotton Department in 1872-73. It was major Moore
who, for the first time suggested for provisions in the legislature to regulate the working
conditions in factories. After submission of the said report vis--vis on the pressure of
the Merchants and moll-owners of UK the Factories Bill for India was placed in the
British Parliament in 1874. The cause behind the etageres of the merchants of
Lancashire for industrial laws in India was that they could make less profits than other
British mill-owners who established mills and factories in Bengal or Bombay in India.
Since raw materials and labour were cheaper in the sub-continent the merchants of
Lancashire Mill-owners Association with a view to put some restrictions upon the
working hours and service conditions in the Indian factories managed to place the bill
and the Indian Factories Act, 1881 (Act No XV of 1881)was passed. The Indian
Factories Act, 1881 applied to manufacturing establishments using mechanical power
and employing 100 or more persons. Plantation industries were exempted from
operation if the Act. Although provisions of the Act were far from satisfactory yet those,
as the basement of factory legislation, played an important role in the field of labour and
industrial legislation in the Sub-continent.The Act for the first time limited working hours
of women workers to eleven hours a day. The age for employment of children in
factories under age of seven year was prohibited. A weekly holiday for children was
introduced and a restriction was imposed upon works of children at night.
After a lapse of 10 years the Indian Factories Act, 1881 was repealed by the Indian
Factories Act, 1891 (Act XI of 1891). The British Government appointed a commission
for India in 1890 who submitted report to the Government suggesting enactment of a
new law. In the basis of the report of the commission the Factories Act, 1891 was
passed, It applied to all factories employing 50 persons and using power, minimum age
for employment of children was fixed at 9 years. Working hours of children was limited
to 7 hours a day with half an hour rest. Working hours for women was restricted at 11
hours with 1-1/2 hours rest. Male workers were also provided a weekly rest. Half an
hour rest in a day for male workers was also provided for in the Act.The Factories Act
1891 was again repealed and replaced in 1911 by the Indian Factories Act, 1911 (Act
XII of 1911). The Act put restrictions upon daily works of male persons. An adult male
workers maximum hours of work was fixed at 12 hours and that of children at 6 yours a
day in textile industries. Seasonal factories were brought to the ambit of factory laws.
The Act contained extensive provisions for health and safety and effective inspection of
the administration of the factories.Establishment of the International Labour
Organization ILO in 1919 is an epoch making event in the history of Labour legislation.
British India as a member country of the ILO amended the Factory Law in 1922. By the
amendments, all Industrial undertakings using mechanical power and employing 20 or
more persons were brought under the Act. Hours of work irrespective of gender were
fixed at maximum 9 hour a day and 60 hours a week. One hour rest was granted to
workers, for works exceeding 6 hours. Minimum age of children for work was fixed at
12. Payment at a rate of 1-1/2 times of normal wages was provided for overtime work.
Employment of women and children under 18 years of age were prohibited in
dangerous process. The Factories Act 1911 underwent some amendments in
1922,1926 and 1931 and finally the Act was repealed and replaced in 1934.The Royal
Commission on Labour was appointed by his Majesty the King Emperor in 1929 to
enquire into and report on the existing conditions of labour in industrial undertakings
and plantations in British India in the health, hygiene efficiency and standard of living of
the workers and on the relations between the employer and the employed and to make
recommendations. The commission examined the above aspects and submitted report
in 1931. The commission in its reports interalia, made several important suggestions for
amending of the factories Act. employer and the employed and to make
recommendations. The commission examined the above aspects and submitted report
in 1931.The commission in its reports interalia, made several important suggestions for
amending of the Factories Act.Mainly in the basis of the recommendations of the Royal
Commission on labour the Factories Act, 1891 was repealed and altogether a new and
comprehensive Act viz, the Factories Act, 1934 (XXV of 1934) was passed . The major
objects of the Act was to reduce the hours of work,improve working conditions provide
adequate inspection etc. The Factories Act, 1934 covered all manufacturing
establishments and using power and employing 20 or more persons. Seasonal and
perennial factories were distinguished, 54 hours of work per week and 10 hour works a
day in perennial factories for adults and 60 hours per week in seasonal factories were
provided. Hours of work of children was reduced. New category of worker named
adolescent workers was introduced Certificate of fitness for employment of child worker
was made compulsory. Double employment of children was prohibited. Restriction was
imposed upon right work of women and children. Payment of overtime allowance@1-1/2
times of ordinary rate of wages retained. Provisions for health and safety have been
amplified. Contravention of any of the provisions were made punishable, Minor changes
in the Factories Act 1934 was made by amending the Act in 1937,
1940,1941,1944,1945 and in 1946.
During the Pakistan regime the Factories Act, 1934 continued up to1965. The then East
Pakistan Assembly repeated the said Act and in its place re-enact the same and passed
the East Pakistan Factories Act,1965 (Act IV of 1965) The Act was passed in the
Assembly on the 5th August, 1965 and was published in the Gazette dated
1st September,1965.After liberation of Bangladesh on the 26 th March,1971 the Act
remained in force. No major change in the Act has yet been made[5]. The laws which
this Code has replaced were made mostly during the British Colonial regime and
Pakistan period and they were as many as 50 in number. In many cases these laws
were outdated, scattered, inconsistent and 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 and it prepared a draft Labour Code in
1994. This draft of Labour Code,1994 underwent series of changes in its vetting stages
and finally the Bangladesh Labour Code 2006 was passed by the Parliament on
October 11,2006.The Bangladesh Labour Code 2006 is one of the very recent laws with
major overhauling changes in the field of labour legislation.
LAW AND CHANGE
Role of law in the society bears relationship between law and social change in view of
its funchions as new modes for change, lags an way to development and inducer
ndevice to bring about social changes etc.While some progress in the thinking process
individually about social study of law and comparative law have been achieved the
same as regards their inter relationships have not progressed upto expectation despite
an appreciable amount of research in the area, possible, because of the inadequate,
availability of trained expertise in the fields of law and social sciences non-availability of
research techniques and tools in normative systems e.g. law, too much concern for
social control aspect of law and a little study of law in the social contexts.Study of some
basic concepts, and then, in this connection the changer modes affecting the
relationship of law and social change, comparative law, policy study development
approach to law making etc. may definitely lay-open some central issues to unite the
implications as to the understanding of the trend of role of law and social change in the
modern societies.Comparative study of law by its insight into the existing systems and
practices of problems and solvetion of life and living of different societies provides the
research methodologies and the basic processes of approaches to the study of law and
society. This way the background and perspective to many legal systems may be easily
brought to the confines of comprehension which would otherwise appear apparently as
unmeaningful or little meaningful when viewed as being isolated from their social
systems as a whole.
In developed societies there are three main or any to bring about changes in law e.g,
legislature, judiciary and executive. On exacts law, another interprets while the other
enforces it. In many primitive societies such differentiation of legal functionaries is less
developed and there all the above processes of law are exercised and handled by the
same body or left to the discretion of the family. But what many be the appearance and
formation of the functionaries i.e, the processes as are performed distinctly to some
extent and the changes in law occur. Social change and changes in law are interacting
processes in all societies. Social study as well as comparative study of law may open
up new directions to social problems and their solutions. Dynamic technological culture
of the modern societies depends largely on the pursuit of statesmen, lawyers, social
scientists and their skills and abilities for better smoother harmony in the life and living
of people as social human beings[6].
Labour law in present:
The British colonial regime and Pakistan period there were many labour laws. In many
case these laws were some words like worker were outdated, scattered, inconsistent
and other employee owner employer etc had different overlapping each other
meanings under different laws. As a result sometime many problem. So 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 and it prepared a draft labour code in
1994. This draft of labour code ,1994 under went series of changes in its vetting stages
and finally the Bangladesh labour code 2006 was passed by the Parliament on October
11,2006. The Bangladesh labour code 2006 is one of very recent laws with major
overhauling changes in the field of labour legislation. Section 353 of the code has
repealed 25 previous labour related laws. The following laws are here by repealed.
1. The workmens compensation Act, 1923 (VIII of 1923)
2. The children (pleading of labour) Act, 1933 (II of 1933)
3. The workmens protection Act, 1934 (IV of 1935)
4. The Dock labourers Act, 1934(XIX of 1934)
5. The payment of wages Act, 1936(IV of 1936)
6. The employers liability Act, 1938(XXVI of 1938)
7. The Employment of children Act, 1938(XXVI of 1938)
8. The Maternity Benefit Act,1939(IV of 1939)
9. The Mires Maternity Benefit Act,1941(XIX of 1941)
10. The Motor Vehicles (Drivers) Ordinance,1942(V of 1942)
11. The Maternity Benefit (Tea Estate) Act, 1950 (xx of 1950 )
12. The Employment (Records of service ) Act, 1951 (XIX of1952)
13. The Bangladesh plantation Employees provident Fund ordinance, 1959(XXXI of
1959)
14. The coal Mines (Fixation of Rates of wages) ordinance,1960 (XXXIX of 1961)
15. The Road Transport workers ordinance , 1961 (XXVII of 1961)
16. The Minimum wages ordinance ,1961(XXXIV of 1962)
17. The plantation labour ordinance ,1962(XXIX of 1962)
18. The Apprenticeship ordinance,1962(IVI of 1962)
19. The Factories Act, 1965(IV of 1965)
20. The shops and Establishment Act, 1965(VII of 1965)
21. The Employment of labour (standing orders) Act, 1965 (VII of 1965)
22. The companies profits ( workers participation) Act, 1968 (XII of 1968)
23. The industrial Relations ordinance, 1969(XXII 1969)
24. The newspaper employees (condition of service) Act, 1974(XXX of 1974)
25. The Dock workers (Regulation of Employment) Act, 1980 (XVII of 1980)[7]
There are still 25 valid laws dealing with labour and industrial issues have not been
repealed or consolidated and as such the Bangladesh labour code, 2006 although a
consolidated act has nor consolidated all the laws in the filed. Furthermore, although
the name of the law is Bangladesh labour code, in fact, it is not a code rather a
consolidating legislation only.
1. Prior to the promulgation of the Bangladesh Labor Law 2006, the total number of
Acts and Ordinances in this field was fifty, of which:
15 were enacted during the British regime
worker participating in the training program shall be deemed to be in his or her official
duty during continuance of such training. This unified law is applicable with equal force
to all the industrial and commercial establishment as previous Shops and Establishment
Act-1965 and other labour laws has been abrogated by the promulgation of this new
labour code[8].
Applicable of Bangladesh labour code, 2006According to the Bangladesh labour code, 2006 see-1(3) defines save as other wise
specified close where in this code, it shall apply to the whole of Bangladesh. And
According to see-1(4) defines, Hot with standing anything contained in sub-section (3),
this code shall not apply to1.
offices of or under the government
2.
3.
Ordinance factories.
4.
Establishments for the interment or care of the sick, inform aged, distillate ,
mortally deranged, orphan abandoned worn an or child or widow which are not run
for profit or gains.
5.
Shops or stalls in any public exhibition or show in so far as such shops or stalls
deal in retail trade which is solely subsidiary or ancillary to the main purpose of such
exhibition or show.
6.
Shops or stalls in any public fair or bazaar held for religious or charitable
purpose;
7.
8.
9.
10.
1.
Railway Department;
2.
3.
4.
5.
11. seamen, except for the purposes of Chapters Twelve, Thirteen and Fourteen.
11. Ocean going vessels, except for the purposes Chapter Sixteen.
11. Agricultural farms where less than ten workers are normally employed;
11. Domestic servants; and
16. Establishments run by owners with the aid of family members and without employing
period.
from the job naturally. But if the authority thinks him fit then
they can appoint him as a contractual basis-there is a
provision about it in section 28. It is a new provision.
Building and Equipment-There is no any provision when apparent any dangerous building or equipment in
about it in The Factory Act, 1965.
wages- The payment of wages Act, 1936 does not crook all the property of the employer and sell in auction to
mentioned this topic clearly and strongly.
permanent disable.
16.In the section-6 of the present IRO-69 have no 16.There is a new provision in the sub-section (3) under
any provision about to inform the employer after
the -30 percent employees are not member of that buildingt more trade union and can not build or register
institution then that institution will not gave right to trade union taking the weakness pount of the law-Any
register in the trade union.But there has no any
his establishment.
19. There has no any provision in the section -8 of 19. There is a provision in the sub-section (6) of sectionIRO-69 about appeal in the High Court by the
21. At present in IRO-69 according to civil aviation 21. The employees involve in the expertise profession of
has no any different policy for building the trade
the private airlines can build separate trade union for their
union.
stated that without the permission of the decretory the permission of the secretary, general secretary,
or general geometry of the trade union can not
practices on part of the employees are mentioned. the employers have included some additional actions:#
Illegal lock-out or adopting go-slow strategy.
# Besieging / Enelosing, hindering transportation system
and destroying assets or establishments.
26. Under section 22 of IRO-69, guidelines for
committee shall be constituted with equal number participation committee. In the process of nominating the
of participants from employer and workers. But
suggestions of participation committee in the IRO- implementing the suggestions of participation committee.
69
31 of the IRO-69. It has stated that negotiations time limit for negotiation. So, the industrial disputes
related to industrial disputes shall be settled
dispute raising personnel before going on strike party and after the commencement of the strike or dispute;
and lock-out.
32. From section 214 to 218 there are provisions for labour
appellate tribunal under the sections 35 to 38 in labour court has been extended and the indicial proceedings
the IRO-69.
33.Under sub-section 2(cha) in The Companies 33. Under section 233 (1) (ja). worker is defined as
Profits (Workers Participation) Act, 1968 the
who is working in that company for not less than six months
(1)
(2)
35. The provision for penalty,At the end of each 35. In the chapter 19, from sections283 to 316, total 34
and every exiting Act, there is a provision for
different provisions for penalty are prevailing so, penalty has been increased and adjusted according to the
there is a chance to charge different degrees of level of offence. In most of the cases, fine as well as
penalty in case of same level of offence or
violation of laws.
chapter 3- Health provisions for workers chapter establishments, maintain a healthy environment and prepare
4-Safety issues for workers and establishment,
Compensation act, 1923 the list of occupational position, To ensure female representation in that council, it
diseases is mentioned.
Under Section 5 of Dock Workers Act, 1934 it is representative in their seven members group.
described in detail that in which sectors
Government can impose regulations to ensure
safety for the dock workers. Besides this, whole
Dock workers Regulation is about heath and
professional safety provisions.
workplace.
consented/approved policy and regulations that Bangladesh regarding the basic rights and in the context of
there is no difference between the wage rate for all approved policy of the country, there is a separate
work of male and female workers, nevertheless
on dangerous machineries; there is no separate be announced from time to time, through gazetteer
provision entitled as disclosing the list of highly notification by the government as highly dangerous work.
dangerous type of work.
42. In the existing Factory Act, 1965, under the
44. In the existing act, the maintenance of floor, 44. To clarify the issue under sub-section of section72 it is
stairs, and inside passages is not stated clearly. stated as follows:Each and every floor, passage and stairs
shall be kept clean, wide and free.
45.In the existing labour act, there is no
and reed fining wage level at regular interval for diction 139(1). At the end of this action there is an
any industrial establishment
national trade union federation or registration of subsection (5) of section 200 there is new[10].
it .
previous legal framework. Improvements include the extension of maternity leave from
12 to 16 weeks, and the facilitation to create trade unions in specific sectors. Also, all
prosecutions for offences in the Labour Code 2006 must now take place in the Labour
Court rather than in the Magistrates Courts as before and the court should follow the
Criminal Procedure Code (section 313(1)). Complaints can be lodged either by an
inspector [Section 319(5) allows an inspector to lodge a complaint to the Labour Court
with regard to commission of any offence] or an aggrieved person or trade union but
they must be done so within six months of the commission of the offence (section
313(2). However, several actors pointed to the fact that the new labour law is still weak
on many issues. On Working hours for example, the legislation is weak: it fixes the
working hours of a worker to a maximum of 10 hours a day, but specifies that exception
may be allowed in general or in particular for any establishment with the conditional
permission.
WORKING CONDITIONS
WAGES
Chapter 10 of the new labour law deals with the provisions related to the wages of the
labour. Wages include the following items as per section 120 of the new labour law:
Any bonus payable or any other additional wages as per the terms and conditions of
the employment; Any remuneration payable during leave, holiday and overtime; Any
amount payable against the order of the court or against the award of arbitrator; Any
amount payable to the worker against out of the contract between the owner and the
worker after the employment is expired by dismissal, discharge, retrenchment, or
termination; Any amount payable due to lay off or temporary suspension. The new law
has also provided a list of exclusion in section 2(45) to exclude the following accounts
head from the term wages:
Expense of housing facilities like lighting facilities, water supply, medical or any
other facilities;
Any other sum paid to worker to cover any special expenses entailed to her/him
by the nature of the employment.
But, as per different decisions of the courts of Bangladesh, the following items are also
treated as part of the wages of a worker: Any amount payable to the worker by the order
of the court or the award of the arbitrator shall be treated as the wages; Overtime
allowance shall be treated as wages; Compensation on retrenchment (on ground of
There is a big change. In previous law, where there is less than 1000 workers
employed, the employer had to pay before the expiry of the 7th day from the end of the
wage period and in the railway or any other factory or industry , the employer had to pay
before the expiry of the 10th day from the end of the wage period. 6
Deductions from the wages Provisions of the new labour law:
Section 125 of the labour law 2006 deals with the deductions made from the wages of
the
workers. Following are the deductions valid under the present law:
1. Fines under section 25 (section 25, however, states that no fine shall be allowed
more
than one-tenth of the total wages receivables by a worker in a particular wage period
and
no fine for a worker aged below 15);
2. Deductions for absence from duty;
3. Deduction for damage or loss of goods entrusted upon the worker in her/his custody;
4. Deduction for house accommodation supplied by the employer;
5. Deduction for such amenities or services supplied by the employer as the
government has authorized;
6. Deduction for recovery of advances or for adjustment of overpayments;
7. Deduction for Income tax payable by the worker;
8. Deduction for subscription to and for repayment of advances from the provident fund
9. Deduction for the payment to the co-operative societies approved by the government.
Up to these 9 points the new law remains exactly the same as section 7 of the earlier
Payment of Wages Act 1936, but the new law added more deductions like the following:
Deductions for the subscription of CBA Union in check-off method; Deduction for any
welfare fund formed by the employer and authorized by the Government.
Grievance procedure in case of illegal deductions or delay in payment Provisions
of the new labour law:
Application by the worker her/himself or her/his successor in case of her/his death;
Application to the labour court only; Application within 12 months from the date of such
illegal deduction or the date of the payment being due, but the court can take it even
after the expiry of the said period; Up to 25% as compensation on the wages due at
that time may be ordered; No court fee is payable by the aggrieved worker; rather, if the
worker wins the case it is the owner who shall reimburse the payable court fees; Single
application on behalf of all the workers so aggrieved. 7
Changes in the present Law:
At present, the Chairman of the Labour Courts is only eligible to hear the cases;
Previously, the limitation period was only six months, now it is twelve months. 8
WORKING HOURS AND LEAVES
Daily hours Provisions of the new labour code:
Section 100 makes a provision of 8 working hours a day for an adult worker, but an
adult worker may work 10 hours a day provided all the conditions of section 108 have
been fulfilled. According to that section, the employer is required to pay the worker,
overtime, double the rate of her/his usual wages. i.e. basic & dearness allowance, if
any. The employer is also required to maintain an overtime register as per the law.
Changes in the present law:
Daily hours has been reduced to 8 hours-a-day from previous 9 hours-a-day
Interval for rest and meal* Provisions of the new labour code:
Interval for rest is provided in the following manner:
1. One hour interval for rest or meal for six hours of work;
2. Half an hour interval for rest or meal for 5 hours of work.
Changes in the present law: No change has been made.
Weekly hours**
Provisions of the new labour code:
The new law makes a provision of total 48 (forty eight) working hours for a worker, but it
can be extended up to sixty hours, subject to the payment of overtime allowances as
per section 108 of the law. However, an average of 56 working hours per week in a year
for a labour must not be exceeded under any circumstances. But the new law makes a
provision for exemption approved by the government if it thinks so fit.
Changes in present law:
Exemption clause has been inserted in the new law, by which the government is
empowered to exempt any of the factories for the purpose of this rule for a maximum
period of six months at a time.
Weekly Holiday***
Provisions of the new labour code:
Section 103 of the new labour code makes the provision of one day weekly holiday for
all the workers employed in a factory.
* Section 101 of the Labour Law, 2006
** Section 102 of the Labour Law, 2006
*** Section 103 of the Labour Law, 2006
Changes in the new law: No change.
Section 34 of the new labour law creates a bar on the appointment of children in any
establishment. The section states as follows:
The employer shall pay the fees for obtaining such certificate and the fees cannot
be realized from the parents or guardians of the worker.
In every factory, the work of an adolescent shall be limited up to two shifts and no
such
An adolescent can only be appointed in a single relay and such relay shall be
changed
only with the prior approval of the inspector for once in a month.
Restriction of appointment of adolescent in certain work
Provisions of the new labour law:
Section 39, 40 and 42 of the new labour law reports some activities for which the
employment of the adolescent is strictly prohibited. As per the above mentioned
sections, the employment of the adolescent are strictly restricted for the following
activities:
EMPLOYMENT
Employer
Definition in New Labour Law:
The Term Employer is defined in section 2, Subsection (XLIX), previously the term was
defined in different law for different purposes like for payment of wages, for
Employment, for Factories and for Shops and establishment. But the new law provides
a single definition to cover all the purposes. As per the above section any person in
relation to an establishment who employs workers therein and includes:
Manager or the person responsible for the management and control of the
establishment
The authority appointed by the government or the head of the Ministry or division
concerned for the State owned establishment
Officer appointed for the purposes or where no such authority is appointed the
CEO of the Local authority for the establishment run by the local authority.
For any other establishment, the Owner of the establishment and every director,
Manager, Secretary or the agent of such persons
Forced labour
Provisions of the new labour law:
Forced labour is strictly prohibited by the Constitution of the Peoples Republic of
Bangladesh. Therefore, any Law approving forced labour is Void ab initio as per the
constitutional framework of legislation in Bangladesh. Article 34 of the Constitution of
the Peoples Republic of Bangladesh stated as follows:
-All forms of Forced Labour are prohibited and any contravention of this provision
shall be an offence and shall be punishable in accordance with the Law
Again, the two ILO fundamental rights Conventions (nos. 29 and 105) also addresses
the abolition of forced labour, and Bangladesh has ratified these two conventions long
time ago. But, this constitutional guideline is still ignored in the new Labour Law as the
Law has not defined the word forced labour in it and has not provided for the
punishment and procedure thereof. 15 Therefore, forcing the worker to work in a factory
for days together continuously by the factory owners against their intention should be
strictly prohibited and law should address this issue as per our Constitution and ratified
ILO Conventions.
Discrimination
Provisions of the new labour law:
Any discriminatory behavior on the basis of sex, color and creed is totally prohibited in
any law in Bangladesh. Articles 27 and 28 have provided a guideline to the legislator to
make the discrimination free environment in every walk of national life. Section 345 of
the new labour law is, however, noteworthy in this connection. The section is stated as
follows: In determination of the wages for a worker or in fixation of the minimum wages
equality irrespective of the sex of the worker, shall be maintained. No discrimination in
this regard shall be tolerated by law. Article 27 of the Constitution is stated as follows:
-All citizens are equal before Law and are entitled to equal protection of Law
Article 28 of the Constitution is stated as follows:
-The State shall not discriminate against any citizen on the grounds of religion, race,
caste, sex or place of birth.
Therefore, discrimination on the grounds of any of the above issues is prohibited in the
country.
Service rules
Provisions of the new labour code:
Section 3 of the new labour law allows an industrial establishment to make a service
rule
pursuant to the labour laws of the land.
Provisions of the previous labour laws: Section 3 of the Employment of Labour
(Standing Orders) Act, 1965 has the same provisions as above.
Changes brought by the new law: No change has been made.
Comments: Framing of the service rules by an employer is not mandatory, but if these
are made, they must comply with the relevant laws.
Appointment Letter and ID Card
Provisions of the new labour code:Section 5 of the new Labour Law 2006 provides
that each and every worker should be given appointment letter and ID card by their
employer free of charge.
Provisions of the previous labour laws: Previously there was no such law. Only the
Newspaper Employees (Conditions of Services) Act, 1974 and The Road Transport
Workers Ordinance of 1983 made the provision of the appointment letter for their
employees.
Comments: Rules are yet to-be-made to provide with a form of the appointment letter
or ID card but from the earlier two Laws the following should be there in the
appointment letter: employees name, fathers name, mothers name, spouses name
and address, date of appointment, type of employment and conditions of the
employment.
Service book
Provisions of the new labour code: The law provides for a separate section i.e.
Section 8 of the law for the entries of the service book of a labour. As per the section
following entries shall be there in the service book of a labourer:
Employees name, spouses name , mothers and fathers name and address
Date of birth
Mark of recognition
Occupation or designation
Leaves availed
Provisions of the previous labour laws: Employment of Labour (Standing Orders) Act
1965 does not provide any provisions related to this. Only the provisions for the
maintenance of the service book were available in the Employment (Record of
Services) Act 1952 and Employment (Record of Services) Rules 1957.
Changes brought by the new law:
No significant changes are there in the provisions for the service book in the new
law. But the new law makes it mandatory for the service book to be signed by both the
worker and the employer. The law provides for a list of information to be maintained in
the service book of each labour.
Classification of workers
Provision of the new labour code:
Section 4 of the new labour code of 2006 classifies the workers into following classes:
17
a) Apprentices
b) Badlies (transfer workers)
c) Casuals
d) Temporary
e) Probationer and
f) Permanent
These terms of classification have been properly defined in the present legislation
Apprentice: A worker who is appointed in an establishment as a trainee and during the
period of training he is paid an allowance is called an apprentice.
Badlies (transfer workers): A worker who is employed for the period of absence of a
permanent or probationer worker.
Casual: A worker who is employed on casual basis.
Temporary: A worker who is employed purely for a temporary nature of work.
Probationer: A worker who is employed on probation for a fix time with a view to fill up
a permanent vacancy.
Permanent: A worker who is employed to fill up a permanent post or when a
probationer completes her/his probation period in an establishment.
Probationary period
Provisions of the new labour law:
Period of probation:
If the employment of a probationer expires during the probation and if the same
person is re-employed under the same employer within next three years of such
employment shall be treated as a probationer and the previous period of probation
shall be calculated with in new period.
If a permanent worker starts a new job as a probationer, then during that period
of probation he can be shifted to her/his permanent post during the subsequent
period of probation.
If the actual number of the working days of a worker is 240 during the previous
twelve calendar months he or she shall be deemed to be worked for a continuous
period of one year.
If the actual number of the working days in the previous twelve calendar months
is 120 days s/he shall be deemed to be employed there for a continuous period of six
months.
For counting continuous service, the following issues will come under consideration:
This is also a new addition to the labour law as previously no labour law has provided
for the death benefit except for the Wage Board award for the Newspaper worker.
Stoppage of work
Provisions of the new labour law:
Section 12 of the new labour law deals with the stoppage of work by the employer. As
per the above-mentioned section following are the points to be noted:
a) In the event of fire, other catastrophes, breakdown of machinery, epidemics, or civil
commotion, or any other circumstance beyond her/his control, the employer can stop
the
work of a section or sections of her/his factory.
b) In the event of such stoppage occurring at any time beyond working hours, the
employer shall by issuing a notice in the notice board of the factory inform the labourers
as and when to resume the work and whether the worker is to be present at that specific
place at that time.
c) The notice also mentioned that those who are ordered to be so present, and if their
presence is required for an hour only, then they may not be entitled to get any benefit.
** Section 19 of Labour Law, 2006
Right of laid off workers*
Provisions of the new labour law:
Lay off: Failure, refusal or inability of an employer, on account of shortage of coal,
power or raw material or the accumulation of stock or break down of machinery or for
any other reason, to continue the employment to workers whose names are brought to
the muster-roll of the factory. Any worker, whose name is there in the muster-roll of the
factory and who has completed a continuous period of one year service, if laid off, shall
be entitled to get the benefits of compensation for all the days except for the weekly
holidays. A badli (transfer) worker whose name is brought in the muster roll shall not be
treated as badli for the purpose of the compensation under this chapter.
No worker shall get the compensation for more than 45 days in a calendar year
of lay off
If any worker is laid off for 15 days or more after the first 45 days of lay off in a
single calendar year the employer can retrench the worker instead of lay her/him off.
But, if the lay off extends beyond that 45 days up to a period of 15 more days,
then the labour so laid-off shall be entitled to get benefits at the following rate:
worker without serving her/him a notice or the payment in lieu thereof for the following
two grounds:
If the worker is convicted by any criminal court If her/his misconduct is proved under
section 24 of the labour law 2006. Misconduct, as defined in that section, is:
Willful insubordination, alone or in combination with others, to any lawful or reasonable
order;
Theft, fraud or dishonesty; Receiving or giving bribes;
Habitual absence, without leave, for more than ten days;
Habitual late-attendance;
Habitual breach of any rule or law applicable to the establishment;
Riotous or disorderly behavior;
Habitual negligence or neglect of work;
Frequent repetition of a work on which fine can be imposed;
Resorting to illegal strike or go slow or instigating others to do so;
Falsifying, tampering the official document of the employer.
Changes in the present law:
The new law makes a provision of lighter punishment in case of the misconduct. Sub
section 2 of section 23 says: Any worker, against whom misconduct has been charged
and proved, may be punished by any of the following punishment other than dismissal
from the job: Removal Demotion to lower grade; Withholding promotion for at least one
year; Withholding increment for an year; Imposition of fine; Temporary suspension
without wages; Censuring and warning;
Termination
Provisions of the new labour law:
The employer can terminate a worker without assigning any reason whatsoever except
for
dismissal, etc. in the following manner as described in Section 26 of the new labour law
2006.
For the permanent workers:
1. Serving 120 days notice to the workers employed on the monthly basis.
2. Serving 60 days notice to the other workers.
For the temporary workers:
1. Serving 30 days notice to the workers employed on the monthly basis.
2. Serving 14 days notice to the other employees.
Termination without any notice: The employer can even terminate the employment of
a particular worker without any notice as described in the section above, if the employer
pays the wages to the terminated worker for the aforesaid period of notice.
Compensation on termination of a permanent worker: When a permanent worker is
terminated she or he shall be entitled to get a benefit of 30 days wage for every
completed year of service in an establishment in addition to the other benefit payable to
her/him.
OCCUPATIONAL HEALTH, SAFETY AND WELFARE
SAFETY
Fire
Present law with regards to fire:
Section 62 deals with the provisions for measures to be taken by a factory to avoid
dangers and damage due to fire. The section provides for the following:
1. At least one alternative exit with staircases connecting all the floors of the factory
building as described in the rules for each and every factory.
2. No door affording exit can be locked or fastened during the working hours so that
they
can be easily or immediately opened from inside.
3. The doors affording exit must be open outwards, unless it is sliding in nature, if the
door is between two rooms it must open in the direction of the nearest exit.
4. Marking in red letter in proper size, in the language understood by the majority of the
workers, on such doors, windows or any alternative exit affording means of escape in
case of fire.
5. There shall be an effective and clearly audible means of fire-warning system to every
worker.
6. There shall be a free passage-way giving access to each means to escape.
7. Where more than ten workers are employed other than in the ground floor, there shall
be a training for all the workers about the means of escape in case of fire.
8. There shall be at least one fire-extinction parade and escape-drill at least once a year
in a factory where more than fifty workers are employed.
Changes in the present law:
Fire extinguishing and escape parade shall be arranged at least once every year.
1. Factories are required to secure the following parts of machinery in order to ensure
safety of the workers:
* Section 63 of Labour Law, 2006
26
a. Every moving part of a prime mover and every fly wheel connected to a prime
mover
b. The head-race and tail-race of every water wheel and water turbine
c. Any part of a stock-bar which projects beyond the head stock of a lathe
d. Every part of an electric generator, transmission machinery and other dangerous
part of any machinery.
2. Fencing must also be done on any other parts (in motion) that contains screw, bolt
and
key on any revolving shaft, spindle wheel or pinion and all spur, toothed friction gearing,
etc. The fencing is required to prevent these items from harming the workers coming in
close contact to them.
3. The Government may exempt fencing of the aforesaid objects, if and only if certain
other measures are adopted that will ensure safety of the workers.
4. The Government may prescribe such further precautions to fence certain other parts
of the machineries which are not mentioned above for ensuring safety of the workers.
Work on or near machinery on motion*
Provisions of the new labour law:
1. In case of examining, adjusting and lubricating part of machinery in motion, it is
required to employ a well-trained adult male worker. The worker must wear tight-fitted
clothing while conducting such jobs and no other person will be allowed to work on
behalf of him during his absence.
2. Women and adolescent are not allowed to do the above-mentioned tasks and they
are not also entitled to work in places between fixed and moving parts of any machinery
in
motion.
3. The Government may prohibit the cleaning, lubricating and adjusting, of any
machinery in motion, by any person.
Explosive or inflammable dust or gas**
Provisions of the new labour law:
1. The following practicable measures must be taken in factories to avoid explosions
caused
by inflammable dust, gas or vapour produced during the manufacturing process:
5. Suitable breathing apparatus, reviving apparatus and belts and ropes shall be kept
ready beside the confined space for instant use. Other workers must also be trained
and
proficient in the use of all such apparatus.
* Section 77 of Labour Law, 2006
Personal protective equipment
Provisions of the new labour law:
There are several sections in the new law where the personal protection of the worker
has been discussed. Section 75 deals with the protection of eyes. Effective screens or
suitable goggles shall be provided for the protection of persons eye where there is a
risk:
Of injury to eyes from particles or fragments thrown off in the course of the
processing
To the eyes, by reason of exposure to excessive light or heat.
Section 79 also makes a provision of personal protection, sub-section (d) and (e) stated
as
follows:
(d) Providing for the protection of all persons employed in the operation or in the vicinity
of the places where it is carried on, and
(e) Providing notice about the hazardous chemical to the workers.
Risk assessment and prevention
Provisions of the new labour law:
There are several sections in the new labour code regarding the assessment of risk and
prevention thereof. Section 40 and 79 of the new labour law made provisions for the
government to asses certain occupation. The sections state as follows:
(a) The government shall, by notification in the official gazette, provide a list of the
dangerous machines and risky operations for the adolescent workers (Section 40[3])
(b) The workers employed in such machines and/or operations shall be sufficiently
trained and supervised
(c) The Government shall identify and provide a list of dangerous operations (section
79)
Powers of inspectors on certain matters:
i) Power to require any measures as to the safety of building and machinery:
The inspector may serve an order specifying the measures which should be
adopted or an order prohibiting its use until it has been properly repaired. (s. 61)
The Chief Inspector may permit the continued use of machine on such conditions
for ensuring safety as he may think fit to impose. (s. 66)
The Chief Inspector may permit the continued use of a hoist or lift installed in a
factory
upon such conditions for ensuring safety as he may think fit to impose. (s. 69 (7)).
The Inspector may serve on the employer an order in writing requiring him to
furnish drawings, specifications and other particulars as may be necessary to
determine whether such buildings, ways, machinery or plant can be used safely and
to carry out such tests as may be necessary to determine the strength or quality of
nay specified parts and to inform the Inspectors of the results thereof. (s. 76).
ii) Power to require measures as to the precautions in case of fire:
The inspector may serve an order specifying the measures which should be
adopted
before a date specified in the order.( s.62 )
iii) Notice to be given to the Inspectors:
Where any worker contacts any disease , the employer or the worker concerned
or any
An Inspector may at any time take a sufficient sample of any substance used or
intended
to be used in the establishment such use being , in the opinion of him in contravention
of
the provisions of this Act or likely to cause bodily injury to the health of workers.( s.84 )
Where the Inspector takes such sample, he shall divide the sample into three
portions and effectively seal and suitably mark them and shall permit the employer to
add his own seal and mark thereon.
If the Inspectors requires the employer shall provide the appliances for dividing,
sealing
and marking the sample.
The inspector shall give one portion of the sample to the employer , send the
second
portion to a Government analyst and report thereon and retain the third portion for
production to the Court.
v) Power of Inspectors in case of certain dangers;
If, it appears to the Inspectors that any establishment or any part thereof or with
the
control, management or direction thereof, is dangerous to human life or safety or
defective, so as to threaten to the bodily injury of any person, he may give notice in
writing to the employer in respect of which he considers the establishment or the thing
or
practice, to be dangerous or defective and require the same to be remedies within such
time and in such manner as he may specify in the notice.
The Inspector may, by order in writing direct the employer prohibiting the
extraction or
reduction of pillars in any part of such establishments.
The Inspector may by an order in writing prohibit the employer if he thinks that
there is urgent and immediate danger to the life.
The employer if is aggrieved by the order may, within ten days of the receipt of
the order appeal against the same to the Chief Inspector who may confirm , modify
or cancel the order.
The inspector making an order report the same to the Government and shall
inform the employer concerned that such report has been so made.
The Chief Inspector shall report to the Government any order, except the order of
cancellation passed by him and shall also inform the employer concerned that such
report
has been so made.
WELFARE
First aid appliances
Provisions of the new labour code:
Section 89 of the new labour law provided the following:
1. First Aid boxes or cupboard equipped with the contents prescribed by rules should be
provided in every establishments
2. A well equipped first aid box or cabinet for every 150 labour
3. A person, who has to be always available in the factory, trained in first aid knowledge
assigned for every first aid box
4. Notice regarding the availability of that person in every working room and a special
badge issued for that person
5. An ambulance and a well-equipped dispensary for every 300 workers employed in a
factory.
Changes in present law:
The facility of ambulance and dispensary has to be provided by the owners of the
factories in which at least 300 workers are employed. Previously, this facility was
required for factories with a minimum of 500 workers.
Washing facilities
Provisions of the new labour code:
Section 91 of Bangladesh Labour Law, 2006 provides for the washing facilities for
workers in a factory. But the new law is exactly the same as the earlier Factories Act
1965. Rules regarding the washing facilities are yet to be made. The number of taps in
the workplace was fixed in the earlier laws as per the following schedule:
1. One tap for every 15 worker who are coming into close contact of noxious
substances
2. Workers who are not working with noxious substances shall be entitled to get the
following facilities:
Canteens
Provisions of the new labour code:
Section 92 of the new labour law provides a canteen for every 100 workers as opposed
to the earlier Factories Act which provided a canteen for every 250 workers.
Changes brought by the new law:
Number of workers per canteen has been decreased to ensure better canteen facility.
All other provisions related to the management and quality of the services and food in
the canteen remains unchanged.
Shelters/ rest rooms and lunch rooms
Provisions of the new labour code:
Section 93 of the new labour code makes a provision of a rest room for every 50 or
more workers and a separate rest room for the female workers numbering over 25. But
if the number of female workers is below 25 then the factory management shall manage
a curtain in the same rest room to create a separate resting space for the female
workers.
Changes in present law:
Taken from Factory Rules, 1979.
Required minimum number of workers for a rest room has been decreased to 50 from
100 and a separate rest room provision for female workers came into being in the new
law.
Rooms for children*
Provisions of the new labour code:
The new law has made a provision of a childrens room for every 40 female workers
with
children below 6 years of age. The room is required to be of such an area so that it can
provide 600 square centimeters (previously it was 20 sft) of space for each child and the
minimum height of such room shall not be less than 360 centimeters.
Changes in present law:
Required minimum number of the female workers, with children below 6 years of age,
has been decreased to 40 from 50, for a childrens room in a factory.
HEALTH AND HYGIENE
Cleanliness
Provisions of the new labour law:
Section 51 of the new labour law deals with the provisions of cleanliness. It is exactly
the same as section 12 of the earlier Factories Act, 1965. The law provides for the
following:
1. Every factory shall be kept clean and free from effluvia arising out of any drain, privy,
or any other nuisance in the following manner:
a) Accumulation of dirt and refuge shall be moved daily by sweeping from floors
and benches of workrooms, staircases and passages;
b) The floors of every work room shall be cleaned by washing at least once in a
week using disinfectant;
c) Effective drainage shall be provided and maintained where the floor is liable to
become wet in course of any manufacturing process to such extent as is capable of
drainage;
d) All inside walls and partitions, all ceilings or tops of the rooms and walls, side and
top of the passageways and staircase shall be* Section 94 of Labour Law, 2006 repainted or re-varnished at least once in every five
years from when they are painted or varnished cleaned at least once in every fourteen
month where they are painted and varnished and have smooth impervious surfaces.
kept whitewashed or color washed at least once in every fourteen months
2. A register shall be maintained in every factory for all the required activities as
described in the clause (d) above.
Drinking water
Provisions of the new labour law:
Section 58(1) of the new labour law provides for an effective arrangement of sufficient
supply of wholesome drinking water conveniently located at suitable point for all
workers. The section further provides for the following
(2) The word Drinking water shall be legibly marked on the place;
(3) Cooling the drinking water in a factory during the hot weather where more than
250 workers are employed;
(4) Oral Re-hydration Therapy for the workers, working close to the machine
producing excessive heat.
Changes in the present law:
A number of changes are there in the new legislation in this regard:
The Factories Act 1965 made a provision that the drinking water cannot be
located in any place within 20 feet of distance of latrines, urinals, or washing-places,
but the new law has directed for a place convenient to all.
Oral re-hydration therapy has been instructed for installation for the employees
working close to machines producing excessive heat.
Overcrowding
Provisions of the new labour law:
Section 56(1) of the labour law 2006 makes provisions for required spaces for a single
worker employed in a factory. Following are the points important in this regard.
(2) 9.5 (Nine and half) cubic metres of space for every single worker in a factory;
For calculating the dimension of the aforementioned-space, ignore the height beyond
4.25 meter;
(3) The Factory shall post a notice in each workroom, specifying the maximum number
of workers who can be employed therein as per the above calculation, if the Inspectors
so
require;
(4) The Inspector can exempt any workroom of any factory from the compliance of this
rule if satisfied that for the health of the worker it is not necessary.
Changes in the present law:
No noteworthy change is there except for the conversion of the measurement of space
in the metric system from the existing British system.
Lighting
Provisions of the new labour law:
Section 57(1) of the new labour law provides for the arrangement of sufficient and
suitable lighting of natural or artificial or both. The section further provides for the
following:
(2) Glazed windows or skylights shall be kept clean on both the pouter and inner
surface free from obstructions;
(3) Provisions shall be made
(a) to prevent glare either directly from any source of light or by reflection from a
smoothened or polished surface;
(b) Provisions shall be made for the prevention of the formation of shadow to such
extent
as to cause eye strain or risk of accident to any worker.
Latrines and urinals
Provisions of the new labour law:
Section 59 of the new labour law makes the provisions of the latrines and urinals for the
workers employed in a particular factory. The section provides for the following:
a) Sufficient number of latrines and urinals located at convenient places and
accessible to all the workers
b) Separate arrangements for male and female workers
c) Properly illuminated and ventilated and sufficient supplied with water at all times
d) Clean and sanitary condition be maintained by detergents or disinfectants or with
both
Dust bins and spittoons
Provisions of the new labour law:
Section 60 of the present law deals with the provisions of dustbins and spittoons. The
sections provides for the following:
1. Every factory shall provide sufficient number of dustbins and spittoons at convenient
places in clean and hygienic conditions
2. No person shall spit or litter except in the spittoon or bins, kept and maintained forthis
purpose
3. A notice shall be posted at every conspicuous places for the workers to the effect that
Spitting or littering in contravention of clause 2 is a punishable offence.
Changes in the present law: Previously the provision was only for the spittoons;
however, now it is paraphrased as Spittoons and Dustbins to include littering as well.
The earlier laws made the provision of a Taka 2 fine for the violation of the spitting rules
which is eliminated in the new law and only a notice has been provided for to that effect.
INDUSTRIAL RELATIONS
Unfair Labour Practices from the Part of the Employers
Provisions of the new labour law:
Section 195 of the new labour law, 2006 provides a list of conducts or activities, which
tantamount to unfair labour practices from the part of the employer. Following are the
actions in brief:
is, or is
not a member or officer of a trade union.
Discharge or dismissal of any person on the ground that the person is or is not
the
member or officer of a specific trade union.
Interfering with or in any way influence the balloting provided for the election of
the CBA.
practices. In the new law, however, there are 12 different activities of the employer that
are termed as unfair labour practices.Following are the additional four activities of the
employer that can be termed as the unfair labour practices from now on:
1. Willful failure in implementing the recommendation of the participation committee
2. Failure to respond to any communication made by the CBA as regards to any
industrial
dispute
3. Transfer of the President, General Secretary, Organizing Secretary and Treasurer of
a
trade union
4. Imposition of an illegal lock-out and continuance thereof and persuading a person to
participate in that.
Unfair Labour Practices from the Part of the Workmen
Provisions of the new labour law:
Section 196 of the new labour law deals with the provisions of unfair labour practices
from the part of the labour. Following activities of the labour constitute the unfair labour
practice from the part of the labour:
Persuading a workman to join or refrain from joining a trade union during the
working hours
Compelling or making any attempt to compel any workmen to pay or refrain from
paying any subscription towards the fund of the trade union.
and vehicles.
Determination of the Collective Bargaining Agent (CBA)
Provisions of the new labour law:
Section 202 of the new labour code deals with the provisions relating to the
determination of Collective Bargaining Agents (CBA). The Law provides for the following
procedure:
1. Where there is only one trade union, that trade union shall be taken as the Collective
Bargaining Agent (CBA) for that establishment
2. Where there are more than one trade union in an establishment , the Registrar shall
take necessary steps to elect the Collective Bargaining Agent, upon the application of
any of the trade unions having members of more than one third of the total workers
employed in the establishment
3. Upon the receipt of the application as above the Registrar shall, by notice in writing,
communicate to all the trade unions as to whether they would want to contest for the
secret ballot for their representation in the CBA or not giving a time limit of fifteen day
4. If a trade union fails to indicate within the time specified in the notice, its desire to be
a
contestant in the secret ballot, it shall be presumed that it shall not be a contestant in
such
a ballot/poll
5. Every employer shall
(a) On being so required by the Registrar, submit to the Registrar a list of all workers
employed in the establishment, excluding those whose period of employment in
the establishment is less than three months or workers with records of insubordination
and negligence-to-duty
(b) Provide such facilities for verification of the list submitted by her/him as the
Registrar may require.
6. On receipt of the list of workers from the employer, the Registrar shall send a copy of
the list to each of the contesting trade unions and shall also affix a copy thereof in a
conspicuous place of her/his office and another copy of the list in a conspicuous place
of
the establishment
7. The objection, if any, received by the Registrar within the specified time shall be
disposed of by her/him after such enquiry as he deems necessary
8. The Registrar shall make such amendments, alterations or modifications in the list of
iv. Nominate representatives of workmen on any committee, fund constituted as per the
provisions of law or agreements.
Changes in the present Law:
1. The previous law required a trade union for being a CBA to consists of at least onethird of workers as its member, even if it is the only trade union in the establishment but
the new law has made a direct provision that if there remains only a single trade union,
then that shall be treated as the Collective Bargaining Agent
2. The registration of the trade union which acquires less than 10% of vote in a poll for
determination of CBA shall stand cancelled forthwith
3. The new law provides for a right to the Collective Bargaining Agent (CBA), in addition
to the right of representation of the workers in a proceedings, the right of litigation for
and on behalf of the one or all of the workers under this Act
4.5 Participation Committee
Provisions of the new labour law:
Section 205 of the new labour code deals with the provisions of the Participation
Committee as follows:
1. The owner of a factory, where more than fifty permanent workers are employed, shall
form a Participation Committee as per the rules made by the law in this behalf
2. That Committee shall be formed in combination of both the workers and employers
3. The representation of the workers shall not be less than that of the employer
4. Workers in the committee shall be selected on the basis of the selection of the trade
unions
5. All other trade Unions, except for the CBA, shall select their representatives equally;
the number of representative of the CBA shall be one member more than the total
numbers of representative selected by the other trade unions
6. The workers representatives shall be selected in accordance with the rules, where
there is no trade union in the organization.
7. Where there is a separate unit in an organization with at least 50 workers employed
therein, as per the recommendation of the Participation Committee of the establishment,
a
unit Participation Committee can be formed there, as per the rules in this behalf
8. The unit Participation Committee shall be formed with the participation of the workers
employed in that unit and the representative of the employers there.
Functions of the Participation Committee*
Provisions of the new labour law:
The functions of the Participation Committee shall be to inculcate and develop a sense
of
belongingness and workers commitment and in particular:
To adopt measures for improvement of welfare services for the workers and their
families
To fulfill production target, reduce production cost, and wastes and raise quality
of
products.
Changes in the present Law:
1. Sub section (5) of the section 205 clearly determines the relationship between the
number of representatives from the Collective Bargaining Agent and the other trade
unions in the Participation Committee, as per the sub-sections mentioned above:
The number of the representative of the Collective Bargaining Agent Number of
the representative of all the trade unions + 1
The earlier laws didnt mention any such relation between the representatives of the
groups.
2. As regard to the function of the participation committee there is no change in the new
law.
Meetings of the Participation Committee
Provisions of the new labour law:
Section 207 deals with procedure of the meetings of the Participation Committee to
realize all or any of the functions of the participation committee. As per the section
The Participation Committee shall meet at least once in every two months to
discuss and exchange views and recommend measures for the performance of the
functions under section 206.
The employer and the trade union shall take necessary steps to implement the
specific recommendations of the Participation Committee within the time specified
therein
Should the employer or the trade union fail to implement the measures
suggested by the Participation Committee, it shall forthwith communicate the matter
to the respective committee and take every possible step to implement it as early as
possible.
Fundamentally to control the relation between workers and workers, Workers and
employers or employers and employers, without distinction whatsoever, shall have the
right to establish and join the union of their choice subject to the constitution of the
respective trade union
Basically to control the relation between workers and workers, Workers and
employers or employers and employers, without distinction whatsoever, shall have
the right to establish and join the union of their choice subject to the constitution of
the respective association
The employers and the workmen shall have the right to form a federation of their
trade Unions and they can also affiliate that federation with any international
federation or confederation of trade unions
The trade unions and the associations of the employers shall have the freedom
to adopt any constitution as per their choice/requirement.
The Name of the Establishment to which it is related and the total number of
workers in that establishment
the union
Three copies of the constitution of the Union and the resolution of the meeting in
which the constitution is proposed and accepted
A resolution of the meeting empowering the Secretary and President of the union
for the registration of the union
In case of federation the acceptance letter of the member union to become the
member of the proposed federation.
Industrial Dispute
Provisions of the new labour law:
Section 2(62) of the new labour code defines the term Industrial Dispute. As per the
section, any distance and difference between workers and workers, Workers and
When both the parties agree to refer the dispute to an Arbitrator then the matter shall be
forwarded by the conciliator to the concerned Arbitrator (chosen by both the parties).
The
relevant procedure is as follows:
1. An arbitrator shall be a person from the list made and maintain by the government
in this regard or any person mutually agreed upon by the parties
2. Arbitrator shall make an award within thirty days or within any Period, mutually
agreed upon after the matter is received
3. The Arbitrator shall provide a copy of the award to the parties and to the government
as well
4. No appeal shall lie against the award of the Arbitrator
5. The award shall be valid for a term not more than two years.
* Section 209 of Labour Law, 2006
Strike and Lock Out
Provisions of the new labour law:
Section 211 of the new labour code deals with the provisions of the strike and lock-out
in
an industry and other establishments. The relevant procedure is as follows:
1. The party raising the industrial dispute, within a period of fifteen days of the receipt of
the certificate of failure from the conciliator shall serve a written notice of Strike or lock
out whatever is applicable, and the party also mention the date of commencement of
the
aforesaid strike or lock out within 7 to 14 days of serving such notice or the party raising
the dispute may file a case to the labour court, on the matter
2. No such notice of strike shall be issued by the CBA unless a secret ballot is held in
this
behalf under the supervision of the Conciliator and three fourth of the members of the
CBA opted for the strike
3. When the strike or Lock-out has already commenced, then any party can go to the
labour court for the settlement of dispute
4. The Government can stop any strike or lock-out if it continues up to a period of 30
days, provided the government can stop it before the expiry of the above period, if it
believes that it is expedient for public interest.
Changes in the present law:
In earlier laws there were provisions of joint application to the labour court by both
parties at any stage of the commencement or before the commencement of the strike or
lock-out, but in present law this provision has been removed.
Labour Court:
Formation of court under the New Labour Law:
Section 214 of the labour law 2006 deals with the formation of the Labour Court,
as per that section, the labour court shall consist of a chairman and two members to
advise him.
But for the trial of any offence under section 215 or for the trial of any matter of
chapter X and XII the court shall consist of the chairman only. S 214(3)
Any others function conferred upon or assigned by the Labour law 2006 or by
any other law
The Labour court shall follow the summary procedure of the code of Criminal
procedure as described in chapter XXXV of the aforesaid Act and for this purpose the
court shall be deemed to be a criminal court.
As per section 313 of the Labour law 2006, No Magistrate court can try the
offences under this Act. But previously Magistrate could try the offences.
The law keeps the Labour Cort with no authority to get its verdict executed, he said.
The whole trick of deprivina and repressing the workmen lies in making the labour court
virtuallv a toothless institution in implementing the law.
The labour court, as per the new law, can only determine and declare fine of the
offenders and due wages of the workmen but cannot. Ensure them, he said.
Section 133 of the law provides that any due wages of a workman declared by a labour
court shall be recoverable as a Public Demand Recovery (PDR) at a district level civil
court. It implies a perennial legal fight for a poor workman year after year to get his due
wages. On the other hand, any compensation unpaid by the factory owners, will be
exactable in the manner land revenue is collected.
So, the question remains unanswered as to who is going to recover the PDR and land
revenue for a workman,
If an aggrieved labourer has to go to a certificate court to recover his compensation and
due wages, the labour court remains a quasi court, said Dr Shahdeen Malik, a lawyer of
the High Court.
A fundamental flaw of the act is that the labour court is not empowered to realize
compensation and wages and execute penalty, said Barrister Tanjib_ul Alam. Another
major flaw is that the court has no specifically laid down execution procedure.
The law has been passed hurriedly keeping the labour fronts in the darkness. It limits
the emplovees from taking part in trade union activities as it provides that there can be
only one labour union in an entire industrial area,
One of the fundamental aims of framina the labour law afresh annulling 27 old ones was
to have a modern law. But unfortunately, it has been another outdated law flawed with
absence of adequate instruments to ensure weifare of the labourers, said legal experts.
Section 283 of the new law provides for three months jail or a fine of Tk 5,000 or both
for unjustly lay-off, discharging, dismissing or removing a workman from the job.
Reducing imprisonment in the new law to three months from six months in the previous
law a trick to keep the owners on the safe side in the event of doing injustice to
workmen, said advocate zafrul Hasan Sharif.
The provision for alternative punishment, a fine of Tk 5,000 in place of imprisonment of
various terms in different sections of the law, makes the punishment provision trickily
weak keeping scope for exemption of the offenders.
A workman will not be entitled to any compensation in the event of on-the-job death if
three years of service is not completed.
To the Government of Bangladesh
Immediately lift the state of emergency and restore fundamental rights guaranteed in
the Constitution;
Ensure adequate implementation of international covenants ratified by Bangladesh,
and submit initial report to the UN Committee on Economic, Social
and Cultural Rights (CESCR);
Ratify ILO conventions, among which the following deserve to be recognized a high
level of priority: ILO (n155) Occupational Safety and Health Convention,
1981; ILO (n161) Occupational Health Services Convention, 1985, and ILO (n187)
Promotional Framework for Occupational Safety and Health Convention, 2006;
Ensure effective and impartial labour administration; increase effectiveness of Labour
inspections and Labour courts, notably by allocating adequate resources for their proper
functioning;
Revise and increase the minimum wage so as to ensure it covers basic needs;
Ensure that garment villages projects do not have adverse impacts on the enjoyment
of human rights and in particular on womens rights;
Ensure that investment agreements do not contain provisions that may have a
negative impact on the enjoyment of human rights in Bangladesh.
Obligations and Remedies
To pay the workers all necessary wages (S. 121 of new labor law 2006). Owner of the
factory, Chief Executive Officer (CEO), Manager/person assigned responsibility by the
company, The contractor, for payment to workers appointed by the Contractor. Up to 25
% as compensation on the wages due at that time may be ordered (S.134). A single
application may be presented to the labor court under S. 132 on behalf or in respect of
any number of workers belonging to the same unpaid. To fix a period not exceeding 30
days and under S. 123 the payment shall be made within seven days of the expiry of
the wage period. (s.122).Ditto Ditto No deductions shall be made from the wages of a
worker except those authorized (S. 125). The employer Ditto Ditto Not to pay below the
minimum rate of wages (S. 149). The employer Any employer who pays shall be
punishable with imprisonment for a period up to one year or with fine up to five
thousand Taka or with both (S.289). Ditto To give notice and claim within two years of
the accident or in the case of death of labor (157). The labor. No compensation. No
claim for compensation shall be entertained by a Labor Court unless the notice is given
after the happening thereof (S.157). Not to disclose any information relating to
manufacturing or commercial secret (S. 304 ).The employer and the worker. Shall be
punishable with imprisonment up to six months or with fine up to ten thousand taka or
with both. Application to the Labor Court.47
punishable with fine which may extend to five thousand Taka (S. 284). Application to
the Labor Court.Not to make any agreement, to allow the service of the child to be
utilized in any employment (S. 35 ). Parent or Guardian Whoever Contravenes of this
law shall be punishable with fine which may extend to one thousand taka. Application to
the Labor Court. To submit the certificate of fitness (S. 37). The adolescent worker.
Penalty for using false certificate of fitness is punishment with the imprisonment for up
to three months or fine up to one thousand taka or with both. Application to the
LaborCourt.
Obligation The person Remedy Procedure responsible
Not to allow the adolescent in certain work ( S. 39 ) The employer Whoever employs
any child or adolescent to work in contravention of any provision of this Act, shall be
punishable with the fine which may extend to five thousand Taka ( S. 284 .) Application
to the Labor Court. Not to be employed the adolescent on dangerous machine (S.40).
The Employer If such contravention results in loss of life the employer shall be
imprisoned up to four years or up to one lakh Taka fine or both, if it results in seriously
bodily injury he shall be imprisoned up to two years or up to ten thousand taka fine or
both or if such contravention causes injury or danger to workers the employer shall be
imprisoned up to six months or up to two thousand taka fine or both ( S. 309 ). Any
Court imposing a sentence of fine passed under this section may when passing
judgment order the whole or any part of the fine recovered to be paid as compensation
to the person injured , or in the case of his death to his legal representative To issue an
appointment letter and an identity card with photograph (S. 5) to every worker. The
employer To issue and punishment or Fine as well under S. 307. The Chief Inspector or
if authorized by him in this behalf , any other officer subordinate to him , ma lodge
complaint with the Labor Courts for action.(Section 319 (5) To Maintain a service book
for every worker (S.6). The employer Ditto Ditto To entry in the service book and signed
by both the employer and worker ( S. 8 ). The worker and the employer Ditto Ditto To
pay the workers the wages for unavailed leave. The employer wages Application by
the worker.
Application to the Labor Court only. To allow the workers Death benefit ( S. 19).
The employer 30 days wages for each completed year or service, or six months
thereof, or gratuity, whichever is higher in addition to her/ his other emoluments
during the retirement.Application by the worker her/him self or her/his successor in
case of her/his death.
Application to the labor court only. Application by the worker her/him self or
her/his 50 successor in case of her/his death.
of registration ( S. 189) The Director of Labor. Issue the certificate within seven days
When the director of Labor rejects the application, the trade Union may Appeal to the
Labor Court within 30 days Not to be a member of more than one trade union (S.193).
Worker and employer. Imprisonment up to six months and fine up to two thousand taka
or both (S. 300). Application to the Labor Court. Not to take part any unlawful strike and
lock-out (S. 227). Worker and employer. Imprisonment of one year or fine with five
thousand taka or both (S. 294). Application to the Labor Court. Not to instigate illegal
strike or lock out. Worker and employer. Imprisonment for one year fine with five
thousand taka or both (S.295). Application to the Labor Court. Not to take part or
instigate or incites to go slow. Worker Imprisonment for one year or five thousand taka
fine or both (S.296). Application to the Labor Court. To establish the participation fund
and welfare fund (S. 234). The Company. Fine with not more than ten thousand taka
and one thousand taka more in case of failure (S.236) Application to the Labor Court.
Not to produce false statement ( S. 303) Worker and employer. Six months
imprisonment or five thousand taka fine or both. Application to the Labor Court.[12]
SOME LEADING CASES
In the first labour court of Bangladesh
Complaint Case No.24 of 1974
Majibur Rahman First Party
Versus
A.K.M. Nurul IslamSecond Party,
Present:
Mr. Amanullah KhanChairman.
Mr. M. KarimMember
Mr. M.A. Mannan Member
This is an application under section 25(1)(b) of the Employment of labour (Standing
Orders) Act, 1965.The First Party Majibur Rahman alleges that he has been a driver of
Truck No. DHAKA TA: 577 belonging to the second party Nurul Islam. He was appointed
on 25-12-1972. He has been removed from service on 18-07-1974. From 3 months prior
to his removal he had been driving another truck No. DHAKA TA :2115 also belonging to
the second party. He further alleges that he was never paid wages regularly and was
paid only Taka 1,150.00 for the total period of his service and thus Taka 5,882.00 fell
due as arrear wages. He further claims that the second party also took a loan of Taka
1,000.00 from him and has not paid it as yet. He now claims arrear wages along with
termination benefits, overtime dues and the amount of loan advanced. According to him,
his last wages had been Taka 375.00 per month.
The second party Nurul Islam submits in his written statement that for misconduct he
dispensed with the service of the first party on 23-11-1973 clearing all his dues.
Thereafter, at the request of well-wishers of the First party he re-employed him on 1203-1974 at Taka 12.50. per day on no work no pay basis and finally terminated the
services of the first party on 18-07-1974 settling up all his dues. It is further contended
that this case is not maintainable as the first party is not a worker under the employment
of labour (S.O.) Act,1965.I shall take up the question of maintainability first as this will
dispose of the case without going through the merits of the case on facts as any finding
in facts may prejudice the parties in their future litigation over these facts at any other
forum.A worker has been defined in the Employment of labour (S.O.) Act,1965 in the
following terms: worker means any person including an apprentice employed in any
shop commercial establishment, or industrial establishment to do any skilled, unskilled,
manual, technical, trade promotional or clerical work for hire or reward, whether the
terms of employment be expressed or implied, but does not include any such person(I) Who is employed mainly in a managerial or administrative capacity; or
(II) Who, being employed in a supervisory capacity exercise, either by nature, of the
duties attached to the office or by reason or power vested in him functions mainly of
managerial or administrative nature.Now let us see if a truck service is included in either
the industrial establishment or commercial establishment.Industrial establishment, has
been defined in the said Act as follows:Industrial establishment means any workshop
or other establishment in which articles are produced, adapted or manufactured or
where the work of making, altering, repairing, ornamenting, finishing or packing or
otherwise treating any article on or any such other class of establishments, including
water transport vessels or any class there of which the provincial Government may, by
notification in the official gazette, declare to be and industrial establishment for the
purpose of this Act, and includes(I) any tramway or motor omnibus service;
(II) any dock, wharf or jetty;
(III) any mine, quarry, gas-field or oil-field;
(IV) any plantation; or
(V) a factory as defined in the Factories Act,1934.
So a truck service is not included in any industrial establishment. Now let us see if a
truck service falls under the category of commercial establishment which has been
defined in the following terms:Commercial establishment means an establishment in
which the business of advertising, commission or forwarding is conducted, or which is a
commercial agency, and includes a clerical department of a factory or of any industrial
or commercial undertaking, the office establishment of a person who for the purpose of
fulfilling a contest with the owner of any commercial establishment or industrial
establishment employ workers, a unit of joint stock company, an insurance company, a
banking company or a bank, a broker office or stock exchange, a club, a hotel or a
restaurant or an eating house, a cinema or theatre or such other establishment or class
there of as the provincial Government may, by notification in the official gazette, declare
to be commercial establishment for this Act.
So this definition too does not cover a truck service. The learned advocate for the first
party submits that commercial undertaking in the definition of commercial establishment
will include a truck service. But the words commercial undertaking has been used there
with reference to clerical departments of such commercial undertaking and not each
and every worker of a commercial undertaking. I, therefore, find that the first party is not
worker under the employment of labour (S.O.) Act.1965 and has no remedy under this
Act. This case is not, therefore, maintainable in this Court. In fact his remedy lies under
Road Transport Workers Ordinance, 1961.
Leading case (high court division):
Md. Idris Khan Petitioner
Versus
Chairman, 1st Labour court
Dhaka & others . Respondents
[Employment of labour (standing orders) Act,1965 (VIII of 1965) S. 2(j)]
A bus can not be called a commercial or industrial establishment.
Having regard to the definition of commercial and Industrial establishment as contained
in the said act, a bus cannot be termed as a commercial or industrial establishment with
in the meaning of section -2 of the act.
(Writ petition No.5 of 1971)
Judgment:
Abdur Rahman chowdhary, I.. this Rule is directed against the judgment and order
dated 14.12.70 passed by the first labour court, Dhaka Facts leading to this rule in brief
are that respondent no-2(herein after called the respondent) filed an application under
section 25(1) of the Employment of laour (standing orders) Act, 1965 (herein after
referred to as the Act) on the allegations that he was a motor driver under the
petitioner at a monthly pay of TK.360 from 1965 and his services were terminated on
the ground that he was an active worker of motor transport Employees union which
staged a strike. After the strike was called off, the respondent went to resume his duty,
but he was not allowed to join and he was verbally dismissed. He sent a grievance
petition for re-instantement with all his legal dues and the petition having been refused,
he moved the labour court.
The petitioner contested the said case by filing written statement wherein he denied the
allegations made in the complaint petition and also denied that he was the owner of the
bus or employer of the respondent.
1.
The respondent adducted oral evidence, but the petitioner did not adduce any
evidence. One consideration of the evidence on record, the [Government] consider to
be representative organization of such employers and worker respectively.
2.
3.
vacancies therein the appointment of its committees if any, the procedure and
conduct of the Board and its committees and all matters connected therewith
including the fees and allowances to be paid for attending such meeting and other
expenses, including expenses for the services of experts and advisers obtained by
the Board, shall be such may be prescribed by rules made under section 17[14].
Recommendation & Conclusion
Labor problems constituted a serious menace to the society, and needed solution, if not
to eradicate then at least to mitigate them in the very beginning. Employers paid their
sole attention to the maintenance of machines and the improvement of the technical
know how to the utter neglect of the human hands employed to man the machines
because they were readily available and could be easily replaced. Workers were
illiterate and poor and therefore unconscious of their rights. The socio-economic status
of the workers was far below the status of their employer. As such they could not
exercise their free will in negotiating with the employer for employment. The employer
taking advantage of the poor condition of the workers dictated their own terms and
conditions with regard to wages, hours of work, leave, etc. The workers were left with no
choice but to accept such terms because service was the sole means of earning their
livelihood.
Neither the Government nor the law courts took special notice of these problems
because they laid to much emphasis on the policy of the non-interference and freedom
of contract. Thus, with the lapse of time the situation turned out to be so worse and the
society became so much adversely affected that the Government was compelled to take
some action to remedy these problems.Ultimately some philanthropic agencies like
Servants of India society, social service league and some industrial social workers
raised their voice against these problems. They were successful in mobilizing the public
opinion in support of their view point. Workers also started to form their own
organization to fight against exploitation at the hands of industrialists. In the beginning
the effort of the workers was not very successful because of their weak bargaining
power and lack of resources on which they could rely for their livelihood in the absence
of wages.
Some employers also realized the seriousness of the problem and the necessity of
mitigating these evils for they affected the production of the industry, they felt that
investment on labour welfare was a policy with pursuing because a contended worker
would produce better yields and would increase the efficiency.The Government too later
on realized the gravity of the problem and could not remain a spectator for the workers
constituted a large section the society. Moreover, the government had to intervene to
settle the disputes in the interest of national economy and the welfare of the society at
large. If some key industry is thrown out of gear, the whole system is paralyses.
Frequent break downs of even a part of the economic system tend to impoverish the
community. The prevention of industrial strife thus assumes an important role in national
policy and the State, therefore ,cannot afford to remain indifferent to the problems
leading to industrial conflict.
After independence the national government paid much attention to the improvement of
the conditions of labour in industry, for the prosperity of a country depends upon the
development and growth of industry. No industry can flourish unless there is industrial
peace and co-operation. Industrial peace is possible only with the co-operation of labour
and capital. To ensure better co-operation the wage earner who is a partner in the
production should be allowed to have his due share of the profit for increased
production. Therefore, we have to shape our economic policy in such a manner as to
give labourer his due status by offering him reasonable working conditions and due
share in production. That means social justice and social security has to be restored to
the labourer. Our Constitution guarantees social justice to the people of India. Social
justice means achievement of socio-economic objectives. Labour legislation is one of
the most progressive and dynamic instruments for achieving socio-economic progress.
There is no other branch of law which embraces such a wide and effective role in social
engineering and social action. It is here that the industrial law distinguishes itself rrom
other branches of law and awaits the development of wholly different jurisprudence to
explain and expound it[15].