Industrial Disputes Timely Resolution

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Industrial disputes timely resolution

Chapter 1

INTRODUCTION

1.1 Basic Concept

1.2 Nature of labour and industrial law

1.3 Objectives of Study

1.4 Utility of labour and industrial legislation

1.5 Methodology

1.6 Organization of thesis

1.1 Basic Concept

Industrial disputes timely resolution is a great problem in Bangladesh. There are some barriers involved with this problem. These barriers are two types of issues. One is the legal barrier and the other is the practical one. To deal with the first one, we begin by outlining the origin of Labour Courts, its constitution, composition, powers and procedures, including the Labour Appellate Tribunal, as the machinery for disposal of various types of industrial disputes.

This outline is then followed by a short account for the territorial and other jurisdictional aspects of Labour Court. The next, third, section offers a detailed expose of the barriers, along with suggestion for facilitating timely disposal of labour cases, ending with a concluding section. This article also includes a number of tables for numerical representations of the state of labour case under various relevant laws.

As for their beginning of Labour Courts, it may be mentioned that to promote settlement of disputes in certain specified area for a specified industry, the “Industrial Tribunal”, though not permanent in nature, was introduced in British India under the Industrial Disposal Act, 1947. Even after the partition on the 14th August 1947, this syste4m continued in the then Pakistan on adaptation of the British Law till the passing of the Industrial Dispute Ordinance, 1959.

This Ordinance provided for the permanent nature of dispute settlement machinery namely “Industrial Court” in place the “Industrial Tribunal”. Thereafter, the East Pakistan Labour Dispute Act, 1965 for the first time re-designated the “Industrial Court” as “Labour Court”. Subsequently, the aforesaid provincial law was replaced by a central law, namely The Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969) hereinafter also referred to as the Ordinance.¹

The Industrial Relations Ordinance, 1969, being a parent law labour legislation envisages the establishment, composition and constitution of labour courts including its territorial jurisdiction, powers, procedures as well as the establishment of Labour Appellate Tribunal as contained in various provisions in section 35 to 38.

We are quite aware that a Labour Court is a tripartite body composed of Chairmen with two other Members; one representing the workers and the other representing employers. Usually a Judicial Officer of the rank of District and Session Judge is posted to head a Labour Court as per law and rules. For the constitution of a Labour Court as the time of talking of labour case commonly known as collective disputes, both the members are required to be present with the Chairmen to advice the later.

When any member is absent from, or is otherwise unable to attend any sitting of the court, the proceedings of the Court may continue and the decision or award may be given in the absence of such a member. No act, proceedings, decision or award of the Court shall be invalid or be called in question merely on the ground of such absence or on the ground of any vacancy in, or any defect in the constitution of the Labour Court.

According to sub-section (IA) of section 37 of the Ordinance¹ an award or decision of a Labour Court, shall in every case, be delivered within sixty day following the date of filing of the case unless the parties to the dispute give their consent in writing to extend the time limit. But on such award or decision of a Labour Court shall be invalid merely on the ground of delay of its delivery.

It is further known that the terms of section 37(4) of the Ordinance all decisions of a Labour Court, other than awards referred to in sub-section 3 of section 36, shall be final and shall not be called in question in any manner by or before any court or other authority. Thus, a remedy against the decision of a Labour Court lies in writ in respect of civil nature of case and an appeal or revision lies to the High Court Division against conviction, sentence or order passed by the Labour Court in criminal nature of cases.

On the other hand, the one Member Labour Appellate Tribunal, headed by a person who has been a Judge or a Judge of the High Court Division, is competent to act independently. It acts as a court of Appeal against an award in Industrial disputes and dictions in the cases under the Workmen Compensation Act, 1923 and the Payment of Wages Act, 1936 rendered by a Labour Court.

In terms of rule 41 of the Industrial Relations Rules, 1977, in hearing an appeal against an award, the Labour Appellate Tribunal² shall follow the same procedure as is followed by an Appellate Court in hearing appeals under the Code of Civil Procedure, 1908 (Act V of 1908). Besides, the Tribunal may, on appeal, confirm, set aside, vary or modify an award and shall exercise all the powers conferred by the Ordinance on the court, save as otherwise provided. The decision of the Tribunal shall be delivered expeditiously as possible, within a period of 60 days following the filing of the appeal. But such a decision shall not be rendered invalid by the reason of any delay in its delivery.

Further, section 38(3A) of the Ordinance provide that if an appeal is preferred against an order of reinstatement of a workman by the Labour Court, the Tribunal shall, notwithstanding anything contained in subsection (3), decide such appeal within a period not beyond 180 days following the filling of the appeal. In the meantime the Tribunal may pass an order staying the operation of the order of the Labour Court if such an appeal is not disposed of within the aforesaid period. The order of the Tribunal shall stand vacated after the expiry of the period.

Moreover, by the amended section 38(4A) of the Ordinance the Tribunal may, on its own motion, and for the purpose of satisfying itself as to the correctness, legality or propriety of the order of the Labour Courts, may call for the order of any case or proceeding under this Ordinance and may pass such order in relation thereto as it thinks fit. It may be stated that despite this amendment, decisions of Labours Court in respect of workers are final in terms of section 37(3) of the Ordinance and his forum for further proceedings is the High Court Divisions.¹

This outline is now followed by an account of jurisdiction and other related aspect of the Labour Court.

1.2 Nature of labour and industrial law

The terms ‘industrial law and labour law are often used interchangeably in our legal system though the nature and scope of industrial law in much a broader compared to labour law from a broader point of view case laws rules and recognized customs relating to an industry. Thus it company law safety law etc. on the other hand labour law in used to mean conditions of leave benefits right to trade unions social security etc of an worker in any establishment.

Both labour and industrial law are not only a body of procedural or adjective law but also a substantive law as they define rights and concept as well as prescribe the procedure of dispute settlement.

1.3 Objectives of Study

Our country is a developing country. We have about 15 core of population. Our land is very little comparison of our people. To make is employment generation industrialization is necessary. To control the industrial sector the relation of owner and labour should be well related. This may achieve to develop the relation between the labour and owner of the industry. But is our country labour disputes cannot be solve within a short time due to barriers of many things.

Due to industrial problem the industrialization of our country do not expense rapidly. The object of our study is to analyses the barriers labour dispute and to find a solution. This is for the betterment of our industrial resolution of our country.

1.4 Utility of labour and industrial legislation

Labour and industrial legislation is necessary for the following reasons:

The individual workers are economically weak. They cannot bargain with the employers for the protection of their rights and even for subsistence wages. As such legislation for protection of labour against long hours of work unhygienic conditions of work low wages and exploitation is needed.

The workers are exposed to certain risks in factories mines and other establishment. As such in order to make provisions for their health safety and welfare legislation is needed.

In order to increases the burning power of labour legislation is necessary to encourage the formation of trade unions.

In order to avoid industrial disputes which lead to strikes and lock outs labour legislation is needed.

To protect children and women from taking to work under hazardous conditions and at odd hours legislation is essential.

Laws for providing compensation to workmen who die or are injured during and in the course of emplacement are also essential.

Labour legislation advances the interest of the working people and thus helps set up the development of the national economy on a sound and self reliant basis.

Labour and industrial law provides for industrial harmony in the country. Industry harmony is indispensable when a country plans to make economic progress. It is true that no nation can hope to survive in the modern technological age unless it is wedded to industrial development and technological advance. Economic progress is found up with industrial harmony inevitably leads to more co-operation between employers and employees which result in more productivity and thereby contributes to al round prosperity of the country health industrial relation on which industrial harmony is founded cannot therefore be regarded as a matter in which only the employers and employees are concerned.

It is of vital significance to harmony involves the co operation cot only of the employers and the employees but also of the community at large. This co-operation stipulates that employees and employers recognize that though they are fully justified in safeguarding their respective rights and interests they must also beat in mind the interests of the community. To conclude industrial harmony is a product of goodwill and understanding between labour and management and if for whatever reason one or the other side fails to observe the rules of the game the laws should be such as to take care of the offenders impartially. Utility of labour and industrial legislation is very much important.

1.5 Methodology

The methodology used in the thesis is Qualitative Methodology. Our research works are based on Historical Study, and Analytical Study.

Historical Study: It has a historical back ground of industrial worker’s movement for the establishment of their rights. The Industrial worker’s movement became successful.. Now the modern world, Modern state and United Nations Organization highlighted the labour dignity, honor, position and their rights.

In Bangladesh the labour Rights are guaranteed in our constitution, state laws, and social and state activities. Through the historical revolution the labour rights have come to this position. The history labour movement in Bangladesh started from 1971 after successful victory of the Bangladesh war of Independence. So, to write this thesis we have to use historical study.

Analytical Study: In this thesis the formation development and solutions regarding labour right are to be discussed. In this process of analysis the laws related to the subject and solutions from the judicial process are to be discussed. The enforcement of rights are also judicial matter. So in this process of study the analytical study is necessary and important for this thesis. So for our research works we followed the analytical study.

The main objectives of the study are to evaluate effects and importance on labours, industrial society and the state. The study is mainly qualitative in nature because, the impact that the study has searched would not be possible to assess without qualitative data.

Legal issues, judicial rulings and administrative management of the government and the public, all are related with the labour dispute issues. The research work is involved with the legal matter, administrative matter and judicial decision of the labour Rights. Under these circumstances a regulated research work will be suitable to solve the problems after investigating different variables such as laws relating to Study on Barriers of Labour Disputes Timely Resolution

Research method is an important factor for all kinds of study. There are two kinds of research methods namely, Qualitative Research Method and Quantitative Research method. Research on a Study on Barriers of Labour Disputes Timely Resolution is a new dimension in our industrial development. So considering all the above factors this research works utilizes the following methodologies such as Case study method, Ground theory method. Sociological Method, Statistical Method.

Method Used in this thesis: The method is used in this dissertation is action oriented. The study has been conducted on the basis of two principal sources of data collection. These are primary source and secondary source data collection.

The basic data has been collected from the administrative source, legislative laws and historical events. Other data has been collected from judicial rulings and affected person’s information. By focusing efforts on critical issues of authority concern, and the victim labour concern are the important sources of data collection.

1.6 Organization of thesis:

Organization of thesis is very important. It is the shadow of the thesis. In a brief form the main subjects’ matters of the thesis are present here. It is to the pen picture of the thesis. The organization of the thesis is described here as follows:

In the first Chapter we discuss Basic Concept and Nature of labour and industrial law; Objectives of Study, Utility of labour and industrial legislation, Methodology of study. The organization of thesis is the shadow of the main thesis. This organization of thesis is included here as a brief description of the subject matters as discussed here.

In chapter two we discussed about industrial disputes,Factors of industrial disputes,Parties to the disputes, Subject matter of industrial disputeandIndustrial relations. From this chapter it is tried to make clear about the causes, factors and subject matters of industrial disputes.

In chapter three we discussed about several cases in each in which we tried to show the industrial disputes were solved. The case studies areOmar Sons ltd. V chairman First labour court Dhaka, General Manager Hotel Inter Continental Dhaka vs. The Chairman Second Labour Court Dhaka and Another, and M/s Railway Men’s Store Ltd v Chairman, Labour court Chittagong.Regarding the cases we tried to show our observation for the better understanding of the study about industrial disputes timely resolution.

In Chapter four we tried to discuss about industrial disputes timely Solution, Statement of Industrial Disputes, Formation and Constitution of Labour Court, Function / jurisdiction of the labour courts, Trial offences under this Labour Code of Bangladesh by Negotiation, Conciliation, and enforcement of law under this code or byArbitration.Herethe application of the labour court is also discussed.

In Chapter five we discussed about Barriers and Obstacles of timely resolution of industrial disputes. The following barriers are discussed here i.e. Practical and Procedural, Membership system, Lack of adequate court procedure, Lack of pre-trial hearing arrangement, Lack of proper accommodation and facilities, Working Hours, Legal Provisions, Lack of authority to issue ad-interim order, Not a court of record, Recourse to the public demand recovery act, 1913, Lack of Provisions of Appeal, Non-transferability of Labour cases, Non-compoundable of Cases, Lack of liaison between different Labour Courts, Absence for procedure for pre-filing scrutiny and Inadequate system of supervision of Labour Courts. In this chapter the Cause of delay and suggestions are also discussed. Absence of an effective procedure for appeal, time limit for disposal of labour cases and inadequacy of procedural laws are also discussed here.

In chapter six we tried to discuss about Labour Court and Labour Appellate Tribunal. Here we discussed about basic concept of labour court, the formation and constitution of labour court, their qualification, function / jurisdiction of the labour courts,trial offences under this code,power and status of the labour court, appeal against judgment etc of labour court, Labour Appellate Tribunal and power and function of the tribunal.

In chapter seven we discussed about Jurisdiction of Labour Courts, Territorial:, Functional, Labour Court: powers, Relationship between Labour Courts and Other Courts and Bar to Jurisdiction of Civil Court in Labour Laws.

In the last eighth chapter we discussed about the conclusion, observations, findings, recommendation of the thesis and scope of further study. This is the main chapter where the opinion of the researchers is mentioned. This is final task of the thesis.

Chapter 2

INDUSTRIAL DISPUTE

2.1 Industrial disputes

2.1.1 Factors of industrial dispute

2.1.2 Parties to the dispute

2.1.3 Subject matter of industrial dispute

2.2 Industrial relations

2.3 Table

2.1 Industrial dispute

In our study we find that section 2(62) of the Labour Code 2006 defines the term ‘Labour dispute’¹ as any dispute or difference between employers and employers or between employers and worker or between worker and worker which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person.

The dimensions of the aforesaid definition determine the permissible area of both community interventions in industrial relations individuals’ dispute in industrial relation as well as labour activity. However the definition contains two limitations first this is not any dispute it relates to only disputes relating to an industry second the definition states that not all workmen and terms of employment and conditions of labour. The definition of industrial dispute may be analyzed into three heads.²

2.1.1 Factors of industrial dispute: The existence of a dispute or difference is the key to the expression ‘industrial dispute’. The expression ‘dispute or difference’ connotes a real and substantial difference having some element of persistency and continuity till resolved.

2.1.2 Parties to the dispute: In order to fall within the definition of an ‘industrial dispute’ the dispute must be between

(a) Employers and employers or

(b) Employers and workmen or

(c) Workmen and workmen trade union as such in not mentioned in the definition of ‘industrial dispute’ because they act on behalf of the workmen and therefore when a trade union raises a dispute, the workmen are deemed to be parties to the dispute.

2.1.3 Subject matter of industrial dispute: In order to be an industrial dispute the dispute must be “connected with the employment or non-employment or the terms of employment of or with the conditions of labour of any person”Regarding the industrial dispute there is a case reference which mentioned here:

Case Ref: It was has hold inMadras Gymkhana Club Employers Union v Gymkhana Club¹. However the parties to the industrial dispute do not include disputes (1) between government and industrial establishment or (2) between workmen and non-workmen.

2.2 Industrial relations

Industrial dispute is one of the outcomes of industrial relations. “Industrial relations” describe “relationship” between management and employers or among employers and their organization that characterize or grow out of employment”

In order that the term ‘Industrial relations’ could cover every sector of the labour force in all parts of the world the International Institute of labour studies has define it as “social relations in production” the modern industrial organization is based upon two large aggregates

(¡) accumulation and aggregation of large capital i.e. capital and

(¡¡) aggregation of a large number of workers or labour organized under trade unions i.e. labour.

The interaction between the two is the subject matter of industrial relations. This interaction is manifested in two aspects

(¡) cooperation and

(¡¡) conflict among labour and capital

The cooperation between the two is a basic requirement for the functioning of modern industries and growth of industrialization. Cooperation is the normal feature industrial relations. However this cooperation flows from the pursuit of self interests both by the owners of capital and owners of labour. The owners of capital have interest over quick and effective production and the labour have the interest over their wages, working hours and other facilities at the cost of their service they provide for production.

Thus there is a fair degree of give and take and service of mutual interests which is at the bade of cooperation between them. This give and take interaction when face strains, gives rise to conflicts between the two groups. These conflicts are known as industrial disputes. Industrial disputes may take as many forms as there are points of contact between management and labour. For the convenience of understanding they may be categorized into three heads economic, institutional and Psychological as described in the diagram below:

1. Madras Gymkhana Club Employers Union v Gymkhana Club; (1967) 2 LLJ 720 (SC)

2.3 Table¹

Industry

Capital Labour

Industrial Relation

Co-operation Conflicts/ Industry at dispute

Economic Institutional Psychological

1. Division of the fruits (e.g. registration of (e.g. Clash of

Of the industry of the trade unions personalities

Industry (e.g. wage membership of behavioural

Structure, education from union collective maladjustments

Wages, incentives etc) bargaining unfair authoritarian

2. Method of production practice etc) administration

(e.g. working conditions undue emphasis

Machinery changes in on discipline etc)

Production etc)

3. Terms of employment

(e.g. hours of work shift

working promotion etc)

1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.252

This basic idea underlying the provision of chapter 14 of the code is to settle industrial disputes and to promote industrial peace and to establish a harmonious and cordial relationship between labour and capital means of conciliation mediation and adjudication. With this end in view of different dispute the chapter has streamlined for some non-adjudicatory as well as adjudicatory authorities. Non-adjudicatory authorities include participation committee conciliator and arbitrator while adjudicatory authorities include labour court labour appellate tribunal etc.

Chapter 3

CASE STUDIES

3.1 Omar Sons ltd. vs. chairman First labour court Dhaka

3.2 General Manager Hotel Inter Continental Dhaka vs. the Chairman Second Labour Court Dhaka and Another

3.3 M/s Railway Men’s Store Ltd vs. Chairman, Labour court Chittagong

3.1 Omar Sons ltd. Vs. chairman First labour court Dhaka

It has held in Omar son’s ltd. Vs. chairman First labour court Dhaka¹ that One Mr. Kashem whiles several as an Accounts Clerk in Omar Sons Company was terminated by the company. Kashem claimed termination benefit which was refused by the company. Thereafter he filed a petition under section 34 of the IRO to the labour court. Three questions come for consideration by the labour court

1. First whether Kashem was a worker or not?
2. Second whether application under section 34 was maintainable or not?
3. Third whether the application under section 34 was barred ibn view of the fact that the application of the worker would have been had he filed an application under section 25 of the standing order act 1965? The labour court found that Kashem was a worker in terms of the standing orders act. On the second point it found that the application was maintainable under section 34 and on the third point it held that Kashem’s application was not barred. The employer brought the matter to the high court division. The high court division rejected the writ application and upheld the decision of the labour court holding that dismissed workers application was maintainable under section 34 of the IRO the ratio of the judgment is as follows:

Both the employment of labour act 1965 and the industrial ordinance 1969 are on the same subject. These two enactments are in part material both dealing with labour laws. The standing orders act provides that a labour court set up under the industrial relations ordinance shall be the court for the purpose of this act as well again section 34 of the ordinance in clear terms provides inter alia that worker can apply the labour court for enforcement of only right secured to him by or under any law and thereby manifestly including the provisions of the standing orders act within it. This provision indicates that the law makers treated these two enactments as par one supplementing the other and that they are to be treated as such…where there are parallel laws they should not ordinary be deemed to be repugnant to each other but supplementing each other. They should be interpreted harmoniously unless there is any express or by necessary implication repugnancy between the two. There is a great distinction between the barring of a remedy and extinguishment of a right. Nothing could be found in standing orders act to read that after the prescribed period under section 25 the right secured under the act will also be extinguished. There being no such express bar the ordinary principle of the interpretation of statutes will apply. The rule is the limitation restricts rights to take legal action for enforcement of a existing right after the lapse of certain period. It does not extinguish the certain lapse of time. We find that the right survived and the ordinance secured to the worker that fight and also gave him remedy for its enforcement without prescribing any period of limitation.

3.2 General Manager Hotel Inter Continental Dhaka Vs. The Chairman Second Labour Court Dhaka and Another

A. Statement of Facts

It has held in General Manager Hotel Inter Continental Dhaka Vs. The Chairman Second Labour Court Dhaka and Another¹ thatOne Mr. Kabir was working as a cashier/checker of the Hotel international. When on 25.07.1974 he was on duty in saqi bar of the hotel of the Hotel a surprise check carried by an auditor according to the practice of the Hotel and a shortage of tk.400.83 was found in the cash handled by Mr. Kabir. On 26.07.1974 Kabir was charged under section 17(3)(b) of the employment of labour act 1965 by the personal manager of the hotel. He was asked to show cause as to why he should not be dismissed and or otherwise punished.

After receiving his reply an enquiry was held and the enquiry officer he was charged. The hotel management dismissed Kabir on 05.09.1974 Kabir then filed an application under section 34 of the IRO praying for his re-instatement. The second labour court Dhaka allowed the application under section 34 and ordered for his reinstatement with payment of back wages minus taka 400.83 the amount was found reinstatement by the labour court.

The issues before the high court Division were

(1) Whether an application by a dismissed worker challenging his dismissal is maintainable under section 34 of the IRO or not? In other words whether an individual dispute not raised by any collective bargaining agent under section 43 can be treated as industrial dispute or not?

(2) Whether dismissed workers remedy lies only in section 25 of the employment of labour act 1965 or in section 34 of the IRO also?

Definition of worker: the definition of workers or workmen in clause of section 2 of the ordinance has classified them into two distinct categories. A workers or workman who falls in the first category means any person who is not an employer as defined in the ordinance but is employed for hire or implied term of employment. In the second category falls a worker or workmen who has been dismissed discharged retrenched laid off or otherwise removed from employment but beside such dismissal retrenchment or removal two other factors must existence of any proceedings under the ordinance in relation an industrial dispute and the other is the existence of some connection between his dismissal discharge retrenchment lay off or removal and industrial dispute to be more explicit his dismissal must have arisen out an industrial dispute or mist have arisen out an industrial dispute or must have led to such dispute.

B. Raising an industrial dispute: Section 43 provides that an industrial dispute can only be raised by a collective bargaining agent or an employer in circumstance provide for in sections 26-33 of the ordinance;

Section 43 contains and express prohibition against the raising of an industrial dispute except by a collective bargaining agent or an employer or except in the manner prescribed in the ordinance. There in no other phrase or clause in section 34 this can be interpreted as nullifying the express prohibition in section 43 of the ordinance. Even if it be conceded that an individual dispute between a single worker and his employer can be included within the definition or industrial dispute such dispute cannot be brought to the notice of the labour court for its decision by reason of the express prohibition contained in section 43 of the ordinance. Being unqualified the prohibition must seem to be both total and complete.

A dismissed worker who falls within the definition of worker in the employment of labour act 1965 can avail of the procedure laid down in section 25 of the act of 1965 for challenging his dismissal. A dismissed worker who is not included within the marrowy definition or worker as provided in the act will not however be without any legal remedy though unable to seek the protection against dismissal under section 25.

In M/s Railway men’s stores Ltd v Chairman, Labour Chittagong¹ the Appellate Division approved the view by holding that a dismissed worker cannot maintain an application under section 34 of the IRO Let us discuss the decision by the Appellate Division.

3.3 M/s Railway Men’s Store Ltd. Vs. Chairman, Labour court Chittagong

A. Facts: It has held in M/s Railway Men’s Store Ltd v Chairman, Labour court Chittagong that one Mr. Abul Bashar was terminated under section 19(1) of the standing orders act 1965 on the ground of failure to duperies the work of the kitchen staff and bearers of a restaurant maintained by the appellant company. In spite of the service the appellants continued to deal with the said Abul Bashar who was general secretary of the employers union and ultimately a memorandum of settlement was concluded between the meantime the employers union filed an application before the labour court under section 34 of the IRO for reinstatement of the said Abul Bashar in his former post alleging inter alia that the termination of his service without stating full reason was illegal and that he was victimized for being an officer of the employers union the labour court allowed the application and ordered Bashar’s reinstatement. The company filed against the decision of the labour court. The high court Division summarily rejected the application. Thereafter the appellant obtained a special leave to appeal from the appellate division. The appellate division allowed the appeal by holding that-

Workers terminated dismissed or discharge not in connection with any industrial dispute is not a worker under the IRO and cannot apply under section 34 such a worker cannot apply even trough a CBA. the right to move the application not being available to Abul Bashar who ceased to be in the employment of the Railway men’s stores the trade union was also not competent to file the application under section 34 of the IRO to enforce a right which may be guaranteed to a workman under the standing orders act but not to it.

The workman concerned could certainly apply under section 25 of the standing orders act for the necessary redress in respect to the termination of his service if he fulfilled conditions laid down in the said section and could established that his termination was really a kind of victimization.

B. Problems with the Judgment of the appellate Division:

His lordship justice Ruhul Islam in James Finley vs. Chairman second labour court observed in his dissenting judgment the following weakness in the judgment of the appellate division: the appellate division did not consider whether Abul Bashar was holding a supervisory post for management of the restaurant.

It did not consider whether he was a worker or not as defined in section 2(v) of the standing Orders act which excludes a person being employed in a supervisory capacity. It also did not consider if the alleged termination from service was really a kind of victimization for trade union activates. Because had it been so it would have been an offence under section 15 of the IRO and in such a code whether an aggrieved person was competent to seek an appropriate remedy under the IRO?

Subsequent to the Railway Men’s case the appellate division had another occasion to consider the same point in James Finley vs. Chairman Second Labour court, Dhaka¹ In this case the majority judgment approved the above decision in the Railway Men’s case and Hotel intercontinental case.

Chapter -4

INDUSTRIAL DISPUTE SOLUTION

4.1 Statement of Industrial Disputes

4.2 Formation and Constitution of Labour Court

4.3 Function/ jurisdiction of the labour court

4.4 Try offences under this code

4.5 Negotiation

4.6 Conciliation

4.7 Try to enforce under this code

4.8 Arbitration

4.9 Application of the labour court

4.1 Statement of Industrial Disputes

The basic idea underlying the provision of the chapter 14 of the code is to settle industrial disputes and to promote industrial peace and to establish a harmonious and cordial relationship between labour and capital by means of conciliation mediation and adjudication. With this end in view different authorities have been created under the code to resolve an industrial dispute. Of these two bodies are adjudicatory or judicial. They are the labour court and the labour appellate tribunal. The code has streamlined for some non adjudicatory authorities. Non adjudicatory arbitrator while adjudicatory authorities include labour court and labour appellate tribunal.

4.2 Formation and Constitution of Labour Court

Under section 214 the Government may establish one or more labour courts consisting of a Chairman and two member’s one of the members is to represent the workmen and the other to represent the employers.

4.3 Function/ jurisdiction of the labour court

Under section 214 (10) a labour court shall have exclusive jurisdiction to

Adjudicate and determine an industrial dispute which has been referred to or brought before it under this code.

Enquire into and adjudicate any matter relating to the implementation or violation or a settlement which is referred to it by the Government.

4.4 Try offences under this code

Again under sub-section 225(2) when an apple in respect of any matter arising out of an industrial dispute is preferred to a tribunal the tribunal may by an order in writing prohibited.

4.5 Negotiation

If a dispute is likely between an employer and an employee the employer or the CBA shall communicate the same in writing to the other party. Within ten days the parties will try to resolve the matter by way of negotiation if a settlement reached a memorandum shall be recorded accordingly. Under sub section 210 (4) 30 days time, the negotiation is allowed to completed negotiation.

4.6 Conciliation

Failing a negotiation under sub-section 210 (1,2) any part may report to the conciliator that the negotiation have failed and request the conciliator in writing to conciliate the dispute and conciliator shall on receipt of such request proceed to conciliate in the dispute. Under section 210(6) the conciliator has ten days time for conciliation.

Under section 214(10) a labour court shall have exclusive jurisdiction to adjudicate and determination an industrial dispute which has been referred to or brought before it under this code

4.7 Try to enforce under this code

Exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this code or any other law.

Again under sub section 225(2) when an appeal in respect of any matter arising out of an industrial dispute is preferred to an tribunal the tribunal may by an order in writing prohibit continuance of any strike or lack out in pursuance of such industrial dispute which had already commenced and was in existence on the date on which the appeal was preferred.

4.8 Arbitration

If conciliation fails the conciliator shall try to persuade the parties to agree to refer to the dispute to an arbitrator. In case the parties agree they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them. The arbitrator shall give his award within thirty days from the date on which the dispute is referred to him or within such period as may be agreed upon by the parties. The award of the arbitration shall be final and no appeal shall lie against it (section 210 (16) ¹

4.9 Application of the labour court

If no settlement is arrived by way of conciliation and the parties agree not to refer the dispute to an arbitrator the conciliator shall within three working days of the failure of the conciliation proceeding give certificate to the parties to the dispute to the effect that such proceedings have failed. Within 15 days from the date of receipt of certificate under sub-section 210(11) the worker may go on strike or the employer may declare lock out. However the parties at dispute may either before or after the commencements of a stake or lock out make joint application to the labour court for adjudication of the matter.

Chapter 5

BARRIERS AND OBSTACLES

5.1 Practical and Procedural

5.1.1 Membership system:

5.1.2 Lack of adequate court procedure:

5.1.3 Lack of pre-trial hearing arrangement:

5.1.4 Lack of proper accommodation and facilities:

5.1.5 Working Hours

5.2 Legal Provisions:

5.2.1 Lack of authority to issue ad-interim order:

5.2.2 Not a court of record:

5.2.3 Recourse to the public demand recovery act, 1913:

5.2.4 Lack of Provisions of Appeal:

5.2.5 Non-transferability of Labour cases:

5.2.6 Non-compoundable of Cases:

5.2.7 Lack of liaison between different Labour Courts:

5.2.8 Absence for procedure for pre-filing scrutiny:

5.2.9 Inadequate system of supervision of Labour Courts:

5.3 Cause of delay and recommendation:

5.4 Absence of an effective procedure for appeal:

5.5 Time limit for disposal of labour cases:

5.6 Inadequacy of procedural laws

5.1 Practical and Procedural

Some of the major barriers and obstacles which are responsible for delays in the disposal of cases by the Labour Courts are as follows:

5.1.1 Membership system

A Labour Court, in order to function as a court, has to be constituted with one Chairmen and two Members- one representing the worker and the other representing the employer. If the Members are absent or unable to attend the court due to any reason, the court is not constituted and in that case no new case can be taken up for hearing. However, once a court is constituted and hearing of a case started, the subsequent proceeding of the court may continue even in the absence of the Member. But if both the Members are absent in subsequent sittings of the court further hearing of the case, the court cannot function although initially at the commencement of hearing the court was properly constituted.

This is the main problem of the Labour Courts as the Members of the Labour Courts are often reluctant to attend the Courts. The court, for want of Members, is often not taking cognizance of criminal cases¹ under the Industrial Relations Ordinance, 1969 and the Employment of Labour (Standing Order) Act, 1965. The litigant workers cannot withdraw a case² filed under the Industrial Relations Ordinance, 1969 or complaint cases for want of Members. As a result, hearing is being delayed for years together. A number o9f cases coming from High Court Division on remand with instructions to complete hearing within one month are also pending for year’s together before the Labour Courts for wants of Members.

5.1.2 Lack of adequate court procedure

Another problem is the want of rules of procedures except for criminal and industrial dispute cases. In deciding criminal cases the Labour Courts follow the summary procedure of the Code of Criminal Procedure as amended from time to time. An adjudication of industrial disputes it follows the Code of Civil Procedure. In other cases which constitute more than 80% of the cases of the Labour Courts covering individual disputes, the confusion concerning of procedure is the smooth functioning of the Labour Courts and this is also causing delay.

5.1.3 Lack of pre-trial hearing arrangement

Most of the cases filed before the Labour Courts are disposed of after hearing. The law has not given any authority to these courts to attempt a settlement of disputes by mediation. In other words, there is no pre-trial hearing or mediation stage in the Labour Court Procedure. This causes delays and unnecessary harassment for the litigants.

5.1.4 Lack of proper accommodation and facilities

The Labour Courts are at present working in surroundings which are not functioning with honor and dignity. The courts do not have their own Court houses. The court rooms are not of required sizes. The rooms are not properly equipped and furnished either. The Chairmen of these Courts are not provided with facilities which were enjoyed by them in their pre positions or are enjoyed by other judges of equal rank and position. Nature in an atmosphere like this, quick disposal of cases cannot be expected.

5.1.5 Working Hour

Presently, unlike the other courts, the Labour Courts do not appear to have observing any fixed working hours. They are very often found to function hardly two hours a day. As a result, hearing of cases being delay and cases are piling up.

1. The Industrial Relations Ordinance, 1969, The Employment of Labour (Standing Order) Act, 1965. 2. The Industrial Relations Ordinance, 1969

Most of the lawyers practicing before the Labour Courts are lawyers of the Supreme Court and District Courts. They, consequently, are busy either the High Court Division or the District Courts and they hardly get sufficient time to attend Labour Courts. The problem is compounded by the fact that Labour courts are situated quite a distance away from the other courts.

5.2 Lack of interest on the part of senior lawyers

Often some of these senior lawyers send their juniors to the Labour Courts with instructions to file hazira if the court is not constituted and time petition if the court is constituted. As a result, there are unnecessary delays in disposal of cases. In addition to the above, it may also be pointed out that the Chairman of the Labour Court is all members of the judicial service of Bangladesh. However, most of them hadn’t had an opportunity to familiarize themselves with the labour laws before taking over as of a Chairman of Labour Courts. Consequently, a Chairman, on his appointment, faces a totally new situation and has to spend a lot of time to familiarize himself with the Labour work. This also occasionally causes delays.

5.2 Legal Provisions:

The Labour Courts also fade the following problems and these affect directly and indirectly the functioning of the courts causing unnecessary delays:

5.2.1 Lack of authority to issue ad-interim order

Since the Code of Civil Procedure, 1908 does not apply to a Labour Court except to a limited extend, these courts have not been empowered to issue ad-interim order for stay or orders for stay which a court must exercise to do complete justice and not to make a case in fructuous before its hearing and disposal. The effectiveness of relief or remedy by a Labour Court is rather limited.¹

5.2.2 Not a court of record

A labour Court has no power to punish any person for contempt of court. They can refer such cases to the Tribunal which may punish the contemnors. The Labour Court should be empowered to punish for contempt of court. Moreover the existing system of enforcement of the Labour Courts decisions is not satisfactory. Labour Courts have no power to enforce the decisions by them.

5.2.3 Recourse to the public demand recovery act, 1913

Any sum payable under an order of the authority under the Payment Wages Act, 1936 may be recovered as a public demand or as an arrear of land revenue under the procedure laid down in the Public Demand Recovery Act, 1913 which is a very time bconsuming and complicated matter. As a result, the workers have to suffer, in spite of having received in order from the payment of Wages Authority in their favour¹. And under the existing provisions of the Payment of Wages Act, 1936, or criminal case can be filed for violating the courts order u/s 15(2) of the Act.

5.2.4 Lack of Provisions of Appeal

Except for awards in industrials disputes and decisions in case under the Workmen’s Compensation Act, 1923 and the Payment of Wages Act, 1936 decisions of labour Courts are final and there is no provision of appeals to higher courts. As a result, the only possibility is taking recourse to the Writ jurisdiction of the High Court Division. this is a time consuming and costly route. The poor workers can hardly afford to file an appeal in the High Court Division even if they have good and sufficient grounds.

5.2.5 Non-transferability of Labour cases

Under the present laws, cases can not be transferred from one court to another even though it may be necessary for an even distribution of work load or for expeditious disposal of cases or for alleged embarrassment, bias or interest of the Chairman of a Court.

5.2.6 Non-compoundable of Cases

At present, offences under the Labour Laws are considered non-compoundable and as such a complainant, after filling a criminal case, cannot withdraw the case. The accused has to come before the court for bail, even after paying all the dues claimed by the aggrieved worker. This is causing unnecessary harassment to both the parties.

5.2.7 Lack of liaison between different Labour Courts

All the Labour Courts function independently. There is no system of keeping the Labour Courts in touch with each other. Due to lack of inter-relationship among them, labour courts decide cases and deliver judgment based on their own interpretation of applicable laws. As such, inconsistency and non-uniformity of decisions cannot always be avoided.

5.2.8 Absence for procedure for pre-filing scrutiny

Non-existence of scrutiny at the time of cases under the existing system increases work load of the Labour Courts. There should be a system of scrutiny at the time of filing of cases before the Labour Courts in order to eliminate time-barred and other cases and this may be done through the Registrar of the concerned Labour Court.

5.2.9 Inadequate system of supervision of Labour Courts:

Under the existing system, there is hardly any mechanism for scrutiny and accountability of work done by the Labour Courts. A system of judicial and administrative supervision through periodical inspections by the Labour Appellate Tribunal which is headed by a Judge of the High Court Division can meet such a need. Lastly, it is often found that criminal jurisdiction of the Labour Courts is being used for causing harassment of parties. As such the Labour Courts are required to be more careful while issuing a process and it has to fully satisfy itself that a prima face case has really been made out.

5.3 Cause of delay and recommendation

The causes of delay in disposal of the cases are manifold in nature. It appears that the cases of delay are product of three main factors. These are:

1. Structural limitations and defects;
2. Legal and procedural defects and short comings of law; and
3. Deficiency of moral and ethics and conducts of the concerned persons.

All other reasons of delay in disposal of the cases emanate from these three main problems and related issues. The major flaws of the existing labour laws of the country and the required remedial measures to be taken to improve the same are outlined below:

5.4 Absence of an effective procedure for appeal

The decision of Labour Courts in individual cases filed under section 25(b) of the Employment of Labour (Standing Orders) Act, 1965 has been made final as stated earlier. Since this act does not provide for preferring of appeals to the Labour Appellate Tribunal against such decisions of Labour Courts, (in such cases) the aggrieved party has to take the matter to the High Court Division in its writ jurisdiction under the constitutional provision and thereby challenge the legality of the decision of Labour Courts only on points of law. This course is not only expensive but involves considerable delay in disposal of such writ petitions. As such, the workers generally are unable to take such course, not because of its high costs but because it is almost impossible for a worker to sustain the indefinite delay involved in disposal of such writ petitions. In this view of matter it is a long felt need to make these decisions appeal able forum.

As also stated earlier, the Industrial Relation Ordinance, 1969 contains provisions regarding institution of individual cases in Labour Courts directly by a worker or a Collective bargaining Agent (CBA) or an employer for enforcement of any right guaranteed or secured to it or him or under any law or award or settlement. Such causes are in the nature of execution court for enforcement of such guaranteed or secured rights. Labour Courts decisions in such cases are final and not appeal able. This, therefore, created an adverse criticism and discontentment in view of fact that even though there is a Labour Appellate Tribunal, it cannot entertain an appeal against Labour Court’s decision in cases of these natures for inadequacy of law. As a result, practically the Labour Appellate Tribunal does not do much adjudication. The Labour Appellate Tribunal has been conferred upon the jurisdiction to entertain appeals from the decisions of the Labour Courts in cases on under the Payment of Wages Act, 1936 and the Workmen’s Compensation Act 1923, only.

The decisions of the Labour Courts in all cases, as stated, except awards, are final. This restriction should be immediately removed. Without a provision for appeal there is, effectively, no mechanism for check and balance. There is no Scrutiny of the quality of Labour Court’s decision by an appellate court. The decisions of the Labour Courts are not put to the test of law in the higher courts or in appellate forum. This therefore, calls for immediate review and decision. Since the Industrial Relations Ordinance, 1969, has already established an appellate tribunal, it is desirable to make provisions for appeal against Labour Court’s decisions in all cases to the Labour Appellate Tribunal and this can be done by a slight amendment of the relevant law. Hence the provisions for appeal in the relevant laws need to be amended and the appeal jurisdiction of the Labour Appellate Tribunal needs to be enhanced.

5.5 Time limit for disposal of labour cases

With regard to time for disposal of cases there is a provision in law that an award or decision of a labour court as well as the decision of the Labour Appellate Tribunal should be delivered within 60 days. But in the event of any delay beyond the 60 days the award or decisions shall not be rendered invalid merely on the ground of delay. As such it appears that the time limit indicated in law for delivery of decision or award by and Labour Appellate Tribunal is only directory and not mandatory. In practice, however, we find inordinate delay in disposal of cases in Labour Courts and as much a matter of fact a case is hardly disposed of within 60 days as stipulated by law. However, in the Labour Appellate Tribunal we find comparatively speedier disposal of cases.

5.6 Inadequacy of procedural laws

It has been found occasion Courts face problems because of inadequacy of relevant procedural laws. The Code of Civil Procedure does not fully apply to Labour Courts. It has a limited application. If a case is decided expert or is dismissed for default it cannot be restored by Labour Courts as there is no such provision in the Industrial Relations, 1969, or in any other labour laws applicable in Labour Courts. The Labour courts cannot entertain an application for injunction or stay order as the law did not provide for such injunction in the Labour Courts. There were some conflicting decisions of different benches of the High Court Division on Labour Court’s jurisdiction under the Code of Civil Procedure as to whether it can set aside an expert order passed in a case or has the power to issue injunction. In recent case the Appellate Division of the Supreme Court of Bangladesh settle the issue and held that the Labour Court does not have any such jurisdiction under the labour laws presently in force. However, it is suggested that it may be worthwhile to review the needs of the time for a decision whether Labour Courts should be conferred with powers and jurisdiction to do complete justice.

The Labour Court created¹ under the Industrial Relation Ordinance, 1969 have both civil and criminal jurisdictions. The Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil court² while for trying the offence under Industrial Relations Ordinance, 1969 it shall be deemed to be a court of status and powers of a Magistrate of the 1st Class under the Code of Criminal Procedure, 1898. But it has been observed that sometimes the courts and the practicing lawyers have to face some difficulties with respect to the procedures of the court in particular cases and these difficulties sometimes create deadlock in the dispensation of justice. As such like other procedural laws, the procedures to be followed in Labour Courts should be laid down and clearly specified in the form of a codified law.

It may be mention here that the employment of Labour Act, 1965 only contains the procedure to be followed by the Labour Court on receipt of any complaint. No other procedural step or measure has been prescribed in the Standing Order Act to be followed by the Labour court in the matter under the said Act. On the other hand, in the Payment of Wages Act, 1936 the Chairman of the Labour Court has been vested with the power of the civil court under the Code of Civil Procedure, 1908 only for the purpose of taking evidence and enforcing the attendance of witnesses and compelling the production of documents.

It may further be mention that for realization of Payment of Wages