Implementation of the labor laws and related challenges

Dr. Uttam Kumar Das:

Bangladesh has graduated from the status of the Least Development Country (LDC) to the Middle Income Country (MIC). This graduation is to have impacts on its economy and labor issues, among others.

Bangladesh is now receiving exemption in regard to certain taxes to export goods to the countries of the European Union (EU) in reference to the GSP facilities (under the Everything But Arms or EBA Programmed). Upon graduation to the MIC this GSP facilities would not be available anymore which is likely scheduled to be executed by 2027. Then, the country will have to thrive for the GSP Plus facilities which are conditioned to improvement in regard to the overall human rights situation in the country, labor rights and environment and sustainable development. The ready-made garment and textiles are major export- items to the EU market.

The labor rights issues are connected to few issues which include, among others, related political will and policies adopted by the government, congenial environment for the right to freedom of association and collective bargaining enjoyed by the workers and employees, implementation of the labor legislation including effective labor inspection, labor administration and good governance, and  labor justice (appropriate intervention by the judiciary in case of violation of labor related rights).

Bangladesh has reportedly signed an agreement with the EU in 2019 in regard to improvement of situation in regard to labor rights and related matters. The instrument, which has prescribed a time-bound roadmap, has focused on few major areas; for example; (i) amendment in the existing Bangladesh Labor Act (of 2006), Labor Rules (of 2015) and EPZ Labor Act (of 2019) in compliance with the previous observations and recommendations of the ILO Supervisory Mechanisms, (ii) elimination of child labor of all forms by 2025 and its worst forms by 2021, (iii) address violence against workers, harassment, unfair labor practices and anti-trade union discrimination at workplaces, (iv) smoothen the processes and procedures for submission of applications and registration for trade unions, (v) speed-up prosecution and trial of cases in the labor courts, (vi) setting-up effective mechanisms for addressing complaints and grievances from workers in regard to labor rights violations, (vii) increase number of the labor inspectors (as estimated to be 1,769), (viii) strengthen the industrial safety mechanisms, (ix) ratify the ILO Conventions on the minimum age (C-138) and on Forced Labor (C- 29).

The labor matters in the private sectors are regulated by a special law which is titled as the Bangladesh Labor Act, 2006 (thereafter Labor Act) and it’s implementing regulations namely the Bangladesh Labor Rules, 2015 (Rules thereafter). For the export processing zones (EPZ) of the country, there is a separate legislation called the Bangladesh EPZ Labor Act, 2019 (thereafter the EPZ Labor Act); the same law is applicable for the special economic zones (SEZs).

The Labor Act has been a codification of erstwhile 25 related laws which are repealed according by the Labor Act.

And, the Labor Act, is a modest legislation with some inbuilt limitations, conflicts over same issues between the sections and/or chapters, existence of discriminatory provisions etc. At the same time, there have been no serious efforts to implement the same and learn from trial and errors.

The Labor Act does not cover the larger gamut of areas where large numbers of workers are engaged; for example, the informal sector, agricultural firms (with less than five workers engaged), and domestic workers etc. Thus, the law has been very much focused on the workers engaged mainly in factories and establishments in the formal sector; they are estimated to be around 15% of total workers in the country. The total workforce is estimated as 65.50 million (6.5 Core).

The Labor Act failed to have provisions which would promote gender integration or mainstreaming. It has nothing in regard to addressing and prosecuting sexual harassment of (female) workers at the workplaces. The sole provision under Section 332 only prohibited indecent or unmannered behavior; however; however, there is no definition of the same.

Although the Honorable High Court Division of the Supreme Court of Bangladesh has provided a set of guidelines through a judgment in reference to a writ petition (date of judgment 14 May 2009), however, no tangible initiative yet to implement the same though a decade has been passed. No law has been adopted as per the directions.

The guidelines covered all establishments (both public and private) and educational institutions in the country and provided provisions for prevention and prosecution of sexual harassment of women, including formation of the mandatory Compliant Committee. Though the judgment is in the force of law by virtue of Article 111 of the Constitution; however, respective authorities and ministries have failed to understand and appreciate the context and obligations thereof which warrant for judicial intervention.

The definition of the worker in the Labor Act [Section 2(65)] has failed to set any standard-criteria in regard to those who are engaged in the administrative, supervisory and managerial functions; thus, has arbitrarily kept a large number of employees out of the protection of the very legislation. Thus, the so-called mid-level managers are kept out of the statutory protection.

The definitions of the “wage” and “maternity benefits” in different sections/chapters have provided rather conflicting criteria and left wide-scope for discretion and denial by the management.

The provision regarding denial of the maternity benefits to a female worker for the reason of having miscarriage just before going on designated maternity leave is a utter example of discriminatory provision. This provision has been adopted through amendment in 2018 and, it violates the spirit of fundamental rights enumerated through Articles 27 and 28 of the Constitution.

Also, keeping the workers engaged in the tea gardens out of various statutory entitlements, e.g., leave and compensation/service benefits are glaring examples of discrimination in the Labor Act. Those deserve urgent attention for amendments.

So far the major focuses and investments have been on the labor inspection mainly in responses to tragic industrial accidents like the Tazreen Fashion fire and collapse of the Rana Plaza building which housed five ready-made garment factories. The priority of the development partners and international organizations are regrettably narrow-focused. However, there are other dimensions of the matter for promoting labor rights including focusing on the overall labor administration and the labor judiciary.

Again, the focus of the international community is narrowly on workers’ right related to freedom of association only; and, such a phenomenon has impacted negatively to other issues, like the individual rights in regard to conditions of employment, maternity leave and benefits, social security, service related benefits etc.

As the development and international partners are looking forward in regard to promotion of the international labor standards; however, the same has to be grounded initially on full and complete implementations of the national legislation. The Labor Act has been framed (with few limitations) similar to the basic requirements in line with the UN Guidelines on Business and Human Rights and the OECD Guidelines.

Thus, priority should be to focus on the implementation of the existing legislation in letter and spirit. The regulatory oversights shall be devised accordingly. Therefore, any future amendments of the Labor Act shall be linked to our own national priorities and plans, but not based on any pressures from outside. We have a lot to learn in this regard from the context of other countries like Sri Lanka, Vietnam, and India etc.

Also, focus should be on building and strengthening of the national institutions which include facilitating the academic study, training, teaching and research of the labor laws, institution building (e.g., training centers and think tanks), and legal and judicial activisms.

There is a misnomer that if members and representatives of the government (which is limited to the Ministry of Labor and Employment and its Departments), workers’ organizations and employers’ organizations etc. are educated and trained on the international labor standards (ILS) the situation would be improved; and, the same are being practiced and implemented (with huge investments indeed) by few international organizations for last 45 years or so. But the same is not proper. ILS has no relevance unless the same is transformed into statutory provisions here.

So, stakeholders like the academic and training institutes, including the law schools, respective practitioners, judiciary and civil society groups are important actors here.

So far there has been no visible intervention and investment to Law Schools (Department of Law at the universities), professional bodies of lawyers and judiciary. That is why there is a sorry and limited state of understanding on labor laws and its applicability while the international labor standards and labor laws are concerned.

For our own economic and industrial priorities and international and diplomatic contexts, the labor laws and labor rights shall be the topic of the time and priorities.

Writer : Advocate, Supreme Court of Bangladesh and a Specialist Lawyer on the Labor Laws & He is a Former Senior National Consultant to the International Labor Organization (ILO). E-mail: udaslaw@gmail.com