Prspective of Labour Law in Bangladesh: Advocate Wasim Khalil
Introduction
Labour Law means those rules & customs of state by which the relation of employer Labour is regulated in order to secure peace in the Industrial arena. The modern Labour law is compiled by the state. In the eye of Labour law, the capital & the labour both are equally important. In modern time, the basic purpose of labour law is to create exclusive relation between capital & labour. Ther were many labour laws in previous but now it has only labour laws in Bangladesh. Which name is Bangladesh labour Code, 2006. The Bangladesh labour code is one of the very recent laws with major overhauling changes in the filed of labour legislation. The law governing labour relations is one of the centrally important branches of the law the legal basis on which the very large majority of the people earn their living. The level of the wages-nominal or real which is the vital issue can only be marginally influenced by legal rules and institutions. Marginal influence of the law on the people’s welfare depends on the products of people’s labour which in turn in very large extent the result of technical development. In the second place, it depends on the forces of the labour market on which the law has only a marginal (tough not a negligible) influence and thirdly on the degree of effective organization of the workers in trade union to which the law can again make only a modest contribution[1].
Labour law concerns the inequality of bargaining power between employers and workers. 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[2].
Law is a technique for the regulation of social power. This is true of labour law as it is of other aspects of my legal system. Power –the capacity effectively to direct the behaviour of others- is on evenly distributed in all societies. There can be no society without subordination of some of its members to others, without command and obedience, without rule maker and decisions makers. The power to make policy, to make rules and make decisions and to ensure that those are obeyed is a social power. It is same supported and sometimes restrained and sometimes even created by the law but the law is not the principal source of social power.
Purpose of labour laws
Labour law is chiefly concerned with this elementary phenomenon of social power. And – this is important – it is concerned with social power irrespective of the share which the law itself has had in establishing it. As a social phenomenon the power to command and the subjection to that power are the same no matter whether the power is exercised by a person by public function or by a private person, an employer, a trade official. The subordination to power and the nature of obedience do not differ as between purely “social” or private and “legal” or public relations. It is a profound error to establish a contract between “society” and the “state” and to dee one in terms co-ordination, the other in terms of subordination. As regard labour relations, that error is fatal. In the society, there is unequal distribution of power but view of society about individual as equal. The law does and to some extent must conceal the realities of subordination behind the conceptual scream of contracts considered as concluded between equals.
The principal purpose of labour law, is to regulate, to support and to restrain the power of management and power of organized labour. These are abstraction. In their original meanings the words, “management” and “labour” denoted not persons, but activities to plan and to regulate production and distribution, to co-ordinate capital and labour in the one hand, the activity to produce and to distribute on the other. But even if, by new common twist of language, “management” and labour” are used to denote not activities but the people who exercise them, they remain abstractions. The word “management” is always used to identify the individual or corporate body who in a give situation wields that power to define policy, to make rules and above all decisions, through whose exercise management manifests itself to those who are its subordinates. To manage means to command. The ambiguity of the terms “management” and labour if applied to persons rather than to activities is important that it means the relation between managers and those subject to managerial power.To gauge the distribution of managerial power and to identify its location is not always an easy task. To trace the distribution of managerial power is a difficult task in any given society, no less difficult where the means of production are publicly owned than where they are privately owned. To find who has power our the side of labour is equally difficult.The individual employer represents an accumulation of material and human resources, socially speaking the enterprise is itself in Collective Power. If a collection of workers negotiate with an employer, this is a negotiation between collective entities, both of which are, or may at least be, bearers of power. But the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power.
The main object of labour law has always been to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship There can be no employment relationship without a power to command and a duty to obey. But the power to command and the duty to obey can be regulated. The characteristic feature of the employment relation is the individual worker is subordinated to the power of management but that the power of management is co-ordinate with that of organized labour. The regulation of labour results from combination of those agreed between him or his association and the union through collective bargaining.In the formulation of the rules which regulate the relations between employers and workers the common law has played a minor role. The courts have had a share, but only a small share in their evolution. For this there are number of reasons:
(a) The rules and principles in which we are interested are designed to govern the normal typical behavior at the parties. The rules which are needed in labour relations must word ex ante. They must direct people what to do or nit to do, before and not after they have acted, Case law operates ex-port, it does establish rules but not before something has gone wrong.
(b) The law is expected to have a share in the regulatior of normal behavior in relations between employers and employed.
(c) Rules governing labour relations are an attempt to mitigate the disequilibrium inherent in the employment relation[3].
Object of labour legislation:
Any enlightened state would intervene in the conduct of industry and impose statutory,obligations mostly in the employers and also to a lesser degree on theworkers in order to maintain industrial peace and good relation between management and workers and to secure to latter better working condition a minimum wage compensation in case of accident medical facilities, provision for future etc.The object of labour legislation is two fold, namely-
1. to improve the senile conditions of industrial labour so as to provid for them the ordinal amenities of life, and by that process.
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-à-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 worker’s 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 26th 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.
n 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].
1. The workmen’s compensation Act, 1923 (VIII of 1923)
2. The children (pleading of labour) Act, 1933 (II of 1933)
3. The workmen’s 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 employer’s 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
• 23 were enacted during the Pakistan regime, and
• 12 were passed after the independence of Bangladesh
2. In accordance with the ratified ILO conventions and with a view to creating a constructive environment, for the elimination of the imbalances that prevailed in the issues regarding development of congenial relations between workers and employers, information about existing labor and industrial laws were sought from concerned stakeholders, of both home and abroad. Increase of productivity, the enhancement of favorable environment for investment, the acceleration of industrialization in the context of the changed environment during the post independence period, were also studied.
3. To meet the aforesaid demand, the government formed a National Labor Law Commission in 1992, with a view to enacting a modern, up dated and united labor law, headed by Justice Mohammad Abdul Quddus Chowdhury, along with 37 other members representing every concerned quarter.
4. After two years of exhaustive study, the Commission submitted its report along with a draft of the unified modern and updated labor law in 1994.
5.Subsequently, the draft was reviewed by ILO and numerous Employers and Workers Associations and other human rights organizations in phases for the last twelve years, and at last it was promulgated on the 11th of October 2006 as “Bangladesh Labor Law 2006” under the consensus of all the parties concerned.
6. The salient features of the newly promulgated law are as follows:
• One single modern updated code instead of the 25 scattered Acts and Ordinances
• There are 354 sections in 21 different chapters in the Law
• The scope and applicability of the law has been extended and definitions of
different terms have been clarified. Ambiguity regarding the age limit of a child
has been eliminated. According to this law any person below the age of 14 shall
be treated as a child.
• The issuance of an appointment letter and the Identity card for a worker has
been made compulsory.
• Death benefits have been provided for even cases of normal deaths or in cases
of any deaths due to causes other than accidents during the continuance of the
service.
• The usual retirement age has been scheduled at 57 and at that time the worker
shall be entitled to get all the benefits as are applicable under this law. Even the
case of a workers’ voluntary retirement, after his continuous service of 25 years
2 with his employer, is also a subject which will come under this retirement benefit.
• Child labor is prohibited even in non-hazardous regular work in an establishment. Appointment of adolescent and female workers is prohibited during the nights and in dangerous occupations.
• Maternity benefits have been increased to 16 weeks and the qualifying service length has been decreased to six months, but this benefit is limited only up to the birth of two living infants.
• Special importance is given on occupational health and safety and working environment. There are 78 sections exclusively on it out of a total of 354 sections in the law.
• Maintenance and preservation of safety record books and introduction of group insurances have been provided for.
• Time limits for payment of wages have been determined and a provision has been made to realize the unpaid wages through the court.
• Provisions have been made for the declaration of sector wise minimum wage rates after an interval of every five years.
• Amount of compensations in cases of death or injury because of accidents at the workplace has been increased. For deaths, the amount of compensation has been ascertained at Taka. 100000.00 per worker and for a permanent total disability, the amount fixed is Taka 125000.00 per worker. In case of an accident that may happen due to employer’s negligence, the compensation amount shall be double.
• No one, other than those in the pay-roll of the employer, shall be the member or
officer of an establishment based basic trade union.
• The purview of unfair labor practices on the part of the workers, employers or the trade unions has been extended.
• Determination of CBA from amongst the establishment based basic trade unions has been made easier and the period of such determination has been fixed within a time frame of 120 days.
• Industrial or craft Federations of trade unions, under certain conditions, have been given the jurisdiction to act as CBA
• Provisions have been made to form compulsorily participation committees in every establishment where 50 or more permanent workers are engaged.
• Labor courts shall be the only courts to adjudicate all issues under labor law and all appeals shall lie to the labor appellate tribunal
• Time has been fixed for the adjudication of each and every stage of the cases in the labor court to accelerate the procedure
• Only the workers employed in an establishment, irrespective of their designation and wage scale are entitled to get the benefits of the participation fund and the welfare fund developed out of the profit of the company.
• Provisions for provident funds have been made for the establishments run under the private management 3
• The punishments for the breach of the provisions of the labor law have been revised appropriately. Imprisonment has also been provided for along with fines
• A provision has been made to form a “National Industrial health and safety council” to enact the national policy to ensure the occupational health and safety at the enterprise level.
• Provision has been made for the strict implementation of the “Equal pay for equal amount of work” policy of ILO convention
• Any discrimination or indecent behavior towards female workers has been prohibited under the new law.
• Sick Leave: 14 days sick leave with full average wages have been provided, in the new Labor Law. In previous laws sick leaves were paid for half average wages.
• Annual leave with wages: For adults one day for every 18 (eighteen) days of work performed by him/her during the previous period of twelve months. And for adolescents one day for every 15 days of work performed by him/her during the previous period of 12 months.
• Festival Leave: Every worker shall be entitled to eleven days festival leaves in a calendar year. The Employer shall fix the days and dates of such leaves.
• Children Room: A children room for every 40 female workers having their children below the age of 6 years have been provided by the law. Previously it was provided for every 50 female workers.
• Termination of employment by the worker: A permanent worker may terminate the employment serving a 30 days notice to the employer and a temporary worker may terminate it serving a notice of 30 and 14 days case wise. In lieu of the notice, the worker can even terminate the employment returning the wages for that period.
• Grievance Procedure: Limitation for the application of grievance has been extended to a period of 30 days, though previously it was 15 days only.
• Fitness certificate: Previously a fitness certificate was issued by the District civil surgeon but now it is to be issued by any registered physician at the cost of the employers.
• Training on the labor law: Arrangements for training on law was never provided for but now in this new law, training arrangement is made compulsory for the laborers. The 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, 2006-
According 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 to-
Whether the changes brings any benefit to the labour
The initial labour law text dates back to 1969. All relevant laws are now included in one document. On the whole, this new legislation constitutes a progress with regards to the 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:
Changes in the present law:
1. Previous law excluded the gratuity on discharge from the wages of a worker but the new law includes it as part of the wages.
2. The word “gratuity” was never defined anywhere in the earlier labour law but the new
law defines it properly in section 2 (10) where it is defined as the amount of the wages of
at least 30 days payable to a worker who worked in a factory not less than 6 months at the
expiry of her/his employment.
3. Previous law provided only the exclusion list with the definition of the wages but the
present law provides both the inclusion and exclusion lists to make a complete sense.
4. Provident fund is considered to be the wages and is payable within 30 days of the expiry of the employment.
Persons responsible for the payment of wages Provisions of the new labour law:
Under the new law the following persons shall be responsible for the payment of the wages of the worker. Owner of the factory; Chief Executive Officer (CEO) of the company; Manager/person assigned responsibility by the company; The Contractor, for payment to workers appointed by the Contractor.
Changes in the present law:
In case of the failure of the contractor to pay the wages to the worker, the principal owner shall pay the same and subsequently it can be adjusted with the accounts of the contractor.
Fixation of wage periods and time of payment of wages Provisions of the new labour law:
The person responsible for the payment of wages of the worker shall fix a period of wages and accordingly pay it as per the time given in the law. Section 122 guides the paymaster to fix a period not exceeding 30 days and section 123 provides that payment shall be made within seven working days of the expiry of a wage period.
Changes in the present law:
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.
PAID ANNUAL LEAVE
Annual leave with wage
Provisions of the new labour law:
Section 117 of the new labour law deals with the provisions for annual leave with wages. The section provides as follows:
1) Each worker, who has completed one year of continuous service in a factory, shall be
allowed during the subsequent period of twelve months’ leave with wages for a number
of days calculated at the rate of
i) for adult workers, one day for every 18 (eighteen) days of work performed by her/him
during the previous twelve months;
ii) For adolescent worker, one day for every 15 (fifteen) days of work performed by her/him during the previous twelve months.
2) An adult worker shall cease to earn any such leave when the leave due to her/him
amounts to 40 (forty) days and an adolescent worker shall cease to earn the said leave
when the leave due to her/him amounts to 60 (sixty) days.
Festival holiday*
Provisions of the new labour law:
1) Every worker shall be entitled to eleven days festival-leave for every calendar year. The employer shall, at the beginning of the year, fix the day and date of such leaves.
2) The employer may require any worker to work on a festival holiday provided that two
days additional compensatory holidays with full pay and one alternative holiday should
be given to her/him under section 103.
Changes in the present law:
Festival holiday has been increased by a day in the new labour law 2006.
Casual leave
Provisions of the new labour law:
Section 115 of the new labour law deals with the provisions for casual leave of a worker. It makes a provision for 10 days casual leave with full wages.
Sick leave **
Provisions of the new labour law:
* Section 118 of the Labour Law, 2006
** Section 116 of the Labour Law, 2006
All workers employed in a factory shall be entitled to get 14 (fourteen) days sick leave with full average wages. Provided, such a leave shall not be granted unless a Registered Physician employed by the employer or any other Registered Physician has certified her/his illness.
Changes in the present law:
Earlier laws provided for the same period of leave with half average wages, whereas, the new law makes provisions for the sick leave to be one with full average wages. The requirement for certification by a Registered Physician does not exist in the earlier laws. However, it has been added to the new law.
EMPLOYMENT OF FEMALE
Provisions of the new labour law:
There are a number of sections where the employment and protection of women have been discussed. The sections are 45, 50, 79, 87, 94, 109, 332 and 345 of the new labour law, 2006.
Night-shift work of female workers: Section 109 of the labour law, 2006 creates a bar on the night works of the female workers. The section states as follows: “No female worker shall be engaged for work in any establishment without her consent between 10 pm and 6 am”.
MATERNITY BENEFITS
Maternity leave
Provisions of the new labour code:
In section 46 of the new labour law 2006 provisions have been created for maternity leave of 16 weeks (8 weeks before and 8 weeks after the delivery). But the law also makes a provision that no worker shall be entitled to receive the benefit unless she has served under the owner for a minimum period of six months prior to the notice of the probability of the delivery.
Provisions of the previous labour laws: Section 3 of the Maternity Benefits Act, 1939 provides maternity leave of 12 weeks (6 weeks before and 6 weeks after the delivery).
Changes in present law:
The new law increases the maternity leaves to sixteen weeks from twelve weeks and decreases the duration of the qualifying service period – for availing the benefit – to six months from 9 months. Also, no maternity benefit shall be payable to any woman if at the time of her confinement she has two or more surviving children.
Procedure of payment of the maternity benefit
Provisions of the new labour code: Three options are open to the mothers as per section 47 of the new labour law:
1. The owner shall pay the total benefits payable for the preceding 8 weeks within 3 days
from the submission of the certificate of the probability of delivery (childbirth) by a Registered Physician and shall pay the remaining amount after three working days of the
submission of the proof-of-delivery.
2. The owner shall pay the benefits payable for the preceding 8 weeks including the day of the delivery within 3 days from the submission of the proof of delivery and pay the
remaining within the next eight weeks after the proof of delivery is submitted
3. The owner shall pay all the benefits payable within 3 days from the submission of the
proof-of-delivery to the owner.
Provisions of the previous labour laws: Previously the procedure was guided by the Maternity Benefits Act. 1939. Section 5 of the aforesaid Act provided more stringent payment procedure as there was the provision of payment within 48 hours after the certificate from any physician was submitted, whether there remains any working day or not.
Changes in the present law:
Changes have been made in favor of the management, as the management is required to pay the benefit within three working days. As per the earlier law, it was binding upon the management to pay the benefit within 48 hours only.
Amount of the Maternity Benefits
Provisions of the new labour code:
As per sections 48 of the new labour code there is a provision of the payment in terms of daily, weekly or monthly, as and where applicable, average wages. The section also provides the formulae for the calculation of the aforesaid average wages as follows:
Benefits in case of the death of mother****
Provisions of the new labour code:
The person nominated by the mother who died, or in the case where no such person is nominated, her legal representative, shall be entitled to receive the benefits as described above.
Changes brought by the new law: No change has been made.
* Daily Average Wages
** Weekly Average Wages
*** Monthly Average Wages
**** Section 49 of the Labour Law, 2006
EMPLOYMENT OF ADOLESCENT
Prohibition of employment of children and adolescent
Provisions of the new labour law:
Section 34 of the new labour law creates a bar on the appointment of children in any
establishment. The section states as follows:
manager of the factory;
2. Such adolescent carries a token – giving a reference to such certificate while he is at
work;
3. Nothing in this section shall be applicable to an adolescent employed in any
occupation or in a factory as an apprentice for vocational training;
4. If the Government considers appropriate, it may as well waive the enforcement of the
pre-conditions of the employment of an adolescent for a particular period.
Child : In the present law child means a person who has not yet completed his fourteen years of age.
Adolescent: Adolescent means a person who has completed her/his fourteen years but has not completed her/his eighteen years of age.
Changes in the present law:
In the earlier laws, the term “child” was used to mean a person who had not completed 16 years of age and the term “Young Person” was used to mean and include both the child and adolescent. Under the earlier law, even a child could have obtained a fitness certificate to get a job in a factory. But in the new law, child means a person who has completed her/his fourteen years of age and adolescent means the person who has completed sixteen years and has not completed eighteen years of age. The present law specifically prohibits employment of children and makes a provision for fitness certificates for the adolescent only.
Exception : A child who has completed twelve years of age, may be employed in such light work as not to endanger his health and development or interfere with his education.
Provided that the hours of work of such child, where he is school going, shall be so arranged that they do not interfere with his school attendance. (as per section 44)
Certificate of fitness
Provisions of the new labour law:
Section 37 of the new labour law requires an adolescent to obtain a fitness certificate to be employed in any occupation or in a factory.
13 such person will be employed therein if certified to be fit for the work he or she has
proposed to be employed for, issue a certificate of fitness.
Provisions of the new labour law:
Section 41 of the new labour law deals with provisions relating to the working hours of the adolescent. As per the section following points are important and relevant for the RMG industry.
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:
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:
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: employee’s name, father’s name, mother’s name, spouse’s 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:
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:
There is no change in the classification of labour. But in the calculation of the period of
probation, the earlier laws included all the leaves and strikes and lockouts during that period which the new law has ignored and refrained from specific provisions in this regard.
Calculation of continuous service
Provisions of the new labour law:
Section 14 of the new labour law provides for the method of the calculation of the continuous service period of a labour for the purpose of this law in the following manner:
No significant change has been noticed in this purpose except for the inclusion of the number of days’ not-working due to legal strike or illegal lockout. And for calculation of six months of continuous employment the number of actual working days is 120, which was previously 140.
Payment of wages for un-availed leave*
Provisions of the new labour law:
In case of the expiry of the specific employment of any worker by way of discharge, dismissal, termination, retrenchment or retirement, if there remains any un-availed leave of the aforesaid worker, he or she shall be entitled to get the wages of those days so un-availed.
Changes in the present law:
Actually this was also in previous law under section 5 (4) of SO Act 1965 .
* Section 11 of Labour Law, 2006
Provident Funds for workers:
Provisions of the new labour law
Section 264 of the Labor Law 2006, provided for an establishment of a Provident Fund if so demanded by the three fourths of the total workers employed in a factory. The section also provided for the following:
1. It may constitute for the benefits of the worker in the private sector.
2. Such provident fund shall be constituted prescribed by the rules.
3. The Government may make rules for constitution of provident fund.
4. Such Provident Fund shall be held and administered by a Board of Trustee.
5. Such Board of Trustee shall consist of an equal number of representatives of the
employer and workers employed in the establishment, and a person nominated by the
Government shall be its Chairman.
6. Representative will be nominated by the employer and collective bargaining agent.
7. The above nomination shall be under the supervision of the Director of Labour.
8. All the representatives shall hold office for a period of two years.
9. A permanent worker shall subscribe to the fund not less than seven percent and not more than eight percent from his basic wage unless otherwise mutually agreed.
10. In the case of provident fund one fourth of total workers will claim in writing to their
employer.
11. In order to provide provident fund the employer will establish rules within six months
and the fund shall start by this period.
12. At least half of the total accumulations shall be invested for the purpose of any of the
following, namely:
a) I.C.B. Mutual Fund Certificates.
b) I.C. B. Unit certificates and
c) Government securities including Defence and Postal Saving Certificates
13. The cost of maintenance shall be borne by the employer.
14. The accounts of provident fund shall be audited.
15. A statement of account together with audit report shall be forwarded to the director of
Labour within one month of the submission of audit report.
16. Where the government is satisfied, he may by order exempt the establishment from the operation of this section.
17. A provident fund shall be deemed to be a public institution for the purposes of the
Provident Funds Act, 1925 (XXIX of 1925).
18. Establishment in private sector means an establishment which is not managed directly by the Government.
Death benefit**
Provisions of the new labour law:
If any worker died after completing 3 (three) years continuous service with an employer, the worker shall be entitled to get benefits for 30-days’ wages for each completed year or service, or six-months thereof, or gratuity, whichever is higher. The worker shall get this benefit in addition to her/his other emoluments during the retirement.
Changes in the present law:
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.
Retrenchment**
Provisions of the new labour law:
Retrenchment means the expiry of the employment of a worker on the ground of redundancy. For retrenchment, an employer has to follow the following provision of the new labour law: No worker, employed in any shop or commercial or industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched by the employer, unless –
(a) The worker has been given one month’s notice in writing, indicating the reasons for
retrenchment or the worker has been paid in lieu of such notice, wages for the period of
notice;
(b) A copy of the notice in respect of the retrenchment has been sent to the Chief Inspector or any other officer authorized by her/him; and
(c) He has been paid, at the time of retrenchment, compensation which shall be equivalent to thirty days’ wages for every completed year of service or for any part thereof in excess of six months, or gratuity, if any, whichever is higher.
* Section 16 of Labour Law, 2006
** Section 20 of Labour Law, 2006
Discharge
Provisions of the new labour law:
Discharge means the expiry of the employment of a worker on the ground of inability or
incapacity because of ill health. Section 22 of the new labour code deals with the procedure of discharge. As per the section an employer can discharge a worker on the basis of the report of a Registered Physician.
Compensation in case of discharge: Every worker who has completed a continuous service for one year shall be entitled to get a benefit of 30 days wages for every completed year of service or the gratuity, whichever is higher.
Dismissal
Provisions of the new labour law:
Section 23 of the new labour law deals with the dismissal of the worker on the ground of misconduct and conviction. The section makes room for the employer to dismiss a 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:
Provisions of the new labour law:
Section 72 of the new labour law deals with the floors, stairs and means of access. The section states as follows:
1. All floors, staircases, and passages shall be of sound construction and properly
maintained, and if it is necessary to ensure safety, hand-railings shall be provided with
them.
2. Reasonable safe passageway or access shall be maintained in a place where employees
work.
3. All the floors, passageways, and staircases shall be maintained in a neat and clean
manner, wide enough, and free from any blockade.
Excessive Weights
Provisions of the new labour law:
Section 74 of the new labour code states that, no person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury.
Safety of building and machineries
Provisions of the new labour law:
Section 61 of the labour law 2006 provides for the measures to be taken as regards the safety measures related to building and machineries. The present law entrusts everything to be done in this regard with the Inspectors. The section goes as follows:
1. If it appears to an Inspector that any building or part thereof or any passageway or
machine of the factory is in such a condition which is injurious for the life and health of
the workers working therein, the Inspector may issue an order to the owner of the factory
to take necessary steps immediately within the specified time therein.
2. If the Inspector is of the opinion that the building or any machine is seriously dangerous for the life of the worker, he shall issue an order to repair or alter that immediately failing which, to not run the factory unless and until the building is so repaired or replaced.
Changes in present law:
Earlier laws didn’t empower the Inspector to stop the operation of a factory in a risky building but the present law has given sufficient discretion on the part of the Inspectors to take necessary steps so as to ensure building security and the like.
Fencing of machinery*
Provisions of the new labour law:
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:
a) Effective enclosure of the plant or machinery used in the process
b) Removal or prevention of the accumulation of inflammable objects
c) Proper enclosure of all possible sources of ignition.
* Section 64 of Labour Law, 2006
** Section 78 of Labour Law, 2006
2. In case of the impossibility of placing a strong enclosure for the above-mentioned sources of inflammable objects, provisions of chokes, baffles, vent or other effective appliances have to be kept.
3. Enclosed parts of the plant that contain potentially explosive materials shall only be
opened if certain required precautionary measures are met:
a) Stop valves should be used to stop flow of gaseous objects in pipelines before
working on any joint of that pipeline.
b) Practicable measures should be taken to reduce pressure inside the pipeline before
working on joints of that pipeline
c) Entrance of inflammable gases or vapours, into the pipeline through the joints that
are to be worked on, must be carefully prevented.
4. Operation that requires actions of heat, such as welding, brazing, soldering or cutting,
shall not be conducted in a factory that contains or previously contained inflammable
objects without taking appropriate safety measures.
Precautions against dangerous fumes*
Provisions of the new labour law:
1. No person shall be allowed to enter potentially hazardous chambers, containing
dangerous fumes, such as tank, vat, pit, pipe, flue or confined spaces if there is not any
manhole of adequate size.
2. No portable light of voltage exceeding 24 volts shall be permitted to use inside places
mentioned above.
3. No person shall be allowed to enter the places mentioned above until the following
measures are taken:
a. A certificate in writing has to be given by a competent person stating that the
space is free from dangerous fumes and is fit for persons to enter.
b. It has to be ensured that the worker wears a suitable breathing apparatus and a belt
securely attached to a rope before going into any confined space.
4. No person shall be allowed to enter the places mentioned above for the purpose of
working or making any examination before sufficiently cooling the places down by
ventilation.
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 person’s 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:
iii) Notice to be given to the Inspectors:
iv) Power to take samples:
the provisions of this Act or likely to cause bodily injury to the health of workers.( s.84 )
production to the Court.
v) Power of Inspectors in case of certain dangers;
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.
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 children’s 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 children’s 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:
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:
union.
The new law makes the list of the activities of unfair labour practices much longer. In the earlier laws there were eight different activities which had been termed as unfair labour 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:
In the earlier laws there were six activities of the labour that were considered to be unfair labour practices. But the new law extended the purview of unfair labour practices. Following are the addition to the list of unfair labour practices from the part of the workmen:
1. Imposing illegal strike or go slow or persuading thereto
2. Gherao or blokcade on the highways or destruction of the property including transport
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
workers submitted by the employer as may be required by any decision given by her/him
on objections received under previous sub-section
9. After amendments, alterations or modifications, if any, made under above sub-section or where no objections are received by the Registrar within the specified time, the Registrar shall prepare a list of workers employed in the establishment concerned and send copies thereof to the employer and the contesting trade unions at least four days prior to the date fixed for the poll
10. The list prepared under the aforesaid sub-section shall be deemed to be the list of voters and every person whose name appears in the list shall be entitled to vote to elect the Collective Bargaining Agent
11. Every employer shall provide for such facilities as are required by the Registrar to
conduct the poll
12. No person shall canvas for vote within a radius of fifty yards of the polling station
13. For the purpose of holding the secret ballot to determine the CBA, the Registrar shall do the following:
a. Fix a date and intimate the same to the contesting trade unions and the employer
b. Set the sealed ballot boxes, which are sealed in presence of the representative of
each of the contesting trade unions if any one present
c. Conduct the poll in the polling stations where the representative of the contesting
trade unions shall have the right to enter
d. Count the votes in presence of the representative of the contesting trade unions if
anybody is present
e. Declare the result and the name of the elected Collective Bargaining Agent.
14. Where a registered trade union is declared as the Collective Bargaining Agent according
to the above rules, no such application for the determination of the CBA shall be
entertained within the subsequent two years.
The Right of the Collective Bargaining Agent
Provisions of the new labour law:
The Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to-
i. Undertake collective bargaining with the employer or the employers on matters connected with the employment, non employment or terms of employment
ii. Represent all or any of the workmen in any proceedings
iii. Give notice of and declare a strike in accordance with provisions of the law
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 one-third 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:
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 didn’t 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 –
Implementation of the Recommendation of the Participation Committee*
Provisions of the new labour law:
Although the meeting procedure is exactly the same as the earlier law, it makes a provision of the implementation of the recommendations of the committee within the time period provided by the committee itself. Otherwise, willful negligence will be treated as unfair labour practices.
Trade Unions
Provisions of the new labour law:
Special definition of worker for the purpose of industrial relation:
For the purpose of the industrial relations the word worker means and includes every worker as defined under section 2(65), and any labour who is laid off, retrenched , discharged or dismissed or otherwise terminated for which an industrial dispute has been arisen. But it doesn’t include any security staff like guards and fire fighter or any confidential assistant etc.
Trade union and freedom of associations:
Section 176 of the new labour code deals with the provisions related to trade union and freedom of association:
right to establish and join the union of their choice subject to the constitution of the
respective trade union
Application for Registration and Required Documents for Registration
Provisions of the new labour law:
Section 177 and 178 deals with the procedure for the registration of the trade unions
Section 176 states that any trade union can Application for its registration to the registrar of the trade unions of the respective zone under the signature of the President and Secretary of the respective trade unions. Section 178 of the new labour code provides a list of documents, required, for the registration of the trade unions:
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 employers or employers and employers as regards the employment, non employment or terms of employment of workers has been termed as an industrial dispute.Then Chapter 14 of the Labour law 2006 deals elaborately with the procedure of raising industrial dispute and settlement thereof. Following are the provisions relating to industrial dispute in the present Law:
Raising of Industrial Dispute
Provisions of the new labour law:
No industrial dispute shall be treated as being existent unless it is validly raised by the
employers or the Collective Bargaining Agents as per the provisions of the law.
Settlement of Industrial Dispute*
Provisions of the new labour law:
Section 210 of the present law deals the procedure as the following:
1. If at any time any employer or the Collective Bargaining Agent finds any dispute is
likely to arise, it shall communicate the other party in writing
2. The recipient of the above-mentioned communication shall take initiative to arrange
a negotiation within fifteen days of the receipt of the communication.
Negotiation
The proceedings under the above arrangement between two parties shall be treated as
negotiation and if they are to produce a positive solution to the disputed issues, a
settlement deed shall be executed and be sealed and signed by both the parties. A copy of
the settlement deed shall be forwarded to the Government and the Conciliator thereupon.
Conciliation
If the above mentioned negotiation fails, then it shall be forwarded to the Conciliator for
the process of conciliation.
1. If the dispute is settled through conciliation the Conciliator shall report it to the
government along with the settlement deed
2. The conciliation shall be treated as to have failed, if it cannot reach any
conclusion even after 30 days of initiation. Provided it can be extended beyond the
period if both the parties agree in writing
3. If it fails the conciliator shall try to manage the parties in dispute to refer the
matter to an arbitrator
4. If the parties disagree about the Arbitration the conciliator shall issue a certificate
that the conciliation has failed.
Arbitration
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:
Following are the Jurisdiction of the Labour Court:
Procedure in case of the trial of any offence:
In adjudicating any other matter other than the trial of an offence it shall be treated as a civil court
Changes in the Present Law:
Despite recent improvements described above, the mission, through factory visits and interviews with various actors confirmed that major labour rights violations are still found in Bangladesh factories, including:
– No freedom of association: although unions exist as federations, they are de facto prohibited at the factory level; participation committees, where they exist, consist of workers appointed by the management while they should be chosen by the workers;
– No living wage: the legal minimum wage, where implemented, is insufficient to cover basic needs; wages are paid with delay and overtime is often not paid in accordance with the law;
– No access to remedies;
– Excessive working hours, inappropriate maternity leave and benefits, harassment, blocked exits, etc[11].
At a view-exchange meeting at Dhaka Reporters’ Unity auditorium, she said a total of 80 Decent workers would be deprived of its benefit as agricultural and domestic workers have been kept out of its purview.
“As per the new law, working hour in factories will be 10 hours which go against the ILO rules.
For instance, the maternity leave has been extended to 16 weeks from 12 weeks, but the way it has been fixed before and after giving birth to a child. It would not let the female workers to enjoy the leave according to their needs, the said.
Besides, the amount of compensation fixed for the workers in the law is not time worthy and it should be re-fixed at Tk 3-5 lakh.
The bill was passed in parliament at a time when the industrial belts in the capltal and its suburbs were witnessing violent labour unrests for wage hike.
The ‘Anti-labour’ provisions and numerous ‘inconqruities’ of the law, passed hurriedly in parliament, will give rise to further unrest, said top leaders of labour fronts.
“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 (n°155) Occupational Safety and Health Convention,
1981; ILO (n°161) Occupational Health Services Convention, 1985, and ILO (n°187) 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 women’s 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
Obligation Who is responsible Remedies Procedure to avail the remedies
Not to bound any worker to work more than eight hours (S. 100). The employer. Shall be entitled to allowance at the rate of twice his ordinary rate of basic wage ( S. 108.) Through the register and inspector (S.319 (5).To allow interval for rest or meal for the worker (S. 101). The employer. If the employer does not comply with this section, he will be punished with imprisonment up to three months, or with fine which may extend to one thousand Taka, or with both. Application to the labor court only. Single application on behalf of all the workers so aggrieved. To allow one day weekly holiday for all the workers employed in a factory ( S. 103 ). The employer. Compensatory holidays of equal number of holidays so deprived (s.103 ) . Ditto To allow the worker annual leave with the wages (S.117). The employer. If this kind of leaves are not enjoyed the employer must add these leaves with next years leave. The worker can Apply to the labor court if these provisions have not been com-lied with by the employer. To allow the worker the festival leave (S. 118 ). The employer. Failing which the worker will get a compensatory holiday of 2 days with full pay and a substitute holiday is given to her/him under S. 103. The worker can Apply to the labor court if these provisions have not been com-lied with by the employer. To allow casual leave with full wages for the workers (S. 115). The employer No remedy Not Applicable To allow the workers14 day’s sick leave with full average wages (S.115). The employer The worker can realize the wages receivables during the continuance of illness with dearness allowances an others The worker will Apply for the sick leave with a medical certificate, if denied he can Apply to the labor court against the employer. 48
Obligation The person responsible Remedy Procedure
To allow maternity leave of 16 weeks for the mother ( S. 45 ). The employer If any employer contravenes, he shall be punished with the fine which may extend to five thousand taka (S. 286). The worker can Apply to the labor court if these provisions have not been complied with by the employer. To pay the maternity benefit to the worker (s. 46) The employer Ditto Serve notice either orally or in writing to her employer that she expects to be confined within eight weeks next following and may therein nominate a person for purposes of receiving payment of maternity benefit in case of her death. To pay the worker the maternity benefit in case of a women‘s death (S. 49). The employ Ditto Ditto Not to work in lieu of any cash or kind during the permitted period of absence by the employer (S. 287). The worker Shall be punishable with fine up to one thousand taka. Not available in the law, Rule may provide for subsequently Not to permit any children or adolescent to work in any occupation or establishment (S. 34). The employer Whoever employs or permits any child or adolescent to work shall be 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.
To maintain the Master-roll for the laid- off workers (S. 17). The employer Compensation during lay off = (Total basic + dearness allowance + ad hoc wages)/2 +the house rent he or she would get if not so laid of. If denied he can apply to the labor court with that against that denier To allow the compensation in case of Discharge wage to the worker. The employer 30 days wages for every completed year of service or the gratuity, whichever is higher. Every worker who has completed a continuous service for one year can apply to the labor court and shall be entitled to get the benefit. To allow retrenchment wage to the worker. The employer Compensation equivalent to 30 days wages for every completed year of service or for any part thereof in excess of six months,or gratuity, if any, whichever is greater. Every worker who has completed a continuous service for one year can apply to the labor court and shall be entitled to get the benefit.To give one months notice to the worker in writing, indicating the reasons for retrenchment. The employer Unless in lieu of such notice, wages for the period of notice is given to the worker the retrenchment will be ineffective. Ditto To give notice to the worker to dismiss unless he is convicted by any criminal court or his her misconduct is proved under S. 24 of the labor law 2006.( S. 23). The employerThe payment in lieu. Ditto To terminate a worker, serving notice to the workers (S. 27). The employer The wages to the terminated worker for the aforesaid period of notice. Ditto Not to deprive of worker from the payment of provident fund ( S. 29 ) The employer Imprisonment for 3 years and also liable to fine ( S. 298 ). The worker may lodge a complaint to the Labor Court. No Court fees shall be payable for lodging complaint or appeal under this section (S. 33 ).
Obligation The person responsible Remedy Procedure
To issue the certificate of service at the time of the workers retrenchment, discharge, dismissal, removal, retirement or termination of service (S. 31). The employer To have the certificate issued by the employer Ditto. To send notice of certain disease of worker ( S. 82 ) The employer or the worker concerned or any person authorized by him in this behalf. Imprisonment up to three months or up to one thousand taka or both ( s. 307). The Chief Inspector or if authorized by him in this behalf , any other officer subordinate to him , may lodge complaint with the Labor Courts for action.(Section 319 (5) To provide alternative exit to avoid dangers and damage due to fire. (S. 62). The Employer If any injury is caused to any worker because of the use of such equipment, machinery or building, the employer shall be liable to pay compensation to the worker injured at a rate which may be double the rate of compensation payable for such injury .The worker may apply to the labor court if these provisions have not been com-lied with by the employer. To ensure safety measures relating to building and machineries (S. 61)The employer Ditto Ditto To be precaution against dangerous fumes The employer Ditto Ditto To Provide suitable goggles for the protection of the worker (S. 75). The employer Ditto Ditto 52
Obligation The person responsible Remedy Procedure
To maintain a first aid box fro the worker in the factory (in S. 89). The employer If the employer does not comply with this section, he will be punished with imprisonment up to three months, or with fine which may extend to one thousand Taka, or with both.
S. 196 deals with unfair labor practice in relation to trade union The worker Under S. 291 (2) any worker who fails to comply with it he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand Taka or with both. Ditto To register the Trade Union and issue a registration certificate
( S. 182 ). The employer Punishment with imprisonment up to six months or fine up to two thousand taka or both (S. 299). Application to the Labor Court. To issue Certificate 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 Islam–Second Party,
Present:
Mr. Amanullah Khan—Chairman.
Mr. M. Karim—Member
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 12-03-1974 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.
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].
Labour Law means those rules & customs of state by which the relation of employer Labour is regulated in order to secure peace in the Industrial arena. The modern Labour law is compiled by the state. In the eye of Labour law, the capital & the labour both are equally important. In modern time, the basic purpose of labour law is to create exclusive relation between capital & labour. Ther were many labour laws in previous but now it has only labour laws in Bangladesh. Which name is Bangladesh labour Code, 2006. The Bangladesh labour code is one of the very recent laws with major overhauling changes in the filed of labour legislation. The law governing labour relations is one of the centrally important branches of the law the legal basis on which the very large majority of the people earn their living. The level of the wages-nominal or real which is the vital issue can only be marginally influenced by legal rules and institutions. Marginal influence of the law on the people’s welfare depends on the products of people’s labour which in turn in very large extent the result of technical development. In the second place, it depends on the forces of the labour market on which the law has only a marginal (tough not a negligible) influence and thirdly on the degree of effective organization of the workers in trade union to which the law can again make only a modest contribution[1].
Labour law concerns the inequality of bargaining power between employers and workers. 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[2].
Law is a technique for the regulation of social power. This is true of labour law as it is of other aspects of my legal system. Power –the capacity effectively to direct the behaviour of others- is on evenly distributed in all societies. There can be no society without subordination of some of its members to others, without command and obedience, without rule maker and decisions makers. The power to make policy, to make rules and make decisions and to ensure that those are obeyed is a social power. It is same supported and sometimes restrained and sometimes even created by the law but the law is not the principal source of social power.
Purpose of labour laws
Labour law is chiefly concerned with this elementary phenomenon of social power. And – this is important – it is concerned with social power irrespective of the share which the law itself has had in establishing it. As a social phenomenon the power to command and the subjection to that power are the same no matter whether the power is exercised by a person by public function or by a private person, an employer, a trade official. The subordination to power and the nature of obedience do not differ as between purely “social” or private and “legal” or public relations. It is a profound error to establish a contract between “society” and the “state” and to dee one in terms co-ordination, the other in terms of subordination. As regard labour relations, that error is fatal. In the society, there is unequal distribution of power but view of society about individual as equal. The law does and to some extent must conceal the realities of subordination behind the conceptual scream of contracts considered as concluded between equals.
The principal purpose of labour law, is to regulate, to support and to restrain the power of management and power of organized labour. These are abstraction. In their original meanings the words, “management” and “labour” denoted not persons, but activities to plan and to regulate production and distribution, to co-ordinate capital and labour in the one hand, the activity to produce and to distribute on the other. But even if, by new common twist of language, “management” and labour” are used to denote not activities but the people who exercise them, they remain abstractions. The word “management” is always used to identify the individual or corporate body who in a give situation wields that power to define policy, to make rules and above all decisions, through whose exercise management manifests itself to those who are its subordinates. To manage means to command. The ambiguity of the terms “management” and labour if applied to persons rather than to activities is important that it means the relation between managers and those subject to managerial power.To gauge the distribution of managerial power and to identify its location is not always an easy task. To trace the distribution of managerial power is a difficult task in any given society, no less difficult where the means of production are publicly owned than where they are privately owned. To find who has power our the side of labour is equally difficult.The individual employer represents an accumulation of material and human resources, socially speaking the enterprise is itself in Collective Power. If a collection of workers negotiate with an employer, this is a negotiation between collective entities, both of which are, or may at least be, bearers of power. But the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power.
The main object of labour law has always been to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship There can be no employment relationship without a power to command and a duty to obey. But the power to command and the duty to obey can be regulated. The characteristic feature of the employment relation is the individual worker is subordinated to the power of management but that the power of management is co-ordinate with that of organized labour. The regulation of labour results from combination of those agreed between him or his association and the union through collective bargaining.In the formulation of the rules which regulate the relations between employers and workers the common law has played a minor role. The courts have had a share, but only a small share in their evolution. For this there are number of reasons:
(a) The rules and principles in which we are interested are designed to govern the normal typical behavior at the parties. The rules which are needed in labour relations must word ex ante. They must direct people what to do or nit to do, before and not after they have acted, Case law operates ex-port, it does establish rules but not before something has gone wrong.
(b) The law is expected to have a share in the regulatior of normal behavior in relations between employers and employed.
(c) Rules governing labour relations are an attempt to mitigate the disequilibrium inherent in the employment relation[3].
Object of labour legislation:
Any enlightened state would intervene in the conduct of industry and impose statutory,obligations mostly in the employers and also to a lesser degree on theworkers in order to maintain industrial peace and good relation between management and workers and to secure to latter better working condition a minimum wage compensation in case of accident medical facilities, provision for future etc.The object of labour legislation is two fold, namely-
1. to improve the senile conditions of industrial labour so as to provid for them the ordinal amenities of life, and by that process.
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
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 worker’s 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 26th 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.
n 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 workmen’s compensation Act, 1923 (VIII of 1923)
2. The children (pleading of labour) Act, 1933 (II of 1933)
3. The workmen’s 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 employer’s 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
• 23 were enacted during the Pakistan regime, and
• 12 were passed after the independence of Bangladesh
2. In accordance with the ratified ILO conventions and with a view to creating a constructive environment, for the elimination of the imbalances that prevailed in the issues regarding development of congenial relations between workers and employers, information about existing labor and industrial laws were sought from concerned stakeholders, of both home and abroad. Increase of productivity, the enhancement of favorable environment for investment, the acceleration of industrialization in the context of the changed environment during the post independence period, were also studied.
3. To meet the aforesaid demand, the government formed a National Labor Law Commission in 1992, with a view to enacting a modern, up dated and united labor law, headed by Justice Mohammad Abdul Quddus Chowdhury, along with 37 other members representing every concerned quarter.
4. After two years of exhaustive study, the Commission submitted its report along with a draft of the unified modern and updated labor law in 1994.
5.Subsequently, the draft was reviewed by ILO and numerous Employers and Workers Associations and other human rights organizations in phases for the last twelve years, and at last it was promulgated on the 11th of October 2006 as “Bangladesh Labor Law 2006” under the consensus of all the parties concerned.
6. The salient features of the newly promulgated law are as follows:
• One single modern updated code instead of the 25 scattered Acts and Ordinances
• There are 354 sections in 21 different chapters in the Law
• The scope and applicability of the law has been extended and definitions of
different terms have been clarified. Ambiguity regarding the age limit of a child
has been eliminated. According to this law any person below the age of 14 shall
be treated as a child.
• The issuance of an appointment letter and the Identity card for a worker has
been made compulsory.
• Death benefits have been provided for even cases of normal deaths or in cases
of any deaths due to causes other than accidents during the continuance of the
service.
• The usual retirement age has been scheduled at 57 and at that time the worker
shall be entitled to get all the benefits as are applicable under this law. Even the
case of a workers’ voluntary retirement, after his continuous service of 25 years
2 with his employer, is also a subject which will come under this retirement benefit.
• Child labor is prohibited even in non-hazardous regular work in an establishment. Appointment of adolescent and female workers is prohibited during the nights and in dangerous occupations.
• Maternity benefits have been increased to 16 weeks and the qualifying service length has been decreased to six months, but this benefit is limited only up to the birth of two living infants.
• Special importance is given on occupational health and safety and working environment. There are 78 sections exclusively on it out of a total of 354 sections in the law.
• Maintenance and preservation of safety record books and introduction of group insurances have been provided for.
• Time limits for payment of wages have been determined and a provision has been made to realize the unpaid wages through the court.
• Provisions have been made for the declaration of sector wise minimum wage rates after an interval of every five years.
• Amount of compensations in cases of death or injury because of accidents at the workplace has been increased. For deaths, the amount of compensation has been ascertained at Taka. 100000.00 per worker and for a permanent total disability, the amount fixed is Taka 125000.00 per worker. In case of an accident that may happen due to employer’s negligence, the compensation amount shall be double.
• No one, other than those in the pay-roll of the employer, shall be the member or
officer of an establishment based basic trade union.
• The purview of unfair labor practices on the part of the workers, employers or the trade unions has been extended.
• Determination of CBA from amongst the establishment based basic trade unions has been made easier and the period of such determination has been fixed within a time frame of 120 days.
• Industrial or craft Federations of trade unions, under certain conditions, have been given the jurisdiction to act as CBA
• Provisions have been made to form compulsorily participation committees in every establishment where 50 or more permanent workers are engaged.
• Labor courts shall be the only courts to adjudicate all issues under labor law and all appeals shall lie to the labor appellate tribunal
• Time has been fixed for the adjudication of each and every stage of the cases in the labor court to accelerate the procedure
• Only the workers employed in an establishment, irrespective of their designation and wage scale are entitled to get the benefits of the participation fund and the welfare fund developed out of the profit of the company.
• Provisions for provident funds have been made for the establishments run under the private management 3
• The punishments for the breach of the provisions of the labor law have been revised appropriately. Imprisonment has also been provided for along with fines
• A provision has been made to form a “National Industrial health and safety council” to enact the national policy to ensure the occupational health and safety at the enterprise level.
• Provision has been made for the strict implementation of the “Equal pay for equal amount of work” policy of ILO convention
• Any discrimination or indecent behavior towards female workers has been prohibited under the new law.
• Sick Leave: 14 days sick leave with full average wages have been provided, in the new Labor Law. In previous laws sick leaves were paid for half average wages.
• Annual leave with wages: For adults one day for every 18 (eighteen) days of work performed by him/her during the previous period of twelve months. And for adolescents one day for every 15 days of work performed by him/her during the previous period of 12 months.
• Festival Leave: Every worker shall be entitled to eleven days festival leaves in a calendar year. The Employer shall fix the days and dates of such leaves.
• Children Room: A children room for every 40 female workers having their children below the age of 6 years have been provided by the law. Previously it was provided for every 50 female workers.
• Termination of employment by the worker: A permanent worker may terminate the employment serving a 30 days notice to the employer and a temporary worker may terminate it serving a notice of 30 and 14 days case wise. In lieu of the notice, the worker can even terminate the employment returning the wages for that period.
• Grievance Procedure: Limitation for the application of grievance has been extended to a period of 30 days, though previously it was 15 days only.
• Fitness certificate: Previously a fitness certificate was issued by the District civil surgeon but now it is to be issued by any registered physician at the cost of the employers.
• Training on the labor law: Arrangements for training on law was never provided for but now in this new law, training arrangement is made compulsory for the laborers. The 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, 2006-
According 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 to-
- offices of or under the government
- Society printing press.
- Ordinance factories.
- 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.
- 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.
- Shops or stalls in any public fair or bazaar held for religious or charitable purpose;
- Educational, training or research institutions;
- Hostels and messes not maintained for profit or gain;
- In respect of Chapter-II, any shop or commercial or industrial establishment owned and directly managed by the Government where the workers are governed by the Government Conduct Rules.
- Workers whose recruitments and conditions of service are governed by laws or roles made under Articles 62, 79, 113 or 133 of the Constitution, except, for the purposes of Chapters Twelve, Thirteen and Fourteen, workers employed by the –
- Railway Department;
- Telephone, Telegraph and Postal Departments;
- Public Works Department;
- Public Health Engineering Department;
- Bangladesh Government Press.
- workers employed in any establishment referred to in clauses (b), (c), (d), (e), (f), (g) and (h), except, for the purposes of Chapters Twelve, Thirteen And Fourteen, workers other than teachers, employed by any university;
- seamen, except for the purposes of Chapters Twelve, Thirteen and Fourteen.
- Ocean going vessels, except for the purposes Chapter Sixteen.
- Agricultural farms where less than ten workers are normally employed;
- Domestic servants; and
- Establishments run by owners with the aid of family members and without employing workers for wages.[9]
Change in the Bangladesh Labour Act,2006 compare to previous Act
Previous Act
|
Change in Bangladesh Labour Act,2006
|
| 1. There were total 700 sections of 25 labour Act in which 10 labour Act were existing since British period and 15 Labour Act exist since Pakistan period. | 1. There was made correction in 25 different aets and as much possible make it unifying to prepare a full Act incluking 21 chapters and 354 sections. Here removed all the oobscure and inconsistence and bring all the dections in a place. The Act is simple ande perfect timing. |
| 2. Industria ! Ordinance, 1969 do not provide any definition about “Group of establishment”. | 2. Section-2 (32) defines the “Group of Establishment” clearly. Under section 183 there have act about to make the Trade union in the group of establishment. |
| 3. Shops and Establishment Act,1965, section 2 (Ta) defines “Industrial establishment”, but it is not clear. | 3.Section 2 (61) defines the “Industrial Establishment” elearly. |
| 4. Here, total 8 Labour Act decide the age of children between 12-16. it is inconsistence. | 4. According to ILO Convention 138 by combining different age of children from different Act it is said in section-2 (63) “Those have not hashed in age 14 are children”. According to Section-34(1)- Children should not employed in any work or institution. |
| 5. In present, there have provision to provide the appointment letter only according to section 3(3) of Road Transport Workers Ordinance, 1961 and section 4 of the Newspaper Employees (Conditions of Service) Act, 1974. There have no any compulsory rule to provide appointment letter to any workers in any other sectors in any industry by the authority. | 5. To make the contract of the job strong and legal, it is compulsory to provide the appointment letter to all the employees under section 5. |
| 6. There have a provision to diction the Service book according to decided way according to the section 3 and 4 of The Employment (Record of Service) Rules, 1957.But there have no any provision to write down the mothers name and where appreciable husband/wife’s name where applicable along employee’s name | 6. According to section-6, it is compulsory for the employers to maintain a service book for all the employees except under training, transferring or temporary workers. According to Section-7(2) there have a provision to write down the father’s name and mother’s name and husband /wife’s name where applicable after the employees’ name.It is necessary for – labour, Iwner and Government. |
| 7. Provide Monetary benefit for death-in present there have no any provision in the Act. | 7. According to section-19, there have a provision to provide the monetary benefit to the nominee of the death employee if ……………………This is a new law of social security of the employees. |
| 8.Termination of service by Employee According the Employment of labour (standing Order) Act 1965, section19(2) employee ………..by giving notice. But in that case, he will have no right to get any compensation from the authority. | 8.In section-27,it is stated that, by providing a notice from employee or return the wages of that period inin lien of giving notice to the employer, employee can terminate his job.There have a provision that any permanent worker like above have ehanec to get the compensation. |
| 9.Retire from the service of the employee- There have no any provision like this in any Act. | 9.When employee become 57 years old then he will retire 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. |
| 10.Final period of payment of wages of the employee- In present there have no any act to decide the time period. | 10.There is a new section-30 which stated that; employer should pay the final wages to the employee maximum 30 working days after his termination. |
| 11.Right and amount of the Maternity benefit-In present laws provide 6+6=12 weeks for the vacation and period of wages as the maternity benefit. The benefit is not limited with the number of children.It is against the population control policy of the government. | 11.According to the last ILO conventionit is decide to provide the maternity benefit for women employee 8+8=16 weeks – for which make a new section -46.And to cope with Country’s population control policy this maternity benefit is limited up to having two living child. Section 2(34) is define the “Maternity Benefit”. The subject is very clear here. Instead of previous nine months, in present any women women worker can be able to get the maternity benefit for working six months under her employer. |
| 12.To inform the authority about dangerous Building and Equipment-There is no any provision about it in The Factory Act, 1965. | 12.The employees will inform their employers immediately when apparent any dangerous building or equipment in their working place. After informing if any employee does accident- then the employer will have to compensate him at the double rate than natural- this is stated in section 36 as a new provision. |
| 13.Wages for Overtime- Under section 58 of The Factory Act, 1965, have a provision of overtime wages. But it is not clear. | 13.In section 108 is stated clearly about that wages that, overtime wages will be provided at double rate. There have no any scope of wrong explanation. |
| 14.Crook the employer property to payment of wages- The payment of wages Act, 1936 does not mentioned this topic clearly and strongly. | 14.A section -136 is prepared including that Court will crook all the property of the employer and sell in auction to remove the unsatisfactorily or to conform the payment of wages of the employees. |
| 15.Compensation for death from death from accident and for disable –According to the Fourth schedule as a complementary of the section-4 of labor compensation Act,1923, there is a provision to provide maximum 21,000 Tk in case of death and provide 30,000 tk on condition in case of permanent disable. | 15.To upgrade the compensation amount make section-151 wher Fifth schedule stated that employer will provided to employee maximum 1,00,000 tk in case of death and maximum 1.25,000 tk on condition in case of permanent disable.Besides this, in section 15(8),it includes the temporary employees who have in the definition of the desirable compensation owned employees. |
| 16.In the section-6 of the present IRO-69 have no any provision about to inform the employer after being registered in the trade union. | 16.There is a new provision in the sub-section (3) under section-178-abor director or any officer who get some responsibility related of this kind job, must inform his authority along a copy (including the list of the union) after being getting the application to be registered in any trade union from the employee of that organization. |
| 17.It is stated in the section-7(2) of IRO-69, that if the -30 percent employees are not member of that institution then that institution will not gave right to register in the trade union.But there has no any provision that any institution will not be able to have more than three trade unions at the same time. | 17. It is stated clearly in the section- 179(5), to discourage buildingt more trade union and can not build or register trade union taking the weakness pount of the law-“Any establishment or group of establishment can not poses more than three trade union at the same time”. |
| 18. According to sub-section-(1) (kha) of section-7(2) of IRO stated that- except the person terminated by suspension any ex- worker have right to be the member or officer of trade union of his establishment. | 18. It is stated in sec-180, sub-sec (1) (kha) that, if any person is not working in the establishment at present than he has no right to be the member or officer of the trade union.Moreover, if any officer of the trade union involved in any kind of illegal strike them he will be disqualified or the next period. It will have a positive impact on the basic trade union of the establishment and the Industrial relative sectors. |
| 19. There has no any provision in the section -8 of IRO-69 about appeal in the High Court by the register against any judgment of the labour court on the trade union registration. | 19. There is a provision in the sub-section (6) of section-182, which labour director can appeal in the labour Tribunal court against the judgment of the labour Court in favour of getting the permission of the trade union registration within 30 days. It is a new provision. |
| 20. It the present IRO-69 have no any provision about the building of trade union for group of establishment and to select the officers of its. | 20. It is mentioned in the sec-183(7) that according to the policy of building the trade union for the group of establishment can have maximum one-fourth outsider officers in the standing committee.This is for the betterment of the union. |
| 21. At present in IRO-69 according to civil aviation has no any different policy for building the trade union. | 21. The employees involve in the expertise profession of the private airlines can build separate trade union for their own occupation bided on certain conditions. It is a new provision. It is explained in the section184. |
| 22. There has no any provision to build trade union in IRO-69 for Bangladeshi sailors who works in the pelagic shop. | 22. There is a new provision in the sec-185 for the Bangladehi sailor of the pelagic ship that they can build only one trade union on some conditions. |
| 23. According to the diction-47-kha of IRO-69 is stated that without the permission of the decretory or general geometry of the trade union can not transferred him in another place. Repealed provisions of labour law | 23. there is a new provision in the sec-185 that, without the permission of the secretary, general secretary, organizing seoretary and treasure of the trade union can not transfer him from one distriet to another distriet. It is an extended and clear Changes made in Bangladesh labour law,2006. |
| 24. Under section 15 of IRO-69, unfair labour practices on part of the employer are mentioned. | 24. Section 195, entitled as “unfair labour
practices on part of the employer”, has included some additional
actions that will also be treated as unfair labour practices on part of
the employer. /they are:# Delaying intentionally to take any action as
per the suggestion of the participating committee.# Failing to respond
to any letter received from the collective bargaining agent regarding
any industrial controversy.
# Transferring the Chairman, general secretary, organizing secretary
or treasurer of the union by violating the provisions under section 187. # Illegal lock-out. |
| 25. Under section 16 of IRO-69, unfair labour practices on part of the employees are mentioned. | 25. Under section 196, unfair labour praetices on part of 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 electing the collecting bargaining agent or CBA of employees have been mentioned But in many eases these guidelines are not clear and simple | 26. Under section 202, provisions for electing CBA are described in details. Here the whole process is mentioned in an easy and simple manner. For accomplishing each step time period is fixed up.If any competing trade union receives less than ten percent of the total vote in the CBA election, its registration will be cancelled automatically. This is a new provision. |
| 27. No trade union federation federation is allowed to function as CBA as per the IRO-69. | 27. Under section 203, there is a provision which has mentioned that when a trade union under any federation is the CBA, In those cases as per some conditions that BA can act on behalf of that trade union. |
| 28. Under section 24 of IRO-69, participation committee shall be constituted with equal number of participants from employer and workers. But the non-CBA unions are not unclouded here. | 28. As per diction 205,there is a provision for constituting participation committee. In the process of nominating the members of the committee from workers, there are arrangements for unifying those CBA and Non-CBA unions. |
| 29. There is no provision for implementing the suggestions of participation committee in the IRO-69 | 29. Under section-208 there is a new provision entitled as “implementing the suggestions of participation committee”. For the sake of cordial industrial relationship it will help the participation committee to function effectively. |
| 30. The mode of settlement of industrial disputes has been described in sections 26 to 31 of the IRO-69. It has stated that negotiations related to industrial disputes shall be settled down through talks. But there is no definite time limit for advancing from one step to the next one. So, there prevails many more conflicts and lack of transparency. | 30. Under section 210. there is a detailed provision for negotiating industrial disputes. Here in each step there is a time limit for negotiation. So, the industrial disputes negotiation process will work faster than before. |
| 31. There is a provision for declaring strike or lock-out under section 32 of IRO-69. But there is no provision for applying to law court by the dispute raising personnel before going on strike and lock-out. | 31. Under section 211 the process of declaring strike or lock-out has been mentioned.It is a new as well as advanced process. Before going to strike or lock-out, the dispute raising party and after the commencement of the strike or dispute; any parties relating to dispute can submit the dispute to the law court. Besides this, under a new sub-section 8 of the same section, it is stated that if any new establishment is established under the foreign or local ownership or joint venture of these two, strike or lock-out shall be banned for three years for that particular establishment. But other provisions relating to negotiation of industrial disputes shall no applicable to them. |
| 32. There is provision for labour court, and the power, proceeding and functions of labour appellate tribunal under the sections 35 to 38 in the IRO-69. | 32. From section 214 to 218 there are provisions for labour court and labour appellate tribunal.Here the authority of labour court has been extended and the indicial proceedings have been made faster. Lengthy judicial process, the prayer for extending time period absence on the date of hearing –these complications can be controlled.According to the present law. The judicial pronouncement regarding the payment of wages and compensation; made by the labour court shal be final. In these cades, there is no chance to go to appellate tribunal. But, ninety percent cases of the labour court are of these types. On the other hand, those cases which are related to unkustrial dispute can be appealed in the appellate tribunal against the decision of labour court, But, the number of these types of cases is less than tin percent.So, to have justified judicial result all pronouncements, decisions, awards, orders of the labour court have been qualified for appealing in the appellate tribunal. There is also a provision of multi-bench for the appellate court. All authority relating to the supervision and controlling of labour court have been handled to appeal court. |
| 33.Under sub-section 2(cha) in The Companies Profits (Workers’ Participation) Act, 1968 the definition of the “worker” has been defined as the following: The term “Worker” will mean the employee of an organization the monthly basic salary of whom is not more than nine thousand and who is employed in the organization not less than six months. | 33. Under section 233 (1) (ja). “worker” is defined as follows:“In an establishment worker means those persons who is working in that company for not less than six months irrespective of his designation and position in that company. But the following persons shall not be included in the definition of the worker”, persons who are:(1) Employed in a managerial or administrative capacity; (2) Employed in a supervisory work for his duties or for the powers given to him; functions of administrative or managerial nature” That means to define worker, the bindings on minimum limit of wages has been omitted. |
| 34. In the existing labour law two acts are there containing the provisions for establishing provident fund for workers of tea garden and newspaper industry. It is not mandatory for other sectors to establish provident fund for there workers. But, only in the Employment of lablour (Standing Order) Act, 1965; it is stated that; any worker, who is a member of a provident fund shall not be deprived from its provident fund benefits including employers’ participation in it, if he is entitled to receive it as per the provisions of the fund. | 34. In the existing Act, provident fund provision has been extended. In case of private sector establishments all permanent employed workers shall receive provident fund facilities and there is a separate provision for establishing, managing and reservation of provident fund under section 264 consisting 18 sub-sections. The provident fund will be established as per the provisions of the Government and the trustee board will consist of equal participants from both employer and workers. But the chairman of such committee shall be the representative from government.It is a social security provision for the workers, within the indirect supervision from the government; this fund will remain secured, the harassment of the workers will come to an end and they will be facilitated. |
| 35. The provision for penalty,At the end of each and every exiting Act, there is a provision for penalty. But in most of the cases these are out of date and impractical. Besides this, as different provisions for penalty are prevailing so, there is a chance to charge different degrees of penalty in case of same level of offence or violation of laws. | 35. In the chapter 19, from sections283 to 316, total 34 sections are there entitled as “Offence, penalty and procedure”. Here, these provisions are combined and updated which are appropriate at this age.Here the rate of penalty has been increased and adjusted according to the level of offence. In most of the cases, fine as well as imprisonment is also imposed as penalty. Hopefully, it will make everybody to reduce the rate of violation of laws. |
| 36. In the exiting factory Act, 1965; under
chapter 3- Health provisions for workers chapter 4-Safety issues for
workers and establishment, chapter -7 employment of young persons,
chapter-9 several provisions for safety precautions are stated
here.Besides this, under schedule 3 of Compensation act, 1923 the list
of occupational diseases is mentioned.
Under Section 5 of Dock Workers’ Act, 1934 it is 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. In spite of all those above mentioned provisions, there is no provision to form a highly powerful decision making authority as industry, health and safety council at the national level. |
36. To ensure enhanced and complex safety measures of establishments, maintain a healthy environment and prepare guidelines for implementation of those guidelines under section 323-there is a provision to form a highly powerful committee entitled as “National Industry Health and Safety Council”.The honorable minister of labour and Employment Ministry will be the chairman of that council by virtue of his position, To ensure female representation in that council, it was mandatory for the employers’ and workers’ representative institutions to include at least one female representative in their seven members group. It is a new and updated proposal. |
| 37. There is no provision entitled as “The responsibility of the workers”. | 37. On the way of clarifying the provisions of acts, there is a separate provision under section 331 entitled as “The responsibility of the workers”. |
| 38. There is no separate provision for the functional/applied conduct with women in the workplace. | 38. Under section 332 entitled as “Conduct with women workers” it is stated that no one in that establishment shall behave with women workers as though it is a discourteous conduct, indecent or it is contrary to the deference and modesty of a women.It is a new provision adjusted with governments’ new regulation. |
| 39. Though it is stated in every consented/approved policy and regulations that there is no difference between the wage rate for work of male and female workers, nevertheless this issue is not clearly stated in a separate provision in the existing labour laws. | 39. In the light of ILO Convention-100, confirmed by Bangladesh regarding the basic rights and in the context of all approved policy of the country, there is a separate provision under section-345 entitled as “equal payment of wages for equal quantity of work”. |
| 40. There is no separate provision to inform the acts and provisions of labour laws, through training; to the workers and employers of an establishment in the current labour law. | 40. To ensure healthy industrial relations and advancement of industrialization it is very much important to know the provisions of laws and regulations with proper explanation.It can be informed to them through proper training with this view under section 348 there is a provision for training of both employers and workers on the law related issues. |
| 41. In the existing Factory Act, 1965 in respect of restrictions of employment of young persons on dangerous machineries; there is no separate provision entitled as “disclosing the list of highly dangerous type of work”. | 41. Under sub-section 3 of section 40 it is stated that “No adolescents shall be appointed in any kind of work which will be announced from time to time, through gazetteer notification by the government as highly dangerous work”. |
| 42. In the existing Factory Act, 1965, under the title “Drinking Water”, there is no provision for ‘Oral Rehydration Therapy’. | 42. Under sub-section (4) of section 58 it is stated that “if dehydration occurs due to close working position to an excessive heat generating machine, ‘Oral Rehydration Therapy’ shall be provided with”. |
| 43. Under the existing provision entitled as “Precautions in case of fire”, it is not mandatory to arrange fire drill. | 43. Under sub-section (8) of section 62, it is stated as follows;“Factories where 50 or more workers and officials are employed, ‘fire drill’ should be arranged at least once a year and it should be registered as per regulation.” |
| 44. In the existing act, the maintenance of floor, stairs, and inside passages is not stated clearly. | 44. To clarify the issue under sub-section of section72 it is 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 provision for incorporation of compulsory group insurance for workers. | 45. To ensure social safety under section 99 there is a provision for introducing group insurance scheme like the followings:In those organizations where at least 200 workers are working, there group insurance can be introduced as per the provision of the Government . |
| 46. In the existing Minimum Wage Ordinance -1961. there is no clear provision for determining the necessity of minimum wage and reed fining wage level at regular interval for any industrial establishment | 46. Understanding the necessity of determining minimum wages for workers of different industrial sectors under private ownership, there is a provision to clarify this issue under diction 139(1). At the end of this action there is an explanation of this issue as the following:Explanation: Government can consider the issue of determining minimum wage for the workers of that industry as per the application of both employer and worker of that particular industry,Under section139 there is a new provision under sub-section (6): “The settled minimum wages for the worker of an establishment as per the regulation of govt. shall be redefined or rescheduled in every five year.” |
| 47. There is no provision for establishing national trade union federation or registration of it . | 47. For establishing a national trade union federation under subsection (5) of section 200 there is new[10]. |
The initial labour law text dates back to 1969. All relevant laws are now included in one document. On the whole, this new legislation constitutes a progress with regards to the 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;
- Owners’ contribution to the provident fund of the worker;
- Traveling allowances or concessions thereof;
- Any other sum paid to worker to cover any special expenses entailed to her/him by the nature of the employment.
Changes in the present law:
1. Previous law excluded the gratuity on discharge from the wages of a worker but the new law includes it as part of the wages.
2. The word “gratuity” was never defined anywhere in the earlier labour law but the new
law defines it properly in section 2 (10) where it is defined as the amount of the wages of
at least 30 days payable to a worker who worked in a factory not less than 6 months at the
expiry of her/his employment.
3. Previous law provided only the exclusion list with the definition of the wages but the
present law provides both the inclusion and exclusion lists to make a complete sense.
4. Provident fund is considered to be the wages and is payable within 30 days of the expiry of the employment.
Persons responsible for the payment of wages Provisions of the new labour law:
Under the new law the following persons shall be responsible for the payment of the wages of the worker. Owner of the factory; Chief Executive Officer (CEO) of the company; Manager/person assigned responsibility by the company; The Contractor, for payment to workers appointed by the Contractor.
Changes in the present law:
In case of the failure of the contractor to pay the wages to the worker, the principal owner shall pay the same and subsequently it can be adjusted with the accounts of the contractor.
Fixation of wage periods and time of payment of wages Provisions of the new labour law:
The person responsible for the payment of wages of the worker shall fix a period of wages and accordingly pay it as per the time given in the law. Section 122 guides the paymaster to fix a period not exceeding 30 days and section 123 provides that payment shall be made within seven working days of the expiry of a wage period.
Changes in the present law:
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.
PAID ANNUAL LEAVE
Annual leave with wage
Provisions of the new labour law:
Section 117 of the new labour law deals with the provisions for annual leave with wages. The section provides as follows:
1) Each worker, who has completed one year of continuous service in a factory, shall be
allowed during the subsequent period of twelve months’ leave with wages for a number
of days calculated at the rate of
i) for adult workers, one day for every 18 (eighteen) days of work performed by her/him
during the previous twelve months;
ii) For adolescent worker, one day for every 15 (fifteen) days of work performed by her/him during the previous twelve months.
2) An adult worker shall cease to earn any such leave when the leave due to her/him
amounts to 40 (forty) days and an adolescent worker shall cease to earn the said leave
when the leave due to her/him amounts to 60 (sixty) days.
Festival holiday*
Provisions of the new labour law:
1) Every worker shall be entitled to eleven days festival-leave for every calendar year. The employer shall, at the beginning of the year, fix the day and date of such leaves.
2) The employer may require any worker to work on a festival holiday provided that two
days additional compensatory holidays with full pay and one alternative holiday should
be given to her/him under section 103.
Changes in the present law:
Festival holiday has been increased by a day in the new labour law 2006.
Casual leave
Provisions of the new labour law:
Section 115 of the new labour law deals with the provisions for casual leave of a worker. It makes a provision for 10 days casual leave with full wages.
Sick leave **
Provisions of the new labour law:
* Section 118 of the Labour Law, 2006
** Section 116 of the Labour Law, 2006
All workers employed in a factory shall be entitled to get 14 (fourteen) days sick leave with full average wages. Provided, such a leave shall not be granted unless a Registered Physician employed by the employer or any other Registered Physician has certified her/his illness.
Changes in the present law:
Earlier laws provided for the same period of leave with half average wages, whereas, the new law makes provisions for the sick leave to be one with full average wages. The requirement for certification by a Registered Physician does not exist in the earlier laws. However, it has been added to the new law.
EMPLOYMENT OF FEMALE
Provisions of the new labour law:
There are a number of sections where the employment and protection of women have been discussed. The sections are 45, 50, 79, 87, 94, 109, 332 and 345 of the new labour law, 2006.
Night-shift work of female workers: Section 109 of the labour law, 2006 creates a bar on the night works of the female workers. The section states as follows: “No female worker shall be engaged for work in any establishment without her consent between 10 pm and 6 am”.
MATERNITY BENEFITS
Maternity leave
Provisions of the new labour code:
In section 46 of the new labour law 2006 provisions have been created for maternity leave of 16 weeks (8 weeks before and 8 weeks after the delivery). But the law also makes a provision that no worker shall be entitled to receive the benefit unless she has served under the owner for a minimum period of six months prior to the notice of the probability of the delivery.
Provisions of the previous labour laws: Section 3 of the Maternity Benefits Act, 1939 provides maternity leave of 12 weeks (6 weeks before and 6 weeks after the delivery).
Changes in present law:
The new law increases the maternity leaves to sixteen weeks from twelve weeks and decreases the duration of the qualifying service period – for availing the benefit – to six months from 9 months. Also, no maternity benefit shall be payable to any woman if at the time of her confinement she has two or more surviving children.
Procedure of payment of the maternity benefit
Provisions of the new labour code: Three options are open to the mothers as per section 47 of the new labour law:
1. The owner shall pay the total benefits payable for the preceding 8 weeks within 3 days
from the submission of the certificate of the probability of delivery (childbirth) by a Registered Physician and shall pay the remaining amount after three working days of the
submission of the proof-of-delivery.
2. The owner shall pay the benefits payable for the preceding 8 weeks including the day of the delivery within 3 days from the submission of the proof of delivery and pay the
remaining within the next eight weeks after the proof of delivery is submitted
3. The owner shall pay all the benefits payable within 3 days from the submission of the
proof-of-delivery to the owner.
Provisions of the previous labour laws: Previously the procedure was guided by the Maternity Benefits Act. 1939. Section 5 of the aforesaid Act provided more stringent payment procedure as there was the provision of payment within 48 hours after the certificate from any physician was submitted, whether there remains any working day or not.
Changes in the present law:
Changes have been made in favor of the management, as the management is required to pay the benefit within three working days. As per the earlier law, it was binding upon the management to pay the benefit within 48 hours only.
Amount of the Maternity Benefits
Provisions of the new labour code:
As per sections 48 of the new labour code there is a provision of the payment in terms of daily, weekly or monthly, as and where applicable, average wages. The section also provides the formulae for the calculation of the aforesaid average wages as follows:
Benefits in case of the death of mother****
Provisions of the new labour code:
The person nominated by the mother who died, or in the case where no such person is nominated, her legal representative, shall be entitled to receive the benefits as described above.
Changes brought by the new law: No change has been made.
* Daily Average Wages
** Weekly Average Wages
*** Monthly Average Wages
**** Section 49 of the Labour Law, 2006
EMPLOYMENT OF ADOLESCENT
Prohibition of employment of children and adolescent
Provisions of the new labour law:
Section 34 of the new labour law creates a bar on the appointment of children in any
establishment. The section states as follows:
- No child shall be required or allowed to work in any factory.
- Adolescent workers to carry token: An adolescent who has completed fourteen years of age shall not be required or allowed to work in a factory unless:
manager of the factory;
2. Such adolescent carries a token – giving a reference to such certificate while he is at
work;
3. Nothing in this section shall be applicable to an adolescent employed in any
occupation or in a factory as an apprentice for vocational training;
4. If the Government considers appropriate, it may as well waive the enforcement of the
pre-conditions of the employment of an adolescent for a particular period.
Child : In the present law child means a person who has not yet completed his fourteen years of age.
Adolescent: Adolescent means a person who has completed her/his fourteen years but has not completed her/his eighteen years of age.
Changes in the present law:
In the earlier laws, the term “child” was used to mean a person who had not completed 16 years of age and the term “Young Person” was used to mean and include both the child and adolescent. Under the earlier law, even a child could have obtained a fitness certificate to get a job in a factory. But in the new law, child means a person who has completed her/his fourteen years of age and adolescent means the person who has completed sixteen years and has not completed eighteen years of age. The present law specifically prohibits employment of children and makes a provision for fitness certificates for the adolescent only.
Exception : A child who has completed twelve years of age, may be employed in such light work as not to endanger his health and development or interfere with his education.
Provided that the hours of work of such child, where he is school going, shall be so arranged that they do not interfere with his school attendance. (as per section 44)
Certificate of fitness
Provisions of the new labour law:
Section 37 of the new labour law requires an adolescent to obtain a fitness certificate to be employed in any occupation or in a factory.
- A registered medical practitioner shall, on the application of an adolescent or her/his
13 such person will be employed therein if certified to be fit for the work he or she has
proposed to be employed for, issue a certificate of fitness.
- Such certificate shall be valid only for the subsequent 12 months.
- The employer shall pay the fees for obtaining such certificate and the fees cannot be realized from the parents or guardians of the worker.
Provisions of the new labour law:
Section 41 of the new labour law deals with provisions relating to the working hours of the adolescent. As per the section following points are important and relevant for the RMG industry.
- No adolescent shall be allowed or required to work 5 hours a day and 30 hours a week
- No adolescent shall be allowed or required to work between the hours from 7 pm to 7 am
- 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
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:
- Cleaning of the machinery while it is in motion.
- Lubrication or for other adjustment operation of the machinery while it is in motion.
- • Any work in-between the moving parts of a machine.
- Any work under ground or under water.
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:
- An heir, Successor, Assignees, Guardian or legal representative of such persons
- 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
- The person in occupation of the establishment or the person in ultimate control of the establishment
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: employee’s name, father’s name, mother’s name, spouse’s 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:
- Employee’s name, spouse’s name , mother’s and father’s name and address
- Date of birth
- Mark of recognition
- Previous owner and her/his address if applicable
- Duration of the employment
- Occupation or designation
- Wages and allowances
- Leaves availed
- Conduct of the worker
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:
- Six months for the worker employed in clerical activities
- Three months for other workers.
- 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.
There is no change in the classification of labour. But in the calculation of the period of
probation, the earlier laws included all the leaves and strikes and lockouts during that period which the new law has ignored and refrained from specific provisions in this regard.
Calculation of continuous service
Provisions of the new labour law:
Section 14 of the new labour law provides for the method of the calculation of the continuous service period of a labour for the purpose of this law in the following manner:
- 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.
- Days the worker was laid off;
- Days of leave with or without wages due to accident or illness;
- Non-working days due to legal strike or illegal lock out;
- Days on maternity leave for a female worker.
No significant change has been noticed in this purpose except for the inclusion of the number of days’ not-working due to legal strike or illegal lockout. And for calculation of six months of continuous employment the number of actual working days is 120, which was previously 140.
Payment of wages for un-availed leave*
Provisions of the new labour law:
In case of the expiry of the specific employment of any worker by way of discharge, dismissal, termination, retrenchment or retirement, if there remains any un-availed leave of the aforesaid worker, he or she shall be entitled to get the wages of those days so un-availed.
Changes in the present law:
Actually this was also in previous law under section 5 (4) of SO Act 1965 .
* Section 11 of Labour Law, 2006
Provident Funds for workers:
Provisions of the new labour law
Section 264 of the Labor Law 2006, provided for an establishment of a Provident Fund if so demanded by the three fourths of the total workers employed in a factory. The section also provided for the following:
1. It may constitute for the benefits of the worker in the private sector.
2. Such provident fund shall be constituted prescribed by the rules.
3. The Government may make rules for constitution of provident fund.
4. Such Provident Fund shall be held and administered by a Board of Trustee.
5. Such Board of Trustee shall consist of an equal number of representatives of the
employer and workers employed in the establishment, and a person nominated by the
Government shall be its Chairman.
6. Representative will be nominated by the employer and collective bargaining agent.
7. The above nomination shall be under the supervision of the Director of Labour.
8. All the representatives shall hold office for a period of two years.
9. A permanent worker shall subscribe to the fund not less than seven percent and not more than eight percent from his basic wage unless otherwise mutually agreed.
10. In the case of provident fund one fourth of total workers will claim in writing to their
employer.
11. In order to provide provident fund the employer will establish rules within six months
and the fund shall start by this period.
12. At least half of the total accumulations shall be invested for the purpose of any of the
following, namely:
a) I.C.B. Mutual Fund Certificates.
b) I.C. B. Unit certificates and
c) Government securities including Defence and Postal Saving Certificates
13. The cost of maintenance shall be borne by the employer.
14. The accounts of provident fund shall be audited.
15. A statement of account together with audit report shall be forwarded to the director of
Labour within one month of the submission of audit report.
16. Where the government is satisfied, he may by order exempt the establishment from the operation of this section.
17. A provident fund shall be deemed to be a public institution for the purposes of the
Provident Funds Act, 1925 (XXIX of 1925).
18. Establishment in private sector means an establishment which is not managed directly by the Government.
Death benefit**
Provisions of the new labour law:
If any worker died after completing 3 (three) years continuous service with an employer, the worker shall be entitled to get benefits for 30-days’ wages for each completed year or service, or six-months thereof, or gratuity, whichever is higher. The worker shall get this benefit in addition to her/his other emoluments during the retirement.
Changes in the present law:
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.
- Compensation during lay off = (Total basic + dearness allowance + ad hoc wages)/2 +
- 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:
Retrenchment**
Provisions of the new labour law:
Retrenchment means the expiry of the employment of a worker on the ground of redundancy. For retrenchment, an employer has to follow the following provision of the new labour law: No worker, employed in any shop or commercial or industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched by the employer, unless –
(a) The worker has been given one month’s notice in writing, indicating the reasons for
retrenchment or the worker has been paid in lieu of such notice, wages for the period of
notice;
(b) A copy of the notice in respect of the retrenchment has been sent to the Chief Inspector or any other officer authorized by her/him; and
(c) He has been paid, at the time of retrenchment, compensation which shall be equivalent to thirty days’ wages for every completed year of service or for any part thereof in excess of six months, or gratuity, if any, whichever is higher.
* Section 16 of Labour Law, 2006
** Section 20 of Labour Law, 2006
Discharge
Provisions of the new labour law:
Discharge means the expiry of the employment of a worker on the ground of inability or
incapacity because of ill health. Section 22 of the new labour code deals with the procedure of discharge. As per the section an employer can discharge a worker on the basis of the report of a Registered Physician.
Compensation in case of discharge: Every worker who has completed a continuous service for one year shall be entitled to get a benefit of 30 days wages for every completed year of service or the gratuity, whichever is higher.
Dismissal
Provisions of the new labour law:
Section 23 of the new labour law deals with the dismissal of the worker on the ground of misconduct and conviction. The section makes room for the employer to dismiss a 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:
- The new law makes a provision of an alterative staircase affording means of escape
- Fire extinguishing and escape parade shall be arranged at least once every year.
Provisions of the new labour law:
Section 72 of the new labour law deals with the floors, stairs and means of access. The section states as follows:
1. All floors, staircases, and passages shall be of sound construction and properly
maintained, and if it is necessary to ensure safety, hand-railings shall be provided with
them.
2. Reasonable safe passageway or access shall be maintained in a place where employees
work.
3. All the floors, passageways, and staircases shall be maintained in a neat and clean
manner, wide enough, and free from any blockade.
Excessive Weights
Provisions of the new labour law:
Section 74 of the new labour code states that, no person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury.
Safety of building and machineries
Provisions of the new labour law:
Section 61 of the labour law 2006 provides for the measures to be taken as regards the safety measures related to building and machineries. The present law entrusts everything to be done in this regard with the Inspectors. The section goes as follows:
1. If it appears to an Inspector that any building or part thereof or any passageway or
machine of the factory is in such a condition which is injurious for the life and health of
the workers working therein, the Inspector may issue an order to the owner of the factory
to take necessary steps immediately within the specified time therein.
2. If the Inspector is of the opinion that the building or any machine is seriously dangerous for the life of the worker, he shall issue an order to repair or alter that immediately failing which, to not run the factory unless and until the building is so repaired or replaced.
Changes in present law:
Earlier laws didn’t empower the Inspector to stop the operation of a factory in a risky building but the present law has given sufficient discretion on the part of the Inspectors to take necessary steps so as to ensure building security and the like.
Fencing of machinery*
Provisions of the new labour law:
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,
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:
a) Effective enclosure of the plant or machinery used in the process
b) Removal or prevention of the accumulation of inflammable objects
c) Proper enclosure of all possible sources of ignition.
* Section 64 of Labour Law, 2006
** Section 78 of Labour Law, 2006
2. In case of the impossibility of placing a strong enclosure for the above-mentioned sources of inflammable objects, provisions of chokes, baffles, vent or other effective appliances have to be kept.
3. Enclosed parts of the plant that contain potentially explosive materials shall only be
opened if certain required precautionary measures are met:
a) Stop valves should be used to stop flow of gaseous objects in pipelines before
working on any joint of that pipeline.
b) Practicable measures should be taken to reduce pressure inside the pipeline before
working on joints of that pipeline
c) Entrance of inflammable gases or vapours, into the pipeline through the joints that
are to be worked on, must be carefully prevented.
4. Operation that requires actions of heat, such as welding, brazing, soldering or cutting,
shall not be conducted in a factory that contains or previously contained inflammable
objects without taking appropriate safety measures.
Precautions against dangerous fumes*
Provisions of the new labour law:
1. No person shall be allowed to enter potentially hazardous chambers, containing
dangerous fumes, such as tank, vat, pit, pipe, flue or confined spaces if there is not any
manhole of adequate size.
2. No portable light of voltage exceeding 24 volts shall be permitted to use inside places
mentioned above.
3. No person shall be allowed to enter the places mentioned above until the following
measures are taken:
a. A certificate in writing has to be given by a competent person stating that the
space is free from dangerous fumes and is fit for persons to enter.
b. It has to be ensured that the worker wears a suitable breathing apparatus and a belt
securely attached to a rope before going into any confined space.
4. No person shall be allowed to enter the places mentioned above for the purpose of
working or making any examination before sufficiently cooling the places down by
ventilation.
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 person’s 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
- 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).
- The inspector may serve an order specifying the measures which should be adopted
iii) Notice to be given to the Inspectors:
- When any accident occurs in an establishment causing loss of life or bodily injury, the employer of the establishment shall give notice of the occurrence to the Inspector within two working days. ( s. 80)
- Where in an establishment any dangerous occurrence occurs whether causing any bodily injury or not the employer of the establishment shall send a notice to the Inspector within three working days. ( s. 81 )
- Where any worker contacts any disease , the employer or the worker concerned or any
iv) Power to take samples:
- An Inspector may at any time take a sufficient sample of any substance used or intended
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
- The inspector shall give one portion of the sample to the employer , send the second
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
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
- 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
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 children’s 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 children’s 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.
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:
- Imposition of any condition in a contract of employment seeking to restrain the right of a person to join a trade union or to continue her/his membership of a trade union.
- Refusal to employ or refusal to continue to employ on the ground that a person is, or is
- Discrimination against any person in regard to any employment, promotion or condition
union.
- Discharge or dismissal of any person on the ground that the person is or is not the
- Instigating or seeking a person to be the member of a particular trade union.
- Inducing a person to refrain from becoming, or to cease to be a member or officer of a trade-union.
- Compelling any officer of the CBA to sign a memorandum of settlement by intimidation or by coercion
- Interfering with or in any way influence the balloting provided for the election of the CBA.
- Recruitment of new workman during the currency of a legal strike.
The new law makes the list of the activities of unfair labour practices much longer. In the earlier laws there were eight different activities which had been termed as unfair labour 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
- Intimidating any person to become or refrain from becoming a member or officer of a trade union
- Inducing any person to become or refrain from becoming a member or officer of a trade union
- Compelling or making any attempt to compel an employer to sign a memorandum of settlement by using intimidation
- Compelling or making any attempt to compel any workmen to pay or refrain from paying any subscription towards the fund of the trade union.
In the earlier laws there were six activities of the labour that were considered to be unfair labour practices. But the new law extended the purview of unfair labour practices. Following are the addition to the list of unfair labour practices from the part of the workmen:
1. Imposing illegal strike or go slow or persuading thereto
2. Gherao or blokcade on the highways or destruction of the property including transport
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
workers submitted by the employer as may be required by any decision given by her/him
on objections received under previous sub-section
9. After amendments, alterations or modifications, if any, made under above sub-section or where no objections are received by the Registrar within the specified time, the Registrar shall prepare a list of workers employed in the establishment concerned and send copies thereof to the employer and the contesting trade unions at least four days prior to the date fixed for the poll
10. The list prepared under the aforesaid sub-section shall be deemed to be the list of voters and every person whose name appears in the list shall be entitled to vote to elect the Collective Bargaining Agent
11. Every employer shall provide for such facilities as are required by the Registrar to
conduct the poll
12. No person shall canvas for vote within a radius of fifty yards of the polling station
13. For the purpose of holding the secret ballot to determine the CBA, the Registrar shall do the following:
a. Fix a date and intimate the same to the contesting trade unions and the employer
b. Set the sealed ballot boxes, which are sealed in presence of the representative of
each of the contesting trade unions if any one present
c. Conduct the poll in the polling stations where the representative of the contesting
trade unions shall have the right to enter
d. Count the votes in presence of the representative of the contesting trade unions if
anybody is present
e. Declare the result and the name of the elected Collective Bargaining Agent.
14. Where a registered trade union is declared as the Collective Bargaining Agent according
to the above rules, no such application for the determination of the CBA shall be
entertained within the subsequent two years.
The Right of the Collective Bargaining Agent
Provisions of the new labour law:
The Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to-
i. Undertake collective bargaining with the employer or the employers on matters connected with the employment, non employment or terms of employment
ii. Represent all or any of the workmen in any proceedings
iii. Give notice of and declare a strike in accordance with provisions of the law
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 one-third 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 endeavor to promote mutual trust, understanding and co operation between the
- To ensure application of labour laws
- To foster a sense of discipline and to improve and maintain safety, occupational health and working condition
- To encourage vocational training, workers education, and family welfare training
- 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
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 didn’t 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 proceeding of each such meeting shall be forwarded to the Director of Labour and the Conciliator within seven days of meeting.
Implementation of the Recommendation of the Participation Committee*
Provisions of the new labour law:
- 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.
Although the meeting procedure is exactly the same as the earlier law, it makes a provision of the implementation of the recommendations of the committee within the time period provided by the committee itself. Otherwise, willful negligence will be treated as unfair labour practices.
Trade Unions
Provisions of the new labour law:
Special definition of worker for the purpose of industrial relation:
For the purpose of the industrial relations the word worker means and includes every worker as defined under section 2(65), and any labour who is laid off, retrenched , discharged or dismissed or otherwise terminated for which an industrial dispute has been arisen. But it doesn’t include any security staff like guards and fire fighter or any confidential assistant etc.
Trade union and freedom of associations:
Section 176 of the new labour code deals with the provisions related to trade union and freedom of association:
- Fundamentally to control the relation between workers and workers, Workers and
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.
Application for Registration and Required Documents for Registration
Provisions of the new labour law:
Section 177 and 178 deals with the procedure for the registration of the trade unions
Section 176 states that any trade union can Application for its registration to the registrar of the trade unions of the respective zone under the signature of the President and Secretary of the respective trade unions. Section 178 of the new labour code provides a list of documents, required, for the registration of the trade unions:
- The Name and Head Office of the trade unions
- The date of formation of the trade union
- The Names, Age, Occupation and designation of the executive committee members of the union
- Description of all subscribed members
- The Name of the Establishment to which it is related and the total number of workers in that establishment
- In case of a federation of a trade union, the names and addresses of the members of
- Three copies of the constitution of the Union and the resolution of the meeting in
- 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.
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 employers or employers and employers as regards the employment, non employment or terms of employment of workers has been termed as an industrial dispute.Then Chapter 14 of the Labour law 2006 deals elaborately with the procedure of raising industrial dispute and settlement thereof. Following are the provisions relating to industrial dispute in the present Law:
Raising of Industrial Dispute
Provisions of the new labour law:
No industrial dispute shall be treated as being existent unless it is validly raised by the
employers or the Collective Bargaining Agents as per the provisions of the law.
Settlement of Industrial Dispute*
Provisions of the new labour law:
Section 210 of the present law deals the procedure as the following:
1. If at any time any employer or the Collective Bargaining Agent finds any dispute is
likely to arise, it shall communicate the other party in writing
2. The recipient of the above-mentioned communication shall take initiative to arrange
a negotiation within fifteen days of the receipt of the communication.
Negotiation
The proceedings under the above arrangement between two parties shall be treated as
negotiation and if they are to produce a positive solution to the disputed issues, a
settlement deed shall be executed and be sealed and signed by both the parties. A copy of
the settlement deed shall be forwarded to the Government and the Conciliator thereupon.
Conciliation
If the above mentioned negotiation fails, then it shall be forwarded to the Conciliator for
the process of conciliation.
1. If the dispute is settled through conciliation the Conciliator shall report it to the
government along with the settlement deed
2. The conciliation shall be treated as to have failed, if it cannot reach any
conclusion even after 30 days of initiation. Provided it can be extended beyond the
period if both the parties agree in writing
3. If it fails the conciliator shall try to manage the parties in dispute to refer the
matter to an arbitrator
4. If the parties disagree about the Arbitration the conciliator shall issue a certificate
that the conciliation has failed.
Arbitration
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)
- A running District Judge or an Additional District Judge shall be appointed by the government as the chairman of the labour court. S 214(4)
- Members shall be the representatives of both the employers and workers respectively. S 214 (6)
Following are the Jurisdiction of the Labour Court:
- To adjudicate and determine industrial dispute
- Enquire and adjudicate any matter relating to implementation or violation of any settlement referred by the government
- Try offences under this Act.
- Any others function conferred upon or assigned by the Labour law 2006 or by any other law
Procedure in case of the trial of any offence:
- 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.
- The Labour court in trial of an offence shall be treated as a court of a Magistrate first class but in case of imposing penalty it shall have the jurisdiction of a Court of Session. S 215
In adjudicating any other matter other than the trial of an offence it shall be treated as a civil court
Changes in the Present Law:
- 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.
- Another big change is brought about in determining limitation in taking cognizance of offence in section 314 of the labour law 2006. As per that section no labour court shall take cognizance of any offences after six months of the date of the offences alleged to have been committed
Despite recent improvements described above, the mission, through factory visits and interviews with various actors confirmed that major labour rights violations are still found in Bangladesh factories, including:
– No freedom of association: although unions exist as federations, they are de facto prohibited at the factory level; participation committees, where they exist, consist of workers appointed by the management while they should be chosen by the workers;
– No living wage: the legal minimum wage, where implemented, is insufficient to cover basic needs; wages are paid with delay and overtime is often not paid in accordance with the law;
– No access to remedies;
– Excessive working hours, inappropriate maternity leave and benefits, harassment, blocked exits, etc[11].
At a view-exchange meeting at Dhaka Reporters’ Unity auditorium, she said a total of 80 Decent workers would be deprived of its benefit as agricultural and domestic workers have been kept out of its purview.
“As per the new law, working hour in factories will be 10 hours which go against the ILO rules.
For instance, the maternity leave has been extended to 16 weeks from 12 weeks, but the way it has been fixed before and after giving birth to a child. It would not let the female workers to enjoy the leave according to their needs, the said.
Besides, the amount of compensation fixed for the workers in the law is not time worthy and it should be re-fixed at Tk 3-5 lakh.
The bill was passed in parliament at a time when the industrial belts in the capltal and its suburbs were witnessing violent labour unrests for wage hike.
The ‘Anti-labour’ provisions and numerous ‘inconqruities’ of the law, passed hurriedly in parliament, will give rise to further unrest, said top leaders of labour fronts.
“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 (n°155) Occupational Safety and Health Convention,
1981; ILO (n°161) Occupational Health Services Convention, 1985, and ILO (n°187) 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 women’s 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
Obligation Who is responsible Remedies Procedure to avail the remedies
Not to bound any worker to work more than eight hours (S. 100). The employer. Shall be entitled to allowance at the rate of twice his ordinary rate of basic wage ( S. 108.) Through the register and inspector (S.319 (5).To allow interval for rest or meal for the worker (S. 101). The employer. If the employer does not comply with this section, he will be punished with imprisonment up to three months, or with fine which may extend to one thousand Taka, or with both. Application to the labor court only. Single application on behalf of all the workers so aggrieved. To allow one day weekly holiday for all the workers employed in a factory ( S. 103 ). The employer. Compensatory holidays of equal number of holidays so deprived (s.103 ) . Ditto To allow the worker annual leave with the wages (S.117). The employer. If this kind of leaves are not enjoyed the employer must add these leaves with next years leave. The worker can Apply to the labor court if these provisions have not been com-lied with by the employer. To allow the worker the festival leave (S. 118 ). The employer. Failing which the worker will get a compensatory holiday of 2 days with full pay and a substitute holiday is given to her/him under S. 103. The worker can Apply to the labor court if these provisions have not been com-lied with by the employer. To allow casual leave with full wages for the workers (S. 115). The employer No remedy Not Applicable To allow the workers14 day’s sick leave with full average wages (S.115). The employer The worker can realize the wages receivables during the continuance of illness with dearness allowances an others The worker will Apply for the sick leave with a medical certificate, if denied he can Apply to the labor court against the employer. 48
Obligation The person responsible Remedy Procedure
To allow maternity leave of 16 weeks for the mother ( S. 45 ). The employer If any employer contravenes, he shall be punished with the fine which may extend to five thousand taka (S. 286). The worker can Apply to the labor court if these provisions have not been complied with by the employer. To pay the maternity benefit to the worker (s. 46) The employer Ditto Serve notice either orally or in writing to her employer that she expects to be confined within eight weeks next following and may therein nominate a person for purposes of receiving payment of maternity benefit in case of her death. To pay the worker the maternity benefit in case of a women‘s death (S. 49). The employ Ditto Ditto Not to work in lieu of any cash or kind during the permitted period of absence by the employer (S. 287). The worker Shall be punishable with fine up to one thousand taka. Not available in the law, Rule may provide for subsequently Not to permit any children or adolescent to work in any occupation or establishment (S. 34). The employer Whoever employs or permits any child or adolescent to work shall be 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.
To maintain the Master-roll for the laid- off workers (S. 17). The employer Compensation during lay off = (Total basic + dearness allowance + ad hoc wages)/2 +the house rent he or she would get if not so laid of. If denied he can apply to the labor court with that against that denier To allow the compensation in case of Discharge wage to the worker. The employer 30 days wages for every completed year of service or the gratuity, whichever is higher. Every worker who has completed a continuous service for one year can apply to the labor court and shall be entitled to get the benefit. To allow retrenchment wage to the worker. The employer Compensation equivalent to 30 days wages for every completed year of service or for any part thereof in excess of six months,or gratuity, if any, whichever is greater. Every worker who has completed a continuous service for one year can apply to the labor court and shall be entitled to get the benefit.To give one months notice to the worker in writing, indicating the reasons for retrenchment. The employer Unless in lieu of such notice, wages for the period of notice is given to the worker the retrenchment will be ineffective. Ditto To give notice to the worker to dismiss unless he is convicted by any criminal court or his her misconduct is proved under S. 24 of the labor law 2006.( S. 23). The employerThe payment in lieu. Ditto To terminate a worker, serving notice to the workers (S. 27). The employer The wages to the terminated worker for the aforesaid period of notice. Ditto Not to deprive of worker from the payment of provident fund ( S. 29 ) The employer Imprisonment for 3 years and also liable to fine ( S. 298 ). The worker may lodge a complaint to the Labor Court. No Court fees shall be payable for lodging complaint or appeal under this section (S. 33 ).
Obligation The person responsible Remedy Procedure
To issue the certificate of service at the time of the workers retrenchment, discharge, dismissal, removal, retirement or termination of service (S. 31). The employer To have the certificate issued by the employer Ditto. To send notice of certain disease of worker ( S. 82 ) The employer or the worker concerned or any person authorized by him in this behalf. Imprisonment up to three months or up to one thousand taka or both ( s. 307). The Chief Inspector or if authorized by him in this behalf , any other officer subordinate to him , may lodge complaint with the Labor Courts for action.(Section 319 (5) To provide alternative exit to avoid dangers and damage due to fire. (S. 62). The Employer If any injury is caused to any worker because of the use of such equipment, machinery or building, the employer shall be liable to pay compensation to the worker injured at a rate which may be double the rate of compensation payable for such injury .The worker may apply to the labor court if these provisions have not been com-lied with by the employer. To ensure safety measures relating to building and machineries (S. 61)The employer Ditto Ditto To be precaution against dangerous fumes The employer Ditto Ditto To Provide suitable goggles for the protection of the worker (S. 75). The employer Ditto Ditto 52
Obligation The person responsible Remedy Procedure
To maintain a first aid box fro the worker in the factory (in S. 89). The employer If the employer does not comply with this section, he will be punished with imprisonment up to three months, or with fine which may extend to one thousand Taka, or with both.
- Application to the labor court only.
- Single application on behalf of all the workers so aggrieved. To maintain adequate washing facilities and canteen in all the factory (S. 91 in labor law 2006). The employer Ditto Ditto. To have a rest room and a children room for the worker (S. 93). The employer Ditto Ditto. To keep the factory cleans (S. 51). The employer Ditto Ditto To maintain Oral rehydration therapy. The employer Ditto Ditto To arrange sufficient free space for the workers (S. 56). The employer Ditto Ditto To maintain the register for the worker. The employer Ditto Ditto To maintain the effective arrangement of sufficient supply of drinking water (S. 58) The employer Ditto Ditto To maintain the arrangement of sufficient and suitable lightning (S .57). The employer Ditto Ditto To have sufficient number of latrines and urinals for the workers (S. 59). The employer Ditto Ditto To maintain sufficient number of dustbins and spittoons (S. 60).S. 195 deals with unfair interference about being member of trade union. The employer Whoever breach this section, shall be punishable with imprisonment for a term up to two years, or with fine which may extend The aggrieved person shall Application to the labor court under S. 213 for violation. 53 to ten thousand taka, or with both under S. 291 (1 )
S. 196 deals with unfair labor practice in relation to trade union The worker Under S. 291 (2) any worker who fails to comply with it he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand Taka or with both. Ditto To register the Trade Union and issue a registration certificate
( S. 182 ). The employer Punishment with imprisonment up to six months or fine up to two thousand taka or both (S. 299). Application to the Labor Court. To issue Certificate 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 Islam–Second Party,
Present:
Mr. Amanullah Khan—Chairman.
Mr. M. Karim—Member
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 12-03-1974 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.
- 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.
- The members referred to in the proviso to sub-section (1) to represent the employers connected with and the workers engaged in the industry concerned shall be appointed after considering nomination if any, of such organizations as the Government considers to be representative organization of such employer & workers respectively.
- The term of office of the members of the Board, the manner of the filling casual 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].
[1] Nirmalendu Dhar, Labour &Industrial Laws of Bangladesh,(Remisi Publishers), P.8
[2] Wikipedia,[http://www.en.wikipedia.org/wiki/labour_ law, accessed 16 April 2010]
[3] Iqbal Ahmad, Basic labour laws of Bangladesh,p.1.2.
[4] Principal Md. Altaf Hossain,Bangladesh Labour code,2006 with commentary & case law(Jolly law book center),p.2
[5] Nirmalendu Dhar,Student`s Mate Labour & Industrial laws of Bangladesh,(Remisi Publishers)p.7-9
[6] Iqbal Ahmad, Basic Labour Laws Of Bangladesh,p.3
[7]
Md.Abdul Halim & Masum Saifur Rahman,The Bangladesh Labour
Code,2006(CCB FOUNDATION: LIGHTING THE DARK,2007),P.258-259,S.353
[8] http://www.gtz-progress.org/2008/index2.php
[9] Md.Abdul Halim & Masum Saifur Rahman,The Bangladesh Labour Code,2006( CCB Foundation:Lighting the dark,2007),p.22-23,s.1(4)
[11] http://www.politiques socials.net /IMG /pdf/…,accessed 15 April 2010
[12] http://www.politiques socials.net /IMG /pdf/…,accessed 15 April 2010
[13]Iqbal Ahmad,Basic Labour Laws Of Bangladesh,p.309-311
[14]Prof. A.A .Khan, Bangladesh labour & Industrial Law(Pravati Prakashani),p.342-343
[15] S.N.Misra,Labour & Industrial Laws(22nd edition,Central Law Publications),p.5-6
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