To get the file: Download
Index
Particulars
|
Page Number
|
Introduction
|
1
|
Scheme of the paper
|
1
|
Chapter One: What is Trade
Union and why it is needed
|
2-3
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Chapter Two: The Legal
Framework of Trade
Unionism and Collective
Bargaining under
the Labour
Act, 2006. This chapter includes:
·
Procedural requirements and restrictions to form
unions
·
Privileges and protection to trade union and
trade unionists
·
Trade union as collective bargaining agent
|
3-6
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Chapter Three: Determination of
Legislative Derogation from International and Comparative Labour Ideals.
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7-10
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Chapter Four: Conclusion
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10
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TRADE UNIONISM AND COLLECTIVE BARGAINING UNDER
THE BANGLADESH LABOUR ACT, 2006: AN APPRAISAL
INTRODUCTION
To a large extent, the existence
of democracy is dependent on the right to form associations[1].Recognition
of freedom of association is a precondition of workplace democracy[2].
Recognition of this right coupled with the right to collective bargaining plays
an important role in promoting industrial peace, productivity and economic
development. Bangladesh
has ratified two core conventions on freedom of association and collective
bargaining i.e. Convention no.87 and 98 of the ILO[3]. To keep pace with the international labour
values of the day the legislature has designed an industrial relations
mechanism to ensure some sophisticated aims, inter alia to promote mutual
trust, understanding, co-operation between employer and workers, to fulfill
production target, improve productivity and to ensure better labour conditions[4].
The aim of this paper is to examine the legislative landscape of the above
mentioned rights and to juxtapose the landscape vis-à-vis international and
comparative labour ideals.
SCHEME OF THE PAPER
To the end of coherence this
paper has been divided in the following chapters.
Chapter One: What is Trade Union
and why it is needed?
Chapter Two: The Legal
Framework of Trade Unionism and Collective Bargaining under
the Labour Act, 2006. This
chapter includes:
·
Procedural Requirements and Restrictions to form
Unions
·
Privileges and Protection to Trade Union and
Trade Unionists
·
Trade Union as Collective Bargaining Agent
Chapter Three: Determination of
Legislative Derogation from Internatonal and comparative Labour Ideals
Chapter Four: Conclusion
Chapter One: What
is Trade Union and why it is needed
Freedom of association is the
notional basis of trade unionism. Freedom of association refers to the right of workers and employers to
establish organizations which have the means to promote and defend the
interests of their members. Without freedom of association (FOA) workers would
not be able to create unions and enter into collective bargaining [5]
The conception of the forerunners of trade
unionism is not the result of a hypothetical system sprung from some brain and
not justified by practical tests; on the contrary, it proceeds from the
examination of historical events and of their clear interpretation. We may say
that it is the result of a whole century of conflict between the working
classes and the middle classes[6]. This
conflict between working class and employers resulted from severe dissatisfaction among workers against
employers in respect of wages and other working conditions. The movements
against employers were strictly suppressed by the employers. As has been
succinctly put by Adam smith, 18 th century economist, in The Wealth of Nations, Book I, chapter 8:
‘When workers combine, masters
... never cease to call aloud for the assistance of the civil magistrate, and
the rigorous execution of those laws which have been enacted with so much
severity against the combination of servants, labourers, and journeymen…”
In fact, before the First World
War there was hardly any labour legislation for regulation and settlement of
industrial disputes[7]. Against
this background, in 1871, The Trade Union Act, for the first time legalized
trade union in the UK .
The worldwide demand for right to form trade unions declares recognition of the
principle of freedom of association to be one of the means of improving the
conditions of the workers and of securing peace[8].
Provisions freedom of association are included in several UN instruments, viz.
the Universal Declaration of Human Rights,1948(Articles 20 and 23), the
ICCPR(Article 22),the ICESCR(Article 8)[9].
The object of formation of trade
union is to take part in collective bargaining with the employers[10].
The term ‘collective bargaining’ includes all negotiations which take place
between an employer or one or more employers organizations, on the one hand,
and one or more workers organizations on the other, for a)determining working
conditions and terms of employment; b)regulating relations between workers and
employers; c) regulating relations between organizations of employers and
workers[11].
The International Confederation of Free Trade
Union enumerates the following objects of a trade union in collective
bargaining:
·
To establish and build up union recognition as
an authority in the workplace;
·
To raise workers’ standard of living and win a
better share in company profit;
·
To express in practical terms the workers desire
to be treated with due respect and to achieve democratic participation in
decision affecting their working condition;
·
To establish orderly practices for sharing in
these decisions and to settle disputes which may arise day to day life of the
establishment;
·
To achieve broad general objectives such as to
promote and defend the interests of the workers[12].
Chapter Two: The Legal
Framework of Trade Unionism and Collective Bargaining under the Labour Act, 2006.
The constitution of Bangladesh
provides for the legal foundation of trade unions of employers and workers[13]
.The main statutory framework[14]
of trade unionism is the Bangladesh Labour Act, 2006(hereinafter the Act). Section 176 of the Act authorizes
trade unions of both workers and employers and further provides that trade
unions shall have the right to establish and join federations and such union or federation shall have the
right to affiliate with international organizations and confederation of
workers organization.
1) Procedural Requirements:
- Registration: Workers trade unions are required to be registered with the Registrar of Trade Unions, after fulfilling a number of requirements as specified in sections 177,178 and 179 of the Act. The function of an unregistered or de-registered trade union has been prohibited in toto u/s 192 of the Act.
- Thirty percent requirement: Remarkably section 179(2) requires that a trade union shall not be registered unless it has a minimum membership of thirty percent of the total number workers employed in the establishment.
- Certificate of registration: Issue of certificate of registration by the Director of Labour u/s 189.
2) Restrictions
on Trade Unionism:
·
Not more than three trade unions in one
establishment u/s 179;
·
No trade union to function without registration
u/s 193;
·
Restriction on dual membership of a worker or
employer u/s 193;
·
Only one trade union is allowed if formed
by seaman u/s 185 or by civil aviation
workers u/s 184;
·
Only one trade union is allowed in the Chittagong and Mongla Port Authority u/s 185A;
·
Trade unions cannot be formed by workers
employed to offices of or under the
government, security printing press , ordnance factories, educational’
·
training and research institutions , domestic
servants u/s1(4) of the Act ;
·
the very definition of ‘worker’ u/s 2(65) read
with s.175 excludes employees as a member of the watch and ward or security
staff or fire fighting staff or confidential assistant or telex operator or fax
operator or cipher assistant of any establishment. So these types of employees
are legally barred to form any trade union;
·
Director of Labour may cancel the registration of trade union
u/s 190.
·
Section 195 prohibits workers save the President
, General Secretary of a trade union to take part in any trade union activity
during office hours.
·
Section 196 of the Act prescribe some activities
as unfair labour practice of workers , which are punishable u/s 291 of the
Act.
3)
Privileges to Trade Unions and Unionists:
·
Section 186 provides that conditions of service
will remain unchanged while application for registration is pending and no
employer shall terminate the employment of any worker is a member of such trade
union, while an application for registration for trade union is pending. This
is an innovative provision[15].
·
The President, General Secretary and certain
other officers of trade union shall not be transferred as provided u/s 187.
·
Section 194 provides some special attributes to
a registered trade union viz. corporate personality, perpetual succession,
common seal, capacity to sue and be sued, and capacity to acquire and hold
property by its registered name.
·
Law of conspiracy is limited in application
against a registered trade union or collective bargaining agent in certain
cases u/s 197.
·
Registered Trade unions and CBA have also been given
immunity from civil suit u/s 198 in certain cases e.g. contractual liability or
tortuous liability arises against trade union or its members while engaging in
a strike.
·
Section 199 derogates section 27 of The Contract
Act, 1872 and allows agreement in restraint of trade for furthering the cause
of trade unionism.
·
Unfair labour practices of employers are
prohibited in toto u/s 195, necessarily facilitates establishment and
promotion of trade unions of workers and secures the sanctity of trade union as
a representative of labours’ voice. This section, on the one hand, prohibits
the unscrupulous imposition of conditions in employment contracts[16]
against the exercise of the worker’s right to freedom of association and
upholds the sanctity of trade unions as CBA on the other[17]. The
aspects dealt with by this section are core international labour values of the
day[18].
Unfair labour practice of employer is a punishable offence u/s 291 of the Act.
4) Trade Union as
Collective Bargaining Agent (CBA)
Though the definition of CBA u/s 2(52) uses
the expression equivalent to trade union, all trade unions are not ipso
facto CBA within the contemplation of section 202 of the Act[19].
Where there are more trade unions than one in an establishment, the CBA is
elected through an election procedure conducted by the intervention of Director
of Labour for a period of two years [20].
Remarkably the majority vote holder must have to receive votes not less than
one third of the total number of workers employed in such establishment[21].
It is pertinent; trade unions other than the CBA can also take part in
collective bargaining platform i.e. the participation committee[22].
Section 202(24) of the Act of
2006 enumerates the functions of a CBA of an establishment which includes-
- Undertaking collective bargaining with employer in respect of terms and conditions of employment;
- Represent all or any of the workers in any proceeding;
- Declare a strike as per the provisions of the Act;
- To conduct cases on behalf of any individual worker or group of workers;
- Nominating representatives of workers on the board of trustees of various welfare funds e.g. Provident Funds and Workers participation fund.
The Platform of Collective Bargaining:
The Participation Committee[23]
is the executive forum of collective bargaining as per section 206 of the Act.
As per section 206 the functions of the committee includes -
·
To endeavour to promote mutual trust,
understanding and co-operation between the workers and the employer:
·
To ensure application of labour laws;
·
To improve and maintain safety, occupational
health and working condition;
·
To adopt measures for improvement of welfare of
workers;
·
To fulfill production target, improve
productivity, reduce production cost and wastes and raise quality of products;
·
To
develop workers commitment.
So participation committee, being
the platform of both employer and workers, bears significant role in industrial
relations mechanism under the Act. So Participation Committee is the forum to
balance the competing interests of employers and workers. The parties to the
committee are bound inter se to implement the specific recommendations
i.e. agreement reach by the parties[24].
Chapter Three
Determination of Legislative
Derogations from International and Comparative Labour Ideals
The legislative pedigree [25]of
trade unionism in the Indian sub-continent can be traced back to the Indian
Trade Unions Act, 1926. After the separation of Pakistan the Act was replaced by in
1969 by The Industrial Relations Ordinance. This Ordinance was retained by
independent Bangladesh
till 2006, when The Labour Act, 2006 was passed. Though the Act of 2006 has
brought many improvements in legal framework on industrial relations, it has
some weakness, which may frustrate the objectives of the law. In particular,
the Act does not bring any significant change regarding trade unionism,
collective bargaining and strikes[26].
1) The Requirement of Registration Amounts to
‘Previous Authorization’
The function of
an unregistered or a deregistered trade union has been prohibited in toto u/s 192 of the Act. Thus this
provision amounts to ‘previous authorization within the meaning of Article 2 of
convention no. 87 of the ILO as without such authorization i.e., registration,
unions would not be able to function[27]. So
the provision of registration is a clear derogation from the convention no.87
of the ILO. Registration is not a precondition to the formation of trade unions
in many jurisdictions of the world. For example, in the UK registration
is replaced by enlistment[28] .
Registration of trade union is also not mandatory in India [29].
2) ‘The Thirty Percent
Requirement’ negates the spirit of right to ‘freedom of association’:
The ‘thirty percent requirement’ for
registration u/s 179(2) undoubtedly violates another basic guarantee of the
workers right to freedom of association i.e., ‘establish and join organization
of their own choosing’ as mandated in Art 2 of the Convention no.87 of the ILO
and also amounts to ‘previous authorization’ within the meaning of Convention
No. 87 as even 29% workers organized
together to form an union would not be able to function as they would be denied
registration by the Registrar of Trade Unions[30].
The ILO Committee of Experts on Conventions and Recommendations (hereinafter
CEACR) has argued the need to lower the percentage[31]. In India the requirement is 10%[32],
in Pakistan
it is 20%[33]. For
new unions, this requirement is virtually a trade union ban[34]
3) Limiting the number of
unions in an establishment amounts to legislative hegemony
section 179 limits the number of
unions in an establishment to three and section 185A limits it for Chittagong
Sea Port Authority and Mongla Sea Port Authority to only one. These provisions
go against the spirit of Art.2 of the Convention no. 87 of the ILO. Provision
concerning prohibition on double or multi membership of workers also suffers the
same infirmity. The CEACR of the ILO recommends the govt. to repeal these
provisions[35].
4) The limited amplitude of
the term ‘worker’ against the right to form trade union amounts to legislative
discrimination
Exclusion of managerial and
administrative employees, fire fighting staff, telex operators and cipher
assistants from the definition of ‘worker’ [36]clogs
the avenue to exercise the right to form trade union and collective bargaining
for these employees. Apparently this provision goes against the spirit of
Article 38 of the constitution. The CEACR recommends to alienate this discrimination[37].
5) The
Chance to interfere with the Internal Trade Union Activities is Obvious
Section 196 while defining unfair
labour practice on the part of the employer states inter alia an act aimed at ‘intimidating’ any
person to become, continue to be or cease to be a trade union member or officer
, or “inducing” any person to cease to be a member or
officer of a trade union by conferring or offering to confer any advantage. The
CEACR[38] considers that the terms “intimidating” or “inducing” are
too general and do not sufficiently safeguard against interference in internal
trade union affairs, since, for instance, a common activity of trade unions is
to recruit members by offering advantages, including with regard to other trade
unions.
6) Lack of legislative
protection against acts of interference
Though section 195 provides some
protection to the workers by defining some unfair labour practice on the part
of the employer, however, does not contain a prohibition of acts of
interference designed to promote the establishment of workers’ organizations
under the domination of employers or their organizations, or to support
workers’ organizations by financial or other means, with the object of placing
them under the control of employers or their organizations[39].
Politicization or political affiliation of trade unions prevents them from
becoming strong partners in collective bargaining and causes the loss of its
distinct identity[40].
It is submitted that, a provision should be inserted in Section 195 prohibiting
political affiliation of trade unions.
7) Legal requirement to
collective bargaining
The provision of section 202(15),
namely, if there is more trade union than one in an establishment, no trade
union shall be declared to be the collective bargaining agent unless it obtains
the votes of at least one-third of the employees in a secret ballot, goes
against the spirit of Article 4 of the Convention no. 98 of the ILO and may
impair the development of free and voluntary collective bargaining[41].
8) Legislative dilemma regarding unregistered
trade unions
Present status of unregistered
trade union is paradoxical, for the Act does not bar the formation of an
unregistered trade union, while section 192 bars its functioning. Moreover,
this section prohibits fund collection by an unregistered trade union. These
provisions contemplate emergence of sui juris trade unions ab initio,
which is almost an impracticable idea[42].
The wider constitutional aspect of formation and continuation of an association
is totally absent in these provisions[43].
9) Limiting the right to strike from
different dimensions affect the right to bargain collectively
The Act provides for
multi-dimensional restrictions on the right to strike such as , requirement for
three-quarters of the members of a workers organization to consent to a
strike(sec. 211); prohibition of strikes for a period of three years from the
date of commencement of production in a new establishment, or an establishment
owned by foreigners (sec.211(8) ) ;
possibility of prohibiting strikes at any time if a strike is considered
prejudicial to the national interest (211) or involves a public utility service
including the generation, production or supply of gas and oil to the public, as
well as railways, airways, road and river transport, ports and banking(211).
The right to strike being incidental to the right to bargain collectively is
protected by ILO labour values especially, Articles 2 and 3 of the ILO
Convention no.98. These gross restrictions on worker’s right to strike severely
undermine Bangladesh ’s
international obligations. The CEACR [44]recommends
repealing these discrepancies.
10) Part-time leaders in trade unions
Article 180 prohibits anyone from
being an officer of a union if he or she is “not employed or engaged in that
establishment in which the trade union is formed.” This eliminates the
possibility of having full-time trade union leaders from either within or
outside the industry. This provision is clearly inconsistent with principles of
freedom of association and should be amended[45].
Chapter:
Four
Conclusion
In spite of the ratification of
the core ILO conventions by Bangladesh ,
the legislative passivity to incorporate these values in domestic legislation
has been apparent for many decades. The latest legislation on industrial
relations namely, The Bangladesh
Labour Act, 2006 inherits almost all
the provisions of its predecessor i.e. The Industrial Relations Ordinance, 1969
flouting numerous ILO recommendations to amend the existing laws on trade
unionism and industrial relations. This
passivity causes in the negation of the exercise of the right to form
association at workplace and to bargain collectively. Empirically legislative black hole always
results in industrial unrest. So, for the sake of our national economy the
government should take initiative to update the legislation as per the labour
values of the day.
[1] Islam,
M.,Constitutional Law of Bangladesh, Mullick Brothers ,2009,p230
[2] vide the
preamble of the Constitution of the ILO,1919
[3] Infact,
the erstwhile Pakistan
ratified this convention in 1952. The obligations invests on Bangladesh on
its independence by the Laws Continuance Enforcement Order,1971.
[4]
vide sec.206, The Bangladesh Labour Act,2006
[6] Pouget,Emile,
The Basis of Trade Unionism, available
at: http://www.fondation-besnard.org/article.php3?id_article=107
[7] Dhar,
Nirmalendu, Labour and Industrial Laws of Bangladesh, ReMiSi
Publications ,p.257
[8] this
principle was reaffirmed in the Declaration of
Philadelphia
in 1994,the international labour conference stated ‘freedom of expression and
of association are essential to sustained progress.’
[10] vide
Section 2(Lii) of The Bangladesh Labour
Act,2006
[11]
Article 2 of The Collective Bargaining Convention no. 154 of the ILO
[12]
Referred in Marry Sur, Collective Bargaining, 1965,p.4,available at www.oakadvocates.co.ke/userfiles/COLLECTIVE
LABOUR RELATIONS.pdf
[13] Article
38 of the Constitution of the People’s Republic of Bangladesh
[14] Trade
unionism in EPZ is regulated by The EPZ Worker’s Association and Industrial
Relations Act, 2004
[15]
Faraque, Dr. Abdullah-Al, Current Status and Evolution of Industrial relations
System in Bangladesh, International Labour Organization, 2009, p.20
[16] section
195 clause(a) to clause (e) provide that the terms and conditions of employment
shall not be prejudiced by trade union activities of a worker.
[17] Clauses
(f) to (k) of section 195.
[18]
Articles 1 and 2 of the Right to Organize and Collective Bargaining Convention
(Convention no. 98 of the ILO). Bangladesh
ratified this convention on May
26, 1952 .
[19]
However, where there is only one trade union in an establishment, it is, ipso
facto the CBA for that establishment u/s 202(1).
[20] Section
202 of the Act of 2006.
[21] Ibid
[22]
‘Participation committee’ is a committee composed of both employers and workers
representatives u/s 206 of the Act.
[23] Ibid
[24] Section
208
[25]
Khan, Dr. Borhan Uddin , supra note 8, p.29
[26]
Faruque, Dr. Abdullah-al, supra note 15, p.12
[27] Khan,
Dr. Borhan Uddin, supra note 8,
p.36; See also Islam, Dr. Farmin, ‘Paper Rights Revisited’, The Dhaka
University Studies, Part-F,Vol.XV,(1): 127-170, June 2004, p.160
[28] Section
3 of the Trade Union and Labour Relations (Consolidation ) Act, 1992, cited in
Ahmed, Kawser, The Freedom of Association and Trade Union Right in Bangladesh,
Volume Two 2004, Journal of Law,P.43
[29] Cited
in Vikram Shroff and Akshay Bhargav, TRADE UNIONS ACT AND STATE LAWS PROVIDE LEGAL
PROTECTIONS TO TRADE UNIONS IN INDIA
[30]
Khan, Dr. Borhan Uddin, supra note 8, p.37
[31] CEACR:
Individual Observation concerning
Freedom of Association and Protection of the Right to Organize
convention,1948(no.87) Bangladesh ,
published:2008, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2289780
[32] supra
note 29
[33] cited
from http://m.paycheck.pk/main/labour-laws/trade-union
[34] Jakir Hossain et al. , Bangladesh
[35] supra
note 31
[36] Section
2(65) read with section 175 of the Act
[37] supra
note 31
[38] supra
note 31
[39] CEACR
observation on the Right to Organize and
Collective Bargaining Convention,1949( No.98)-Bangladesh (Ratified: 1972),
available at http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2289787
[40]
Faruque, Dr. Abdullah-al, supra note 15,p.24
[41] supra
note 38
[42] Ahmed,
kawser, Supra note 28, p.43
[43] ibid, o biter observation in the case
of Secretary of Aircraft Engineers of Bangladesh
[44] Supra
note 31
[45] International
Trade Union Confederation (ITUC) addressing the Prime Minister of Bangladesh
while requesting to reform the Bangladesh Labour Act, 2006, accessed at: http://www.ys.no/kunder/ys/mm.nsf/lupgraphics/Reform%20of%20the%20Bangladesh%20Labour%20Act%20of%2020062.pdf/$file/Reform%20of%20the%20Bangladesh%20Labour%20Act%20of%2020062.pdf
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