2008 Annual Survey of violations of trade union rights - Bangladesh
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Bangladesh, 20 November 2008, available at: http://www.refworld.org/docid/4c52caa6c.html [accessed 30 July 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 182
On January 11, the president of Bangladesh declared a comprehensive State of Emergency enforced by the Army, which among other things, banned all union meetings and most activities and prohibited demonstrations. Employers immediately took advantage of this restriction to organise systematic harassment of union leaders and break existing unions. Registration of new unions was suspended for the entire year, and implementation of the new Bangladesh Labour Act of 2006 was effectively put in abeyance by the State of Emergency. Routine use of intimidation and violence by employer-hired thugs and local authorities, and impunity for egregious human rights acts, created a palpable climate of fear among trade unionists.
Trade union rights in law
Proclamation of State of Emergency – all trade union activities banned: While severely restricting "trade union activities", the State of Emergency did not impose similar restrictions of any kind on employers or their federations. The military-backed caretaker government also passed the Emergency Powers Ordinance 2007 (EPO), supplemented by Emergency Power Rules 2007 (EPR), to implement the State of Emergency. The EPO explicitly states that no order under the ordinance can be challenged in the courts. These powers have effectively granted security forces the ability to disregard arrest warrants and provides them with the right to conduct arbitrary arrests and detention. Section 3 of the EPR explicitly forbids any forms of assembly, demonstration or rallies without prior permission from the authorities, with punishment set at two to five years' imprisonment for violators. Another part of the EPR authorizes the use of force to execute any order made under the EPO. Human rights organizations estimate that approximately 200,000 persons were arrested by the authorities for varying periods between January and August. Sweeping restrictions also applied to the media, with strict prohibitions on publishing anything that the government considers "provocative" – which in practice has meant any report critical of the security forces or their actions.
New Labour Law still contains many restrictions: The Bangladesh Labour Act of 2006 (BLA) is considered a step forward for clarity because it effectively consolidated laws from 25 separate acts into one comprehensive law. However, during the year, the operation of the State of Emergency, EPO and EPR effectively prevented the implementation of many of the provisions of the BLA.
Many of the previous restrictions on trade union rights existing in previous laws were carried over into the BLA.
For example, before a union can be registered, 30 per cent of workers in an enterprise have to be members, and the union can be dissolved if its membership falls below this level.
Unions must have government approval to be registered, and no trade union action can be taken prior to registration. Unions can only be formed at the factory/establishment level, with some exceptions (such as private road transport, private inland river transport, tea, jute bailing, bidi production) where union formation can take place based on geographic area. There can be no more than three registered trade unions in any establishment.
Membership in a union is restricted only to workers currently working at an establishment, meaning that severance from employment also results in the end of a worker's membership in the union. The law further provides that even if the worker contests the termination, union membership is only returned when the worker is actually reinstated, which can take years given the slowness of Bangladesh's courts.
Candidates for union office have to be current or former employees of an establishment or group of establishments. The Registrar of Trade Unions has wide powers to interfere in internal union affairs and may also cancel the registration of a union with Labour Court approval.
Exclusions from union membership: Under the BLA, workers in government or employed in offices under government authority are prohibited from belonging to a trade union with the exception of railway, postal, telecommunications, public works, public health engineering and government printing press workers. Members of local government units, fire fighters and the security forces are also denied the right to form unions. Managerial staff and employees who are designated by employers as "confidential" are prevented from joining unions.
On the positive side, new categories of workers, including teachers and NGO workers, are permitted under the BLA to form unions. However, because of the strict restrictions on union organizing during the state of emergency, the new regulations were not formally instituted.
Right to strike hardly recognised: Three quarters of a union's members must agree to a strike before it can go ahead. The government can ban any strike if it continues beyond 30 days (in which case it is referred to the Labour Court for adjudication), if it involves a public service covered by the Essential Services Ordinance or if it is considered a threat to the national interest. In this last case, the 1974 Special Powers Act can be used to detain trade unionists without charge. The government may ban strikes for renewable periods of three months. Sentences of up to 14 years' forced labour can be passed for offences such as "obstruction of transport".
Strikes are not allowed in new establishments for three years from the date the establishment begins commercial production if the factory is newly built, owned by foreign investors or established with foreign aid.
Compulsory conciliation and court referral procedures: The labour law requires that parties to an industrial dispute must follow legal procedures (such as request conciliation, serve notice of a strike or lock-out, or refer the dispute to the Labour Court for settlement) within a specified period or the authorities will consider the labour dispute to be terminated. Section 212 of the BLA prohibits for a period of one year the raising of the specific issue or subject of such an industrial dispute after a termination order of this type is issued.
EPZ Law – significant restrictions continue: EPZs are considered outside the purview of the BLA. The EPZ Workers Association and Industrial Relations Act (2004) provides for the formation of trade unions in EPZs from 1 November 2006. However, the law sets out several phases for implementation, with complicated and cumbersome procedures to be followed at each stage.
At stage one, EPZ factory workers were only allowed to set up Worker Representation and Welfare Committees (WRWC). The law required all enterprises in the EPZ to have one WRWC, whose elected representatives have the power to negotiate and sign collective agreements on a limited set of topics but not to strike or organise demonstrations. However, during 2006 and early 2007, workers reported that employers generally refused to bargain with WRWCs. Stage one ended on October 31, 2006, but continued in practice into 2007 because of systematic delays of the government to set out and implement the administrative procedures to transition worker organizations to stage two of the law.
At the second stage of the law, workers were allowed to go through a process to transform their WRWC into a trade union, referred to as a Workers Association (WA) in the law. A WA can be created provided over 30 per cent of the workforce requests that the association should be set up. More than 50 per cent of all the workers in the factory must vote affirmatively for the WA to be formed. Only one federation of WAs can be formed per EPZ, if at least 50 per cent of the registered WA in the zone vote for it.
The Bangladesh Export Processing Zone Authority (BEPZA) Executive Chairman also has almost unlimited authority to deregister a Workers' Association should he determine that the WA has committed an "unfair practice", violated any aspect of its own constitution or of the EPZ Law, or failed to submit a report to him.
The law explicitly forbids any strikes in the EPZs until 31 October 2008.
EPZ Labour tribunals still not formed: Although the EPZ law provides for the establishment of an EPZ Labour Tribunal and an EPZ Labour Appellate Tribunal, a full four years after the passage of the EPZ law, these two tribunals have yet to be established. As a result, workers in the EPZs were effectively denied access to the judicial system for their grievances.
Trade union rights in practice and Violations in 2007
Systematic refusal of authorities to register new unions: The Joint Director for Labour (JDL) who is responsible for registering new trade unions refused to take any actions during the year on pending union registration applications, thereby effectively denying workers their right to associate and bargain collectively with their employer. The Ashik Dress Design Workers Union, MN Sweater Workers Union, Lufa Garment Workers Union, Max Ambo Workers Union, and Dekko Accessories Workers Union submitted their applications between September and November 2006, and in the case of Lufa, Max Ambo, and Dekko, submitted them again (with changes requested by the JDL) in January 2007, but by the end of the year they had received no indication about when their applications will be approved.
Threats to de-register trade unions for making international appeals: The JDL filed a case on March 21 with the Labour Court, seeking to de-register the Bangladesh Garments and Industrial Sramik Federation (BGIWF), the trade union wing of BCWS.
On the night before the hearing at the Office of the US Trade Representative in Washington, D.C., on an AFL-CIO petition seeking the revocation of GSP privileges for Bangladesh, the Additional Director of Labour (who is directly responsible for union registration matters) made phone calls to the leadership of two labour union federations threatening them with immediate de-registration if they continued to cooperate with the complaint against Bangladesh.
Export processing zones – union busting by employers aided and abetted by the authorities: Employers in the EPZs have been consistently hostile towards trade unions, claiming that many of the companies would be ruined if they had to have unions.
While the EPZ law required all factories to have a WRWC, significant anti-union discrimination, including harassment, intimidation and dismissals, were directed at workers leading the WRWCs. According to international labour rights advocates, more than 50 WRWC leaders were terminated, and despite appeals by labour law advocates, the BEPZA chair declined to exercise his power under the law to reinstate these leaders.
Government officials deliberately sought to delay the implementation of the second stage of the law, which was mandated to begin on November 1, 2006. From November 2006 through mid-April 2007, the government failed to produce and issue the required WA application form – despite repeated submissions by workers. The intransigence of BEPZA was demonstrated by the repeated refusal of BEPZA officers to accept complaints filed by workers through the services of labour lawyers or labour rights organizations such as the Bangladesh Center for Workers Solidarity (BCWS) or the Savar Workers Education Center, or any organisation based outside the EPZ.
On April 22, Arafat Saimon claimed he was from the "Joint Forces" (i.e., military-police authorities), and detained and beat two BCWS organisers during an interrogation to demand information about a WRWC organiser of Lenny Fashions. It later became known that Saimon was from the management of the factory and had impersonated a Joint Forces officer – but no action was taken against him.
Employers re-directed their anti-union harassment towards those workers who were leading the efforts to establish the WAs. The EPZ law provides no protection against terminations of workers in the formation phase of the WA.
However, following the filing of the AFL-CIO GSP petition against Bangladesh in June, and the USTR hearing in October during which the petition was accepted for further consideration (over the objections of the government and employer federations), international pressure began to have a significant impact. Delaying tactics at BEPZA relented and workers were provided the opportunity to register their intent to form WAs and participate in elections to formally establish them. In the final months of the year, many WAs went through the election process, frequently with over 90% of the workers in favour of the WA. However, at the end of the year, employers were still refusing to substantively accept the role of WAs or to enter into collective bargaining negotiations with them. Despite numerous demands made by newly established WAs in the final months of the year, there was no report of any collective agreement with a WA.
Employers take advantage of legal loopholes: Workers who try to create a trade union are not protected before registration and are often persecuted by their employers. The names of workers who apply for union registration are frequently passed on to employers who promptly transfer or dismiss them. Even after registration, workers suspected of carrying out trade union activities are regularly harassed and threatened. A common tactic of employers is to dismiss a worker for misconduct, thereby making them ineligible to remain a trade union officer. While a worker can complain to the Labour Court, they face problems of underlying corruption at the courts and serious backlog of cases which, in some instances, can stretch back many years.
Outside the EPZ – garment industry still vehemently anti-union: Literally hundreds of workers involved in organizing unions or simply representing grievances of their fellow workers were fired, reflecting the systematic and pervasive anti-union attitude of employers and the impunity that exists regarding the discharge of workers for union activities. Workers are routinely sacked, beaten or subjected to false charges by employers (often backed by police) for being active in unions. Meanwhile, the country's garment workers are among the lowest paid in the world and regularly face physical, verbal and sexual abuse.
For example, the management of MN Sweater filed a criminal case in January against the six leaders of the union at the factory, claiming their union activities had led to vandalism. Police promptly charged and arrested them.
On January 8, the ITGLWF reported a worker leader at Padma Polly Cotton was beaten by employer representatives for contesting the dismissal of another worker and then went missing – leading workers to believe he had been killed. Then next day, workers went on strike, and the factory owner called in privately-hired thugs who badly beat five women workers after locking them in the office and molested other women strikers. On January 10, the factory locked out the workers, leading to demonstrations in the Tajgoan industrial area and violent suppression of the protests by the authorities.
In February, a leading worker at DADA (Dhaka) Ltd was dismissed because of her involvement in encouraging workers from the factory to take part in education activities organized by the BCWS Rampura office. When she filed a grievance petition, management set conditions that she could only be reinstated if she made a written undertaking to cease all contacts with the BCWS office and stop discussing labour matters with her fellow workers.
Two union leaders were terminated at Givency Garments in March for their work with the NGWF, while another leader at the Mitali Fashion was fired for joining BIGUF. Max Embroidery fired four workers in April who they learned were organizing a union – but tried to cover their action by taking the workers' signatures from their payment vouchers and then affixing that signature to bogus worker resignation forms written by management.
Military and security forces interference and intimidation: In both the EPZs as well as factories outside the zones, employers regularly collude with police and military forces to intimidate and force worker leaders to resign from the union. Trade union leaders have been beaten by authorities and kept in overnight detention.
During the year, raids of union offices, intimidation and interrogation of staff, and constant surveillance and monitoring was the norm. Among the offices facing this intimidation were the BIGUF office and WEC in Gazipur. Several incidents occurred, including the temporary detention and interrogation of the BIGUF joint secretary in the area, who was taken for 8 hours. On June 1, the DFGI (military intelligence) threatened the WEC manager in the area and told her that she would be held personably responsibly for any labour problems. Harassment was also experienced by workers and their advocates in the BIGUF Mohakhali office.
Workers at Aysha Fashions faced employer and police repression after an incident in the factory where a line manager beat an employee on March 19. When workers protested, management responded by bringing in 20 police who harassed the workers and conducted searches in the workers' residential areas. The next morning, 30 police were present at the factory as workers arrived, and three workers who led the previous day's protest were arrested. On March 21, the most senior workers were compelled by management to sign blank papers in the presence of police and were fired. On March 29, police from the Ashulia police station raided the local Worker Education Center and detained Aysha workers.
The much-feared Rapid Action Battalion (RAB) was directly involved in intimidating WRWC leaders at the Jeans 2000 Ltd factory in Chittagong EPZ in April. One leader was fired on April 5, but he refused to sign a resignation letter, filed a complaint with the Zone authorities, and began discussing with other workers the importance of forming a WA. In response, the RAB entered the factory, intimidated the workers, forced two workers involved in organizing the WA to resign and threatened them with serious physical harm if they returned to the EPZ area.
On June 30, police ordered the indefinite closure of the Savar office of the NGWF, alleging such action was in line with the State of Emergency. Intervention by the AFL-CIO was able to ultimately reverse this action, but the office remains under hostile surveillance by the authorities.
Additionally, management in the RMG industry routinely, and with the collusion of government authorities, files complaints against workers in criminal court rather than in labour courts, (the latter being the proper forum for such complaints). The expenses associated with criminal cases are beyond the means of most workers to contest, making it exceedingly difficult to defend themselves. Moreover, the cases often drag on indefinitely, carry heavier sentences than labour court cases, and serve to intimidate workers so that they will refrain from promoting trade unions, or, in the case of the EPZs, WRWC or Workers Association.
Firings, intimidation, and use of thugs – favourite employer tactics to stop unions in the garment sector: All over Bangladesh, union leaders and members were routinely harassed, verbally and physically threatened, beaten, suspended, and fired for pursuing union activities. Most employers operated with total impunity and without regard for legal protections for trade union rights.
Use of hired thugs by management was common. For example, in January, a gang of thugs (hired by the factory general manager) threatened leaders of a union organizing effort with violence if they returned to work at Master Garments Ltd and Master Fashion Garments Ltd.
Harassment of unions and supporting organisations by government: The Bangladesh Independent Garment Workers' Union (BIGUF) reported significant and consistent harassment by national intelligence authorities owing to the federation's efforts to support workers in the EPZs.
The Solidarity Centre (the AFL-CIO's American Centre for International Labor Solidarity) faced harassment from the government's police and army intelligence services, despite being legally registered to operate in the country.
The authorities seemed particularly concerned about work being done nationally and internationally to assist EPZ workers and about collaboration with local trade union partners to insist that the government enforce its labour laws.
Government failing to abide by all terms of tripartite agreement: In 2006, abuses by employers and worker frustration boiled over in May 2006, resulting in some of the worst violence seen in the garment industry in years (see 2007 survey for details). To settle the grievances of workers and re-open the factories, a tripartite agreement was reached on 12 June 2006. One of the points of agreement required that "all cases lodged in Gazipur, Tongi, Savar and Ashulia Police Stations against the workers concerning the recent agitations in garment industries shall be withdrawn and the arrested persons will be released and cases shall be withdrawn". However, cases No. 49/06, 50/06 and 51/06 against workers which are under the jurisdiction of the Joydevpur Police Station have yet to be withdrawn.
Arrest and detention of general secretary of Dhaka University Teachers Association (DUTA): Following unrest on the Dhaka University campus which was violently suppressed by police and army personnel, a number of academics made public statements decrying the use of violence. In response, the authorities detained Professor Anwar Hossain, the general secretary of the DUTA, and four other senior professors on unsubstantiated charges of fomenting unrest against the Government. Dr. Hossain was taken in the middle of the night of August 24 from his residence by heavily armed men dressed in civilian clothes who claimed to be army personnel. He was detained at Dhaka Central Jail, and he and his colleagues were charged with violating the EPR.