Analysis of BLL, 2006-Chapter 02-Conditions of Service and Employment

Syed Belal Reza
Industrial Relations
ABSTRACT
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. The Factories Act (1881), Workmen's Compensation Act (1923), Trade Unions Act (1926), Trade Disputes Act (1929), Payment of Wages Act (1936), Maternity Benefit Act (1939), and the Employment of Children Act (1938) were remarkable labour laws enacted during the British period. The BLL 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 and 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.
Analysis of BLL, 2006 :: Chapter 02 :: Conditions of Service and Employment
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1.0
INTRODUCTION
Prior to the promulgation of the Bangladesh Labor Law 2006, the total number of Acts and Ordinances in this field was fifty, of which: o o o 15 were enacted during the British regime 23 were enacted during the Pakistan regime, and 12 were passed after the independence of Bangladesh
In accordance with the ratified ILO conventions and with a view to creating a constructive environment, for the elimination of the imbalances that prevailed in the issues regarding development of congenial relations between workers and employers, information about existing labor and industrial laws were sought from concerned stakeholders, of both home and abroad . Increase of productivity, the enhancement of favorable environment for investment, the acceleration of industrialization in the context of the changed environment during the post independence period, were also studied. To meet the aforesaid demand, the government formed a National Labor Law Commission in 1992, with a view to enacting a modern, up dated and united labor law, headed by Justice Mohammad Abdul Quddus Chowdhury, along with 37 other members representing every concerned quarter. After two years of exhaustive study, the Commission submitted its report along with a draft of the unified modern and updated labor law in 1994. Subsequently, the draft was reviewed by ILO and numerous Employers and Workers Associations and other human rights organizations in phases for the last twelve years, and at last it was promulgated on the 11th of October 2006 as Bangladesh Labor Law 2006 under the consensus of all the parties concerned.
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2.0 | MAIN LAW
FEATU RES
OF
THE
The salient features of the newly promulgated law are as follows: One single modern updated code instead of the 25 scattered Acts and Ordinances. There are 354 sections in 21 different chapters in the Law. The scope and applicability of the law has been extended and definitions of different terms have been clarified. Ambiguity regarding the age limit of a child has been eliminated. According to this law any person below the age of 14 shall be treated as a child. The issuance of an appointment letter and the Identity card for a worker has been made compulsory. Death benefits have been provided for even cases of normal deaths or in cases of any deaths due to causes other than accidents during the continuance of the service. The usual retirement age has been scheduled at 57 and at that time the worker shall be entitled to get all the benefits as are applicable under this law. Even the case of a workers voluntary retirement, after his continuous service of 25 years with his employer, is also a subject which will come under this retirement benefit. Child labor is prohibited even in nonhazardous regular work in an establishment. Appointment of adolescent and female workers is prohibited during the nights and in dangerous occupations. Maternity benefits have been increased to 16 weeks and the qualifying service length has been decreased to six months, but this benefit is limited only up to the birth of two living infants. Special importance is given on occupational health and safety and working environment. There are 78 sections exclusively on it out of a total of 354 sections in the law. Maintenance and preservation of safety record books and introduction of group insurances have been provided for. Time limits for payment of wages have been determined and a provision has been made to realize the unpaid wages through the court. Provisions have been made for the declaration of sector wise minimum wage rates after an interval of every five years. Amount of compensations in cases of death or injury because of accidents at the workplace has been increased. For deaths, the amount of compensation has been ascertained at Taka. 100,000.00 per worker and for a permanent total disability, the amount fixed is Taka 125,000.00 per worker. In case of an accident that may happen due to employers negligence, the compensation amount shall be double. No one, other than those in the
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payroll of the employer, shall be the member or officer of an establishment based basic trade union. The purview of unfair labor practices on the part of the workers, employers or the trade unions has been extended. Determination of CBA from amongst the establishment based basic trade unions has been made easier and the period of such determination has been fixed within a time frame of 120 days. Industrial or craft Federations of trade unions, under certain conditions, have been given the jurisdiction to act as CBA. Provisions have been made to form compulsorily participation committees in every establishment where 50 or more permanent workers are engaged. Labor courts shall be the only courts to adjudicate all issues under labor law and all appeals shall lie to the labor appellate tribunal. Time has been fixed for the adjudication of each and every stage of the cases in the labor court to accelerate the procedure. Only the workers employed in an establishment, irrespective of their designation and wage scale are entitled to get the benefits of the participation fund and the welfare fund developed out of the profit of the company. Provisions for provident funds have been made for the establishments run under the private management. The punishments for the breach of the provisions of the labor law have been revised appropriately. Imprisonment has also been provided for along with fines. A provision has been made to form a National Industrial health and safety council to enact the national policy to ensure the occupational health and safety at the enterprise level. Provision has been made for the strict implementation of the Equal pay for equal amount of work policy of ILO convention. Any discrimination or indecent behavior towards female workers has been prohibited under the new law. Regarding Sick Leave, it is stated that, 14 days sick leave with full average wages have been provided, in the new Labor Law. In previous laws sick leaves were paid for half average wages. For the issue of annual leave with wages, for adults one day for every 18 (eighteen) days of work performed by him/her during the previous period of twelve months. And for adolescents one day for every 15 days of work performed by him/her during the previous period of 12 months. Festival Leave are to be provided and every worker shall be entitled to eleven days festival leaves in a calendar year. The Employer shall fix the days and dates of such leaves. In the industries, Children Room is required for every 40 female workers having their children below the age of 6 years has been provided by the law. Previously it was provided for every 50 female workers. Termination of employment by the worker has been illustrated as they may terminate the employment serving a 30 days notice to the employer and a temporary worker may
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terminate it serving a notice of 30 and 14 days case wise. In lieu of the notice, the worker can even terminate the employment returning the wages for that period. Handling grievance procedure is being limited for the application of grievance has been extended to a period of 30 days, though previously it was 15 days only. Fitness certificate are to be provided in required situations, previously a fitness certificate was issued by the District civil surgeon but now it is to be issued by any registered physician at the cost of the employers. It has been made mandatory for the organizations to provide training on the labor law, which was never provided for but now in this new law, training arrangement is made compulsory for the laborers. The worker participating in the training program shall be deemed to be in his or her official duty during continuance of such training. This unified law is applicable with equal force to all the industrial and commercial establishment as previous Shops and Establishment Act1965 and other labour laws has been abrogated by the promulgation of this new labour code.
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3.0
FEATURES
BY
SECTIONS
3.1. Section 03: Service rules 3.1.1. Provisions of the new labour code: Section 3 of the new labour law allows an industrial establishment to make a service rule pursuant to the labour laws of the land. 3.1.2. Provisions of the previous labour laws: Section 3 of the Employment of Labour (Standing Orders) Act, 1965 has the same provisions as above. 3.1.3. Changes brought by the new law: No change has been made. 3.1.4. Comments: Framing of the service rules by an employer is not mandatory, but if these are made, they must comply with the relevant laws. 3.2. Section 05: Appointment Letter and ID Card 3.2.1. Provisions of the new labour code: Section 5 of the new Labour Law 2006 provides that each and every worker should be given appointment letter and ID card by their employer free of charge. 3.2.2. Provisions of the previous labour laws: Previously there was no such law. Only the Newspaper Employees (Conditions of Services) Act, 1974 and The Road Transport Workers Ordinance of 1983 made the provision of the appointment letter for their employees. 3.2.3. Comments: Rules are yet to-be-made to provide with a form of the appointment letter or ID card but from the earlier two Laws the following should be there in the appointment letter: employees name, fathers name, mothers name, spouses name and address, date of appointment, type of employment and conditions of the employment. 3.3. Section 06: Service book 3.3.1. Provisions of the new labour code: The law provides for a separate section i.e. Section 8 of the law for the entries of the service book of a labour. As per the section following entries shall be there in the service book of a labourer: Employees name, spouses name , mothers and fathers name and address Date of birth Mark of recognition Previous owner and her/his address if applicable
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Duration of the employment Occupation or designation Wages and allowances Leaves availed Conduct of the worker 3.3.2. Provisions of the previous labour laws: Employment of Labour (Standing Orders) Act 1965 does not provide any provisions related to this. Only the provisions for the maintenance of the service book were available in the Employment (Record of Services) Act 1952 and Employment (Record of Services) Rules 1957. 3.3.3. Changes brought by the new law: No significant changes are there in the provisions for the service book in the new law. But the new law makes it mandatory for the service book to be signed by both the worker and the employer. The law provides for a list of information to be maintained in the service book of each labour. 3.4. Section 04: Classification of workers 3.4.1. Provision of the new labour code: Section 4 of the new labour code of 2006 classifies the workers into following classes: a) Apprentices b) Badlies (transfer workers) c) Casuals d) Temporary e) Probationer and f) Permanent 3.5. Section 09: Probationary period 3.5.1. Provisions of the new labour law: Period of probation: Six months for the worker employed in clerical activities. Three months for other workers. If the employment of a probationer expires during the probation and if the same person is re-employed under the same employer within next three years of such employment shall be treated as a probationer and the previous period of probation shall be calculated with in new period. If a permanent worker
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starts a new job as a probationer, then during that period of probation he can be shifted to her/his permanent post during the subsequent period of probation.
3.6. Section 14: Calculation of continuous service 3.6.1. Provisions of the new labour law: Section 14 of the new labour law provides for the method of the calculation of the continuous service period of a labour for the purpose of this law in the following manner: If the actual number of the working days of a worker is 240 during the previous twelve calendar months he or she shall be deemed to be worked for a continuous period of one year. If the actual number of the working days in the previous twelve calendar months is 120 days s/he shall be deemed to be employed there for a continuous period of six months.
3.7. Section 11: Payment of wages for un-availed leave 3.7.1. Provisions of the new labour law: In case of the expiry of the specific employment of any worker by way of discharge, dismissal, termination, retrenchment or retirement, if there remains any un-availed leave of the aforesaid worker, he or she shall be entitled to get the wages of those days so un-availed. 3.7.2. Changes in the present law: Actually this was also in previous law under section 5 (4) of SO Act 1965.
3.8. Section 29: Provident Funds for workers: 3.8.1. Provisions of the new labour law: Section 264 of the Labor Law 2006, provided for an establishment of a Provident Fund if so demanded by the three fourths of the total workers employed in a factory. It may constitute for the benefits of the worker in the private sector. Such provident fund shall be constituted prescribed by the rules. The Government may make rules for constitution of provident fund.
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Such Provident Fund shall be held and administered by a Board of Trustee. Such Board of Trustee shall consist of an equal number of representatives of the employer and workers employed in the establishment, and a person nominated by the Government shall be its Chairman. Representative will be nominated by the employer and collective bargaining agent. The stated nomination shall be under the supervision of the Director of Labour. All the representatives shall hold office for a period of two years. A permanent worker shall subscribe to the fund not less than seven percent and not more than eight percent from his basic wage unless otherwise mutually agreed. In the case of provident fund one fourth of total workers will claim in writing to their employer. In order to provide provident fund the employer will establish rules within six months and the fund shall start by this period. 3.8.2. At least half of the total accumulations shall be invested for the purpose of any of the following, namely: I.C.B. Mutual Fund Certificates. I.C. B. Unit certificates and Government securities including Defense and Postal Saving Certificates 3.8.3. Also, the cost of maintenance shall be borne by the employer. The accounts of provident fund shall be audited. A statement of account together with audit report shall be forwarded to the director of Labour within one month of the submission of audit report. Where the government is satisfied, he may by order exempt the establishment from the operation of this section. A provident fund shall be deemed to be a public institution for the purposes of the Provident Funds Act, 1925 (XXIX of 1925). Establishment in private sector means an establishment which is not managed directly by the Government.
3.9. Section 19: Death benefit 3.9.1. Provisions of the new labour law: If any worker died after completing 3 (three) years continuous service with an employer, the worker shall be entitled to get benefits for 30-days wages for each completed year or service, or six-months
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thereof, or gratuity, whichever is higher. The worker shall get this benefit in addition to her/his other emoluments during the retirement. 3.9.2. Changes in the present law: This is also a new addition to the labour law as previously no labour law has provided for the death benefit except for the Wage Board award for the Newspaper worker. 3.10. Section 12: Stoppage of work 3.10.1. Provisions of the new labour law: Section 12 of the new labour law deals with the stoppage of work by the employer. As per the above-mentioned section following are the points to be noted: a) In the event of fire, other catastrophes, breakdown of machinery, epidemics, or civil commotion, or any other circumstance beyond her/his control, the employer can stop the work of a section or sections of her/his factory. b) In the event of such stoppage occurring at any time beyond working hours, the employer shall by issuing a notice in the notice board of the factory inform the labourers as and when to resume the work and whether the worker is to be present at that specific place at that time. c) The notice also mentioned that those who are ordered to be so present, and if their presence is required for an hour only, then they may not be entitled to get any benefit.
3.11. Section 18: Right of laid off workers 3.11.1. Provisions of the new labour law: Lay off: Failure, refusal or inability of an employer, on account of shortage of coal, power or raw material or the accumulation of stock or break down of machinery or for any other reason, to continue the employment to workers whose names are brought to the musterroll of the factory. Any worker, whose name is there in the muster-roll of the factory and who has completed a continuous period of one year service, if laid off, shall be entitled to get the benefits of compensation for all the days except for the weekly holidays. A badli (transfer) worker whose name is brought in the muster roll shall not be treated as badli for the purpose of the compensation under this chapter. Compensation during lay off = (Total basic + dearness allowance + ad hoc wages)/2 + the house rent he or she would get if not so laid off. No worker shall get the compensation for more than 45 days in a calendar
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year of lay off. If any worker is laid off for 15 days or more after the first 45 days of lay off in a single calendar year the employer can retrench the worker instead of lay her/him off. But, if the lay off extends beyond that 45 days up to a period of 15 more days, then the labour so laid-off shall be entitled to get benefits at the following rate: Compensation during lay-off beyond 45 days = (Total basic + dearness allowance + adhoc wages)/4 + the house rent he or she would get if not so laid-off.
3.12. Section 22: Discharge 3.12.1. Provisions of the new labour law: Discharge means the expiry of the employment of a worker on the ground of inability or incapacity because of ill health. Section 22 of the new labour code deals with the procedure of discharge. As per the section an employer can discharge a worker on the basis of the report of a Registered Physician. 3.12.2. Compensation in case of discharge: Every worker who has completed a continuous service for one year shall be entitled to get a benefit of 30 days wages for every completed year of service or the gratuity, whichever is higher.
3.13. Section 20: Dismissal 3.13.1. Provisions of the new labour law: Section 23 of the new labour law deals with the dismissal of the worker on the ground of misconduct and conviction. 3.13.2. The section makes room for the employer to dismiss a worker without serving her/him a notice or the payment in lieu thereof for the following two grounds: If the worker is convicted by any criminal court and if her/his misconduct is proved under section 24 of the labour law 2006. 3.13.3. Misconduct, as defined in that section, is, Willful insubordination, alone or in combination with others, to any lawful or reasonable order; Theft, fraud or dishonesty; Receiving or giving bribes; Habitual absence, without leave, for more than ten days; Habitual late-attendance; Habitual breach of any rule or law applicable to the establishment; Riotous or disorderly behavior; Habitual
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negligence or neglect of work; Frequent repetition of a work on which fine can be imposed; Resorting to illegal strike or go slow or instigating others to do so; Falsifying, tampering the official document of the employer. 3.13.4. Changes in the present law: The new law makes a provision of lighter punishment in case of the misconduct. Sub section 2 of section 23 says: Any worker, against whom misconduct has been charged and proved, may be punished by any of the following punishment other than dismissal from the job: Removal; Demotion to lower grade; Withholding promotion for at least one year; Withholding increment for an year; Imposition of fine; Temporary suspension without wages; Censuring and warning.
3.14. Section 26: Termination 3.14.1. Provisions of the new labour law: The employer can terminate a worker without assigning any reason whatsoever except for dismissal, etc. in the following manner as described in Section 26 of the new labour law 2006. 3.14.2. For the permanent workers: Serving 120 days notice to the workers
employed on the monthly basis. Serving 60 days notice to the other workers. 3.14.3. For the temporary workers: Serving 30 days notice to the workers employed on the monthly basis. Serving 14 days notice to the other employees. 3.14.4. Termination without any notice: The employer can even terminate the employment of a particular worker without any notice as described in the section above, if the employer pays the wages to the terminated worker for the aforesaid period of notice.
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4.0
DISCUSSION
Taken examples from practical scenarios prove that, the weaknesses of the labour law system are there. Examples of the participants in the urbanized and industrialized districts of Dhaka, Chittagong, Narayanganj and Gzipur has been considered in this paper. It appears that more than half of the workers have been working for not more than three years, with over 40 per cent of the workers in the garments industry registering a work experience of less than a year. This shows the preference of employers for the short-term hiring of young workers, particularly in the garments industry. In the construction industry, most of the workers have longer work years of 3-10 years. However, the prevalence of three types of employment status -- day labourer, contractual labourer and monthly-based labourer indicates a high level of employment informality or flexibility in this industry. In fact, the overwhelming majority of the construction workers are hired through contractors or subcontractors without the benefit of any employment contracts. Thus, both the garments and the construction industries employ flexible (meaning easily replaceable) workers. In general, workers in both the garment and construction industries are deprived of many of their rights such as the non-issuance of appointment letters and identity cards, the non-observance of OSH standards and social security provisions, the limited space for unionism and collective bargaining, and the weak protection provided by the labour law enforcement and judicial system. Appointment letter: A dream to most workers. Though the law has made it mandatory for employers to provide appointment letter to the workers, a large number of garments workers are still deprived of appointment letter. Although garments employers often prepare appointment letters (usually two copies: one for employer and another for global garments buyers), they do not give copies to the workers. In the construction industry, none of the workers reported receiving any appointment letter. Oral contract: pervasive Practice. In the absence of written contracts, what prevails in general is oral contract. Also, a good number of workers do not get identity cards from their employers.
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Dismissal of workers: without notice. Over one-fourth of the respondents in the garments industry affirmed that employers always dismiss workers without any prior notice. The situation is more or less the same in the construction industry. 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 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.
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5.0
LIMITAT IONS
Chapter TWO of The BLL, 2006 fails to include a large number of workers -- domestic workers, agriculture workers, and workers working at schools. This chapter has classified workers into several categories. This has given some employers flexibility to resort to the hiring of non-regular workers (i.e., apprentice, casual, badli, probationer, temporary) to escape payment of various workers benefits and avoid unionism. Worker dismissal is terribly easy under the provision on termination simplicitor, where the employer is not required to give any reason to terminate a worker and the worker is not given any chance for selfdefense. Also, the notice period for the temporary workers in this regard is quite short. Getting financial benefit due to termination are quite lengthy too. For retrenchment and discharge, a worker must show proof of a minimum one-year service. Workers who resign from their jobs are entitled to certain separation benefits. However, getting these benefits is bureaucratic. The concerned worker is also asked to give the employer advance notice 60 days, 30 days and 14 days (corresponding to employment status of permanent, temporary [monthly]). In cases of serious misconduct, this chapter allows summary termination without prior notice. This deprives the worker not only compensation but also and more importantly, the right to due process or the right to be heard. This chapter also, recognizes various types of leaves, e.g. weekly holiday, casual leave, festival leave, medical leave, annual leave, and maternity leave. However, overall, the law is discriminatory in the sense that the level of leave entitlement is not same for all categories of workers, for example, some workers like teastate workers do not enjoy casual leave.
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6.0
RECOMMENDATIONS
Align Sections 03 to 33 with international norms, particularly ILC 87 and ILC 98. As a signatory to many of international conventions and covenants related to worker rights, Bangladesh should align the BLL with internationally recognized workers rights, particularly those relating to the core ILO conventions. More specifically, It should cover all workers without exception. These include the domestic workers, agricultural workers, school workers and informal workers. Strict regulations on the use of short-term workers, e.g., apprentices (should be for real learning purposes and not for employment at below minimum wages), casuals, badly, temporary, probationers and so on. Purging the BLL of contradictory provisions, e.g., on enjoyment by workers of weekly rest day, employment of child labour, and the number of trade unions to be recognized at the workplace as discussed earlier. Elimination of discrimination at the work place by covering non-wage and other issues such as race, religion, ethnic group, age group etc. Removal of obstacles to workers entitlements to certain benefits, e.g., in filing claims for separation benefits on resignation, compensation for work-related injury or accidents, etc. Removal of termination simplicitor and its replacement with the proviso that serious misconduct can be a ground for worker dismissal only after the worker is given due process or the right to be informed, the right to be heard and the right to sort out the truth through an objective and fair process. The due process principle should be enshrined and should apply to all cases of suspension and termination.
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A schedule of progressive (from light to heavy) penalties for erring employers for various labour standard or labour right violations should be enacted and enforced strictly.
7.0
CONCLUSION
Specifically, in chapter two, the provisions for the employee engagement and the termination in a aproper way to get the maximum out of the service tenure to the organizatn has been tried to establish in the Bangladeshi. In the area of labour reforms, the revised Bangladesh Labour Law of 2006 (BLL), an amalgamation of the previous 25 labour laws, has weaknesses. Not all workers enjoy the basic rights spelled out in the law. There are also rampant violations and non-implementation or non enforcement of the BLL. Trade unions have long been vocal about the legal shortcomings and the weak implementation of the laws guaranteeing workers rights. Thus, a critical review of the BLLs implementation and its shortcomings in terms of coverage and enforcement is long overdue. The experts should be in the seat now to judge the practice and the exact scenario of Bangladeshi workforce to ensure a better future for both the workers and the organizations.
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BIBLIOGRAPHY
Absar, Syeda Sharmin. (2001). Problems Surrounding Wages: The Ready Made Garments Sector in Bangladesh, Labour and Management in Development Journal, Vol.2, No.7. BBS (2009), Gender Statistics of Bangladesh 2008, Bangladesh Bureau of Statistics, Planning Division. BBS (2009), Gender Statistics of Bangladesh 2008, Government of Bangladesh. BBS, Labour Force Survey 2005-06, Government of Bangladesh. Begum, Nazma. (2002). Women Workers' Status in Bangladesh: A Case of Garment Workers, in Salauddin, Khaleda; Raushan Jahan and Latifa Akanda (eds) State of Human Rights in Bangladesh, Dhaka: Women for Women. BILS. (2007). Construction Sector and its Workers: A Review (Sromokhat Parjalochona: Prosanga Nirman Shilpo), Dhaka: Bangladesh Institute of Labour Studies. BILS. (2007). Workers Human Rights in the Construction Sector of Bangladesh, Dhaka: Bangladesh Institute of Labour Studies. CPD, (2008). Gender and Trade Liberalisation in Bangladesh. Dhaka: Centre for Policy Dialogue GoB (2009), Bangladesh Economic Review 2009, Finance Division, Ministry of Finance, Government of the Peoples Republic of Bangladesh Hossain Jakir and Islam Rabiul. (2008). Minimum Wage for Garments Workers: Implementation Status and Changes of Workers Economic Security), Dhaka: Nari Uddog Kendra and Unnayan Onneshan. ILO (1999), Report of the Director-General: Decent Work, International Labour Conference, 87th Session, Geneva. ILO, (2005). Hours of Work: From fixed to flexible? Available at http://www.ilo.org/wcmsp5/groups/public/dgreports/dcomm/documents/meetingdocu ment/kd00123.pdf. Majumder, Protima Paul and Begum Anwara. (2000). The Gender Imbalances in the Export Oriented Garment Industry in Bangladesh, Gender and Development, Working Paper Series no 12. Paul, Nirmal Chandra (2007), The Bangladesh Labour Code, 2006 and other Related Laws, Shams Publications, Dhaka
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