Introduction
Barriers to timely resolution of
labour disputes involve two types of issues; one is the legal barrier
and the other is the practical one. To deal with the first one, we begin
by outlining the origin of Labour Courts, its constitution,
composition, powers and procedures, including the Labour Appellate
Tribunal, as the machinery for disposal of various types of labour
cause. This outline is then followed by a short account for the
territorial and other jurisdictional aspects of Labour Court. The next,
third, section offers a detailed expose of the barriers, along with
suggestion for facilitating timely disposal of labour cases, ending with
a concluding section. This thesis includes numerical representations of
the state of labour case under various relevant laws.
(1.2)The Objectives of Study
The
object of both the law is to establish a continuous process of
harmonious relationship between the employers and employee. They have
another object of fastening together both the labour and capital in
order to create an atmosphere that they are an indivisible whole in
production. The ultimate object of labour and industrial law is to
maintain industrial peace security and steady growth of production.
The
origin and growth of labour law may be ascribed mostly to the
development of organized industry where a large number of workers
including women and children are employed under conditions which tend to
be detrimental to their safety and welfare and against which they are
often to protect themselves.
From historical point of view labour
law has given birth to some fundamental industrial rights to labours in
the field of production. At the same time it has also provided
protection for those rights.
From a practical point of view labour
and industrial law provide for three types of dispute settlement
measures voluntary settlement machinery, quasi judicial machinery and
judicial machinery.
(1.3) Importance of the Study
Labour and industrial legislation is necessary for the following reasons:
The
individual workers are economically weak. They cannot bargain with the
employees for the protection of their rights and even for subsistence
wages. As such legislation for protection of labour against long hours
of work unhygienic conditions of work low wages and exploitation is
needed. The workers are exposed to certain risks in factories mines and
other establishment. As such in order to make provisions for their
health safety and welfare legislation is needed. In order to increases
the burning power of labour legislation is necessary to encourage the
formation of trade unions.
(1.4) Scope and Limitation of Study
The
discussion of this dissertation will be limited within the scope of the
Origin and historical development of Labour law of Bangladesh, the
Problems of Labour law of Bangladesh, problems of Labour education in
Bangladesh and some case studies. The system of enrolment in the Bar
Council also discussed. There will be discussed about some nature of
crimes committed usually.
(1.5) Methodology of Study
The
methodology used in the thesis is Qualitative Methodology. Our research
works are based on 1. Historical Study and 2. Analytical Study.
1.
Historical Study: It has a historical back ground of workerâs movement
for the establishment of their rights. The workerâs movement becomes
successful. Now the modern world, Modern state and United Nations
Organization highlighted the worker in their dignity, honor, position,
participation social work political activity etc.
In Bangladesh
the workerâs retrenchment are guaranteed in their constitution, state
laws, and social and state activities. Through the historical revolution
the workerâs right has come to this position. The history workerâs
movement started from 1971 after successful victory of the Bangladesh
war of Independence. So, to write this thesis we have to use historical
study.
2. Analytical Study: In this thesis the formation
development and solutions regarding workerâs right and retrenchment are
to be discussed. In this process of analysis the laws related to the
subject and solutions from the judicial process are to be discussed. The
enforcement of workerâs right is judicial matter. So in this process of
study the analytical study is necessary and important for this thesis.
For our research works we followed the analytical study.
The main
object of the study is to evaluate effects and importance on persons,
society and the state. The study is mainly qualitative in nature
because, the impact that the study has searched would not be possible to
assess without qualitative data. Legal issues, judicial rulings and
administrative management of the government and the public, all are
related with the issues. The research work is involved with the legal
matter, administrative matter and judicial decision of the workerâs
retrenchment. Under these circumstances a regulated research work will
be suitable to solve the problems after investigating different
variables such as laws relating to âA Study on Workerâs Retrenchment
under Labour Law: Bangladesh Perspectiveâ.
Normally researchers
depend on different methodological approaches. Research method is an
important factor for all kinds of study. There are two kinds of
empirical research methods namely.
1. Qualitative Research Method and 2. Quantitative Research method.
Research on âA study on workerâs retrenchment of Bangladeshâ a new
admiration has emerged among the judicial persons, educators,
sociologists, psychologists and public interest, lawyers, politicians,
scientists and many others. Peaceful, legal, moral, ethical happy life
in the society is the vital issue for the man kind. So considering all
the above factors this research works utilizes the following
methodologies â
1. Case study method,
2. Judicial method,
3. Ground theory method.
4. Sociological Method,
5. Statistical Method.
1. Case study method,
2. Judicial method,
3. Ground theory method.
4. Sociological Method,
5. Statistical Method.
Method Used in this thesis:
The
method is used in this dissertation is action oriented. The study has
been conducted on the basis of two principal sources of data collection.
These are: 1. Primary Source, 2. Secondary source.
The basic data
has been collected from the administrative source, legislative laws and
historical events. Other data has been collected from judicial rulings
and affected personâs information. By focusing efforts on critical
issues of authority concern, and the victim persons concern are the
important sources of data collection.
(1.6) Organization of Thesis
Labour
Law is very importance in Bangladesh perspective. Labour law of
Bangladesh is developed by origin and historically. There are many
problem of labour law of Bangladesh, problems also labour education in
Bangladesh and some cases studies. I try organized this thesis and
mentioned that condition for a valid retrenchment of labour. I include
procedure of retrenchment of Bangladesh and retrenchment compensation
with studies. I also try includes Labour court and Labour appellate
tribunal.
In the first chapter I tried to include Introduction,
Objectives of the study, Importance of Study, Scope and Limitation of
Study, Methodology of study and Organization of Thesis. It is the
introductory chapter of the thesis.
In the second chapter I tried
to discuss about Labour laws in Bangladesh like Employment Conditions,
Labour Laws, Settlement of Labour Disputes, Wages and Fringe Benefits,
Leave & Holidays, Social Security and Labour Union for the better
improvement of industrial sector of Bangladesh.
In the third
Chapter I tried to discuss about retrenchments including Conditions for a
valid Retrenchment, Procedure of retrenchment, Retrenchment
compensation, Re-employment of retrenched workers, Condition of
re-employment for retrenchment workers and Distinction between lay-off
and retrenchment.
In the fourth chapter I discussed about 10 cases
like M/S Caltex oil (Pakistan) Ltd. vs. The chairman second labour
Court, Aminul Islam vs. James Finlay Co.Ltd, Bangladesh tea estate ltd
vs. Bangladesh tea estate staff union, Banks & Another vs. Coca-Cola
SA, Oosthuizen vs. Telkom SA Ltd., Perumal & another vs. Tiger
Brands, Zero Appliances (Pty) Ltd vs. CCMA & Others, Leppan and
Suretrade 110 CC t/a Bra Boutique, Retrenchment: breakdown of trust
relationship14-MAY-08 Zietsman & others vs. Transnet Limited,
Thekiso vs. IBM South Africa (Pty) Ltd [Redundancy & EEA requirement
etc.
Chapter 2
LABOUR LAW IN BANGLADESH:
2.1 Employment Conditions
2.2 Labour Laws
2.3 Settlement of Labour Disputes:
2.4 Wages and Fringe Benefits
2.5 Leave & Holidays
2.6 Social Security
2.7 Labour Union
2.8 Working Hours
2.1 Employment Conditions
2.2 Labour Laws
2.3 Settlement of Labour Disputes:
2.4 Wages and Fringe Benefits
2.5 Leave & Holidays
2.6 Social Security
2.7 Labour Union
2.8 Working Hours
Labour Law in Bangladesh:
Bangladesh offers an abundant supply of disciplined, easily trainable and low-cost work force suitable for any labor-intensive industry. Of late, there is an increasing supply of professionals, technologists and other middle and low level skilled workers. They receive technical training from universities, college, technical training centers, polytechnic institutions etc. The expenditure incurred by an employer to train his employee is exempted from income tax.
Bangladesh offers an abundant supply of disciplined, easily trainable and low-cost work force suitable for any labor-intensive industry. Of late, there is an increasing supply of professionals, technologists and other middle and low level skilled workers. They receive technical training from universities, college, technical training centers, polytechnic institutions etc. The expenditure incurred by an employer to train his employee is exempted from income tax.
(2.1). Employment Conditions
The
minimum age for workers in Bangladesh is 16 years in factories and
establishments. Contracts are made in the form of a letter of offer.
Workers may also be engaged on verbal agreements. In government
organizations and in some private organizations as well, a probation
period exists for skilled or semi-skilled workers varying between three
monthâs to one year and during this period either party may serve one
monthâs notice for Termination from or giving up to the job. In the
private sector, the dignity of labor is ensured in accordance with the
principles enunciated in the ILO convention and recommendations.
(2.2). Labour Laws
In
Bangladesh 47 labour laws are now in operation. These relate to (a)
wages and employment, (b) trade union & industrial disputes, (c)
working environment and (d) labour administration and related matters.
The main labor laws are:
âĸ Workmenâs Compensation Act, 1923,
âĸ Payment of Wages Act, 1936
âĸ Maternity Benefit Act, 1936
âĸ Employment of Labour (Standing Orders) Act, 1965
âĸ Shops & Establishments Act, 1965
âĸ Factories Act, 1965
âĸ Industrial Relations Ordinance, 1969
âĸ Workmenâs Compensation Act, 1923,
âĸ Payment of Wages Act, 1936
âĸ Maternity Benefit Act, 1936
âĸ Employment of Labour (Standing Orders) Act, 1965
âĸ Shops & Establishments Act, 1965
âĸ Factories Act, 1965
âĸ Industrial Relations Ordinance, 1969
(2.3). Settlement of Labour Disputes
Contract
or agreement is usually made between the management and the Collective
Bargaining Agent (CBA) on settlement of industrial disputes as per
provisions of Industrial Relations Ordinance, 1969 . In case a bipartite
negotiation fails, conciliation machinery of the government is
requested by the aggrieved party to intervene and the conciliation
process is undertaken. If succeeds agreement is signed between the
parties and the Conciliation Officer becomes a witness. If it fails, the
party raising the dispute may go for strike or lockout as the case may
be. The government may, however, prohibit the same after one month in
the interest of the public. In the essential services like, (a)
electricity, gas, oil & water supply etc. (b) hospital &
ambulance service, (c) fire brigade, (d) railway & Bangladesh Biman
and (e) ports etc., strike is prohibited.
(2.4). Wages and Fringe Benefits
In
the public sector, wages and fringe benefits of the workers are
determined by the government on the recommendation of the National Wages
Commission established from time to time. Such commissions were
appointed in 1973, 1977, 1984, 1989 & 1992. Wages & fringe
benefits declared by the government in 1977 having 20 grades of wages.
The public sector employees are, however, covered by the Pay Commission
declared by the government from time to time.
In the private
sector, the wages & fringes benefits of the workers and employees
are determined through collective bargaining process. Sometimes private
industries follow the public sector wages & salary structure for
their workers and employees respectively.
(2.5). Leave & Holidays
Leave & holidays of the workers & employees are regulated by the Factories Act, 1965 and shops Establishment Act, 1965.
(2.6). Social Security
Workmen
Compensation, Maternity Benefit (Tea Estate) Act, 1950, Maternity
Benefit Act, 1939, Employment of Labour (standing orders) Act, 1965 etc.
deal with provident fund and gratuity.
(2.7). Labour Union
Industrial
Relations Ordinance, 19691 deals with trade union in Bangladesh. In any
industrial and commercial establishment, a trade union may be formed
with 30% of the total number of workers employed. If there is more than
one union in any establishment, Collective Bargaining Agent is
determined by the Registrar of Trade Union through sector ballot for a
term of two years. Only the Collective Bargaining Agent is authorized to
raise industrial disputes and negotiate with the management. The
Director of Labor of the government acts as the Registrar of Trade Union
in Bangladesh. Till December 1996; 4955 trade unions (workerâs union â
4104 & employers association- 851) exits in Bangladesh having 17,
30, 927 members.
Industrial Relations Ordinance, 1969 and The
Industrial Relations Rules, 19772 provides that any worker or employer/
has the right to form a union/association without previous
authorization. But such a union/association can not function as a trade
union without being registered under the law.
(2.8). Working Hours
Workers
in the public or private sector remain at their job for eight and a
half hours daily (including half an hour for meal or rest) with Friday
as weekly holiday marking 48 working hours a week. Work in excess of
these, is paid as overtime. The rate of overtime is 2 hours pay for
1-hour job.
1. Industrial Relations Ordinance, 1969(Ordinance No. XXIII of 1969)
2. The Industrial Relations Rules, 1977
2. The Industrial Relations Rules, 1977
Chapter -3
RETERNCHMENTS
3.1 Retrenchment
3.2 Conditions for a valid Retrenchment
3.3 Procedure of retrenchment
3.4 Retrenchment compensation
3.5 Re-employment of retrenched workers
3.6 Condition of re-employment for retrenchment workers
3.7 Distinction between lay-off and retrenchment
3.1 Retrenchment
3.2 Conditions for a valid Retrenchment
3.3 Procedure of retrenchment
3.4 Retrenchment compensation
3.5 Re-employment of retrenched workers
3.6 Condition of re-employment for retrenchment workers
3.7 Distinction between lay-off and retrenchment
(3.1) Retrenchment
Section
2(11) define the term retrenchment as the termination by the employer
of service of workers not as a measure of punishment inflict by way of
discipline action but on the ground of redundancy. âRetrenchmentâ means
the termination by the employer of the services of workers on the ground
of redundancy {sec. 2(q)}. Thus retrenchment measure to remove surplus
staff it results in a complete severance of employer relationship. The
definition also makes it clear that retrenchment is a kind of
termination but every termination is not retrenchment. To be
retrenchment the termination must be on the ground of sedentary. 1
(3.2) Conditions for a valid Retrenchment
According to section 20 read with section 2(11) the conditions of a valid retrenchment are as follows:
1. The workers to be retrenchment must be given one monthâs notice;
1. The workers to be retrenchment must be given one monthâs notice;
2. The notice must be given in writing;
3. the notice must be contain reasons for retrenchment;
4.
alternative to condition (2) above, instead of giving one months, a
worker may be retrenched instantly by giving him payment of wages for
the period of notice;
5. a copy of the notice of retrenchment must be send to the chief inspector;
6. a copy of the notice must be send to the CBA;
7. there must be termination of services of a workman on the ground of redundancy or surplus labour;
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.76
(3.3) Procedure of retrenchment
Section
20 of the code incorporates the well recognized principle of
retrenchment in industrial law1, namely, the âlast come first goâ or
âfirst come last goâ. The principal laid down in section 20 for
retrenchment procedure are to be adhered to by every employer. The
conditions which this section prescribes for the procedure of
retrenchment are as follows:
1. The claiming the protection of
retrenchment procedure under section 20 must be a âworkerâ within the
definition in clause(65) of secion2;
2. The person must belong to a particular category of workers in the establishment concerned;
3. There should not be any agreement between the employer and employee contrary of âlast come first goâ.
4. The employer is bound to comply with all the above conditions while
retrenching a worker. However, the employer can deviate from this
procedure on justifiable reasons which must be recorded.
(3.4) Retrenchment compensation
Under
clause (c) of section 20(2) payment of compensation for retrenchment is
mandatory. The provisions of compensation for retrenchment are as
follows:
(1) At the time of retrenchment the worker must be paid
compensation equivalent to thirty dayâs wages for every completed year
of service or for any part thereof in excess of six monthâs or gratuity,
if any, whichever is higher,
(2) To claim compensation for
retrenchment the worker must show that he has been in continuous service
for not less than one year under that employer who has retrenched him;
(3)
If a worker who is to be laid-off even after first 45 days in a
calendar year under section 16(7), is retrenchment instead of
laying-off, no notice will be required. However, he shall be paid 15
dayâs wages in addition to the compensation or gratuity which may be
payable;
(4) Wages as compensation for retrenchment will mean the
average of the basic wages plus dearness allowances, if any, paid during
the period of twelve months immediately preceding the date of
retrenchment.
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.77
(3.5) Re-employment of retrenched workers
Retrenchment
of surplus workers causes undue suffering not only to the retrenched
worker but to all his dependents. Therefore in order to avoid hardship
to the worker and his family the provisions have been made in section 21
of the code that such workman should be given an opportunity to join
service whenever an occasion arises to employ another hand. This
principle was regarded as of general application in industrial
adjudication on the ground that it was based on considerations of fair
play and justice. The section provides that after effecting
retrenchment, if the employer proposes to take into his employment any
person:
(1) He shall give opportunity to the retrenched workers who offer themselves for re-employment; and
(2)
These retrenchment workers will have preference over the new
applicants. Thus section 21 imposes legal obligation on the employers to
give preference to retrenched workers when he subsequently employers
any person.
(3.6) Condition of re-employment for retrenchment workers
A retrenched worker may claim preference under section 21 on the fulfillment of the following conditions:
(1)
to apply for preference under section 21 the worker concerned must have
been retrenched in last one year time prior to re-employment (thus a
dismissed or discharged worker cannot claim preference in employment)
(2) The worker must offer himself for re-employment in response to the notice by the employer;
(3) Workers will have priority according to the length of his service under the employer;
(3.7) Distinction between lay-off and retrenchment
(1)
In case of lay-off there is failure, refusal or inability of the
employer to give employment to a workman for a temporary period while in
retrenchment the workman is deprived of his employment permanently by
his employer.
(2) The grounds of lay-off are May. In lay-off the
failure refusal or inability to give employment is on account of one or
more of the reasons specified in section 2(58) such as shortage of coal
shortage of power, raw materials, break down of machinery etc. while in
retrenchment the termination of service is on the ground of surplus
labour only. Thus the ground of retrenchment and lay-off are completely
different.
(3) The reasons of lay-off are completely different as
compared to reasons of retrenchment. The situation of surplus labour may
arise due to economic drive, rationalisation in the industry
installation of new labour saving machinery etc. But in lay-off reasons
of non-employment are mainly non-availability of power raw materials,
coal or break down of machinery etc.
(4) In lay-off labour force is not surplus but in retrenchment labour force is surplus which is to be retrenched.
(5)
In lay-off employment relationship of employer and employer and
employers is not terminated but suspended while in retrenchment
relationship is terminated. 1
1.Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.79
Chapter â 4
CASE STUDIES
4.1 M/S Caltex oil (Pakistan) Ltd. vs. The chairman second labour
4.2 Aminul Islam vs. James Finlay Co.Ltd
4.3 Bangladesh tea estate ltd vs. Bangladesh tea estate staff union
4.4 Banks & Another vs. Coca-Cola SA
4.5 Oosthuizen vs. Telkom SA Ltd
4.6 Perumal & another vs. Tiger Brands
4.7 Zero Appliances (Pty) Ltd vs. CCMA & Others
4.8 Leppan and Suretrade 110 CC t/a Bra Boutique
4.1 M/S Caltex oil (Pakistan) Ltd. vs. The chairman second labour
4.2 Aminul Islam vs. James Finlay Co.Ltd
4.3 Bangladesh tea estate ltd vs. Bangladesh tea estate staff union
4.4 Banks & Another vs. Coca-Cola SA
4.5 Oosthuizen vs. Telkom SA Ltd
4.6 Perumal & another vs. Tiger Brands
4.7 Zero Appliances (Pty) Ltd vs. CCMA & Others
4.8 Leppan and Suretrade 110 CC t/a Bra Boutique
Retrenchment: breakdown of trust relationship
14-MAY-08
4.9 Zietsman & others vs. Transnet Limited.
4.10 Thekiso vs. IBM South Africa (Pty) Ltd [Redundancy & EEA requirement
14-MAY-08
4.9 Zietsman & others vs. Transnet Limited.
4.10 Thekiso vs. IBM South Africa (Pty) Ltd [Redundancy & EEA requirement
(4.1) M/S Caltex oil (Pakistan) Ltd. Vs. The chairman
Second labour court (1967) 19 DLR 264 1
Judge: S.D Ahmed and Abdul Hakim Khan
Heard on: 3rd, 6th, 7th March 1967
Judgment date: 9th March 1967
Heard on: 3rd, 6th, 7th March 1967
Judgment date: 9th March 1967
Dr. F.K.M.A Muslim âĻâĻâĻ.. (Petitioner)
Vs.
M.M Golam Hafiz âĻâĻâĻ (Respondandent)
Issue:
Whether to effect retrenchment condition of the section must be fulfilled or not
Fact:
In the present, case service of the employees have not been terminated
in the manner provided in section (12) of the Act. The termination of
the service on the ground of retrenchment in terms of section 12 can
only take place when all the condition mentioned there under have been
complied with and not before.
1. M/S Caltex oil (Pakistan) Ltd. Vs. The chairman second labour court (1967) 19 DLR 264
In the present case it is obvious that one of the condition, namely, dispatching the notice in respect of the retrenchment to the chief inspector was not complied with. The Labour court was, therefore justified and acted quite within its jurisdiction in holding that the termination of the service of the respondents concerned was under section 19 of the Act and not under section 12 and claimed by the petitioner. The essential of a termination on the ground of retrenchment as prescribed under section 12 are (a) the worker must be given one month notice is writing indicating the reason for retrenchment or he has been paid in lieu of such notice in respect of retrenchment in sent to the chief inspector and(c) the worker has been paid at the time of retrenchment compensation or gratuity which ever is higher as required under clause (c) of the section 12 .
In the present case it is obvious that one of the condition, namely, dispatching the notice in respect of the retrenchment to the chief inspector was not complied with. The Labour court was, therefore justified and acted quite within its jurisdiction in holding that the termination of the service of the respondents concerned was under section 19 of the Act and not under section 12 and claimed by the petitioner. The essential of a termination on the ground of retrenchment as prescribed under section 12 are (a) the worker must be given one month notice is writing indicating the reason for retrenchment or he has been paid in lieu of such notice in respect of retrenchment in sent to the chief inspector and(c) the worker has been paid at the time of retrenchment compensation or gratuity which ever is higher as required under clause (c) of the section 12 .
If notice in the chief
inspector has not been served in terms of diction 12, the retrenchment
of the employee by the employer is not is according with law.
Judgment:
For the purpose of calculation of the compensation under the section,
wages shall mean the verge of the basic wages plus dearness allowance.
If any paid to the worker during period the date of retrenchment. For
the reasons stated above, we donât think that the impugned order passed
by the labour court suffers from any illegality. We accordingly
discharge the rule in each one of the two petitioners without any order
as to costs. Judge Abdul Hakim Khan also agrees with.
(4.2) Aminul Islam Vs James Finlay Co.
Ltd 26DLR (SC) 33 1
Ltd 26DLR (SC) 33 1
Fact:
Mr.Aminul Islam was a head Clerk-cum Accountant under James Finally
Company Ltd at Khulna. His service was terminated allowing him wages in
lieu of 90 days notice. The company preferred to pay his wages for that
period in addition to compensation at the rate of 14 days wages for
every completed year or part thereof in excess of six months. It was
asserted that the termination was for trade union activities of the
workers and that it was case of victimization. The labour court upheld
the contention of the worker. On the appeal before the high court no
opinion was expressed on merits as the case was remanded to the labour
court since the opinion of a member was not obtained. On farther appeal
to the Appellate division, it was held on fact that the workerâs service
was terminated without any stigma or charge and it was a termination
simplicater.
Judgment:
It has been contended that the
service of Aminul Islam ware terminated due to his trade union
activities and as such it was act of victimization and the termination
1. Aminul Islam Vs James Finlay Co. Ltd 26DLR (SC) 33
virtually amounted to dismissal under the cloak of the tram âtermination â. But his contention does not hold good as on examination of the impugned order it has been found that the termination simpliciter under section 19 and as such he was no longer a worker within the meaning of the Act.
virtually amounted to dismissal under the cloak of the tram âtermination â. But his contention does not hold good as on examination of the impugned order it has been found that the termination simpliciter under section 19 and as such he was no longer a worker within the meaning of the Act.
(4.3)Bangladesh tea estate ltd v Bangladesh tea estate staff union
(1976)28DLR (AD) 190 1
(1976)28DLR (AD) 190 1
Facts:
One Mr. Nurul Abser Chowdhury was appointed as a clerk by the Bangladesh tea Estate ltd. On 1st June 1964. He was subsequently promoted to grade 2, gardener clerk on 3-7-67. The employer company terminated his service under section 19 of the employment of labour act 1965 by a letter with all termination benefits. The employer instead of receiving his dues raised a labour4 dispute through the union under the estate Pakistan labour dispute act 1965. The labour court on consideration of evidence held that the termination of service of Nurul Abser was malafide a code of victimization for his trade union activities and according made an award directing to be a unit representative of the union.
One Mr. Nurul Abser Chowdhury was appointed as a clerk by the Bangladesh tea Estate ltd. On 1st June 1964. He was subsequently promoted to grade 2, gardener clerk on 3-7-67. The employer company terminated his service under section 19 of the employment of labour act 1965 by a letter with all termination benefits. The employer instead of receiving his dues raised a labour4 dispute through the union under the estate Pakistan labour dispute act 1965. The labour court on consideration of evidence held that the termination of service of Nurul Abser was malafide a code of victimization for his trade union activities and according made an award directing to be a unit representative of the union.
On appeal by the employer company the
high court of East Pakistan made an elaborate discussion of evidence
and dismissed the appeal on the ground that Nurul Abser was victimized
for his trade union activities. Because of his participation in trade
union activities the order of termination was passed by the management
in disapproval of such activities.
The employer company obtained leave from the supreme court of Pakistan.
Issues:
1. Whether the question of termination under section 19 should only be
decided under section 25 of the standing orders act 1965 and cannot be
raised as an industrial dispute under the labour dispute act or it can
be raised as an industrial dispute.
2. Can the court go behind the order of termination to see if it is really victimization or not.
2. Can the court go behind the order of termination to see if it is really victimization or not.
Judgment:
The
ratio decldendi of the two cited decision reported in 25 DLR (SC) 85
and in 13 DLR (SC) 280 (PDL 1961 (SC) 403) appear to be that the
employer has a right to terminate the service of a worker under section
19 of the standing order act without disclosing any cause and that the
court should not go behind an order of termination simpliclter to find
out whether the order was malafide or not.
1. Bangladesh tea estate ltd v Bangladesh tea estate staff union (1976)28DLR (AD) 190
There is however an exception to the rule that court not to go behind
the order of a service of the termination to see if it really was
victimization. This exception is contained in section 19, itself when
read with section 25. it says that if purported termination is in
reality victimization of an officer of a registered trade union for his
trade union activities the court can go behind the order to see the real
purpose of termination and grant such relief as it thinks fit. The two
propositions should be read together in order to arrive at the true
import of section 19 of the standing orders act.
Labour dispute is
broad enough to include a dispute of a terminated worker under section
19 of the standing act 1965 if the dispute centres round the
victimization of the worker for his trade union activates. It is to be
remembering that section 25 of the standing orders act has clearly
provided that an individual worker can claim relief before the labour
court under the said act unless the grievance ha was raised as labour
dispute under labour dispute act (IRO). Through section 25 bars all
complaints against the order of termination under section 19 of the said
act yet it authorized the worker to claim relief if the termination is
of an officer of the registered trade union for his trade union
activities or the worker is deprived of his benefits under section 19.
The two acts are pair material and the provision in section 25 indicates
that if the termination of a worker is for his trade union actives and
if he is an officer of a registered trade union his code may be raised
as an industrial dispute.
(4.4)Banks & Another v Coca-Cola SA 1
Case No. J 1114 / 07
Award Date 29 June 2007
Jurisdiction Labour Court Johannesburg
Judge A Van Niekerk AJ
Award Date 29 June 2007
Jurisdiction Labour Court Johannesburg
Judge A Van Niekerk AJ
Subject: procedural fairness in Retrenchment.
Issue:
An application to interdict the employer from implementing a dismissal
based on operational requirements on the grounds of procedural fairness.
There was a delay in the launch of the proceedings and disagreement on
what the appropriate remedies were. There was also a material dispute of
fact. The matter was referred to trial for the hearing of oral
evidence.
1. Banks & Another v Coca-Cola SA
Summary of facts:
The two applicants, both senior executives were dismissed due to
operational requirements after the process of consultation had broken
down. Two and a half months later they approached the Labour Court for
relief in terms of Section 189A (13) and sought compensation in the
event that the court found that their dismissal had been procedurally
unfair.
The allegations of the process being a âshamblesâ was
denied by the Respondent Company and the disputes were therefore factual
and material to the issue.
The notice of termination was due to
take place on the 30 June 2007 and therefore the urgency of the matter
being heard to interdict the employer from dismissing the applicants and
directing the respondent to commence the consultation process afresh as
required by Section 189 of the Act.
The facts as alleged by the
applicants on the consultation process used by the Respondent were very
comprehensive and the basis of the claim was that the respondent failed
to engage in any meaningful individual consultations about a structure
that could save their jobs and that the consultation process was
ânothing less than a shambles, that vague and subjective selection
criteria were applied, that the respondent made a decision on
restructuring and sought to consult thereafter and that it failed to
make a proper severance proposalâ.
The respondent alleged that the
applicantsâ referral was opportunistic and that the applicants are
seeking to do no more than secure themselves reinstatement for the
purposes of negotiating a more generous severance package.
Summary of Judgment:
Three considerations were apparent.
The first was a material dispute of fact, the second was the time
passed since the breakdown of consultations and the launching of the
application and the third is the acrimonious relationship between the
parties, best described as a hostile stand-off, in so far as is relevant
to the remedy sought by the applicants.
It was held that no
purpose would be served by requiring the respondent and applicants to go
back to square one in the process and it was held that Section 189A
would not serve its purpose if the court would grant an interdict
against dismissal and issue directions on how the parties should conduct
themselves in a resurrected consultation process.
The court did
not make a finding on the papers before court as to whether either party
had discharged their obligations in terms of Section 189 and held that
the inevitability of a future referral to the court on the substantive
fairness of the dismissal, that the procedural and substantive aspects
of the dispute are dealt with simultaneously in a trial action.
The order granted by the court was therefore:
1. The application in terms of section 189A (13) was referred to the trial roll for hearing of oral evidence.
2.
The application in terms of section 189A (13) to be enrolled
simultaneously with any action that the applicants may institute in
relation to the substantive fairness of the dismissal. Should the
applicants not institute this action then the application made in terms
of section 189A (13) should be enrolled on the trial role.
(4.5) Oosthuizen v Telkom SA Ltd 1
Case No. PA 5 / 04
Judgment Date 29 June 2007
Jurisdiction Labour Appeal Court, Johannesburg
Judge Zondo JP, Kruger AJA
Judgment Date 29 June 2007
Jurisdiction Labour Appeal Court, Johannesburg
Judge Zondo JP, Kruger AJA
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment.
Issue:
Whether the respondent employer ought to have redeployed the appellant, rather than make retrench him, and whether the selection criteria that did not include length of service were fair in the circumstances.
Whether the respondent employer ought to have redeployed the appellant, rather than make retrench him, and whether the selection criteria that did not include length of service were fair in the circumstances.
Summary of Facts:
The appellant had been retrenched by the respondent. He lodged a claim
in the Court that partially rested on the fact that the respondent had
not negotiated with him personally but with a union that was
representative at the workplace. The Court dismissed the applicantâs
claim.
The appellant appealed to the LAC on the basis that (1) the
respondent ought to have avoided the redundancy by redeploying to one
of the positions that he applied for and (2) on the basis that the
respondentâs selection criteria was unfair.
1. Oosthuizen v Telkom SA Ltd
Summary of Judgment:
On the issue of redeployment, the Court noted that the appellant had
applied for 26 positions, some of which he was short listed for. The
respondent led no evidence at to why he was not appointed to those
positions and the Court found that it had failed to justify the
dismissal of the appellant. Interestingly, the Court found that if the
appellant required training to be suitable for an alternative position,
that the respondent must arrange such training as part of its
obligations to look for alternatives to redundancy.
On the issue
of the selection criteria, the respondentâs evidence was that skills,
suitability and employment equity policy were the criteria adopted. The
respondent did not take into account length of service, which was a
significant issue given the appellant had been employed for 30 years
with the respondent. The Court did not making any findings on this
point, having already ruled that the dismissal was substantively unfair
because the appellant could have been redeployed. The LAC did appear to
find that the length of service was also relevant to the obligation to
redeploy.
The LAC ordered that the appellant be reinstated. It also made specific orders about the need for a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus because of the reinstatement. Costs were awarded against the respondent.
The LAC ordered that the appellant be reinstated. It also made specific orders about the need for a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus because of the reinstatement. Costs were awarded against the respondent.
(4.6) Perumal & another v Tiger Brands
Case No. D 987 / 04
Judgment Date 1 June 2007
Jurisdiction Labour Court, Durban
Judge Pillay J
Judgment Date 1 June 2007
Jurisdiction Labour Court, Durban
Judge Pillay J
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment
Issue:
In what circumstances can an employee allege that in the Labour Court that his or her dismissal, as part of a âmass redundancyâ (necessitating s.189A procedures), is procedurally unfair?
In what circumstances can an employee allege that in the Labour Court that his or her dismissal, as part of a âmass redundancyâ (necessitating s.189A procedures), is procedurally unfair?
1. Perumal & another vs. Tiger Brands
Summary of Facts:
The applicant challenged the substantive and procedural fairness of her redundancy.
The respondent contended that the provisions of the LRA prohibited the applicant from disputing the procedural fairness in this instance.
In relation to substantive unfairness, the applicant alleged that the respondent had applied its selection criteria in an unfair manner, a contention denied by the respondent.
Summary of Facts:
The applicant challenged the substantive and procedural fairness of her redundancy.
The respondent contended that the provisions of the LRA prohibited the applicant from disputing the procedural fairness in this instance.
In relation to substantive unfairness, the applicant alleged that the respondent had applied its selection criteria in an unfair manner, a contention denied by the respondent.
Summary of Judgment:
In
respect of procedural fairness, the Court agreed with the respondent. It
found that s.189A (18) of the LRA operates to bar procedural challenges
from being raised in s.191 (5) (b)(ii) disputes (relating to dismissals
for operational requirements), because s.189A(13) allows for challenges
to procedural defects by way of an order compelling the employer to
conform to fair procedure. In other words, because the applicant had not
brought the procedural flaws to the attention of the employer via
s.189A (13), she forfeited the right to challenge the procedural
fairness altogether.
In respect of the substantive fairness, the
Court noted that the respondent had subjected the applicant and her
colleagues to a competency test and also required them to attend a
meeting held by an interviewing panel. The Court found that in both the
test and the interview, the respondent had acted in a biased manner
towards the applicant. Accordingly, it found that the dismissal was
substantively unfair. It ordered that the applicant be reinstated, paid
compensation of 12 months with a partial costs order against the
respondent
(4.7) Zero Appliances (Pty) Ltd v CCMA & Others 1
Case No. JR 805 / 06
Judgment Date: 28 March 2007
Jurisdiction: Labour Court, Johannesburg
Judge: Rampai AJ
Judgment Date: 28 March 2007
Jurisdiction: Labour Court, Johannesburg
Judge: Rampai AJ
Subject: Practice and Procedure/Appeal and Review
Issue:
The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment
The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment
1. Zero Appliances (Pty) Ltd vs. CCMA & Others
Summary of Facts:
The applicant employer implemented a redundancy program that included, at the unionâs request, the appointment of a facilitator from the CCMA and the execution of a facilitation agreement. Some three months after they have been made redundant, 63 employees lodged unfair dismissal claims alleging procedural unfairness. The employer alleged that the referral was out of time and had been directed at the wrong body. Nevertheless, a CCMA commissioner condoned the later referral and issued a certificate to the effect that the dispute remained unresolved.
The applicant employer implemented a redundancy program that included, at the unionâs request, the appointment of a facilitator from the CCMA and the execution of a facilitation agreement. Some three months after they have been made redundant, 63 employees lodged unfair dismissal claims alleging procedural unfairness. The employer alleged that the referral was out of time and had been directed at the wrong body. Nevertheless, a CCMA commissioner condoned the later referral and issued a certificate to the effect that the dispute remained unresolved.
The employer approached the Court to have the commissionerâs condonation and the certificate set aside.
Summary of Judgment:
The Court found that the mere fact that the CCMA had been involved during the facilitation phase of the retrenchment did not âentail the transfer of jurisdiction over the disputeâ.
The Court found that the mere fact that the CCMA had been involved during the facilitation phase of the retrenchment did not âentail the transfer of jurisdiction over the disputeâ.
The Court noted that
it is the correct forum for lodging disputes about the procedural
fairness of âmass retrenchmentsâ pursuant to s.189A(13). The employees
had embarked on the wrong dispute referral procedure. Accordingly, the
Court held that the certificate was issued in error and set it aside.
As to the condensation, the Court noted that the retrenched employees
did not dispute or question the retrenchment process while it was in
progress and only did so 97 days after their contracts were terminated,
which âraised serious questions about their bona fidesâ. It took the
employees 238 days, from date of termination of their contracts, to
raise the dispute in the Court. It also found that the employees
provided no explanation and had not applied for condensation.
Finally, the Court assessed the employerâs chances of success as âexcellentâ. The condensation was also set aside.
Costs were awarded against the employees.
(4.8) Leppan and Suretrade 110 CC t/a Bra Boutique
Retrenchment: breakdown of trust relationship
14-MAY-08 1
Retrenchment: breakdown of trust relationship
14-MAY-08 1
Case No. KNDB 6002-07
Award Date 04 February 2008
Jurisdiction CCMA, Durban
Commissioner L Williams-de Beer
Award Date 04 February 2008
Jurisdiction CCMA, Durban
Commissioner L Williams-de Beer
Subject: Retrenchments, Jurisdiction
Issue:
The Employer had retrenched an employee with whom the Employment
relationship had irretrievably broken down. The Commissioner held that
Employer was entitled to do this, and that CCMA does not have
jurisdiction to entertain procedural challenges in disputes concerning
retrenchments of single employees.
Summary of Facts:
The
Employer was a close corporation in which the Employee held a 15%
membership. Other members were his mother (15%), Andre Dippenaar (40%),
and Lynette and Kim Thompson (each 15%).
The Employee had also
been the general manager for a period of 2 years. When a fellow employee
complained about him to the CEO, Ian Thompson (not a member of the CC),
Thompson suspended him.
The Employee then called a meeting with
all the members where he pointed out that Thompson was an un
rehabilitated insolvent, and as a result, not allowed to act as the CEO,
with the result that Thompson was removed from this position.
Dippenaar,
the majority shareholder then indicated that he would take over as CEO
and the employee indicated that he was not prepared to âbackâ Dippenaar
in this position.
He failed to return to work and attempted to
negotiate an exit package via his attorneys. This was followed by
another letter from his attorneys, indicating that he would return to
work under certain conditions. The conditions were not accepted by the
new CEO, and indicated that he was not prepared to work with the
Employee.
1. Leppan and Suretrade 110 CC t/a Bra Boutique Retrenchment: breakdown of trust relationship
14-MAY-08
The Employer then invited the Employee to participate in consultation
pending a dismissal for operational reasons. No agreement was reached
and the Employee was retrenched.
Summary of Award:
The
Commissioner held that, with reference to the LC decision in Rand Water v
Bracks NO & others, she did not have jurisdiction to adjudicate the
procedural fairness of the dismissal. The LC held in that matter that:
âAs soon as the procedural fairness of the dismissal is put in issue by a
single employee, I am satisfied that section 191(12) of the LRA must be
interpreted as meaning that such cases must still be referred to the
Labour Court and that the CCMA will not have jurisdiction to hear them.â
She
held, however, that she was entitled to split the issues and make a
finding in the substantive fairness of the dismissal. In this regard she
held that the wording: ârequirements based on the economic,
technological, structural or similar needs of an employerâ in section
213 of the LRA was wide enough to include a breach of trust or a
breakdown in the relationship.
In this matter, the Employee was
unable to function in a harmonious work environment with the CEO and a
breakdown in the employment relationship resulted. The breakdown was
mutual in this case.
The Commissioner held that there does not
need to be a long history of problems for trust to be damaged,
particularly at a senior level and where parties are co-members of a
close corporation. As a result, the dismissal was held to have been
substantively fair
(4.9) Zietsman & others v Transnet Limited 1
Case No. JS 614 / 06
Judgment Date 21 June 2007
Jurisdiction Labour Court, Johannesburg
Judge Molahlehi J
Jurisdiction Labour Court, Johannesburg
Judge Molahlehi J
Subject: Retrenchment: Severance Pay
1.Zietsman & others v Transnet Limited
Issue:
The Employees sought a determination on whether the calculation of the
severance pay by the Employer should have included the dealer bonuses of
each of the Employees as provided for in a bonus scheme agreed to by
the Employer.
The court held that as long as the Employer complied
with the statutory minimum payments, there was no additional
entitlement to other payments.
Summary of Facts:
The 3
applicant Employees were retrenched by the Employer. They had all
participated in a bonus scheme in terms of which bonuses were paid to
them bi-annually.
When they were retrenched they were paid a
severance package of 2 weeksâ salary for each completed year of service.
The Employees claimed that their severance packages were calculated
incorrectly as the bonuses were excluded from the quantum of
remuneration on which the 2 weeksâ severance pay was calculated.
Summary of Judgment:
In exercising powers given to him in terms of section 35(5), the
Minister published a schedule indicating payments to be included in an
employeeâs remuneration for the purposes of calculating pay for
severance pay in terms of section 41 of the Act.
In terms of this
notice discretionary payments not related to an employeeâs hours of work
or performance do not form part of the remuneration for the purpose of
calculating severance pay. The court held that where an employer paid
more than what section 41 of the Act required, a section 35(5)
calculation would not apply. In this case, the Employees severance
packages exceeded what they would have received had they been paid the
statutory minimum calculated to include the bonuses.
As the
Employees received more than what was provided for in section 41 of the
Act and in the absence of an agreement to use the formula provided for
in section 35, the court held that the Employer had complied with the
requirement of the Act and that the Employees were not entitled to
payment of their bonuses.
(4.10) Thekiso v IBM South Africa (Pty) Ltd
[Redundancy & EEA requirement] 1
[Redundancy & EEA requirement] 1
Case No. JS415/05
Judgment Date 18 October 2006
Jurisdiction Labour Court, Johannesburg
Judge Freund, Acting Judge
Judgment Date 18 October 2006
Jurisdiction Labour Court, Johannesburg
Judge Freund, Acting Judge
Subject: Procedural Fairness in Retrenchment
Issue:
The applicant was made redundant and challenged the decision on a number of grounds, namely:
1. That she had not been adequately consulted;
2.
That her employer used an inherently subjective selection criteria and
she should have been informed of the merits of each employee that was
subject to the redundancy process; and
3. That the redundancy was
unfair because the employer failed to consider the obligations contained
in the Employment Equity Act (EEA).
Summary of Facts:
The
applicant worked in the employerâs asset management division which lost a
number of contracts that necessitated redundancies. Positions in the
division were made redundant and affected employees were invited to
apply for a more complex post of asset administrator. The applicant
applied but was unsuccessful. The employer appointed a white male.
The
applicantâs claim for inadequate consultation relied on the fact that
the employer commenced consultation meetings on the same day that she
was given a s.189 letter.
Interestingly, the applicant initially
pleaded that her dismissal was automatically unfair because of direct
discrimination (on the grounds of race and gender). During the hearing,
by leave of the Court, she amended her claim to plead that the employer
failed to consider the obligations of the EEA when determining parties
for retrenchment. The applicant relied on s.15 of the EEA.
1. Thekiso v IBM South Africa (Pty) Ltd [Redundancy & EEA requirement]
Summary of Judgment:
Summary of Judgment:
The Court dismissed the applicantâs contention that she had not been
adequately consulted, noting that the applicant, when asked to attend a
meeting on the same day as receiving her s.189 letter, had not objected
or asked for more time. A number of consultation meetings were also held
subsequent to the initial meeting.
On the issue of the selection
criteria, the Court found against the employee, noting that âa
retrenching employer that has one post to fill is not required to debate
the merits of each employee with the others before making the
selectionâ.
The Court noted that the applicant relied on the EEA
to claim that the employer was obliged to retain the applicant (a black
woman) in preference to a white male provided she was âsuitably
qualifiedâ for the available position.
The Court was quick to
reject this claim, referring to its earlier decision of Dudley y City of
Cape Town in which it was determined that the EEA does ânot bring about
an individual right to affirmative actionâ. The applicant had submitted
to the Court that Dudley was wrongly decided and should not be
followed.
The Court did not agree and it noted, âthe obligation
imposed by the EEA obliges designated employers to take measures to
retain and develop people from designated groups does not mean that
designated employees should be afforded a preference when it comes to
selection in the retrenchment contextâ.
Chapter-5
LABOUR COURT AND LABOUR APPELLATE TRIBUNAL
5.1 Basic Idea
5.2 Application of the Labour court
5.3 Jurisdiction of the labour court
5.4 Power and status of the labour court in trying offences
5.5 A labour court is a civil court
5.6 Power and functions of the tribunal
5.2 Application of the Labour court
5.3 Jurisdiction of the labour court
5.4 Power and status of the labour court in trying offences
5.5 A labour court is a civil court
5.6 Power and functions of the tribunal
(5.1) Basic Idea
To
promote industrial peace and to establish a harmonious and cordial
relationship between labour and capital by means of conciliation
mediation and adjudication. With this end in view different authorities
have been created under the code to resolve an industrial dispute. Of
these tow bodies are adjudicatory or judicial. They are the labour court
and the labour appellate tribunal. The code has streamlined for some
non-adjudicatory as well as adjudicatory authorities. Non-adjudicatory
authorities include participation committee conciliator and arbitrator
while adjudicatory authorities include labour court and labour appellate
tribunal.
(5.2) Application of the labour court1
An industrial dispute may be referred to the labour court in any of the following ways:
(1)
If no settlement is arrived by way of conciliation and the parties
agree not refer the dispute to an arbitrator and the parties have
received a certificate of failure under section 210(11) the worker may
go on strike or the employer may declare lock out. However the parties
raising the dispute may either before or after the commencement of a
strike or lock out make an application to the labour court for
adjudication of the matter (section 211)
(2) Again if a strike or
lock out lasts for mare than 30 days the government may prohibits such
strike or lock out and in that case the government must refer the
dispute to the labour court 1 (section 211,(3,4,5))
(3) Again
under section 213 any collective bargaining agent or any employer or
worker may apply to the labour court for the enforcement of any right
guaranteed or secured to it or him by or under this code or any award
settlement.
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.280
(5.3) Jurisdiction of the labour court
Under section 214(10) a labour court shall have exclusive jurisdiction to
(1) Adjudicate and determine an industrial dispute which has been referred to or brought before it under this code;
(2)
Enquire into and adjudicate any matter relating to the implementation
or violation of a settlement which is referred to it by the government
(3) Try offences under this code
(4)
Exercise and perform such other powers and functions as are or may be
conferred upon or assigned to it by under this code or any other law.
(5.4)Power and status of the labour court in trying offences
Section 215 and 216 of the code provides the procedure and powers of labour court which is may be of two types; 1
(1) Power and status in trying offences and
(2) Power and status in civil maters
(a)
The labour court shall follow as nearly as possible summary procedure
as prescribed under the code of criminal procedure 1898 (Act V of 1898)
(b)
A labour court shall for the purpose of trying an offence under the
code have the same powers as are vested in the court of a magistrate of
the first class under the code of criminal procedure.
(c) The
labour court shall for the purpose of inflicting punishment have the
same powers as are vested in Court of Session under that code.
(d) A labour court shall while trying an offence hear the case without the members.
(5.5) Labour court is a civil court
In
the case of Pubali Bank V the Chairman 1st labour court 44DLR(AD)40 the
question was raised whether a labour court is a civil court or not
their. Lordship of
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.282
the appellate division upon consideration of relevant provision of the industrial relations ordinance 1969 held that the labour court acts as civil court for limited purpose but not a civil court at all it is only by a legal fiction or a statutory hypothesis that it is to be treated as a civil court.
the appellate division upon consideration of relevant provision of the industrial relations ordinance 1969 held that the labour court acts as civil court for limited purpose but not a civil court at all it is only by a legal fiction or a statutory hypothesis that it is to be treated as a civil court.
Labour Appellate tribunal Constitution
(1)
The labour Appellate tribunal shall consist 1 of a chairman or the
government deems fit of a chairman and such number of members as
determined by the government additional judge of the high court division
(section 218(1))
(2) The chairman of the tribunal shall be from
amongst persons who is or has been a judge or an additional judge of the
Supreme Court or is or has been a district judge for at least three
years.
(3) If the chairman is absent or unable to the tribunal the
chairman any reasons the senior the senior member of the tribunal if
any shall discharge the functions of the chairman.
(4) An appeal
or any matter before the tribunal may be heard and disposed of by the
tribunal sitting as a whole or by any bench thereof.
(5.6) Power and function of the tribunal 2
(1)
Subject to this code, the tribunal shall follow as nearly as possible
such procedure as are prescribed under the code of civil procedure, for
hearing of an appeal by and appellate court from original decrees.
If the members of a bench are divided in their opinion as to the decision to be given on any point-
(a)The same shall be decided according to the opinion of the majority, if any
(b) If the member of the bench is equally divided, they shall state the point on which they differ and the case shall be referred by them to the chairman for hearing on such point by the chairman himself, if he is not a member of the tribunal, and such point shall be decided according to the opinion of the chairman or member or majority of the members hearing the points, as the case may be.
1. The Labour Code of Bangladesh 2006, {section 218(1)}
2. Md. Abdul Halim, The Bangladesh Labour Code, 2006, CCB Foundation, Ed.1, p.287
2. Md. Abdul Halim, The Bangladesh Labour Code, 2006, CCB Foundation, Ed.1, p.287
(2) Where a bench includes the chairman of the tribunal as one of its
members and there is a difference of opinion among. The members and the
members are equally divided, the Decision of the chairman shall prevail
and the decision of The Bench shall be expressed in terms of the opinion
of the Chairman.
(3) The judgment of the tribunal shall be delivered within a period of not more then 60 days following the filing of the appeal.
(4)
The tribunal shall have authority to punish for contempt of its
authority, or that of any labour court as if itâs were a high court
division of the Supreme Court.
(5) The tribunal may, on its own motion or on the application of any party, transfer a case from one labour court to another.
(6) The tribunal shall have superintendence and control over all labour courts.
Chapter 6
CONCLUSION
6.1 Findings
6.2 Recommendations
6.3 Scope for Further Study
6.2 Recommendations
6.3 Scope for Further Study
(6.1) Finding:
Workerâs
retrenchment is a very essential function of the labour law. Itâs a
very effect for Labours and the Employers. No worker employed in any
shop or commercial or industrial establishment who has been in
continuous service for not less then one year under an employees shall
not be retrenched by the employer unless-
(a) the worker has been
given one monthâs notice in writing, indicating the reason 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 is send to the chief inspector or any other officer
authorized by him ; and
(c) the worker has been paid, at the time
of retrenchment , compensation which shall be equivalent of fourteen
daysâ wages for every completed year of service or for any part thereof
in excess of six month, or gratuity, if any, whichever is higher :
For
the purpose of calculation of compensation under this Section, wages
shall mean the average of the basic wages plus dearness allowance, if
any, paid to the worker during the period of twelve month immediately
preceding the date of retrenchment.
(6.2) Recommendations
The
importance of labour law is very much in Bangladesh perspective. It is
highly importance in Bangladesh perspective of labour law. We know that
labour is a most important part of an industry. So, we can not think an
industry with out labour. Labour right is most essential in Bangladesh.
But the labours are aware about their right. They donât know properly
about labour education. It is a great problem.
For this reason,
they retrenched by the employee as the employers wish. Very often, they
retrenched with out any legal process. This is injustice and in human.
This should be protected for the interest of industrialisation in
Bangladesh. Proper and strict provisions should be included in Labour
laws and state laws. The labours should not be deprived. Their rights
should be protected.
Illegal retrenchment by the employer is inhuman and increased the suffering of the labours. In this respect he following action should be taken:
Illegal retrenchment by the employer is inhuman and increased the suffering of the labours. In this respect he following action should be taken:
1. The cause of retrenchment should genuine and proper in the eye of law.
2. Proper notice for three months should be given to the respective labour for his self defence,
3. If not the labour should be paid three months salary and other benefits allowable as per law.
(6.3) Scope of the further study
The
discussion of this thesis will be limited within the scope of the
origin and historical development of Labour law of Bangladesh, the
problems of Labour law of Bangladesh, problems of Labour education in
Bangladesh and some case studies.
In Bangladesh perspective we
find that there are several problems remain related with Labour
disputes, Workers Problem, Trade Union Problems, Employments problems,
Working Hour Schedule etc. So we think further study may be done on the
following issues:
1. Labour disputes solution process.
2. Trade Union Problems and their functions
3. Employers and Employees relation.
2. Trade Union Problems and their functions
3. Employers and Employees relation.
0 Comments