1Working hours, leave and holidays, maternity benefit in Bangladesh
Labour Act, 2006: A comparative study
-: Table of Contents:-
. Abstract………………………………………………………………………………...1
2. Working hours
(i)
Daily Limit……………………………………………………………………..2
(ii)
Weekly Limit…………………………………………………………………..3
(iii)
Maximum working
hours……………………………………………………...4
(iv)
Overtime………………………………………………………………………..4
(a)
Prohibitions and limitations on
overtime work………………………..5
(b)
Overtime
compensation…………………………………………………6
(v)
Rest and
Break………………………………………………………………….6
(vi)
Practical stance in Bangladesh…………………………………………………8
3.
Leave and Holidays
(i)
Weekly
holidays………………………………………………………………..8
(ii)
Casual
Leave…………………………………………………………………….9
(iii)
Sick Leave……………………………………………………………………….9
(iv)
Annual Leave with
wage………………………………………………………10
(v)
Limit of Annual Leave…………………………………………………………11
(vi)
Festival
Leave…………………………………………………………………..12
(vii)
Procedure for
Leave……………………………………………………………13
(viii)
Unauthorized
Leave……………………………………………………………13
4.
Maternity Benefit………………………………………………………………………14
5.
Implementation of maternity benefit
in Bangladesh…………………………………15
6.
Miscellaneous sections of chapter 9
of the Labour Act,2006…………………………16
7.
Incompleteness………………………………………………………………………….19
8.
Recommendations………………………………………………………………………20
9.
Concluding
remarks…………………………………………………………………….20
Abstract:
Labour laws play very crucial role in the industrial relation system.
The British law of master and servant is the foundation of labour law. Actually
enactment of labour law was the demand of time for the regulation of the labour
business in the country. The labour law system is
more than a century old in Bangladesh. The first labour law was enacted in the
Indian sub-continent during the British period, in 1881. Subsequently, the
British Government introduced several laws concerning different labour issues,
e.g., working hour, employment of children, maternity benefit, trade union
activities, wage, etc. After the separation of the Indian sub-continent in 1947,
almost all the laws during the pre-partition period were kept in force with
some modifications and amendments, in the form of administrative rules, by the
Pakistan Government. After the independence in 1971, the Bangladesh government
retained the previous laws through the Bangladesh Laws Order (President's Order
No. 48). It also enacted additional laws in response to the changing
circumstances and needs of the working class and the country. In 2006, the
country adopted the revised Bangladesh Labour Law of 2006.
The Bangladesh Labour Act, 2006 is fairly
comprehensive and progressive. The law is a consolidation and updating of the
25 separate acts. The comprehensive nature of the law can immediately be
gleaned from its coverage -- conditions of service and employment, youth
employment, maternity benefit,
health hygiene, safety, welfare, working
hours and leave, wages and payment, workers' compensation for injury, trade
unions and industrial relations, disputes, labour court, workers' participation in companies
profits, regulation of employment and safety of dock workers, provident funds,
apprenticeship, penalty and procedure, administration, inspection, etc. These are the most comprehensive legal structures for
labour welfare and protection in the world. This paper traces the regulation of
labour law relating to working hours and leaves with holidays and maternity
benefit finding out the national standards corresponding with the international
standards and some other contrasting views.
1. Working Hours:-
Most labour law regimes mandate
statutory limits on working hours. Initially, the imposition of hours limits
was intended to ensure a safe and healthy working environment and adequate rest
or leisure time between shifts. Over the last century, however, hours limits
increasingly came to be seen as a way of advancing the additional policy goals
of allowing workers to balance their paid work with their family
responsibilities and other aspects of their lives, promoting productivity and
reducing unemployment. In our country, the Labour Act, 2006 enumerates daily
and weekly basis of working hours with the hours for overtime and their
payment. In this paper it is earnestly tried to focus on the working hours so
stated in the Labour Act, 2006 with the international standard along with the
working hours in different countries.
1.1 Daily limit:
(i) International
standards
Daily working hour limits are a
feature of Conventions Nos. 1 and 30, both of which provide for an 8-hour limit
on normal hours. Convention No. 47 and Recommendation No. 116 do not provide
for daily limits, the 40-hour week being considered an adequate guarantee of a
working day of 8 hours or less[1]. Under
the international standards, daily hours can be averaged within the 48-hour
week, allowing the 8-hour limit to be extended to 9 hours in industry
(Convention No. 1)19 and 10 hours in commerce (Convention No. 30).
(ii) National standards
The Labour Act, 2006: as per
section 100, 8-hour day is the daily work limit but it may not exceed 10-hour
day subject to the satisfaction of section 108.
The 8-hour day
The two-third majority of the world’s
countries provide for a limit of 8 hours in a day. The exceptions are that have
a 9-hour limit (Democratic Republic of the Congo, the Netherlands, Norway,
Spain and mainland United Republic of Tanzania); Chile, which has a limit of 10
hours; and the three countries in which different limits apply to 5-day and
6-day workweeks, Indonesia (8 hours and 7 hours), Namibia (9 hours and 7½
hours) and South Africa (9 hours and 8 hours).
1.2 Weekly limit:
(i)
International standards
The initial working hours
standards adopted by the International Labour Organization, the Hours of Work
(Industry) Convention, 1919 (No. 1), and the Hours of Work (Commerce and
Offices) Convention, 1930 (No. 30), mandate a maximum on normal (pre-overtime)
hours of 48-hour week. The more recent approach at the international level,
reflected in the Forty-Hour Week Convention, 1935 (No. 47), and the Reduction
of Hours of Work Recommendation, 1962 (No. 116), is the promotion of a 40-hour
week as a standard to be realized, progressively if necessary, by ILO member
States.
(ii) National standards
The Labour Act, 2006: as per
section 102, 48-hour week is the limit for the adult worker but subject to the
satisfaction of section 108, it shall not exceed 60-hour week in case of the
inclusion of overtime.
The 40-hour week is now the most prevalent
weekly hours standard. Almost half of the 103 countries reviewed for this
report have adopted a normal limit of 40 hours or less. Among the others, there
is an almost even split between limits of 42 to 45 hours and the 48-hour week,
while only two have weekly limits of more than 48 hours. There are, however,
substantial regional differences in the legislated weekly hour limits. The
majority of industrialized countries impose a limit of 40 hours. These include
half of the EU-15[3], Canada,
Japan, New Zealand, Norway and the United States. Two countries have a lower
threshold: Belgium (38 hours) and France (35 hours). In central and eastern
Europe, the 40-hour limit has a similarly strong hold: it is a feature of the
law in all 10 of the countries covered by this report. African labour laws also
favor the 40-hour week. Almost half of these countries have a limit of 40 hours
or less. One third has a limit in the 42 to 45 range, and only three permit a
normal working week of more than 45 hours: Mozambique and Tunisia (48 hours)
and Kenya (52 hours). In Latin America, the 48-hour standard is more dominant
than in other regions. More than half of these countries have enacted a 48-hour
limit. The next most prevalent limit is of 44 to 45 hours, with only Ecuador
having a 40-hour week. In Asia, the 48-hour limit is also dominant, although
not to the same extent as in Latin America. Six of the 11 Asian countries that
have enacted a general hour limit have selected this standard. The others
legislate a 40-hour week, with the exception of Singapore, which has adopted a
44-hour limit.
1.3 Maximum hour limit:
Labour law regimes limit total daily and
weekly hours, including overtime, with the aim of averting the harmful
consequences to health, safety and family life of working very long hours.
These maximums represent the ultimate legislated limit on working time. Their
significance is dependent on the regime in which they are located. In a number
of western European countries, collective agreements tend to prevent working
hours from approaching the level of the legislated maximums. In other
countries, however, maximum limits function as the final regulatory barrier
against excessive working hours.
(i)
International
standards
The international standards view
normal hour limits as the primary restriction on working hours and overtime
hours as exceptional. For this reason, maximum limits are not a central feature
of the international regulatory regime. The standards do not specify a daily
rest period or a maximum on total daily or weekly hours. However, although the
international instruments do not mandate specific limits on overtime hours,
they require that a limit be in place at national level.
(ii)
National
standards
The Labour Act, 2006 states in
section 102 that the weekly limit of the working hours shall not exceed 60-hour
and on the average 56-week per year but for the road transport worker is shall
not exceed 150-hour per year.
1.4 Overtime:-
Statutory limits on overtime work serve
the same policy objectives as those on normal hours: preserving health and
safety and ensuring workers have adequate time for their lives outside of paid
employment. The regulation of overtime work, however, takes a number of
different forms in addition to direct limits. Some laws limit the circumstances
in which overtime can be resorted to by mandating criteria for when it can be
performed or the procedures that should be followed before it is introduced. In
some countries, overtime is prohibited for certain groups of workers, who are
seen as at particular risk from working beyond normal hours. When overtime is
permitted, most laws limit the number of hours that can be worked and provide
for compensation in the form of either enhanced wages or an equivalent rest
period.
(i)
International standards
The Hours of Work (Industry) Convention, 1919
(No. 1), Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), and
Reduction of Hours of Work Recommendation, 1962 (No. 116), address overtime
work as an exception to the normal hours limits. They specify certain
circumstances in which it can be permitted, classified as either permanent or
temporary exceptions. The former include preparatory or complementary work,
‘intermittent’ work, such as caretaking, and work in the public interest. The
temporary exceptions are tailored more towards allowing firms to respond to
urgent circumstances, for example to deal with exceptional workloads, accidents
or force majeure; to perform urgent work on machinery or plant; and to make up
for time lost during stoppages caused by incidents such as accidents,
interruptions to the power supply, bad weather or a shortage of materials. The
Conventions on hours of work require signatory states to issue regulations
specifying the circumstances under which overtime can be performed, after
consultation with employers’ and workers’ organizations. These regulations are
required to set a limit on overtime hours. These regulations are required to
set a limit on overtime hours. Although these limits are not specified in the
Conventions, the ILO’s Committee of Experts on the Application of Conventions
and Recommendations has stated that they must be reasonable and in line with
the Goals of the standards.
(ii)
National
standards
The Labour Act, 2006: as per
section 108, beyond the daily working hours limit, 8-hour day, is the overtime
and section 102 stipulates that the adult workers may work up to 60-hour week
exceeding 48-hour week normal working hour
for the overtime. It was held in
the case of General Manager, Jumana Oil
Company Ltd. Vs. Labour Court Chittagong (1991) 51 DLR (AD) 91 that any
time stipulated for the work is the normal time of working hour but any other
time of work beyond the settled and
stipulated working hours will be overtime and the allowance of which will
be governed by the prescribed manner of the statute.
1.4.1 Prohibitions and limitations on overtime work
(i)
International standards
The international standards do not
prohibit or limit the participation of designated groups of workers in overtime
work. The Reduction of Hours of Work Recommendation, 1962 (No.116), however,
calls for consideration to be taken when arranging overtime work to the special
circumstances of young workers, Pregnant and nursing women and handicapped
workers.
(ii)
National
standards
The Labour Act, 2006 does not
incorporate any such prohibition regarding the prohibition and the limitation
as to overtime work rather limits the overtime work hour.
1.4.2 Overtime compensation
(i)
International standards
The international standards
require that overtime work be remunerated at a premium rate of not less than 25
per cent above the ordinary wage[4].
(ii)
National
standards
The Labour Act, 2006 according to
section 108 it is stated that in respect of overtime work a worker is entitled
to get allowance at rate of twice his ordinary rate of basic wage and dearness
allowance and ad hoc or interim pay.
1.5 Rest and Break
In addition to limiting the number of permissible daily and weekly
working hours, labour laws can also provide for rest breaks during the working
day, to allow workers to rest and take meals. Daily rest periods can also be
required, which function in the same way as hours limits, to limit the working
day and provide for adequate rest between shifts. Finally, labour laws usually
provide for a weekly rest day, both to ensure a substantial rest period during
the working week, and also to allow workers to spend time with family, friends,
in religious observance and with the community as a whole.
(i)
International
standards
The international standards do not
provide for rest breaks during the working day and mandate hours limits rather
than daily rest periods. In contrast, the weekly rest period is enshrined in
the international working time regime. The Weekly Rest (Industry) Convention,
1921 (No. 14), and Weekly Rest (Commerce and Offices) Convention, 1957 (No.
106), require a rest period of at least 24
hours each week. Wherever possible, this rest period should be granted
simultaneously to the whole of the staff of an establishment and fixed so as to
coincide with traditional or customary days of rest. The Conventions permit
certain exceptions from the entitlement to the weekly rest day, to be
compensated by an equivalent rest period.
(ii)
National
standards
The Labor Act, 2006 postulates in
section 101 the following limit of rest and break-
(a) For more
than 6-hour work in any day a worker has been allowed an interval of at least
one hour.
(b) For more
than 5-hour work in any day a worker has been allowed an interval of at least
half an one hour.
(c) For more
than 8-hour work in any day a worker has been allowed an interval of at least
one hour or half an one hour.
|
Country
|
Daily normal work limit
|
Weekly normal work limit
|
Overtime limit
|
Minimum overtime premium
|
Maximum daily rest period
|
Weekly maximum hour limit
|
Daily maximum limit
|
|
1.Japan
|
8-hours
|
40-hours
|
None
|
25 per cent
|
None
|
None
|
None
|
|
2.United States
|
8-hours
|
40-hours
|
None
|
50 per cent
|
None
|
None
|
None
|
|
3.Russia
|
None
|
40-hours
|
4 hours in 2 days and 120 hours
per year
|
50 per cent (first 2 hours)
100 per cent
(subsequent
Hours)
|
None
|
42 hours
|
None
|
|
4.South Africa
|
9 hours (5-day
workweek)
8 hours (6-day
workweek
|
45 hours
|
3 hours per day
and 10 hours per
workweek
|
50 per cent
|
12 hours
|
55-hours
|
12 hours (5-day
workweek)
11 hours (6-day
workweek)
|
|
5.China
|
8 hours
|
40 hours
|
1 hour per day, 3
hours per week
and 36 hours per
month
|
50 per cent
|
Unidentified
|
49 hours
|
9 hours
|
|
6. India
|
No universal
|
No universal
legislation
|
No universal
legislation
|
No universal
legislation
|
No universal
Legislation
|
No universal
legislation
|
No universal
legislation
|
8-hour
work, OT rules hardly followed.All the
garments workers said that they work more than eight hours daily. Sometimes
they work 13-14 hours a day. There are workers who even work extra five hours
of daily OT. About one-third (33.5%) of the garments workers do not know the OT
rate, with 13 per cent of the respondent garments workers getting less than
Tk.10 for every hour of OT work against the minimum Tk.10.80 per hour OT work.
For the construction workers, work hours range at 8-12 hours.
Weekly
rest day and leaves not observed. Many
garments workers do not have the chance to enjoy weekly rest day. Most workers
get festival leave but employers often impose conditions to enjoy the leave.
Legal provisions on casual leave, sick leave and annual leave are widely
violated. Sometimes some employers make wage/salary deductions for the workers
to enjoy weekly rest day, casual leave, sick leave and festival leave. In the
construction industry, most workers do not have the chance to enjoy these
leaves as the compensation policy is simply ‘no work, no pay’. Workers are
entitled to rest and meal in a day as follows:
(i)
one hour interval for over six hours work a day;
(ii)
half an hour interval for more than five hour work; and
(iii)
one hour interval once or half an hour interval twice for more
than eight hours works a day.
2. Leaves and Holidays
In Labor Law ‘Leaves and Holidays’ is an important issue and fundamental
as well. An employee normally along with holidays is entitled to the following
leaves:
Weekly Holy day
Casual leave
Sick leave
Festival leave
Annual leave and
As per the Maternity Benefit Act
of 1939 (now stands repealed), maternity leave with full pay. But we shall
endeavour to focus on the above five types.
An adult worker employed in an
establishment-
(a) which is a shop or commercial establishment, or industrial
establishment, shall be allowed in each week one and half days holiday and in
factory and establishment one day in a week;
(b) which is a road transport
service, shall be allowed in each week one day’s holiday of twenty four consecutive
hours; and no deduction on account of such holidays shall be made from the
wages of any such worker. The weekly Holydays Act of 1942 prescribes one paid
holiday a week for persons employed in any shop, restaurant theater(excepting
those employed in any a confidential capacity or in a position of
management)The government is empowered to grant additional half- holiday with
pay in a week[9].
Compensatory weekly holiday[10]: Where, as a result of the passing of an order or the making of a
rule under the provisions of this act exempting an establishment or the workers
therein from the provisions of section 103, a worker is deprived of any of the
weekly holidays provided for in that section, he shall be allowed, as soon as
circumstances permit, compensatory holidays, of equal number to the holidays so
deprived of.
2.2Casual leave:
Situations like sudden illness,
minor accidents, urgent purposes pave the eligibility of casual leave. It
should be obtained on prior application unless the urgency prevents the making
of such application. Casual leave is availed under section 115 of Labor Act,
2006. It is given with full wages for ten days in a year and will not be
carried forward to the succeeding year.
Other existing labor and
industrial law regarding casual leave are same.
2.3Sick leave:
Normally sick leave is availed of
in support of a medical certificate.
According to Section 116 of the Labour Act, 2006 No such leave shall be
allowed unless a registered medical practitioner appointed by the employer or,
if no such medical practitioner is appointed by the employer, any other
registered medical practitioner, after examination, certifies that the worker
is ill and requires sick leave for cure or treatment for such period as may be
specified by him. Such leave shall not
be accumulated and carried forward to the succeeding year. Every worker other
than a newspaper worker shall be entitled to sick leave with full wages for
fourteen days in a calendar year. Every newspaper worker shall be entitled to
sick leave with half wages for not less than one-eighteenth of the period of
service.
.
The Factories Act, 1965 Sub-Section (2) of
Sections 80 Provides as follows:
Every worker shall be entitled to fourteen days' sick leave on half-average wages in a year.
Again, Section 16 of the Shops and
Establishments Act, 1965 says that Every worker shall be entitled to sick leave
With full wages for a total period of fourteen days in a year; if such leave
not availed of by any worker during a calendar year may be carried forward, but
the total accumulation of such leave shall not exceed twenty-eight days at any
one time.
2.4 Annual leave with wages:
Section 117 of Labour Act, 2006
deals with annual leave. Normally, a worker, who completes one year of
continuous service in an establishment, are allowed during the subsequent
period of twelve months leave with Wages for a number of days calculated at a certain
rate. Normally the rate for adult is:
(a) in case of a shop or
commercial or industrial establishment or factory or road transport service,
for every eighteen days of work ;
(b) In the case of tea plantation,
for every twenty two days of work;
(c) In case of a newspaper worker,
for every eleven days of work performed by him during the previous period of
twelve months.
In
cases of Workers who are not adult:
Workers who have completed one
year of continuous service in an establishment, shall be allowed during the
subsequent period of twelve months
leave with wages for a number of days calculated at the rate of one day—
(a) in case of a factory, for
every fifteen days of work ;
(b) In case of a tea plantation,
for every eighteen days of work;
(c) In the case of a shop or
commercial or industrial establishment, for every fourteen days of work
performed by him during the previous period of twelve months.
A period of leave allowed under this section
shall be inclusive of any holiday which may occur during such period. If a
worker does not, in any period of twelve months, take the leave to which he is
entitled under sub-sections (1) or (2) of Section 117, either in whole or in
part, any such leave not taken by him shall be added to the leave to be allowed
to him, in the succeeding period of twelve months.
According to Section 7 of the
Newspaper Employees (Conditions of service) Act, 1974,
Every working journalist shall be entitled to
Earned leave on full wages for not less than one-eleventh of the period spent
on duty;
2.5 Limit of annual leave:
(1) An adult worker shall cease to
earn any leave under this section, when the earned leave due to him amounts to-
(a) In the case factory or road
transport service, forty days;
(b) in the case of tea plantation or shop or commercial or industrial
establishment, sixty days;
(2) An adolescent worker:
Will cease to earn any leave under this section, when the earned
leave
(a) in the case of a factory or tea plantation, sixty days;
(b) in the case of a shop or
commercial or industrial establishment, eighty days.
Any leave applied for by a worker but refused
by the employer for any reason, shall be added to the credit of such worker
beyond the aforesaid limit.
Section 27 of the Tea Plantation
Labor Ordinance, 1962[11]
prescribes that Every worker shall be allowed leave with wages for a number of
days calculated at the rate of-
Adult: one day for every thirty
days of work performed by him;
A young person: one day for every twenty days
of work performed by him. A worker shall cease to earn any leave under this
section when the leave with wages due to him amounts to thirty days.
For the purpose of this section a worker shall
be deemed to have completed a period of continuous service in an establishment
notwithstanding any interruption in service during that period due to -
(a) Any holiday;
(b) any leave with wages ;
(c) any leave with or without
wages due to sickness or accident;
(d) any maternity leave not
exceeding sixteen weeks ;
(e) any period of lay-off;
(f) a strike which is legal or a
lock-out which is not illegal.
2.6Festival Leave:
Section 118 of the Bangladesh
Labour Act, 2006 prescribes that every worker shall be allowed in a calendar
year eleven days of paid festival holidays. The days and dates for such
festivals shall be fixed by the employer in such manner as may be prescribed.
A worker may be required to work on any
festival holiday, but two days' additional compensatory holidays with full pay
and a substitute holiday shall be provided for him in accordance with the
provisions of section 10.
The Shops and Establishments Act 1965, and the
Factories Act, 1965 prescribes ten days festival holiday with full pay.
(1) For the leave or holidays allowed to a
worker under the provisions of this Act, he shall be paid at the rate equal to
the daily average of his full time wages including dearness allowances, and
ad-hoc or interim pay, if any, for the days on which he worked during the month
immediately preceding this leave but excluding any overtime allowance and
bonus:
P Provided
that if a worker in any establishment is entitled to cash equivalent of any
advantage accruing from the supply of food grains, it shall be included in his
wages.
(2) A worker who has been allowed
annual leave for a period of not less than four days in the case of an adult
and five days in the case of an adolescent, at any time, shall, in so far as it
is practicable, be paid his wages for the period of the leave so allowed,
before his leave begins.
“For the leave or holidays allowed
to a worker under the provision of this Act, he shall be paid-
(a) in case of leave with full wages, at the
rate equal to the daily average of his full time earnings, including dearness
allowance, if any, for the days on which he worked during the month immediately
preceding his leave, but excluding any over-time earnings and bonus; and
(b) in case of leave with half-average
wages at the rate equal to half 0f the daily average of his earnings calculated
in the manner provided in clause (a).
(1)A worker who desires to obtain
leave of absence has to apply to the employer for the same in writing stating
his leave address therein.
(2) The employer or his authorized
officer shall issue orders on the application within seven days of the
application or two days prior to the commencement of leave applied for,
whichever is earlier;
Provided that if due to urgent
reasons the leave applied for is to commence on the date of application or
within three days thereof the order shall be given on the same day.
(3) If the leave asked for is
granted, a leave pass shall be issued to the worker.
(4) If the leave asked for is
refused or postponed the fact of such refusal or postponement, and the reasons
thereof shall be communicated to the worker before the date on which the leave
was expected to be commenced and shall also be recorded in a register to be
maintained by the employer for the purpose.
(5) If the worker, after
proceeding of leave, desires an extension thereof, he shall, if such leave is
due to him, apply sufficiently in advance before the expiry of the leave to the
employer who shall, as far as practicable send a written reply either granting
or refusing extension of leave to the worker to his leave-address.
If the service of a worker, to
whom any annual leave is due, is dispensed with whether as a result of retrenchment,
discharge, removal, dismissal,
termination, retirement or by
reason of his resignation before he has availed of any such leave, the employer
shall pay his wages in lieu of the unaveiled leave at the rate he is entitled
to the payment of wages during the period of leave in accordance with the
provisions of those laws and such payments shall be made before the expiry of
the second working day after the day on which his employment is dispensed with.
2.8 Unauthorized Leave:
Section 23 deals with Unauthorized
leave. Unauthorized leave is misconduct[17]. Clause
(d) of sub- section (4) of section 23 provides that absence without leave for
more than ten days is a kind of misconduct. For such misconduct a worker may be
dismissed under section 23 of the code. Thus to dismiss a worker for
unauthorized leave on the ground of misconduct, the worker must be absent
without leave for more than ten days. If a worker is absent without leave for
ten days or less, he cannot be dismissed under section 23 in the ground of
misconduct.
Absence without leave for more than ten days may constitute misconduct
for which a worker may be dismissed from service. In that event a proceeding is
required to be drawn under the law to comply with the rule of principle of
natural justice[18]
Ramoalosi
vs. Brikor (Pty) Ltd, GAPT1713-07 SAACAWU, Where the respondent claimed that the
applicant had failed to inform it of his whereabouts. It indicated that it had
a policy which states that unauthorised absence from work for a period of ten
or more consecutive days is a dismissible offence. According to the respondent,
all employees were aware of the policy. The respondent denied refusing the
applicant to call witnesses. It argued that the applicant’s witnesses were on
leave and he was advised to postpone the hearing, but had refused to do so. It
also claimed that the applicant had deliberately stayed away from working
because of the pending investigation.
In the case of KRUSHNAKANT B. PARMAR vs. UNION
OF INDIA & ANR, CIVIL APPEAL NO.2106 OF 2012, it was held that absence from
duty without any application or prior permission may amount to unauthorized
absence, but it does not always mean willful. There may be
different eventualities due to which an employee may abstain from duty,
including compelling circumstances beyond his control like illness, accident,
hospitalization, etc., but in such case the employee cannot be held guilty of
failure of devotion to duty or behavior unbecoming of a Government servant. If
the absence is the result of compelling circumstances under which it was not
possible to report or perform duty, such absence cannot be held to be willful.
3. Maternity Benefit:
There has been a significant
increase in the participation of women in the workforce of Bangladesh over the past
few years. At present the women workers account for one-fourth, that is 12.1
million, of the total labor force of 49.5 million in Bangladesh[19].There
have also been important legal reforms through the adoption of Labor Act, 2006
which removes certain ambiguities in the old, diverse labor laws and
amendsoccupational safety issues like maternity benefits, health and hygiene,
compensation for injuries etc.
The Labor Act, 2006 repeals three
previous Acts relating to maternity benefits-The Maternity Benefit Act, 1939,
The Mines Maternity Benefit Act, 1941 and The Maternity Benefit (Tea Estate)
Act, 1950 and incorporates almost all the provisions of these Acts in Chapter
IV.
Section 2(xxxiv) of the Act
defines maternity benefit as the sum of money payable under the provisions of
Chapter IV to a woman worker with leave.
Section 45(1) of the Act prohibits
an employer to employ a woman during the eight weeks immediately following the
day of her delivery.Section 45(2) prohibits a woman employee to work in any
establishment during the eight weeks immediately following the day of her
delivery. Section 45(3) puts restriction in employing any woman for certain
arduous work if she is likely to be delivered of a child within 10 weeks or has
been delivered of a child within previous 10 weeks.
In Section 46 of the Labor Act
provisions have been made for maternity leave of 16 weeks (8 weeks before and 8
weeks after the delivery).It has also made the provision that this benefit
shall only be available to workers who have served under the owner for a
minimum period of 6-months prior to the notice of the probability of the
delivery.
Section 47 lays down the procedure
regarding the payment of and Section 48 the amount of maternity benefit.
Section 49 provides for the payment of maternity benefit in case of a woman’s
death. Section 50 puts restriction on employment of a woman in certain cases.
The government of Bangladesh thus
has taken a commendable initiative by extending the maternity leave to 16 weeks
from previous 12 weeks as was provided in the Maternity Benefit Act, 1939.
3.1 Implementation of Maternity Benefit Provisions in Bangladesh:
The principle purpose of providing 16 weeks
maternity leave was to combat malnutrition and to ensure that the newer
generation grows up to be much healthier both physically and mentally[20].It was
also expected to help increase the productivity and motivation of the working
women. However, the reality is that many women working in the private sector,
especially those in the garments industry and in low-paying labor-intensive
jobs, are not aware of their maternity related rights. Moreover, most
non-government organizations and readymade garments sectors do not even allow
four-months of leave for their female employees. The Institute for Global Labor
and Human Rights reports that an estimated 90 percent of the 3,870 export
oriented garment factories in Bangladesh violates women's legal right to full
paid maternity leave[21]. Some
companies harass women, force them to assume inferior position than was occupied
by them prior to the leave and even pressurize them to quit. Employers shy away
from providing a humane work environment and basic benefits because it
increases their costs. In fact, most garment factory owners prefer to employ
unmarried women for fear of pregnancy related problems, and many female workers
lie about their marital status to get the job.
A large number of temporary
government servants are also denied maternity leave and benefits in violation
of the Bangladesh Service Trust, which stipulates that maternity leave can be
granted to a temporary government servant provided that she has been in
government service for at least nine months immediately preceding the date of
delivery. Temporary female workers are denied maternity rights, even if they
have worked for a long period of time at a particular job. They are not given a
contract, so there is no proof of how long they've worked.
Kohinoor Mahmood, project
coordinator of Women Workers Development project of the Bangladesh Institute of
Labor Studies, Even the government offices such as Titas, Public Works
Department and city corporations do not provide benefits to their female staff[22].
The penalty provided for the
violation of any of the provisions of Chapter IV of the Act is maximum 5000 TK.
which is too insufficient to put any kind of pressure on the employers to
comply with the concerned provisions. Moreover, due to the lack of awareness of
the women workers, this meager remedy as also not availed of by them.
Women rights activists have tried
to address some of these issues at the national level as well as within their
own organizations through enacting gender-sensitive policies and programming.
Labor unions are no longer as active as they once used to be, and in many
crucial labor-intensive sectors there are no formal unions. Even within labor
unions, the concerns of women aren't always addressed.
Although the government has taken
a few notable initiatives over the past few years, it has failed to ensure
their implementation in different sectors of the economy. As a result, the
women workers are being deprived of these benefits. It is of utmost importance
that the government takes some measures to provide protections to the
vulnerable segment of female workers who work in the informal sector (more than
97 lakh women) and are not covered by the Labour Act 2006. Steps should also be
taken to encourage the private institutions to ensure their women workers a
developed, indiscriminate, more supportive, and gender-friendly working
environment which will carry their financial progress to an enhanced level.
4. Miscellaneous sections of Chapter 9 of the Labour Act, 2006:
Section
104 bearing the heading, Compensatory weekly holiday, states –
Where,
as a result of the passing of an order or the making of a rule under the
provisions of this act exempting an establishment or the workers therein from
the provisions of section 103, a worker is deprived of any of the weekly
holidays provided for in that section, he shall be allowed, as soon as circumstances
permit, compensatory holidays, of equal number to the holidays so deprived of.
Section105
bearing the heading, Spread over states-
The
periods of work of and adult worker in an establishment shall be so arranged
that, inclusive of his interval for rest or meal under section 101, it shall
not spread over more than eleven hours ,and subject to such conditions as be
may imposed by the Government, either generally or in the case of any
particular establishment.
Section
106 bearing the heading, Night shift, states-
Where,
an adult worker in an establishment works on a shift which extends beyond
midnight:
(a) for the purposes of section 103 a holiday for
a whole day shall mean in his case a period of twenty-four consecutive hours
beginning from the end of his shift; and
(b) the
following day for him shall be deemed to be the period of twenty-four
consecutive hours beginning from the end of this shift and the hours he has
worked after midnight shall be ecounted towards the previous day.
Section
107 bearing the heading, Restriction on cumulative hours of work on a vehicle,
states-
No
worker shall work or be allowed to work on a vehicle or two or more vehicles in
excess of the period during which he may be lawfully employed under this Act.
Section
109. Limitation of hours of work for women : No women shall,
without her consent, be allowed to work in an establishment between the hours
of 10.00PM and 6.00 AM.
Section
110. Restriction on double employment : No adult worker shall be
employed or allowed to be employed for work in more than one establishment on
any day, except on permission in writing from the chief Inspector on such terms
and conditions as he may impose.
Section
111. Notice of periods of work for adults and preparation thereof: (1) There shall be displayed and
correctly maintained in every establishment in accordance with the provisions
of section 337, a notice of periods of work for adult workers showing clearly
the periods which adult workers may be required to work.
(2)
The periods shown in he notice shall be fixed beforehand in accordance with the
provisions of this section and shall be such that workers working during such
periods would not be working in contravention of the provisions of sections,
100, 101, 102, 103 and 105.
(3)
Where all the adult workers in an establishment are required to work during the
same period, the employer, shall fix those periods generally.
(4)
Where all the adult workers in an establishment are not required to work during
the same periods, the employer, shall classify them into groups according to
the nature of their work, and indicate the number of workers in each group.
(5)
For each group which is not required to work on a system of shifts, the
employer shall fix the
period
during which the group may be required to work.
(6)
Where any group is required to work on a system of shifts, and the relays are
not on a undetermined periodical changes, the employer shall fix the periods
during which each relay of the group may be required to work.
(7)
Where any group is required to work on a system of shifts, and the relays are
or are intended to be subject to predetermined periodical changes of shifts,
the employer, shall draw up a scheme of shifts, where under the periods during
which any relay of the group may be required to work on the relay which will be
working at any time of the day shall be known for any day.
(8)
A copy of the notice shall be sent in duplicate to the Inspector before the day
on which an establishment begins work, for approval of the periods of work by
the Inspector.
(9)
The Inspector shall return a copy of the notice to the employer within one week
of its receipt,
indicating
modifications if any; the employer shall immediately comply with the
modifications, if made and shall preserve the approval in the records of the
establishment.
(10)
Any proposed change in the system of work in an establishment which will
necessitate a change in the notice shall be notified to the Inspector in
duplicate before the change is made, and, except with the previous sanction of
the Inspector, no such change shall be made,
(11)
An employer may refuse to employ a worker for any day if on that day he turns
up for work
more
than half an hour after the time fixed for the commencement of the days work.
Section
112. Special age limit for Road transport Service worker Section: (1)
No person shall be employed as driver, in an establishment which is a road
transport service unless he has attained the age of twenty one years.
(2)
No person shall be employed in an establishment which is a road transport
service in any other post unless he has attained the age of eighteen years.
Section
113. Hours of work to correspond with notice and register : No
adult worker shall be required or allowed to work otherwise than in accordance
with the notice under section 111(1) and the entries made beforehand against
his name in the register maintained under section.
Section 114. Closure of shops, etc.: (1)
Every establishment which is shop or commercial or industrial establishment
shall remain entirely closed for at least one and a half day in each week.
(2)
The one and half day on which establishments shall remain entirely closed,
shall be fixed for
each
area by the chief Inspector.
Provided
that the chief Inspector may, from time to time, refix such day for each area
in the public interest.
(3) No shop shall on any day remain open after
the hours of 8.00 O’clock post maritime:
Provided
that any customer who was being or was waiting in the shop to be served at such
hour,
may
be served during the period of thirty minutes immediately following such hour:
(4)
The Government may, on consideration of special circumstances, alter, by
notifications in the
official
Gazette, the closing hours of shops in any area in any season on such
conditions as may be imposed.
(5)
The provisions of this section shall not apply to-
(a)
docks, wharves or stations and terminal offices o transport services including
airports;
(b)
shops dealing mainly in any vegetable, meat, fish, dairy products, bread,
pasties, sweetmeats and flowers;
(c)
shops dealing mainly in medicines, surgical appliances, bandages or other
medical requisites;
(d)
shops dealing in articles required for funerals, burials or cremation;
(e)
shops dealing mainly in tobacco, cigars, cigarettes, biris, pan, liquid
refreshments,
newspapers
or periodicals sold retail for consumption in the premises, ice;
(f)
petrol pumps for the retail sale of the petrol and automobile service stations
not being repair workshops;
(g)
barbars’ and hair dressers’ shops;
(h)
any system of public conservancy or sanitation,
(i)
any industry, business or undertaking which supplies power, light or water to
the public;
(j)
clubs, hotels, restaurants, catering houses cinemas or theatres:
Provided
that where several trades or business are carried on in the same shop or
commercial establishment and, the majority of them, by their nature, are
eligible to exemption under this section, the exemption will apply to the
entire shop or commercial establishment:
Provided
further that the Chief Inspector may, by a general or special order, published
in the official Gazette, fix the opening or closing hours for any of the
foregoing establishments or class of establishment.
5. Incompleteness:
Weekly
Working Hours and maximum limit:
The 40-hour per week is now the most prevalent
weekly working hour’s standard. Almost half of the 103 countries reviewed for
this report have adopted a normal limit of 40 hours or less. As a developing
country Bangladesh has a scope to reduce the number of weekly hours under
section 102 of the Bangladesh Labour Act, 2006. Besides the maximum weekly
working hours in our country is very high which also persuades the employer to
forced labor which brings effect catastrophic effect for the adolescent and
female workers. This over-working also lowers the normal life expectancy of
workers in certain types of industries which need much more physical labour
than the other industries.
A year may be divided into two seasons:
Working
ten hours daily in Counties situated in torrid region (hot weather) especially
during summer season is really tough. Atmospheric conditions in industries like
tannery, mining, iron, chemicals, plastics, sugar, jute is normally hot and
unhealthy and if it be in summer season the workers has to work with excessive
pressure which brings frequently various types of physical abnormality to them.
Workers of such types of industries get short span of life also. Working ten
hours per day during winter season may not be too much harmful but in cases of
some industries like aforementioned, during summer season is no doubt harmful.
Thus, in section 108 of the
Bangladesh Labour Act,2006, maximum working hours should be divided in two
seasons in a year – (a) Summer and (b) Winter and during summer season the
maximum weekly working time should be reduced to 55 hours or less for a certain
types of industries which need excessive physical labour.
Article 3 of convention no. 90 of ILO:
According to that article which has been
ratified by Bangladesh, young persons under eighteen years of age shall not be
employed or work during the night in any public or private industrial
undertaking or in any branch thereof except in some cases as mentioned there.
Young workers are not matured enough to perform duty at night though are
appointed in many arduous duties in daytime. Thus, we may introduce this
provision in Bangladesh Labour Act, 2006.
No prohibition and limitation as regard to the overtime in The
Labour Act,2006[23]:
Though in the international
standards there are prohibition and limitation as to the overtime work like, the Reduction of Hours of Work
Recommendation, 1962 (No.116), however, calls for consideration to be taken
when arranging overtime work to the special circumstances of young workers,
Pregnant and nursing women and handicapped workers. But in our national legal
system there is no such provision.
6. Recommendations:
The following recommendations are
to be enacted –
(i)
40-hour work per week according to international standards.
(ii)
Monitoring cell for the supervision of daily and weekly working
hours.
(iii)
Monitoring cell for the supervision of overtime working hour and
payment of its compensation.
(iv)
Restructuring the working hours on seasonal basis.
(v)
Certain prohibition as to the overtime work of certain classes
of worker like children, pregnant women and elderly workers.
(vi)
Inclusion of paternity benefit so as to be beneficial to the
pregnant mother, as it has been incorporated in developed nation’s labour law.
Concluding
remarks:
The Labour Act, 2006 enacted
consolidating other 25 labour related laws mandating working hour, leave and
holidays along with maternity benefit and so on. This paper sought
to examine these provisions focusing both national and international labour law
system. Most of the cases the provisions relating to these in the national
labour law system are almost similar to international level. But the
implementationof our national labour law system is just opposite. Few amendments are required for removing the
incompleteness and incorporating required provisions as per the recommendations
mentioned above.
[1]ILO: Hours of work, extract from the Report of the 37th (1967) Session of the
Committee of Experts on the Application of Conventions and Recommendations
(Geneva, 1967) at paragraph 122.
[2] Deirdre McCann,
Working time laws: A global perspective, p.4.
[3]Directive
2003/88/EC of the European Parliament and of the Council of 4 November 2003
concerning certain aspects of the organisation of working time, article 6(b).
The Directive specifies the minimum working time standards that must be reflected
in the national laws of EU Member States.
[4]ILO:
Hours of work: From fixed to flexible? Report of the Committee of
Experts on the Application of Conventions and Recommendations (article 19, 22
and 35 of the Constitution) (Geneva, 2005).
[5]Deirdre McCann,
Working time laws: A global perspective, ILO publication 2005, p-53.
[6]Limits have been
enacted for certain sectors and occupations.
[7]Jakir Hossain etal. “Decent Work and
Bangladesh Labour Law: Provisions, Status, and Future Directions”, April 2010.
[9] DR. Zulfiquar Ahmed, A text book of The Bangladesh
Labour Act, 2006, second Ed.
[10] Section 104 The Bangladesh Labour Act,2006
[11] Dhar On labour and Industrial Laws of Bangladesh, first
publication, second June 2007.
[12] Section 117, The
Bangladesh Labour act,2006.
[13] Section 119 , The Bangladesh Labour Act,2006.
[14] Dhar On labour and Industrial Laws of Bangladesh, first
publication, second June 2007.
[15] Section 10 of the Labour Act, 2006.
[16] Section 11 of the Labour Act, 2006.
[18] Glaxo
Bangladesh Ld. VS. Chairman Labour Court and others 32 DLR(1980)(HCD) 134,cited from ibid.
[19]BBS (2009), Gender Statistics of Bangladesh 2008,
Bangladesh Bureau of Statistics.
[20]www.thedailystar.net/newDesign/news-details.php?nid=166513
[21]http://www.thedailystar.net/magazine/2012/04/02/special.htm
[22]http://www.thedailystar.net/magazine/2012/04/02/special.htm.
[23]Jakir Hossain etal. “Decent Work and
Bangladesh Labour Law: Provisions, Status, and Future Directions”, April 2010.
Exclusive information. Thanks for sharing.
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