Objective of this Study
The Board objective of this assignment is “Women Right Under Labour Act,2006 an analytical Perspective” .
The object of both the law is to establish a continuous process of harmonious relationship between the employers and employee. They have another object of fastening together both the labour and capital in order to create an atmosphere that they are an indivisible whole in production. The ultimate object of labour and industrial law is to maintain industrial peace security and steady growth of production.
The origin and growth of labour law may be ascribed mostly to the development of organized industry where a large number of workers including women and children are employed under conditions which tend to be detrimental to their safety and welfare and against which they are often to protect themselves.
From historical point of view labour law has given birth to some fundamental industrial rights to labours in the field of production. At the same time it has also provided protection for those rights.
From a practical point of view labour and industrial law provide for three types of dispute settlement measures voluntary settlement machinery, quasi judicial machinery and judicial machinery.
Importance of the Study
Labour and industrial legislation is necessary for the following reasons:
The individual workers are economically weak. They cannot bargain with the employees 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.
Scope and Limitation of Study
The discussion of this dissertation will be limited within the scope of the Origin and historical development of Labour law of Bangladesh, the Problems of Labour law of Bangladesh, problems of Labour education in Bangladesh and some case studies. The system of enrolment in the Bar Council also discussed. There will be discussed about some nature of crimes committed usually.
Methodology of Study
The methodology used in the thesis is Qualitative Methodology. Our research works are based on 1. Historical Study and 2. Analytical Study.
- Historical Study: It has a historical back ground of worker’s movement for the establishment of their rights. The worker’s movement becomes successful. Now the modern world, Modern state and United Nations Organization highlighted the worker in their dignity, honor, position, participation social work political activity etc.
In Bangladesh the worker’s retrenchment are guaranteed in their constitution, state laws, and social and state activities. Through the historical revolution the worker’s right has come to this position. The history worker’s movement 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 worker’s right and retrenchment 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 worker’s right is judicial matter. So in this process of study the analytical study is necessary and important for this thesis. For our research works we followed the analytical study.
The main object of the study is to evaluate effects and importance on persons, 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 issues. The research work is involved with the legal matter, administrative matter and judicial decision of the worker’s retrenchment. Under these circumstances a regulated research work will be suitable to solve the problems after investigating different variables such as laws relating to “A Study on Worker’s Retrenchment under Labour Law: Bangladesh Perspective”.
Normally researchers depend on different methodological approaches. Research method is an important factor for all kinds of study. There are two kinds of empirical research methods namely.
- Qualitative Research Method and 2.Quantitative Research method.
Research on “A study on worker’s retrenchment of Bangladesh” a new admiration has emerged among the judicial persons, educators, sociologists, psychologists and public interest, lawyers, politicians, scientists and many others. Peaceful, legal, moral, ethical happy life in the society is the vital issue for the man kind. So considering all the above factors this research works utilizes the following methodologies –
1. Case study method,
2. Judicial method,
3. Ground theory method.
4. Sociological Method,
5. 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: 1. Primary Source, 2. Secondary source.
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 persons concern are the important sources of data collection
Preliminary discussion about Labour Law
Labour Law is very importance in Bangladesh perspective. Labour law of Bangladesh is developed by origin and historically. There are many problem of labour law of Bangladesh, problems also labour education in Bangladesh and some cases studies. I try organized this thesis and mentioned that condition for a valid retrenchment of labour. I include procedure of retrenchment of Bangladesh and retrenchment compensation with studies. I also try includes Labour court and Labour appellate tribunal.
In the first chapter I tried to include Introduction, Objectives of the study, Importance of Study, Scope and Limitation of Study, Methodology of study and Organization of Thesis. It is the introductory chapter of the thesis.
In the second chapter I tried to discuss about Labour laws in Bangladesh like Employment Conditions, Labour Laws, Settlement of Labour Disputes, Wages and Fringe Benefits, Leave & Holidays, Social Security and Labour Union for the better improvement of industrial sector of Bangladesh.
In the third Chapter I tried to discuss about retrenchments including Conditions for a valid Retrenchment, Procedure of retrenchment, Retrenchment compensation, Re-employment of retrenched workers, Condition of re-employment for retrenchment workers and Distinction between lay-off and retrenchment.
In the fourth chapter I discussed about 10 cases like M/S Caltex oil (Pakistan) Ltd. vs. The chairman second labour Court, Aminul Islam vs. James Finlay Co.Ltd, Bangladesh tea estate ltd vs. Bangladesh tea estate staff union, Banks & Another vs. Coca-Cola SA, Oosthuizen vs. Telkom SA Ltd., Perumal & another vs. Tiger Brands, Zero Appliances (Pty) Ltd vs. CCMA & Others, Leppan and Suretrade 110 CC t/a Bra Boutique, Retrenchment: breakdown of trust relationship14-MAY-08 Zietsman & others vs. Transnet Limited, Thekiso vs. IBM South Africa (Pty) Ltd [Redundancy & EEA requirement etc.
Labour Law regulates matters, such as, labour employment, remunerations, conditions of work, trade unions, and labour management relations. They also include social laws regulating such aspects as compensation for accident caused to a worker at work, fixation of minimum wages, maternity benefits, sharing of the company’s profit by the workers, and so on. Most of these legal instruments regulate rights and responsibilities of the working people.
With the growth and expansion of factories and industries in the subcontinent beginning in the mid-nineteenth century, new avenues for employment were created, resulting in a gradual migration of the labour force from rural areas to mills and factories located primarily in urban areas. At that time, in the absence of any state control or organisation of the workers, the employers were less concerned about the needs of their employees; the work hours were too long, wages much below the subsistence level, and the workers’ employment conditions were unsatisfactory. The situation led to the enactment of a number of legislations beginning from the year 1881. These include, inter alia, 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).
After 1947, the government in Pakistan decided to keep in force most of the pre-partition laws with some modifications and amendments thereof, in the form of administrative rules, to meet the changing needs. Almost the same governmental decision to allow most of these laws to remain in force was taken in liberated Bangladesh in pursuance of the Adaptation of Bangladesh Laws Order (President’s Order No. 48) issued in early 1972. Following is a brief description of the acts, ordinances, rules and regulations that comprise the labour and industrial legislation of Bangladesh.
Establishments The Factories Act 1881 is the basis of all labour and industrial laws of the country. It contained provisions even for hours of work of women and workers including that of minimum age for employment of children. After the International Labour Organisation (ILO) was formed in 1919, this Act was amended and thereafter repealed, resulting in the promulgation of the Factories Act 1934, which remained in force till 1965, when the Factories Act 1965 was promulgated incorporating some provisions of the ILO conventions. The Act of 1965 applies to manufacturing establishments employing ten or more persons with or without the aid of any mechanical power. It makes provision for safety, health and hygiene of the workers and special provision for women and juvenile workers. It also prohibits child labour. It limits work of a child in factories, including the seasonal ones. For extra work by a worker beyond normal hours, payment is to be made at double the ordinary wage. The periods of adult workers shall be so fixed that either no worker shall work for more than six hours continuously before he has had an interval (for rest) of at least one hour, or for more than five hours without a rest interval of at least half an hour or for more. The periods of work along with rest interval shall spread over more than ten and a half hours in perennial factories and eleven and a half hours in seasonal factories. One weekly holiday is to be granted to all workers. The act also provides for leaves and holidays.
The workers to whom the Factories Act of 1965 does not apply are covered by the Shops and Establishment Act 1965. It also makes provision for cleanliness, fixes working hours, extra payment for overtime work, and special provision for women and juvenile workers. Children workers under the age of 12 cannot be employed under this Act. More specifically, under this Act the working hours in shops or commercial or industrial establishments or establishments for public entertainment/amusement are limited to nine per day and fifty one per week. Overtime work up to one hundred and twenty hours in a year is permissible which is to be paid for at double the ordinary rates. No worker is to work for more than five hours in a day without a rest interval. The Act provides for one and a half-holiday with pay each week.
Under the Mines Act 1923 which applies to workers employed in mines, the hours of work for persons employed on surface are limited to ten per day and fifty four per week. The periods of work including rest interval shall not spread over more than 12 hours in any day. For workers employed underground, the daily limit is nine hours per day. The Act does not contain provisions as to overtime work. No worker is to work in a mine for more than six days a week. The Act does not provide for wages for the weekly rest day.
Holidays The Weekly Holidays Act of 1942 prescribes one paid holiday a week for persons employed in any shop, restaurant or theatre (excepting those employed in a confidential capacity or in a position of management). The government is empowered to grant additional half-day holiday with pay in a week. Under the Factories Act, 1965 workers employed in factories are entitled after one year of service to ten consecutive paid holidays in the case of adults and fourteen in the case of children. Workers in mines are not entitled to annual holidays.
Plantation workers are given least annual leave. An adult worker earns one day leave for every 30 days of work performed. Young persons earn one day’s leave for every 20-day work. Plantation workers are entitled to only 5 festival holidays in a year. They get sick leave of 15 days with half-average pay. No casual leave with wages is granted to them. Road transport workers are entitled to one day annual leave for 22 days of work. They are entitled to 10 days casual leave and 14 days sick leave. No provision for festival leave is there in the Road Transport Workers Ordinance of 1961.
Workers employed in the newspapers enjoy enough leave facilities. They earn leave on full wages not less than one-eleventh of the period spent on duty and medical leave on half wages for not less than one-eighth of the period of service, and ten days casual leave with wages.
Entitlement of annual leave with pay under the Shops and Establishment Act of 1965 is in the case of an adult, one day for every 18-day of work, and in the case of a young person, one day for every 14-day of work actually performed by him during the previous period of twelve months. It further provides for 10 days casual leave and 14 days sick leave with full pay in a year.
Industrial relations The Industrial Relations Ordinance of 1969, including the Industrial Relations Rules of 1977 framed thereunder, provides for formation of trade unions and regulation of relations between employers and workers. At the time of the promulgation of this Ordinance, there were three separate laws regulating the relations between employees and employers, namely the East Pakistan Trade Union Act of 1965 which provided for the formation and functioning of trade unions, the East Pakistan Labour Disputes Act of 1965 which provided for investigation and settlement of labour disputes, and the East Pakistan Employment of Labour (Standing Orders) Act of 1965 to regulate the conditions of service of workers employed in shops, commercial and industrial establishments.
The first two of the above acts were repealed by the Ordinance of 1969. This Ordinance provides for various ways of settlement of industrial disputes which have been defined in the Act of 1965. Since public interest is involved in settlement of industrial dispute, adjudication as such through labour courts bears much importance. The labour courts play an important role for maintenance of industrial peace through settlement of issues on labour management problems, and hence they enjoy the confidence of both the employers and the workers.
Development of adjudication system was conceptual, brought in by the Trade Disputes Act of 1929, which used to provide for investigation and settlement of trade disputes and for certain other connected matters. A court of enquiry consisted of an independent chairman and one or more independent persons appointed by the prescribed authority. To overcome the difficulties in the Act of 1929 some provisions were made in the Defence of India Rules, 1939 for adjudication of disputes between employers and their workers. This process continued till the expiry of the said Rules on 31 March 1947. The Industrial Disputes Act, 1947 came into being on the 1st day of April 1947. The Act provided for establishment of industrial tribunals by the appropriate government in British India. It established a full-fledged industrial tribunal for adjudication of industrial disputes for the first time. Thereafter the East Pakistan Labour Disputes Act, 1965 was promulgated with effect from September 1965. This law like the Industrial Disputes Ordinance, 1959 envisaged constitution of courts under the name of Labour Court by the government. The law also provided for appeal procedure similar to what was included in the Industrial Disputes Ordinance, 1959, against an award of the labour court to the labour appellate tribunal by the aggrieved party.
The Employment of Labour (Standing Orders) Act, 1965 provided for a grievance procedure for redress of individual grievance of any particular worker in respect of their employment or conditions of work or infringement thereof. This widened the scope of the Labour Court and its jurisdiction to look into the grievances of individual workers in respect of their rights arising out of any matter covered by the said Act. This covers cases of illegal dismissal, discharge, lay off, retrenchment or termination of service by victimization for trade union activities or infringement of their rights covered by the said Act, and the Court as such was vested with jurisdiction to provide effective remedy to the workers for any wrong done to them by the employer.
In early 1969, the military government of Pakistan under the changed impact of industrial civilization and culture, considered it prudent to revise the labour policy in general and to bring about new concept in labour laws. In this background and in order to consolidate the law to regulate the relations between employers and workers as well as for avoidance and settlement of industrial disputes and also to regulate the law relating to formation and registration of trade unions, the Industrial Relations Ordinance of 1969 was promulgated in November 1969, which was however drastically amended in October 1970.
The Industrial Relations Ordinance, 1969 envisaged constitution of labour courts with a chairman and two members to advise him, one to represent the employers and the other to the workers. The labour court acts as civil court as well as criminal court and tries offences punishable under labour laws. The Industrial Relations Ordinance of 1969 also provided for establishment of a Labour Appellate Tribunal for entertaining appeals against awards of labour courts on industrial disputes.
Conditions of service Legislation concerning long-term policy as a means of fostering economic stability and growth is relatively a new concept in labour law. There was almost no legislative regulation on the terms and conditions of employment of workers employed in shop, industrial or commercial establishment. The Industrial Employment (Standing Orders) Act, 1946 came into operation for the first time requiring employers in industrial establishments employing 100 or more workmen to define the terms of employment of workmen in the form of standing orders which should be in general conformity with the model standing orders incorporated in the Act. The Merchant Shipping Act, 1923 provided for an agreement between a seaman and the master of the ship regarding terms of service. The Act was replaced by the Merchant Shipping Ordinance, 1983. In 1960, the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 came into force replacing the Industrial Employment (Standing Orders) Act, 1946. This law also was replaced in 1965 by the Employment of Labour (Standing Orders) Act, 1965 which provides for defining and determining conditions of service of workers, workers’ and employees’ rights vis-a-vis the employer’s rights. Under this Act misconduct of workers is defined, and the employer has a right to lay off, dismiss, discharge, retrench or terminate the services of workers. Employers can close down the establishment in certain contingencies. The workers’ remedy against illegal dismissal or cessation of employment, grievance procedure against any action of the employer is provided for in the Act.
Wages The government of India set up an enquiry committee in 1926 to ascertain the loophole for irregularity of payment of wages to industrial workers. The Royal Commission on Labour appointed in 1929 considered the reports and suggestions of the aforesaid enquiry committee and recommended for enactment for prevention of maladies relating to payment of wages resulting in the promulgation of the Payment of Wages Act in 1936. It aimed, firstly, at disbursement of actual distributable wages to workers within the prescribed period and, secondly, to ensure that the employees get their full wages without any deduction. The Act was passed to regulate the payment of wages to certain classes of persons employed in industry. The object of the Act obviously was to provide a cheap and speedy remedy for employees to whom the Act applied inter alia, to recover wages due to them, and for that purpose, a special tribunal was subsequently created, but due to some inherent defects in the statute the recovery of decreeable wages remained difficult.
The Payment of Wages Act, 1936 remained in force during the Pakistan regime and thereafter in liberated Bangladesh. A major amendment was however made in the Act in 1980 vide the Payment of Wages (Amendment) Act, 1980 (Act No. XXVI of 1980). The Act as amended has been made applicable upon employed persons, irrespective of quantum of wages, and the cases under the Act have been made triable by the chairmen of the labour courts, and provision for appeals has been made to the Labour Appellate Tribunal instead of the High Court Division. The paymasters have been made liable for prosecution on complaint of the aggrieved person.
Social security statutory provisions exist for only two contingencies, ie employment-related injuries and childbirth. The liability in both cases is entirely that of the employer. The Workmen’s Compensation taka 400 per month, including all railway and other categories of workers specified in the Act, eg workers engaged in factories, mines, plantations, loading or unloading, construction or repairs to mechanically propelled vehicles. The bar in amount of wages was removed by an amendment made in 1980 to the Act. The Act of 1923 also contains a list of occupational disease in respect of which compensation is payable.
The Employer’s Liability Act, 1938 declares that the doctrine of common employment and of assumed risk shall not be raised as a defense in suits for damages in respect of employment injuries. Under the Maternity Benefit Act, 1939, the Maternity Benefit (Tea Estate) Act, 1950, the Mines Maternity Benefit Act, 1941, and finally the rules framed there under, female employees are entitled to various benefits for maternity, but in practice they enjoy leave of 6 weeks before and 6 weeks after delivery.
The workers’ entitlement in the company’s profit at certain rate was made compulsory by enacting the Companies Profit Workers’ Participation Act, 1968. Those companies which employ 100 workers or each of which has a paid-up capital of five million or which has the value of fixed assets exceeding 10 million (Irrespective of his/her designation and functions, who draws salary less than taka 9000 per month is deemed a worker under the Act) are covered by this Act. Under the provision of this Act, as amended in 1985, two funds, namely the Participation Fund and the Welfare Fund, have been created with the company’s contribution for the welfare of the workers.
The Factories Act of 1965 prohibits the employment of women for cleaning or oiling any part of moving machinery and in factories where a cotton opener is at work. Necessary rules have also been framed by the government restricting the employment of women in operations which expose them to severe risk of bodily injury, poisoning or disease. The Mines Act, 1923 authorizes the government to make regulations prohibiting, restricting or regulating the employment of women in mines either below ground or in activities which are attended by danger to the life, safety or health of women.
The Children (Pledging of Labour) Act, 1933 declares void an agreement to pledge the labour of a child below 15 years. The parent or guardian of the child and the employer making the agreement are both guilty under the Act.
Women workers The provisions regarding hours of work in the Factories Act 1965 apply to workers of both sexes. The daily limit of nine hours in the case of women is subject to the restriction that no exemption regarding hours of work for women workers in the Mines Act, 1923, which are limited to ten per day and fifty-four per week for surface workers and nine per day for underground workers. The employment of women underground, however, continues to be prohibited by regulations framed under the Act. The Factories Act however stipulates that no women should be allowed to work in a factory except between 6 am and 7 pm. The government is empowered in respect of any class or classes of factories to vary these limits to any span of 13 hours between 5 am and 7-30 pm. Under the Mines Act, 1923 women are prohibited to work in a mine either below or above ground between the hours of 7 pm and 6 am. Under the Factories Act, 1965 there is provision for creches in any factory employing more than 50 women workers, a suitable room reserved for the use of children under the age of six belonging to women workers. The Mines Act, 1923 and Mines Creches Rule, 1946 also provide for the maintenance of creches in mines wherein women are ordinarily employed.
Young workers The Factories Act of 1965 fixes the minimum age of children as 12 years for employment in factories. No child is allowed to work in a factory unless he is certified physically fit, and children between 16 and 18 years of age not certified fit as such, are treated as children under the provisions of the Act. The Employment of Children Act 1938 prohibits the employment of children below the age of 15 in any occupation connected with transport of passengers, goods or mails by railway or involving the handling of goods within the limits of any port. It further prohibits the employment of children below 12 years in any workshop wherein the process of bide making, carpet weaving, cement manufacture, cloth printing manufacture of matches and explosives, mica-cutting and depleting are carried on.
Under the Mines Act 1923, child below 15 years is allowed to work in mines either on surface or below ground. The employment of children between 15 and 17 years underground is dependent on their being declared medically fit. Persons below 17 years shall be employed in such manner that they get a rest interval of 12 consecutive hours out of which 7 hours shall fall between 7 pm and 7 am.
For employment in shops and commercial establishments, the Shops and Establishment Act of 1965 provides that no person below the age of 12 years is to be employed in a shop or establishment covered by this Act. For employment at sea the minimum age fixed under the Merchant Shipping Act, 1983 is 14 years. A young person between fourteen and eighteen years of age can only be carried to sea in any capacity if declared medically fit. Under the Factories Act of 1965 the employment of children under 15 years of age is prohibited for cleaning or oiling any moving part of the factory. The government is further empowered to make rules prohibiting or restricting the workers for work which has the risk of serious bodily injury, poisoning or disease. Persons below 18 years of age may not be employed as stokers or trimmers, except in coastal ships where they may be employed if above 16 years of age.
Export processing zones (EPZ) many workers employed in the EPZ enterprises are not within the jurisdiction of labour laws. The Export Processing Zones Authority Act of 1980 empowers the government to bar application of some laws these zones. Since the Employment of Labour (Standing Orders) Act is inoperative in EPZs, the authority created under the Act has promulgated two instructions on service conditions and pay of the workers. These, however, are not enforceable in any court of law.
The labour laws in this country have been enacted at different times to meet the problems of the day, seemingly without taking into consideration the contents of the existing laws, and in most of the cases relationship with other laws was not taken into consideration, which consequently led to anomalies and contradictions with one another. In 1992, with a view to revising and codifying the different labour and industrial laws in a code, a 35-member National Labour Law Commission was set up. The Commission submitted a draft of a single code to the government in 1995, but no comprehensive law on the recommendation has been passed as yet.
Definition of labour Law
Labour law is designed to control and govern the continuous process by which workers and management decide the terms and conditions of employment. It is based almost entirely on statutes passed by the parliament during last seventy years. Labour law regulates matters such as, labour employment, remunerations, condition of works, trade unions and labour management relations. It also indicates that the rules and regulations which cope with employee’s right to join trade union, in particular, benefits of workers, conditions of leave, especially maternity leave for women workers, conditions for workers. However, Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. It involves collective bargaining regulation, and the right to strike. Is also involves individual employment law refers to workplace rights, such as health and safety or a minimum wage.
Objectives of the Bangladesh labour Act
The main purpose of the Bangladesh labour Act, 2006 is to consolidate and amend the existing laws relating to labour and industrial affairs. The other Objectives of the Bangladesh labour Act ,2006 are to appoint labour , to increase relation between Labour and employers ,to specify the lowest wages of the labour , to discharge wages , to compensate for the ulcerating the labour ,to form of the trade unions , to regulate the relations of any differences or disputes arising between labours and employers , to protect the social security of the labour including health , safety and welfare . Labour law encourages and promotes these purposes by placing statutory limitations on employer interferences with the rights of employees with self organizations and bargaining collectivity and because union, too , may abuse their power , labour law also acts to curb and control union activities .
Women right under labour law
Women have been uniquely viewed as a creative source of human life. Wifehood and motherhood were regarded as women’s most significant professions, however; history shows, women generally have had fewer legal rights and career opportunities than men. In the 20th century, however, women in most nations won the right to vote and increased their educational and job opportunities. Perhaps most importantly, they fought for and to a large degree accomplished a revolution of traditional views of their role in society. In the second half of the twentieth century, there has been a dramatic increase in the representation of women in the workforce throughout the world as well as in Bangladesh. In Bangladesh women are entering into job market mainly in readymade garments and allied sector, tea garden, NGOs, health care services, food processing industry, export processing zone, services sectors and commercial enterprise and informal sector i.e. construction, agriculture etc. One of the important safety-net issues for all working women is maternity benefit. Maternity leave refers to the period of time that a new mother takes off from work following the birth of her baby. Legislation concerning the payment of maternity benefits, before and after confinement, is in operation in any establishment in Bangladesh. But in Bangladesh majority of the women are deprived from this right for various reasons such as, weakness of relevant laws, lack of seriousness from the part of the government on implementation and monitoring of relevant laws at workplace level, negative attitude of the employers to abide the laws, week role of trade union to deal the issue. On top of that very little is known about maternity leave by women themselves before they become pregnant. Even, many are unaware of their rights and there is grave unwillingness from the authority to enlighten them. The tragic part is that most of the employees terminate the female worker while they conceive. The largest sector of female employment i.e. garments industries; ruthlessly evades laws in this way. No prosecution is brought mainly because women workers, who are eligible to file suit in Labour Court for violation of their right, have no knowledge that they are protected under law and they have remedies for the violation of their maternity benefit right.
Barriers to timely resolution of labour disputes involve 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 labour cause. 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 thesis includes numerical representations of the state of labour case under various relevant laws.
Labour Rights for Women
LABOUR RIGHTS FOR WOMEN aims to contribute to overarching policy aim of contributing to structural poverty reduction by improving gender equality and the empowerment of women. Within this aim, LABOUR RIGHTS FOR WOMEN will promote economic self-reliance, through giving women a say in employment in 11 countries: Egypt, Guatemala, India, Indonesia, Kenya, Pakistan, Paraguay, Peru, South Africa, Tanzania, and Uganda.
The project aims to raise awareness, through mass media and public debates, with empowering women to defend their own rights at the workplace, while strengthening women’s leadership in collective bargaining and social dialogue. More in particular to further three development objectives:
- increase awareness of women’s labour rights as laid down in national legislation and collective agreements. How to combine work and motherhood, and achieve equal rights, equal pay, decent working conditions, and measures against workplace sexual harassment
- empower women workers to improve their employment situation
- improve legislation and enforcement of laws protecting women’s labour rights
Co-applicant Wage Indicator Foundation will put its worldwide web portal at the disposal of the LABOUR RIGHTS FOR WOMEN project. It draws web visitors, using state-of-the-art content management systems, applying search engine optimisation techniques and optimising media outreach. Scientific backing and analysis of data is provided by AIAS, University of Amsterdam. The national websites are managed by regional teams in Argentina, Egypt, India, Pakistan, and Mozambique with help from national experts such as lawyers, marketers and journalists.
The project trains women both from within and outside trade unions on women’s rights, advocacy, negotiation skills and networking, to enable them to successfully run mobile support units. Trainings are organised and new and up-to-date training materials developed, in addition to existing training materials. Starting from the second project year, the mobile units will support women to address workplace issues. The ITUC Regional offices, its Training & Research Institutes and the Trade Union Confederations in their respective countries are responsible for this objective.
Trade union partners focus on the most vulnerable and unprotected groups of women workers, such as women in informal employment, domestic work or other forms of precarious work. Trade union partners will host regular meetings bringing together women who connected with the support unit, to share experiences, success stories and to identify common challenges and areas for further action. These meetings will develop into a network of women with leadership qualities, able to pressure governments and employers on the national level. To maximise the visibility and impact of the national networks, ITUC and its regional organisations will integrate them into a global network.
To improve legislation and enforcement of laws, the project organizes public debates involving politicians, MP´s, labour inspectors, business leaders, employers’ organizations and trade union leaders, women’s organisations and broader civil society. Co-applicant Wage Indicator and the regional web-teams will take the lead in realising these public debates, using principles from journalism and input from previous meetings and encounters. Broad media coverage of such public debates is expected to raise public attention and increase support for proposed legislative changes and enforce existing rights.
Social dialogue meetings and collective bargaining negotiations organised by trade unions with social partners will further follow up on the conclusions of the public debates; the points of action decided at the national networking meetings; and the momentum created by the media and public attention.
The achievement of these LABOUR RIGHTS FOR WOMEN involves the development of economic and social capabilities. The project strengthens women’s social capabilities through networking and strengthens their economic capabilities by increased pay and benefits and improved working conditions.
As for article No 97, it reaches the highest degree of violating all the international measures related to the working women’s rights. The law does not apply to women who work in the farming sector, instead of agricultural sector, in the law No 137. women who work in farming were deprived from being under the umbrella of the New Unified Labor Law, which is considered an unjustified tyrannical rule. For how could a complete group of workers in a certain sector be deprived of the necessary legal protection? The absence of legislations regulating the workers’ situation in a certain economic sector is considered a discrimination against the women working in the field of mere farming, for not considering them equal to the women work in the other economic sectors which does not consist with the principals of eliminating the discrimi1 Make Trade Fair,
nation against women. Though the number of women working in the field of farming is about 3 millions workers, the legislator ignored the rights of this group and moreover did not codify their minimum rights in a legislative frame.
Working Women in the Modern Global Economy
Unskilled women workers have entered export‐processing industries throughout the Developing world at an alarming rate. Women overwhelmingly occupy the lowest paying, most unstable jobs, producing our clothes, agricultural products and other luxuries for export to the US. As the free trade model replicates worldwide, multinational corporations exploit increasingly weak and “flexible” labor laws. The result is that women workers are systematically denied their rights to regular pay and regular working hours; equal pay for equal work; permanent contracts; safe and non‐hazardous work environments; and freedom of association. Labor law “reforms” have denied women access to social, maternity and health benefits and women are increasingly subject to subcontracting Schemes that blatantly undermine these rights. In light of the global economic crisis, precarious employment has increased women are the first to be unemployed or Underemployed.
Weak Labor Laws Hurt Working Women in around the World
- More than 80% of the women workers in Colombia receive less than the legal
Minimum wage. 1
- Women have lost an average of $21‐25 a week after the 2002 labor law reform. With the reforms, the workday was extended as the workweek became 48 hours a Week, distributed over a period of 6 days allowing employers to create a margin of Between 6 in the morning to 10 at night to organize the workday. Extra payment for Working on Sundays and public holidays was reduced.
- On average women earn 14% less than men.
- Precarious employment has a very negative impact on female incomes. The labor law reform was adopted in Colombia to reduce labor costs. The government claimed this would generate more employment but the results were that According to Colombia’s National Labor School from 2005‐2007, the
- Underemployment rate went from 31.6% to 34.8% as temporary jobsincreased. During the same period, the rate of workers who claim that their income is inadequate increased by 4%
- Less than 35% of the women have access to social security Studies from the Colombia Auditor General’s office and the World Bank all acknowledge that the labor law reform has not met its goals. Analysts have concluded that it has increased poverty by reducing workers’ income.
- Colombia has seen an increase in union violations against women unionists since 20032. Peru has seen its non‐traditional agricultural ‐exports double from 2005 to 2008. The sector has shown to be unstable, as exports dropped by 18% since December of 2008, due to the economic crisis. Peru recently entered into a Free Trade Agreement with theUS.3
- Women occupy the majority of these temporary, precarious jobs in agroindustry and have been most affected by the economic crisis
- Pregnancy discrimination is frequent. Women are often forced to take Pregnancy tests or they are fired when they become pregnant. They have Trouble being re‐hired if they were temporary workers and are often denied Their maternity and health benefits, as result.
- Most of supervisors are men and issue dismissals when women are pregnant
- There has been an increased assault on the right to organize unions, making it Difficult for women to assert their labor rights Chile recently has Free Trade Agreements with various nations worldwide, including the US.
- 75% of women fruit‐pickers are now on temporary contracts and work 60‐hours per week in season, but still one in three earns at or below the minimum wage. Bangladesh receives trade benefits under the Generalized System of Preferences but.
- Fewer than half the women in Bangladesh garment factories have a contract and most get no maternity or health coverage. 4 Labor Law Reforms Worsen Conditions for Colombian Flowers Workers According to Corporation Cactus, an established Colombian NGO dedicated to researching Colombian flower workers’5,
- A major factor contributing to the decline in decent work has come with the Onslaught of “labor flexibilization,” in floriculture. (The Flower sector is one of Colombia’s largest, employing approximately 100,00 workers). Cuaderno de Derechos Humanos No. 19, 2515 Or that Sinister Ease to Forget: 21 Years of Systematic and Selective Assassinations Associacion Aurora Vivar, April 2009, “Non-traditional Agro-export Industry and Maternity in Peru”
This is evident in such hiring practices as:
‐ Fixed term contracts, generally no more than 4 months
‐ Contracts based on production, for example based on the number of flowers cut
‐ Subcontracting through individuals or temporary employment agencies
‐ Subcontracting through Associated Labor Cooperatives which are not legally
recognized as employers, allowing them to evade the law.
- Outsourced and temporary workers are denied the right to join unions and are exempt from receiving social, health, and maternity benefits. They are most likely to be underemployed or unemployed during an economic downturn, given their precarious positions. In 2006, a survey (conducted by various labor organizations) of 1,397 flower workers in the Bogota valley, a primary flower growing region showed that:
- 35% of flower workers were subcontracted, 8.7% by Associated Labor Cooperatives and 21% by Temporary Employment Agencies After the expedition of Decree 4588 in 2006 and Law 1233 from 2008, which sought to? Limit Associated Labor Cooperatives as labor intermediaries, a few labor cooperatives Were dismantled. In 2005 and 2006, the Ministry of Social Protection sanctioned various cooperatives, however many converted themselves into Temporary Employment Agencies in order to continue functioning within the flower sector.
- Many labor cooperatives continue to function in the Bogota valley in order to disguise the genuine employer‐employee relationship and evade the law According to Beatriz Fuentes, a former flower worker and union leader, currently working for the National Labor School in Colombia, “Despite some changes in the law regarding Associated Labor Cooperatives, we’re still, seeing the same pattern in the flower industry: an increase in subcontracted workers who have no labor rights and poor working conditions for flower workers.”
- Most flower workers continue to earn the legal minimum wage. The minimum wage only covers 45% of the living costs.
BANGLADESH LABOUR LAW:
Bangladesh has integrated the promotion of decent work as part of the “strategic blocks” under its “Poverty Reduction Strategy Papers” (PRSP). Updated periodically, the PRSP outlines the broad socio-economic development programs being pursued by the country to meet its MDG commitments.
As it is, mass poverty has remained the single most critical development-retarding problem in Bangladesh. The country has reduced poverty by only one percentage point per year during the 1990s. This has allowed a vast and growing number of people to remain unemployed and underemployed. There are presently over 63 million people below the poverty line, one-third of whom are trapped in extreme poverty.
The slow pace of MDG fulfilment by Bangladesh is due partly to the pursuit of a narrow growth only economic strategy, which has, over the years, produced an unequal and even job-less growth pattern. It has also resulted in a mismatch between sectoral growth and overall labour absorption in the country (Titumir and Hossain 2005).
Decent work indicators
This study has adopted the decent work framework in the review of the labour law system of Bangladesh. As a backgrounder, decent work has four constituent pillars: access to productive employment and income opportunities; rights at work, particularly with respect to the core labour standards; systems of social protection; and a voice at work through social dialogue. These are interdependent and mutually reinforcing (Bell and Kristen 2010).
In this context, the observance of labour rights can be measured in terms of broad and specific legal provisions or indicators supportive of the key or core areas of labour laws (see Table 1).
The core areas are – (1) employment standards, (2) occupational safety and health, (3) welfare and social protection, (4) labour relations and social dialogue, and (5) enforcement.
Overview of Bangladesh labour laws
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. After the separation of the Indian sub-continent in 1947, almost all the laws during the prepartition period were kept in force with some modifications and amendments, in the form of administrative rules, by the Pakistan Government. After the independence in 1971, the Bangladesh government retained the previous laws through the Bangladesh Laws Order (President’s Order No. 48). It also enacted additional laws in response to the changing circumstances and needs of the working class and the country. In 2006, the country adopted the revised Bangladesh Labour Law of 2006 or BLL.
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.
The BLL is also considered an advance because it removes certain ambiguities in the old and diverse labour acts and aligns the labour law system with the ILO core conventions. On the Removal of ambiguities, the definition of a “worker” is now very specific. Another example: the exclusion under the term “wages” of the following items — expense for housing facilities like lighting and water supply, employers’ contribution to the provident fund, traveling allowances and other sums paid to worker that are needed to cover work-related expenses.
The BLL is also an advance because of its wider coverage, for example, workers and staff oF hospitals, nursing homes and even non-governmental organizations are now covered by the law. Also, certain welfare and social benefits have been improved or instituted, e.g., death benefit (financial support to family of deceased worker), application of provident fund benefit to all workers in the private sector, expansion of maternity benefit from 12 to 16 weeks, adoption of group insurance for establishments with 200 or more workers, and increased employee compensation for work-related injury, disability and death.
On the ILO core conventions, Bangladesh has ratified the following International Labour Conventions (ILCs):
ILC 29 (Forced Labour),
ILC 87 (Freedom of Association and Protection of the Right to Organize),
ILC 98 (Right to Organize and Collective Bargaining),
ILC 100 (Equal Remuneration),
ILC 105 (Abolition of Forced Labour),
ILC 111 (Discrimination in Employment and Occupation), and
ILC 182 (Elimination of the Worst Forms of Child Labour).
The only core convention not ratified by Bangladesh is ILC 138 (Minimum Age Convention). However, the BLA provides that the minimum age to work is 14 (although a special clause states that children between the ages of 12 and 14 may be employed to do “light work” that does not endanger their health, development and education). and education.
- A‘Minimum Wage Board’ is established to determine the minimum rates of wages in different private sectors, taking into consideration varied criteria: cost of living, standard of living, cost of production, productivity, price of products, business capability, and economic and social conditions of the country.
- Employers are mandated to observe equal wages for male and female workers for work of equal nature or value.
- Forced labour is prohibited. Occupational safety and health
- Establishments are required to put up for every 150 workers one first aid box and one trained person per first aid box, and an equipped dispensary with a patient-room, doctor and nursing staff.
- Employers are required to take appropriate measures to protect workers from danger and damage due to fire.
- Every establishment is required to be kept clean and free from effluvia arising out of any drain, privy or other nuisance.
- The work room should not be overcrowded and injurious to the health of the workers.
- Every establishment should provide pure drinking water, sufficient light and air, and separate toilets for its male and female workers. Welfare and social protection
- Gratuity is defined under the law as separation payment, at least 30 days, for workersdischarged from work and yet have worked not less than 6 months.
- Factories are required to have an in-house canteen for every 100 workers.
- Every establishment/employer is required to form a Provident Fund if three-fourths of its workers demand it by written application, and a Workers’ Participation Fund and a Workers’ Welfare Fund for its workers.
- Establishments with 200 or more workers should institute a group insurance.
- Every employer should provide compensation to its workers for work-related injury, disability and death.
- Various women’s’ issues are also covered: maternity leave of 16 weeks (8 weeks before and 8 weeks after child birth), no gender-segregated wage structure, prohibition of any form of discrimination against women, prohibition of women working between 10:00 p.m. and 6:00 a.m. without consent, prohibition for women handling running or dangerous machines (unless they are sufficiently trained to operate such machinery), prohibition for women working under water or underground Labour relations and social dialogue
- Every worker employed in any establishment has the right to form and join a trade union of their own choice. Trade unions have the right to draw up their own constitution and rules and to elect their representatives. Also, trade unions have the right to form and join in a federation and such unions and federations have the right to affiliate with any international organization and confederation of trade unions.
- The trade union is allowed to serve as a collective bargaining agent in any establishment.
- In case of industrial disputes, the two sides can seek resolution through negotiation, followed by conciliation and eventually arbitration if negotiation fails.
- The collective bargaining agent is entitled to file a notice of strike (or lockout in the case of the employer) with a 15-day cooling-off period.
- Employers can not recruit new workers during the period of a strike.
- Employers are also prohibited in terminating workers in the course of trade union organizing in the work place.
- Government shall appoint the Director of Labour and “such number” of Additional Director of Labour, Joint Directors of Labour, Deputy Directors of Labour and Assistant Directors of Labour as necessary for monitoring workplace activities.
- The Government shall appoint a Chief Inspectors and requisite number of Deputy Chief Inspectors, Assistant Chief Inspectors or Inspectors. These officers have the power to enter, inspect and examine any workplace premises and ascertain the observance of labour laws.
- The Government has the power to establish as many Labour Courts as it considers necessary. A Labour Court shall consist of a chairman and two members (one representing employers and the other, the workers).
Findings from the Field
As mentioned, this study sought to examine the weaknesses of the labour law system. To find out what is obtaining on the ground, the research team administered a baseline survey2 in the urbanized and industrialized districts of Dhaka, Chittagong, Narayanganj and Gzipur. The sample survey targeted worker-respondents in the ready-made garments industry (for the formal sector) and construction industry (for the informal sector). The survey results were supplemented by 11 worker FGDs in the different districts, case studies and interviews with key informants in order to come up with a rounded and objective picture of the state of labour law compliance from the perspective of the ordinary workers.
From the baseline survey, 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, the research findings show that 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. Below is a summary of key research findings:
A baseline survey questionnaire developed by LO/FTF and ITUC/AP for its affiliates in the Asia- Pacific region was adopted by the research team, translated into Bangla language and modified to suit Bangladesh situation after some pre-testing runs.
- 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 (45.3%). 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 (30.2%) of workers do not get identity cards from their employers.
- Dismissal of workers without notice. Over one-fourth (26.4%) 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 (33.5%) of the garments workers do not know the OT rate, with 13 per cent of the respondent garments workers getting less than Tk.10 for every hour of OT work against the minimum Tk.10.80 per hour OT work. For the construction workers, work hours range at 8-12 hours.
- Low wage awareness. More than half (52.4%) of the respondents do not know whether they are receiving wages according to their grades. A large number (about 40 %) of respondents in the garments industry also do not know whether the minimum wage is implemented at their workplaces. More than half (54.7%) of the garments workers and almost all (98.1%) of the construction workers do not receive pay slip or any other document concerning the payment of wages and benefits.
- Missing workers’ participation in company’s benefit. Garments workers are not aware about any provision regarding workers’ participation in company’s benefit.
- Weekly rest day and leaves not observed. Many garments workers do not have the chance to enjoy weekly rest day. Most workers get festival leave but employers often impose conditions to enjoy the leave. Legal provisions on casual leave, sick leave and annual leave are widely violated. Sometimes some employers make wage/salary deductions for the workers to enjoy weekly rest day, casual leave, sick leave and festival leave. In the construction industry, most workers do not have the chance to enjoy these leaves as the compensation policy is simply ‘no work, no pay’.
- Rest periods: irregular. Only 13.2 per cent of the garments workers have admitted that they enjoy regular rest periods, meaning the majority enjoy this right in a highly irregular manner. In the construction sector, 49.5 per cent respondents reported that this right is limited in practice.
- Child labour: still a reality. Both the garments and construction industries still employ child workers (below 14 years of age), per observation by 9.9 per cent of worker respondents in the garments industry and 13.1 per cent in construction. Three respondents happen to be below 14. The employment of child workers in both the garments and construction industries is governed by oral contract. The nature of work given to these child workers are the same as those given to adult workers.
- Women discriminated in job placement, increment and promotion. Female garments workers are not discriminated with regard to wages. But they face discrimination in job placement, increment and promotion. In the construction industry, females are discriminated in wages, benefits and other areas.
- High occupational risks, low risk information, limited risk prevention. Workers in both industries face numerous occupational risks and accidents. The most common risks in garments are the “pricking of finger by needle” followed by “cuts” in hand. In construction, the most common risk is “falling down from high place.” And yet, employers usually do not provide information on these occupational risks, as explained by 43 per cent of worker respondents in the garments industry and 65 per cent in construction. Majority (61.8 % in garments and 72.1 % in construction) of respondents said that authorities have not taken any measure to prevent further accidents at their workplaces. In garments, while some measures are taken, these are not sufficient and often done before the global buyers’ presence.
- Safety facilities: inadequate in garments and absent in construction. In garments factories, fire extinguishers and emergency stairs are present but are generally inadequate compared to the number of workers. Some factories do not even have these facilities, with emergency stairs even kept under lock and key by some employers. Safety equipments and tools are also not always provided to the workers. A large number (46%) of respondent do not know whether they are provided safety tools. Many workers also do not get any risk reduction training. Only 2.8 per cent of the construction workers get safety tools from the employer.
- Occupational illness, The proportions of workers who said that they have suffered occupational illness are 18.4 per cent in garments and 29 per cent in construction.
- Harassments at the workplace. About 40 per cent of the garments workers and 30 per cent of the construction workers said that they endure mental harassment (due to verbal abuse and the likes). More worrisome, more than one-fifth (21.7 %) in the garments industry and a few (8.4 percent) in the construction mentioned that they have experienced or faced physical harassment and torture. A few respondents (1.9 % in garments and 0.9 % in construction sectors) also admitted that they were harassed sexually at their workplaces. All these answers were affirmed by the FDG participants.
- Welfare facilities: available in law only. The BLL enumerates various welfare facilities like first aid kit, canteen, restroom, day care/children’s room, medical care, separate place/room for lunch at the workplaces of the workers. However, a large number of the respondents said that they are not provided with many of these facilities. In the construction sector, very few (9 %) said that they have first-aid kits; most said that the other facilities are generally absent.
- Violations of maternity and social welfare programs. No factory provides maternity leave for four months and most factories give maternity leave only without pay. Participants also report that female workers many times do not want to bear child because of fear of losing the job. Very few garments factories have introduced provident fund and gratuity for the workers. Group insurance is also not effective in most of the garments factories. In construction sector, workers are completely deprived of all these programs.
- Barriers to TU formation: fear of losing Job, long hours of work. Garments and construction workers do not join trade unions, as they do not want to lose their jobs. Workers in both sectors disclosed that their employers would dismiss them from job if they are found engaged in any sort of activities related to workers’ association. There are cases where employers send workers suspected of union organizing to police custody. Also, since workers of these two industries log long hours of work every day, they hardly have time for trade union activities.
- Collective bargaining: limited and informal in nature. Predictably, only 2.8 per cent of worker respondents in the garments industry and 0.9 per cent in the construction admitted that they have knowledge or been involved in collective bargaining with their employers Moreover, bargaining is of the limited informal type, with garments workers bargaining with the employers through informal mediators and construction workers with individual contractors.
- Inspection: “fire brigade” approach. Most workers said that they never met any government officials coming and inspecting their workplaces. Those who have visited their work places talked only to the employers. Also, inspections take place only after some accidents have occurred, like the fire brigade taking action after the fire.
- Access to judiciary: low awareness. Very few workers get the opportunity to take legal measures concerning conflicts with employers. They usually inform the police about such issue and a few take action through the workers association. A large numbers of workers (68.4 % in garments and64.5 % in construction) do not know whether they can take legal measures against their employers.
GAPS and WEAKNESSES in the BLL From the foregoing research findings, it is clear that there are widespread violations of labour rights and labour laws in Bangladesh. Can these violations be cured by stricter enforcement? The answer is yes. But this is not enough because the BLL itself has some weaknesses. Below is a discussion of major gaps and weaknesses in the BLL identified by research team.
The BLL fails to include a large number of workers — domestic workers, agriculture workers, and workers working at schools.
The law 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 self-defense. 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, the law 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. The BLL prohibits employers to employ women workers for the period between 10 p.m. to 6 a.m., and yet, relaxes this rule by allowing the same women workers to work if the latter give their consent.
In the determination of minimum wage, the family size criterion has not been considered. Nor is the need to balance efficiency and equity. Further, the mandatory wage review of every five years is too long given the rapid changes in the economy and rising workers’ needs.
The law still lacks clarity as to what items can be deducted from the basic wage, what can not be deducted and what are the sources (and basis) of any wage deductions.
The calculation of OT pay is not spelled out for piece-rated workers. In the first place, the law does not provide specific guidelines on the fixing of basic wages for the piece-rated workers. The BLL recognizes various types of leaves, e.g. weekly holiday, casual leave, festival leave, medical leave, annual leave, and maternity leave. However, 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 tea-state workers do not enjoy casual leave.
Although the current law extended the maternity leave, this is not enjoyed by the many who are under short-term hiring arrangements, especially since the law states that a six-month employment is needed to get maternity leave.
Forced labour is prohibited and yet there are no penal sanctions against this.
On child labour, the prohibition is contradicted by the provision which allows the employment of children who are 12 years old in works that are supposedly not detrimental to their health and education.
The law lacks specific provisions on discrimination related to work place facilities, treatment of Non-wage issues (e.g., promotion and placement), and other grounds of discrimination such as Race, religion, ethnic group, etc..
Occupational Safety and Health
The law has no clear provisions on the following:
(i) Specific weight limit (for load carried by workers in any factory) according to age, Condition and sex;
(ii) Ratio of alternative stair as precaution in case of fire and other apparatus against theNumber of workers; and
(iii) workers-toilet ratio.
Welfare and Social Protection
The establishment of provident fund is not mandatory. It is dependent on the demand of a prerequisite Number of workers. Group insurance is also dependent on the number of the workers and the prerequisite number is quite high. The amount of compensation given to workers due to work-related injury, disability and death is VNot adequate for the worker and his/her family. The provision of compensation is also Discriminatory in terms of age of the workers, with an adult worker getting Tk. 1, 25,000 for Complete permanent impairment whereas a child/adolescent/young worker gets Tk.10, 000 only. Other aspects of social protection have remained untouched in the labour law of Bangladesh such As provisions on pension and medical and life insurance for the workers.
Labour Relations and Social DialogueA new provision in the law has banned TU offices within the 200 yards of an industry. Thislimits, physically, the scope for trade union activities.
The law allows the functioning of three registered trade unions in an establishment or a group ofestablishments, and yet an amendment states that workers of Chittagong and Mongla Sea Port are allowed to form only one trade union at their respective workplaces. Thus, the law is discriminatory as well as self-contradictory.
The law sets a very stiff requirement in trade union formation — support of 30 per cent of the workers in an establishment. For new unions, this is virtually a trade union ban.The law has also imposed a ban on strikes in some industries, in particular a 3-year ban on Strikes in newly-established industries and industries established for or supported by foreigners.
This collides head-on with ILCs 78 and 98 and Freedom of Association and Collective Bargaining.
The requirements for a lawful strike are stiff, particularly the requirement of proof of support ofat least 3/4 members of the CBA unit. In situations where the life of the union is at stake (e.g.,leaders being dismissed from work), such a requirement is a virtual subversion of unionism.On the other hand, there is no specific provision with respect to protection of workers in lockoutsituations, especially if the intention of the employer is to temporarily close down the factory todestroy the union.
There is a 30-day limitation to file appeal before the Labour Court when the Director of Labour Rejects any application to register a trade union. This is relatively short for unions with limited Resources and whose members work long hours daily. There is also time limit in appealing Before the Labour Appellate Tribunal. According to the law, an aggrieved person can appeal the Verdict of the labour court on lay-off, retrenchment, discharge and dismissal within 30 days The law is not clear on the right of labour leaders and the workers themselves to represent union Members and themselves in the labour courts. The rules of the court are also technical and tend to favour the financially capable employers.
There are no clear rules on how grievances can be raised at the plant level.As to disputes elevated outside the plant, the process of dispute settlement is complex, time-consuming And expensive for the workers and the unions. There are many stages in the process And each takes a long time.
The BLL has no express provisions on the principle of “due process”, which should be observed By employers in disciplinary, suspension and termination cases. Due process means workersShould be given ample opportunity to be informed or notified about the basis of the specific casesAgainst them, and to defend themselves through a procedure that is fair and objective.The system of tripartism, tripartite consultations and formation of tripartite bodies requiresClearer rules. For example, the BLL is silent on the tenure of the tripartite members of the WageBoard and the manner and criteria guiding the selection of the worker’ and employers’Representatives in the Wage Board.
Punishment for labour law violations is not spelled out under the BLL. In some cases, the law issimply silent like in the case of forced labour prohibition. In other cases, the penalty is insufficient or meager, for example Tk. 5000 as fine for violation of provisions on maternity leave, employment of child and adolescent workers, and minimum wage. Still in other cases, the Application of penalty defies logic, for example, imprisonment up to one year for the violation ofMinimum wage provision but not in the violation of the laws on maternity and employment ofChild and adolescent workers.
In addition, there is a recent amendment weakening the penalties for erring employers – payment
Of only Tk. 5000 as fine for the previous punishment of ‘imprisonment up to three months, or Fine up to Tk. 1000, or both’.As discussed in the research findings, there are also numerous problems related to the system of
As to access to the judiciary, the labour law has a general provision guaranteeing workers’ access To the judiciary for redress of grievances but is not clear on how such access can be realized, step By step, at minimum or affordable cost to the workers and their unions.
LABOUR REFORMS FOR DECENT WORK and INDUSTRIAL DEMOCRACY
The Constitution of Bangladesh, in Article 14, states:
“It should be a fundamental responsibility of the State to emancipate the toiling masses – the peasants and workers – and backward section of the people from all forms of exploitation”.
The reality is that so much have to be done to make the above constitutional vision of worker emancipation from all forms of exploitation a reality. Economic reforms are obviously needed toput Bangladesh on the path of balanced, job-full and inclusive growth process. Political reformsare also needed to insure that growth is sustained in the framework of a stable democracy.
However, in the area of labour laws and labour relations, the foregoing research findings andanalysis of the Bangladesh labour law system show that urgent labour law reforms are needed.These reforms should be pursued in the context of the DWA, MDG and the Constitutionalmandate for workers protection against all forms of exploitation. In this connection, theresearch team is proposing the
updating of legal provisions in employment standards, health and safety and socialwelfare and social protection,
strengthening of legal provisions on trade unionism and collective bargaining, andenforcement of labour rights.
In particular, the following key reforms are needed:
Align the BLL with international norms, particularly ILC 87 and ILC 98. As asignatory 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,
The BLL should cover all workers without exception. These include the domesticworkers, agricultural workers, school workers and informal workers.
The right to form unions, especially in the garments industry, should be given widestspace in terms of legal provisions. Some doables:
- Removal of the 30 per cent requirement for trade union registration
- Amendment of the ¾ requirement for a strike to be declared to a simply majority
- Removal of any strike ban in any industry
- Removal of any rules on where to locate trade union offices and all artificialbarriers to union formation.
- Workers should should be given the full freedom to choose their representatives and form unions without fear of dismissal or harrassment.
- Enactment of laws against unfair labour practices committed by employers,
e.g., dismissal of trade union officers and members, intervention in internaltrade union affairs and so on.
The right to negotiate and conclude collective bargaining should be expresslyrecognized in the law. Some doables:
7.Mandatory provision on good-faith bargaining by both sides once a union is duly registered and recognized as the most representative
- Provisions on how both sides can bargain in the spirit of mutual respect within certain time lines
Promote coherence in the BLL in the context of DWA, MDG and Constitutional mandate on protection for all workers against all forms of exploitation. Among others, this entails –
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.
Timelines for the processing of workers’ claims should be subject to the test of fairness and equity.
Application of the principle of universality in the development and application of various social welfare and social protection schemes such as provident fund, group insurance and so on.
Strengthen enforcement and administration of labour justice. There are major concerns that should be addressed under this theme such as —
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.
THE RIGHTS OF WOMENAGRICULTURAL WORKERS
In many regions of the world, women make up a considerable portion of the agricultural labour force, as men often migrate from rural areas and/or are employed in non-agricultural occupations (a phenomenon referred to as “feminization of agriculture”). This chapter examines the rights of women agricultural workers, in relation to both access to employment and treatment during employment.
Agricultural labour rights are mainly determined by labour law, and particularly by two broad groups of norms: those concerning all workers, both male and female (minimum wage; safety and hygiene; trade union rights; etc.), and those specifically concerning women (non-discrimination; maternity leave; “protective” legislation; etc.). The focus here is on the latter. While some labour-law issues are relatively uncontroversial (e.g. non-discrimination), others are debated. For instance, “protective” legislation prohibiting women from working in certain occupations or at night, enacted to protect women workers, limits women’s freedom to choose their occupation and may hinder their access to employment. On the other hand, where the bargaining power between employer and employee is particularly unbalanced, allowing women to choose may leave them unprotected (e.g. on night work). In reviewing labour legislation, as it applies to agricultural workers, it must be remembered that in many countries (especially developing countries) these rules are not applied to a large sector of the economy, the informal sector.
Beyond labour law, other norms are also relevant. For instance, in some countries family law allows the husband to interfere in his wife’s occupation, e.g. by requiring his consent for her signing employment contracts and by allowing him to terminate her contract if he deems it necessary for the fulfillment of her family obligations.
The case law on women’s labour rights rarely refers directly to agricultural workers. It more commonly relates to urban occupations (secretaries, civil servants, etc.), especially in developing countries, where access to courts for rural women is usually very limited. However, the principles affirmed in the cases quoted in this chapter (e.g. non-discrimination in the workplace) apply also to agricultural workers.
Discrimination may be difficult to detect where it is indirect or where women’s employment opportunity and treatment are affected by entrenched socio-cultural attitudes and unequal access to education and training rather than by formal legislation. A hidden form of discrimination is maternity benefit payment by the employer, rather than by social security institutions; this raises the cost of women’s labour (due both to the time lost during maternity leave and to maternity benefit payment), fostering discrimination in women’s access to employment, particularly where fertility rates are high (as in most developing countries). As for socio-cultural practices, in many areas women’s participation in formal employment is hindered by their primary responsibility for domestic work and child care. Where women are employed, their workload is very heavy, as they perform their domestic responsibilities in addition to formal employment.
In examining the labour rights of women agricultural workers in each of the covered countries, the following outline will generally be followed: applicability of labour legislation to the agricultural sector; norms concerning access to employment (both under labour law and under family law); norms concerning treatment (remuneration and other terms and conditions of employment); maternity protection; norms on social security; and sanctions. Where available, information on the actual implementation of the norms referred to is also included.
Relevant international law
The right to work without discrimination is recognized in the UDHR (arts. 2 and 23), in the ICESCR (arts. 2(2) and 6-8) and in the CEDAW (art. 11). It includes the right to freely choose an occupation, to enjoy a just and favorable remuneration, to work in safe and healthy conditions, and to form and join trade unions. Women have a right to employment opportunities and treatment equal to men, including equal remuneration for work of equal value (UDHR, art. 23(2), ICESCR, art. 7(a) (i) and CEDAW, art. 11). Women also have the right to enjoy special protection during pregnancy and paid maternity leave, and the right not to be dismissed on grounds of pregnancy or maternity leave (CEDAW, art. 11(2)).
As for women’s labour rights under the CEDAW, it is worth recalling that the principle of non-discrimination enshrined in this treaty is not limited to state action, and that article 2(e) explicitly envisages the elimination of discrimination against women “by any person, organization or enterprise”.
Every woman, as well as every man, has a right to social security in cases of retirement, unemployment, sickness, invalidity and old age (UDHR, art. 22, ICESCR, art. 9 and CEDAW, arts. 11(1)(e) and 14(2)(c)).
Detailed provisions on women’s labour rights are contained in several ILO conventions. The Discrimination (Employment and Occupation) Convention 111 of 1958 prohibits sex discrimination in both opportunity and treatment, and provides for affirmative action. The Equal Remuneration Convention 100 of 1951 states the principle of equal remuneration for men and women for equal work or work of equal value. Reference to “work of equal value”, besides “equal work”, is important for the practical application of the principle. Indeed, since in many countries women rarely hold the same position as men due to cultural stereotypes and unequal access to education, reference to the economic value of the work allows comparisons across occupational categories and industries. The Termination of Employment Convention 158 of 1982 prohibits dismissal on grounds of sex, marital status and absence during maternity leave.
Under the Night Work (Women) (Revised) Convention 89 of 1948 and its 1990 Protocol, women’s work at night (defined as a period of at least 11 consecutive hours, including at least seven hours between 10pm and 7am) is prohibited for some industrial occupations (not for agricultural work).
The Maternity Protection (Revised) Convention 103 of 1952 entitles pregnant workers to a maternity leave of at least 12 weeks (with no less than six weeks after childbirth); allows additional leave in case of late delivery or pregnancy-related illness; prohibits dismissal while on maternity leave; entitles women to medical and cash benefits, provided through either compulsory social insurance or public funds; and allows work interruptions for nursing purposes. While this Convention applies to both industrial and non-industrial occupations, states may exempt work in agricultural undertakings other than plantations. The Workers with Family Responsibility Convention 156 of 1981 prohibits discrimination against men and women workers with family responsibilities.
The Plantations Convention 110 of 1958 and its 1982 Protocol protect the labour rights of plantation workers, without discrimination on the basis of sex. The term plantation is defined as “any agricultural undertaking regularly employing hired workers which is situated in the tropical or subtropical regions and which is mainly concerned with the cultivation or production for commercial purposes of coffee, tea, sugarcane, rubber, bananas, cocoa, coconuts, groundnuts, cotton, tobacco, fibers (sisal, jute and hemp), citrus, palm oil, cinchona or pineapple; it does not include family or small-scale holdings producing for local consumption and not regularly employing hired workers” (article 1(1) of the Convention, as amended by the Protocol). State parties may exclude or add categories of agricultural undertakings from the application of the Convention. The Convention contains guarantees as to the recruitment (e.g. the recruitment of the household head does not involve the recruitment of household members), employment contracts, wages (e.g. wages are to be paid directly to the worker), annual paid leave and weekly rest, compensation for injury, trade unions without distinction, and maternity protection (maternity leave of at least 12 weeks, at least six of which after childbirth, with additional leave for late delivery or pregnancy-related illness; cash and medical benefits; protection from dismissal during maternity leave; breaks for nursing purposes; prohibition for a pregnant woman to “undertake any type of work harmful to her in the period prior to her maternity leave”).
The Migration for Employment (Revised) Convention 97 of 1949 provides guarantees for lawfully migrant workers, without discrimination on the basis of sex.
The principle of non-discrimination is also stated in the 1998 ILO Declaration on the Fundamental Principles and Rights at Work. This declaration reaffirms some fundamental principles and rights to which all ILO member states must adhere by the very fact of their ILO membership, regardless of their ratification of the relevant conventions.
In the region, the human right to work and to just, equitable, and satisfactory conditions of work, without discrimination on the basis of sex, is stated in the Additional Protocol to the ACHR (arts. 3, 6 and 7). As for Canada, United States and Mexico, the North American Free Trade Agreement (NAFTA) includes a North American Agreement on Labor Cooperation, which states the principles of non-discrimination on the basis of sex and of equal pay for equal work (principles 7 and 8 of Annex 1 to the Agreement on Labor Cooperation).
In most Latin American countries, women may freely enter in employment contracts and dispose of their wage. However, in practice rural women often ask for their husband’s authorization before undertaking a job, and quit it if their husband so requires (FAO, 1994). Moreover, some laws explicitly allow the husband to interfere with the employment of his wife, although there is a trend throughout the region to repeal these norms (for an example from Guatemala, see below, Box 3).
Most countries have constitutional norms and/or ordinary legislation prohibiting sex/gender discrimination on the workplace, either in general or with specific regard to agricultural labour. The equal remuneration principle has been adopted within most national legal systems. However, reference is usually made to equal pay for “equal work” (or similar formulas), instead of the internationally recognized standard of “work of equal value”. Overall, a considerable gender pay gap remains throughout the region; for instance, in Paraguay, men earn 31 percent more than women for each hour worked (CEACR (100), 2000).
Maternity leave ranges from 60 days (Bolivia) to 14 weeks (Panama), with a considerable number of countries granting 12 weeks (Belize, Colombia, Haiti, Jamaica, Uruguay). In Venezuela, maternity leave is 18 weeks (Comprehensive Labour Act of 1997). Cash benefits range from 60 percent of the wage (Dominica, Nicaragua) to 100 percent (Chile, Colombia, Venezuela); in the United States, maternity leave is unpaid. In most countries cash benefits are funded by social security institutions (Chile, Paraguay, Venezuela), although in some cases they are paid by the employer (Jamaica) or jointly by social security and the employer (Costa Rica) (United Nations, 2000, updated to 1998). However, there have also been reports of lack of benefit payment in plantations; for instance, in Guatemala, maternity benefits for women plantation workers are paid only in some regions (CEACR (110), 1997).
In plantations, there is a widespread practice of recruiting women as temporary workers, without contract and on piece-work. This non-formalized situation entails the non-application of the protection accorded by labour law, and therefore sex/gender discriminatory practices (FAO, 1994 and 1996).
Article 123 of the Mexican Constitution recognizes the right to work of “every person”. The Federal Labour Code of 1970 (applicable to agricultural labour; art. 1 of the Code and art. 123 of the Constitution) prohibits sex discrimination (art. 3).
As for access to employment, both women and men over 16 years (and those between 14 and 16 years if they have the authorization of their parents) can freely enter into labour contracts (Federal Labour Code, art. 23). Women have thus full legal capacity to work. Employers cannot refuse job applications on grounds of sex (Federal Labour Code, art. 133(I)). Provisions banning women from certain types of work were repealed in 1974.
Discriminatory provisions on women’s employment opportunities are contained in the civil codes of some states. The Civil Code of Oaxaca states that the wife can hold an occupation only if this does not prejudice her primary responsibility as housewife (arts. 167 and 168). The husband may oppose the employment of his wife, provided that he earns sufficiently for the needs of the family; where the wife resists the opposition of the husband, the dispute is to be decided by courts (arts. 169 and 170).
In other states, similar provisions are expressed in gender neutral terms, with each spouse having the right to oppose the employment of the other (e.g. Civil Code of Aguascalientes; art. 165, the Civil Code of Guanajato as amended in 2000;, art. 168, the Civil Code of Sonora, art. 261).
As for treatment, men and women workers have equal rights and obligations (Labour Code, art. 164). Labour conditions cannot be inferior to the minimum legal requirements, without discrimination on the basis of sex (art. 56). The principle of equal remuneration for equal work (though not for work of equal value) is stated in Article 123(VII) of the Constitution and article 86 of the Labour Code.
Pregnant women cannot be required to undertake heavy and dangerous work (Labour Code, art. 166). With particular regard to agriculture, the Federal Safety, Hygiene and Working Environment Regulations of 1997 contain specific provisions protecting the health of pregnant women. Under article 154, pregnant women cannot be required to work in the operation, transport or storage of teratogenic or mutagenic substances, while under article 155 they cannot use chemical substances .Pregnant workers have a right to maternity leave of at least six weeks before and six weeks after childbirth (with possible extensions); to the payment of the full wage; and to retain their employment (Constitution, art. 123(V) and Labour Code, art. 170). Under the Social Security Act of 1995, maternity benefits equivalent to 100 percent of the worker’s salary are paid for 48 days before and 48 days after childbirth by the Mexican Institute of Social Security under a mandatory scheme, provided that the pregnant worker meets specified requirements; if and to the extent to which this norm is applicable, the employer does not have to pay the full salary (arts. 101-103). The Act also provides for a child day-care system (arts. 201-207).
Labour law in Brazil was for long differentiated for agricultural and non-agricultural workers. The Labour Law Consolidation of 1943 did not apply to agricultural workers. The labour rights of agricultural workers were first protected only with the adoption of the Rural Workers Statute of 1963 and the creation of a specific social security institute (FUNRURAL). However, agricultural workers continued to enjoy lesser rights than their non-agricultural counterparts. In 1973, the 1963 Statute was repealed by Law 5889, which governs agricultural labour and states the applicability of the Labour Law Consolidation insofar as not inconsistent with it (Law 5889, art. 1). The dualistic labour protection was definitively repealed by the 1988 Constitution, which granted to both urban and rural workers labour rights such as protection against unfair dismissal, minimum wage, maximum working hours, weekly rest and annual paid leave, social security for unemployment and work-related injuries, safe and healthy working conditions, and collective bargaining and trade union rights (arts. 7 and 8).
As for women’s access to employment, article 7 of the Constitution and article 373A of the Labour Law Consolidation (inserted by Law 9799 of 1999) prohibit discrimination on the basis of sex, pregnancy and marital status in recruitment, and envisage special measures to promote women’s employment.
Marital authority provisions limiting women’s access to employment have been repealed. The norms of the 1916 Civil Code requiring the authorization of the husband for women’s employment (arts. 233(IV) and 242(VII)) were repealed by Law 4121 (1962). Article 446 of the Labour Law Consolidation, entitling the husband to rescind the employment contract of the wife if he deemed it necessary for household needs, was not applied after the 1962 Law and was formally repealed by Law 7855 (1989). However, marital authority remains in practice widely applied in rural areas (FAO, 1994).
A common discriminatory practice concerning women’s access to employment is the requirement by employers of sterilization certificates as a condition for recruitment (CEACR (111), 1993). Law 9029 of 1995 and article 373A(IV) of the Labour Law Consolidation (inserted by Law 9799 of 1999) prohibit employers from requiring sterilization or pregnancy certifications or examinations as a condition for employment, and bar employers from conducting intimate examinations of employees. The phenomenon seems to have subsided since the mid-nineties.
Pregnant workers have a right to a maternity leave of 120 days, without prejudice to employment and salary (art. 7(XVIII) of the Constitution). In 1996, the High Labour Court declared that maternity leave is a fundamental right which cannot be negotiated or alienated (CEACR (103), 1999). Pregnant workers cannot be dismissed from the date of the communication of the pregnancy to the employer to five months after childbirth; in case of dismissal, pregnant women have the right to be reinstated in their position (art. 10(II)(b) of the transitory constitutional provisions and Labour Law Consolidation, art. 392).
As for maternity benefits, rural occupations have been equated to urban occupations by the 1988 Constitution. This required implementing legislation, which was adopted only in 1994, after mobilizations of women workers (Guidant, 2001). Workers on maternity leave are now entitled to a benefit equivalent to the minimum wage, paid by the social security institution, provided that they prove to have worked for 12 (not necessarily continuous) months (Law 8213 (1991), art. 39, as amended by Law 8861 (1994)). Decree 4883 (1998) provided that maternity benefits were to be paid through social insurance only up to a limit, beyond which they were to be paid by employers; however, the Federal Supreme Court held this limit unconstitutional, stating that it was for the state to entirely pay maternity benefits (CRLP, 2000).
Pregnant workers carrying out work prejudicial to health may obtain transfer to another work (Labour Law Consolidation, art. 392, as amended in 1999). Nursing women have the right to two half-an-hour nursing breaks per day for children up to the age of six months. Article 7(XXV) of the Constitution grants rural workers the right to free day-care for children from birth to six years. Article 389(1) of the Labour Law Consolidation requires employers employing 30 or more women over 16 years to provide a crèche for children. However, Legislative Decree 229 (1967) allows employers to provide crèche reimbursements instead. Agricultural undertakings employing more than 50 families of workers must provide free primary schools for the children of the farm workers (Law 5889 (1973), art. 16).
Relevant provisions have also been adopted at state and municipal level. For instance, the municipality of São Paulo adopted Law 11081 (1991) and Decree 30497 (1991), empowering the municipality to impose sanctions on employers requiring pregnancy tests, gynecological examinations or sterilization certificates to obtain or maintain jobs.
The ACHPR recognizes the right of “every individual” to work under equitable and satisfactory conditions and to receive equal pay for equal work (art. 15). On the other hand, the Charter is silent on some other aspects concerning labour rights, particularly with regard to trade union rights. Non-discrimination in training and equal opportunities to work (including women’s freedom to choose their occupation, equality in access to employment, and equal remuneration for jobs of equal value) are affirmed in the Draft Protocol on the Rights of Women in Africa (not yet adopted; arts. 12 and 13).
In several countries sex discrimination in employment is prohibited by constitutional norms (e.g. art. 17(3)(e) of the 1999 Constitution of Nigeria, stating the equal pay principle among the Fundamental Objectives and Directive Principles of State Policy) and/or by ordinary legislation (e.g. Labour Code of Ivory Coast 1995, art. 4, prohibiting sex discrimination in recruitment, promotion, remuneration, vocational training, labour division, social benefits and termination of the labour contract; art. 14(1)(b) of the Ethiopian Labour Proclamation of 1993, prohibiting sex discrimination in remuneration). However, labour legislation often excludes the agricultural sector from its scope of application. For instance, Nigeria’s National Minimum Wage Act of 1981, as amended, excludes workers in farms employing fewer than 50 persons, part-time workers, workers paid on piece-rate and seasonal agricultural workers (CEACR (100), 2000).
Maternity leave ranges from 60 days (Mozambique, Guinea Bissau, Eritrea) to 14 weeks (Cameroon, Central African Republic, Chad, Gabon, Madagascar, Togo). Cash benefits range from 25 percent of the wage (Botswana) to 100 percent (Congo, Mauritania, Mauritius, Zambia), with a substantial number of countries granting 50 percent of the wage (Chad, Burundi, Ghana, Nigeria). No benefit is paid in some countries (Lesotho). In some countries cash benefits are funded by social security institutions (Namibia, Senegal), in others they are paid by the employer (Ethiopia, Ghana, Nigeria) (United Nations, 2000, updated to 1998). The requirements to qualify for these benefits may be very demanding; for instance, the Zambian Employment Act of 1965 requires at least two years of continuous service with the employer (sacs. 15A and B, inserted by Law 18 of 1982. In some countries, legislation prohibits dismissal during pregnancy (e.g. the Labour Code of Ivory Coast; art. 23(3), and the 1975 Labour Act of Nigeria, sec.53 (4)).
However, laws protecting women’s labour rights are often not implemented. Rural women are often unaware of their legal rights. In addition, women make up a considerable portion of the agricultural labour force employed in the informal sector (which accounts for substantial GDP shares throughout sub-Saharan Africa; see e.g. McGuffey, 1991), where labour legislation is not applied.
Customary law also affects the labour rights of women agricultural workers. Generally speaking, there is a gender division of labour, whereby men mainly cultivate cash crops, while women cultivate food crops or locally traded crops. However, under many customary legal systems, women must provide their labour for certain tasks in their husbands’ fields (e.g. weeding). This work, provided within the household, is unpaid and unprotected (Lastarria-Cornhiel, 1997).
Agricultural labour is covered by the Employment Act of 1976 (Cap. 226). This Act fails to address gender issues. No reference is made to the principle of non-discrimination. No provision exists on sexual harassment. Women’s night work is prohibited in industrial undertakings (with exceptions; sec. 28 and 29); the Ministry of Labour may prohibit or subject to conditions women’s work in “any specified trade or occupation” (sec. 56(1)(j)).
Minimum wage legislation (Regulation of Wages and Conditions of Employment Act, Cap 229) provides for the establishment of sector-specific wages councils by the Ministry for Labour, with the task of recommending wage determination or regulation for specific trades or occupations. Wages councils have been established for several sectors (e.g. textiles, domestic servants, tourism, etc.), including agriculture. Neither the Act nor the Regulation of Wages (Agricultural Industry Wages Council Establishment) Order, as amended, which establishes the wages council for agriculture, explicitly refer to the equal pay principle.
The Regulation of Wages (Agricultural Industry Wages Council Establishment) Order also determines maximum working hours. For male workers, the limit is 42 hours over six days per week (72 hours over seven days for some occupations, e.g. herdsmen); for female workers, the limit is 36 hours over six days per week (sec. 5).
The number of women employed in the formal sector has increased, mainly because of women’s improved access to education. However, a gender division of labour (with higher positions being usually reserved to men) remains, due to cultural attitudes rather than to formal legislation. Moreover, women are mostly concentrated in the informal sector. Although women’s wages relative to men’s have increased in the last decades, a considerable gender pay gap nevertheless remains in rural areas; women are largely unaware of their legal rights (Gopal and Salim, 1998).
Maternity protection was originally established with a 1975 Presidential Directive, envisaging a two-month paid maternity leave. The Employment Act of 1976 provides for a two-month fully-paid maternity leave at the expense of the employer (sec. 7(2)). The leave period is considerably shorter than that envisaged by international labour conventions. Moreover, women taking the maternity leave lose their one-month annual leave for the relevant year (sec. 7(2))Furthermore, obliging employers to pay for maternity benefits raises the cost of women’s labour and therefore discriminates against them (House-Midamba, 1993). The Act does not explicitly prohibit the dismissal of pregnant women.
Until recently, women farm workers had little protection under South African legislation. The Basic Conditions of Employment Act of 1983 was extended to agricultural workers in 1993. The Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997 and the Employment Equity Act of 1998 have substantially improved the position of women farm workers.
For a long period, the legal capacity of married women to sign employment contracts was restricted by family law. Under the Black Administration Act of 1927, women married within a customary marriage could not sign contracts without the assistance of their husband (sec. 11(3)). This norm was repealed by the Recognition of Customary Marriages Act of 1998, granting wives full legal capacity to sign contracts (sec. 6).
The Employment Equity Act of 1998 prohibits direct and indirect unfair discrimination on grounds of gender, sex, pregnancy, marital status, and family responsibility in both access (recruitment) and treatment (job classification, remuneration, employment benefits, employment terms and conditions, promotion and dismissal) (sec 6 and 1). Where discrimination is alleged, the burden of proof on its fairness is placed on the employer (sec. 11). The principle of non-discrimination on grounds of sex and pregnancy has also been affirmed in the case law, particularly in McInnis v. Technician Natal (Labour Court, D322/98, March 2000) and Woolworths (Pty) Ltd. v. Whitehead (Labour Appeal Court, CA06/99, 3 April 2000.
Besides prohibiting discrimination, the Employment Equity Act also provides for affirmative action with regard to “designated employers” (i.e. those employing 50 or more workers, or less than 50 but with a determined annual turnover) (sec. 1 and Chap. III). Other employers may voluntarily comply with the affirmative action rules (sec. 14). Affirmative action measures must be taken by designated employers in consultation, and possibly agreement, with employees (sec. 16). Employers are obliged to develop “employment equity plans” must state objectives, numerical targets, strategies, measures, timetable and monitoring and evaluating procedures (sec. 20). Affirmative action measures may include preferential treatment and numerical goals (but not quotas) (sec. 15).
Moreover, “designated employers” are subject to special rules on the application of the equal remuneration principle. In particular, they are to report remuneration and benefits to the Employment Conditions Commission; where income differentials are disproportionate, they must adopt measures, including collective bargaining, application of the standards set by the Employment Conditions Commission, and promotion of training (sec. 27).
Farm workers employed for more than four weeks have the right to a four-week contract termination notice (the same as workers employed for more than one year in non-agricultural sectors) (sec. 39(1)(c) of the Basic Conditions of Employment Act).
In practice, the employment of women farm workers is often tied to their husband’s employment. Indeed, there are reports that married women farm workers are denied contracts in their own names, and work on the basis of contracts signed by their husbands (Human Rights Watch, 2001).
In Comrade v. Hanukah and Another (1999 (4) SA 491 LCC), the Land Claims Court set aside an eviction order against two farm workers, husband and wife, employed on the same farm. Having dismissed the husband, the landowner had sought to evict both. The court held that the wife, as employee, had a right not to be evicted under ESTA, and her eviction order was set aside. Moreover, she had a right to family life under section 6(2)(d) of ESTA; therefore, her husband (who after his dismissal was no longer a protected “occupier”) had a right to reside in the land as a family member of an “occupier”.
As for maternity protection, the Basic Conditions of Employment Act of 1997 provides that a female employee is entitled to at least four months maternity leave, of which six weeks must be taken following childbirth. Pregnant or nursing women cannot be required to perform work hazardous to her health or to the health of the child; male and female employees have a annual three-day family responsibility paid leave for childbirth or child illness.
Maternity benefits are paid by the Unemployment Insurance Fund under the Unemployment Insurance Act. Under this Act, maternity benefits are 45 percent of a worker’s normal weekly earnings for a period not exceeding 26 weeks, provided that the worker has been employed for at least 13 weeks during the 52 weeks before childbirth. However, this Act does not apply to seasonal farm workers, i.e. workers employed for less than a continuous period of 4 months. Moreover, the Fund manages unemployment, illness and maternity benefits, and there is an overall limit on the benefits that a worker can receive (one week’s benefits for each six weeks’ employment); therefore, women on maternity leave use up their rights to unemployment benefits. At the time of writing, amendments to reform this system have been proposed.
The Labour Relations Act of 1995 prohibits unfair dismissal, which includes both the failure of an employer to allow the return of a woman worker after maternity leave on the one hand, and the renewal of a temporary employment contract on less favorable terms after maternity on the other; dismissal for pregnancy (as well as intended pregnancy and any reason relating to pregnancy) or on directly or indirectly discriminatory grounds is automatically unfair .
The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 applies where the Employment Equity Act does not apply (sec. 5(3)). It prohibits unfair discrimination against women by the state and any persons, for instance in women’s access to social security (secs. 6 and 8(g)).
Northern Africa and the Middle East
The Arab Charter on Human Rights (not yet in force) recognizes without discrimination between men and women (art. 2) the right to work (art. 30), to freely choose an occupation (art. 31), and to enjoy equal work opportunities and equal remuneration for equal work (art. 32).
Throughout the region, women’s participation in formal employment is low, due to both legal and cultural factors (e.g. on Jordan, see CEDAW, 2000:184). A common example of a legal obstacle is marital authority norms conditioning women’s employment to the authorization of the husband. In Syria, wives can work outside the house only with the permission of the husband (Personal Status Law of 1975, arts. 73 and 74, quoted in Human Rights Watch, 2001c). In Turkey, a similar norm (1926 Civil Code, art. 159) was set aside by the Constitutional Court (Judgment No. 30/31, 29 November 1990; the Civil Code of 2001 abolishes the spousal authorization requirement, although the welfare of the family is to be taken into account in the choice and pursuit of occupations (art. 192).
As for labour legislation, although most countries have adopted laws or codes prohibiting sex discrimination in employment, discrimination remains widespread in practice, especially in rural areas. Women agricultural laborers earn roughly between half and two-thirds of men’s wages, although with considerable cross-country, regional and seasonal variation (FAO, 1995b). In Saudi Arabia, a gender segregation in the workplace is strictly enforced (Human Rights Watch, 2001b).
Maternity leave tends to be particularly short throughout the region (45 days in Bahrain; 50 days in Egypt and Libya; 60 days in Yemen; 62 days in Iraq; 70 days in Kuwait and in Syria). Some countries have 12-week maternity leaves (Israel, Morocco, Turkey), while Algeria has a 14-week period. Cash benefits range from 50 percent of the wage (Libya) to 100 percent (Bahrain, Syria). While in some countries cash benefits are funded through social security (Turkey), in most cases they are paid by the employer (Bahrain, Libya, Saudi Arabia, Syria, Yemen) or jointly by social security and the employer (Egypt) (United Nations, 2000, updated to 1998).
The principle of non-discrimination on the basis of sex/gender is affirmed in several countries. For instance, the 1998 Labour Protection Act of Thailand mandates employers to treat male and female employees equally with regard to employment, “except where the nature or conditions of the work does or do not allow the employer to do so” (sec. 15). On the other hand, women’s access to agricultural employment is often limited by the extension of night work bans to the agricultural sector (e.g. the 1955 Employment Act of Malaysia, sec. 34(1)) and by provisions requiring the authorization of the husband for women to sign employment contracts (e.g. Civil Code of Indonesia, art. 1601(f)).
Existing studies suggest the existence of rigid gender occupational segregation. In Bangladesh, for instance, women’s employment in the agricultural sector increased substantially in recent years, but remains concentrated in seasonal occupations and remunerated with wages lower than those for men. Labour legislation is poorly enforced, and trade unions rarely protect the interests of women workers as such (Baden et al., 1994).
Maternity leave ranges from 52 days (Nepal) to 12 weeks (Bangladesh, Pakistan), but is generally short (e.g. 60 days in Malaysia; 90 days in Cambodia, China and Laos). Cash benefits range from 50 percent of the wage (Cambodia) to 100 percent (most countries: e.g. China, Indonesia, Malaysia, and Nepal). In most countries maternity benefits are paid by the employer (Bangladesh, Indonesia, Nepal, Malaysia, Sri Lanka), although some exceptions exist (benefits are funded through social security in the Philippines and in Viet Nam) (United Nations, 2000, updated to 1998). Some laws specifically prohibit dismissal on grounds of pregnancy (e.g. Thai Labour Protection Act; sec. 43, Malaysian Employment Act, art. 40(3)).
Article 39 of the Indian Constitution directs the state to ensure that “citizens, men and women equally, have the right to adequate means of livelihood”; that “there is equal pay for equal work for both men and women”; and that “the health and strength of workers, men and women, are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”. On the other hand, article 16 of the Constitution, stating the principle of equality in employment, applies to public employment only.
With regard to access to employment, sex discrimination is prohibited by the Equal Remuneration Act of 1976 (sec. 5, as amended in 1987). In practice, however, in many rural areas women’s access to employment is restricted by cultural factors such as female seclusion and the perception of women’s abstention from work as an indicator of the social status and success of the husband. Moreover, a gender division of labour remains widespread, with women concentrated in “feminine” jobs, particularly low-skill, low-pay agricultural work .
The Equal Remuneration Act states the principle of equal remuneration for the “same work or work of a similar nature” (though not for work of equal value; sec. 4). In complying with this requirement, employers cannot reduce wages; therefore, in case of existing sex discrimination, the higher wage is payable to workers of both sexes (sec. 4). The equal remuneration principle is also guaranteed in the case law (Mackinnon Mackenzie & Co. v. Audrey Decoct 1987 2 SCC 469).
Maternity leave is governed by the Maternity Benefit Act of 1961, which applies to plantations and to other establishments with more than ten employees (sec. 2). Pregnant workers have a right to 12-week paid maternity leave (sec. 4 and 6(2)). A six-week leave is granted in case of miscarriage or termination of pregnancy (sec. 9). An additional one-month leave is provided in case of illness arising out of pregnancy, delivery, miscarriage or termination of pregnancy (sec. 10). Maternity benefits are equivalent to the average daily wage of the woman worker (sec. 5). Discharge or dismissal of a woman on maternity leave, as well as the varying of her working conditions at her disadvantage, is prohibited (sec. 12).
Pregnant workers have the right not to perform arduous work, or work which involves long hours of standing or which is likely to interfere with the pregnancy, the normal development of the fetus, adversely affect health or cause a miscarriage (Maternity Benefit Act, sec. 4(3)). No deductions from wages can be made because of the changed nature of the work performed (sec. 13 of the same Act). Nursing women have a right to two nursing breaks per day until the child attains the age of fifteen months, without deductions from the wage (sec 11 and 13). Under the Plantations Labour Act of 1951, employers with more than 50 women workers (or with women workers having a number of children under six years old of 20 or more) must provide crèche facilities (sec. 12).
The laws on social security (Employees’ Provident Fund and Miscellaneous Provisions Act 1952 and the Payment of Gratuity Act 1972) apply equally to men and women.
Agricultural labour is governed by the Labour Code of 1974, as amended (art. 6) Article 3 of the Code declares that the state is to ensure equal work opportunities regardless of sex. However, sex discrimination with regard to recruitment is not explicitly prohibited.
Article 136 of the Code declares that it is unlawful for an employer “to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage”.
As for treatment, sex discrimination with respect to terms and conditions of employment is prohibited. Acts of discrimination include “payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value”, and “favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes”. A wilful violation of this provision entails criminal responsibility (Labour Code, art. 135). Discrimination against indigenous women in the areas of employment and training is prohibited under sections 21, 23 and 25 of the Indigenous Peoples Rights Act of 1997.
Women’s night work in agricultural undertakings is prohibited unless women are granted a period of rest of at least nine consecutive hours (Labour Code, art. 130(c)). The Secretary of Labour and Employment is to set standards to ensure the safety and health of women employees and to enact regulations requiring employers to provide facilities for women workers (separate toilets, nurseries, etc.) (Labour Code, art. 132). Sexual harassment in the workplace is prohibited by the Anti-Sexual Harassment Act of 1995.
Pregnant workers have the right to a six-week fully paid maternity leave (two weeks before and four weeks after childbirth), extendable without remuneration in case of illness arising out of pregnancy, delivery, abortion or miscarriage. However, maternity benefits are granted only for the first four deliveries (Labour Code, art. 133). Maternity benefits are to be paid by the employer, although under the Maternity Benefits Act of 1992 full maternity benefits are paid by the Social Security System for 60 days for women workers meeting specified requirements. Employers cannot discharge pregnant workers on account of their pregnancy or while on maternity leave, nor discharge or refuse their admission upon returning to their work for fear that they may be pregnant again (Labour Code, art. 137(a)(2) and (3)).
As for social security, the Social Security System covers all employees, without making distinctions on the basis of sex or gender (Labour Code, art. 168, and the Social Security Act of 1997.
The Pacific region
Of all the countries of the region, only Australia, New Zealand and Papua New Guinea have ratified ILO Conventions 100 and 111. In several countries, labour legislation does not explicitly prohibit discrimination on the basis of sex/gender (e.g. Fiji, Samoa, Tonga). Papua New Guinea is an exception, as article 48 of the Constitution states that “every person” has a right to freedom of choice of employment and section 97 of the Employment Act prohibits discrimination on the basis of sex. The Employment Act of Vanuatu prohibits sex discrimination but only with regard to remuneration (sec. 8).
Maternity leave is six weeks in Papua New Guinea and 12 weeks in the Solomon Islands. Maternity benefits are generally not paid (e.g. Papua New Guinea, Australia and New Zealand) or very low (25 percent of the wage in Solomon Islands); when benefit payment is envisaged, it is usually paid by the employer (e.g. Solomon Islands) (United Nations, 2000, updated to 1998). Protection from dismissal during pregnancy is envisaged in some countries, but the covered period is usually very limited.
While the ECHR is silent on socio-economic rights, the European Social Charter, as revised, recognizes the right of all workers to equal opportunities and equal treatment in employment and occupation, without discrimination on the ground of sex, and states the principle of equal remuneration for work of equal value. The Charter also guarantees the right to paid maternity leave for at least 12 weeks, funded by social security institutions or by public funds.
For countries members of the European Union, EU legislation and case law on non-discrimination in employment applies. Article 2 of the EC Treaty includes gender equality among the objectives of the European Community. Under article 13 of the EC Treaty, the Council of Ministers may take action to combat sex discrimination. Article 141(1) (formerly 119) of the EC Treaty (as amended) states the principle of equal remuneration for work of equal value. Article 141(4) provides for affirmative action. Equality of treatment for men and women in access to employment and vocational training is stated in Directive 76/207 of 1976, while the principle of equal pay for equal work is implemented by Directive 75/117 of 1975. Under Directive 97/80 of 1997, when persons alleging discrimination violating Directives 117 and 207 establish prima facie discrimination (i.e. “facts from which it may be presumed that there has been direct or indirect discrimination”), the burden of proof is on the employer to prove that no violation occurred. A three-month parental leave is granted to both parents to tend children up to eight years old (Directive 96/34 of 1996). A vast case law on gender equality in the workplace exists within EU law.
The principle of non-discrimination on the basis of sex/gender is stated in all Western legal systems. Some countries also provide for special measures to promote women’s employment. However, there are reports that in the rural areas of some EU states, women’s unemployment rates are higher than men’s, due to traditional attitudes on the role of men and women and to the shortage of transport and care facilities (Braithwaite, 1996).
As for maternity leave, most countries comply with the international standard of 12 weeks. Cash benefits range from 75 percent of the wage (Greece) to 100 percent (most countries: e.g. Germany, Poland, Russia); in some cases, benefits vary during the leave period (e.g. 82 percent of the wage for 30 days and 75 percent thereafter in Belgium). In most European countries maternity benefits are paid through social security (Belarus, France, Germany, Hungary, Romania, United Kingdom) (United Nations, 2000, updated to 1998). Pregnant women are usually protected from discrimination or dismissal (e.g. in Croatia, Labour Code 1995, art. 55).
In Italy, agricultural labour is governed by general labour law, although some aspects are governed by specific norms, such as recruitment procedures, work reinstatement following unjust dismissal, employment contract duration and social security. Moreover, the above-mentioned norms of EU law apply; Law 52 of 1996 provided for the implementation of EC Directives relating to equal opportunities (art. 18).
Direct and indirect discrimination on the basis of sex, marital or family status or pregnancy is prohibited with regard to both access and treatment. Where the person alleging discrimination proves facts establishing prima facie discrimination, the burden is on the employer to prove the absence of discrimination. The equal remuneration principle is stated with regard to both equal work and work of equal value (Article 37 of the Constitution; Law 903 of 1977, arts. 1-3; Law 125 of 1991, art. 4(6), as amended; Legislative Decree 151 of 2001, art. 3).
Affirmative action measures to promote women’s employment and de facto equality of opportunity can be undertaken by employers, with public funding (Law 125 of 1991, as amended by Legislative Decree 196 of 2000). Projects implemented so far concerned mainly access to male-dominated sectors and changes in the work organization and time. The implementation of the law is monitored by the National Committee for Equal Opportunities established within the Ministry for Labour. The major problems encountered in the implementation of the law include limited resources and cumbersome administrative procedures, 1999.
Maternity leave is of two months before childbirth (three months for dangerous and heavy jobs) and three months after childbirth, extendable for periods of two months in cases of illness arising out of pregnancy or childbirth. Maternity benefits are equivalent to 80 percent of the remuneration. For women workers in sharecropping undertakings (mezzadria and colonia), maternity benefits are 80 percent of the average daily income, as determined by the Ministry of Labour every two years (Law 1204 of 1971 and Legislative Decree 151 of 2001). Benefits are paid by the social security institution (INPS), funded through payroll taxes (increasing the cost of labour, though without distinction on the basis of sex), although there is a trend toward the gradual transfer of the funding for maternity benefits to the general taxation system 1999.
Women workers cannot be dismissed from the beginning of pregnancy until the child reaches the age of one year; in case of dismissal, they have the right to be reinstated. Seasonal workers have the right to priority in seasonal recruitment. Women cannot be required to perform dangerous, tiring or unhealthy jobs during pregnancy and until seven months after childbirth, without wage deductions. Two nursing breaks per day are allowed (Laws 1204 of 1971 and 53 of 2000; Legislative Decree 151 of 2001). The safety and hygiene of working conditions for pregnant and nursing women are protected by Legislative Decree 645 of 1996.
In case of death, grave inability or abandonment of the mother, or in case of child custody to the father, the latter has the right to a paternity leave on the same terms of the maternity leave (Law 903, art. 6bis, and Legislative Decree 151 (2001), arts. 28 and 29). Parental leave of up to 10 months, until the child reaches the age of 8, is granted to both parents (Law 53 (2000), art. 3, and Legislative Decree 151 of 2001, art. 32).
As for social security, family benefits and pension increases for family dependants can be paid to working or retired women. Payment of social security benefits to the surviving spouse of the insured worker applies equally to men and women (Law 903 of 1977, arts. 9-12).
Maternity Welfare Facilities
APPLICABILITY OF MATERNITY WELFARE PROVISIONS IN THE GARMENT SECTOR UNDER THE BANGLADESH LABOUR ACT, 2006
MATERNITY LEAVE POLICIES IN BNGLADESH:
The garments sector in Bangladesh helped to create a new group of women industrial workers in the country and the ratio of women worker is 65% to 70%. Many of the women who work in this sector have no prior wage work experience. They are typically aged between 15 and 30 and have children that desperately need their support. With no-one to look after their children but desperately in need of work they must leave their children unattended inside their homes or exposed to horrendous conditions outside. Moreover, if the condition of working is not favorable or encouraging or constructive it becomes very difficult for them to continue their job. Especially the new mother and new born child suffer a lot in this regard. In garments industries it is a common phenomenon that women workers do not join again in their work after the complementation of the period of maternity leave. They are forced to quite their job for taking care of their new born child because the facilities provided are not reasonable. Insufficient facilities, in which, low wages, inappropriate leave during maternity, lockage of proper system of child care center are the major causes of leaving their job. Particularly in newly established garments not having 100% compliance lack this kind of facilities. Even in garments having 100% compliance where the facilities are highly given stability of women workers are not observed. Moreover, the authorities of garment factories are providing only those facilities which are protected under the statutory law. Question now arises, whether the statutory laws are adequate for women workers? If adequate then why the rate of leaving the job is not reducing? Firstly, the maternity leave for public servants according to the Bangladesh Service Rules are now six-months though under labour law maternity leave for non public servants refers to workers that do manual work mainly in factories are still the same i.g.16 weeks. But, six-months (20 weeks) are the minimum time limit of the dependency of the new born children upon their mothers. Fatima Praveen Chowdhury, director ofInstituteofPublic Health and Nutrition, told The Daily Star “the leave would allow mothers to exclusively breastfeed their children for six-months and help eradicate malnutrition among the infants.”* While public servants are provided with the six months maternity leave facility then why there are discrimination for women workers who work in intensive sectors such as the garments, privet shops/establishments and services sectors? The point of view is that provided facilities are not lessening the ratio of leaving the job in case of women workers during maternity. Shirin Akhter of ‘Karmojibi Nari’ told The Daily Star, “All non-government sectors including garments factories should implement the six-month maternity leave for their employees. Sometimes authorities of garment industries harass and force the pregnant women workers to quit their job. Others give the leave but only take the women back as new employees. Secondly, when the period of maternity leave is finished women workers are faced with another dilemma. Whether they should keep their child at home or bring them to the child care center of her working place. For the lack of trust to the authority they are in a sense forced to think that in the factories child care center her child would not get the appropriate care. The superior authority also does not take any encouraging step in this regard. They pretend to be unconscious about the dilemma of the women workers. Their main concern is that if the mother brings her child then she would not be able to offer her best performance to the factory because she will be more anxious about feeding the child and the factory will suffer. In this kind of situation both the mother and child suffer from deep subjective discrimination. And this paper work is done on the basis of the fact that if the maternity leave period and welfare facilities are expounded, lackage of the system are pointed out, proper legislative amendments are made and behavioral norms could be more traditionally established then the working atmosphere for women workers will change and the ratio of leaving the job will be more positively low which will ensure the welfare of the whole society in the long run.
RIGHT TO AND LIABILITY FOR PAYMENT OF MATERNITY BENEFIT
Every woman employed in any establishment shall be entitled to, and her employer shall be liable for, the payment of maternity benefit in respect of the period of eight weeks preceding the tentative date of her delivery and eight weeks immediately following the say of her delivery.
Provided that a woman shall not be entitled to such maternity benefit unless se has worked with the employer for not less than six months immediately preceding the tentative date of her delivery.
No women worker shall be entitled to such benefit if she has, at the time of delivery, two or more children alive; however, will be entitled to any leave which she is otherwise entitled.
PROCEDURE REGARDING PAYMENT OF MATERNITY BENEFIT
According to section 47 of the Bangladesh Labor Act, states that—
(1) Any pregnant woman who is entitled to maternity benefit under this Act may on any day give notice either orally in person or in writing to the employer that she expects to deliver a child with eight weeks of the notice and such notice shall include the name of the nominee of the benefits in case she dies during delivery.
(2) If no such notice is given by the woman and she has delivered a child, she shall, within seven days of the delivery, give notice to the employer that she has given birth to a child.
(3) When such notice under sub-section (1) or (2) is received by the employer, he shall permit thewomantobeabsentherselffromworkforeightweeks
a). From the day following the date of notice under subsection (1);
b). From the day of delivery in the case of notice under subsection (2)
(4) An employer shall pay maternity benefit to a woman entitled thereto in such one of the following ways as the woman desires, namely-
Or eight weeks within three working days of the production of a certificate signed by a medical practitioner stating that the woman is expected to be confined within eight weeks of the date of certificate and for the remainder of the period for which she is entitled to maternity benefit within three working days of the production of the Proof that she has given birth to a child.
For the said period up to and including the day of delivery within three working days of the production of proof that she has given birth to a child and for the remainder of the said period, within eight weeks of the production of such proof, or
(5) The proof is required to be produced under sub-section (4) shall be either a certified extract from a birth register under the Birth and Deaths Registration Act 2004 (Act no. 29 of 2004) or certified from a registered practitioner or any other proof acceptable to the employer.
Section 48 of the Bangladesh Labor Act states that-
(1) The maternity benefit which is payable under this Act shall be payable at the rate of daily, weekly or monthly average wages as the case may be, shall be calculated in the manner laid down in sub-section (2); and shall be made wholly in cash.
(2) For the purpose of sub-section (1) the daily, weekly or monthly average wages, as the case may be, calculated by dividing the total wages earned by the women during the three months immediately proceeding the date on which she gives notice under this Act by the number of days she actually worked during the period.
PAYMENT OF MATERNITY BENEFIT IN CASE OF THE DEATH OF A WOMAN
According to section 49 of the Bangladesh Labor Act,
(1) If a woman entitled to maternity benefit under this Act dies on the day of her delivery or during the period of eight weeks thereafter in respect of which she is entitled to the maternity benefit, the liability of the employer under this Act shall not, by reason of her death, be discharged, and he shall pay the amount maternity benefit due, if the newly born child survives her, to the person who undertakes the care of the child and, if the child does not survive her, the person nominated by her under this Act, if there is no nominated person, to her legal representative.
(2) If a woman dies during the period in respect of which she is entitled to maternity benefit, but before giving birth t a child, the employer shall be liable to pay maternity benefit of the period which she was entitled up to the date of her death but if the benefit already given is more than the amount she is entitled to, yet such additional amount cannot be taken back and any amount due at the death of the woman shall be paid to the person nominated by her under this Act, or if she has made no such nomination her legal representative.
PROHIBITION OF DISMISSAL OF WOMAN IN CERTAIN CASES
Section 50 of the Bangladesh Labor Act, states that— if the employer gives notice or order of dismissal, discharge, or removal to a woman without sufficient cause within a period of six months before her delivery and eight weeks after delivery, she will not be deprived of the maternity benefit to which but for such notice she may have become entitled under this Act.
RECENT PROGRESS ON MATERNITY WELFARE AND OTHER FACILITIES:
Compliance issues gained significant importance of late, in particular after the Spectrum tragedy. The National Social Compliance Forum was formed in 2005. It is headed by the Ministry of Commerce and co-chaired by the Ministry of Labor. It also coordinates with the Ministry of Works and Ministry of Home (on safety issues), BGMEA and BKMEA, buyers, donors, NGOs and international labor unions (notably ITGLWF andAFL-CIO). It acts as a guiding and coordinating authority at policy level on compliance related activities. A Compliance Monitoring Cell provides secretarial support to the National Social Compliance Forum (SCF), monitors compliance with the Tripartite Mo (using a database of 500 factories), raises awareness on compliance issues, and links with buyers. The government decided to increase maternity leave from four months to six months. Two task forces were set up: one on labor welfare in RMG, and one on occupational safety (including building safety). Their role is to formulate compliance related work plans for the sector. A Crisis Management Committee was also established in July 2007. Labor inspections are coordinated by the Ministry of Labor. Currently, the total number of inspectors is 111 for the whole country, out of which 63 are dedicated to factories inspections (not only RMG), the rest to stores and establishments. More inspectors are expected to be hired in 2008. Inspectors visit factories according to the government schedule, and it is unclear whether factories get notified in advance. If factories are not compliant within a set time frame, the Ministry may take them to the Labor Court (there are 3 in Dhaka, 7 in total for the country). The Chief Inspections Officer interviewed by the mission criticized the focus on RMG at the expense of other sectors e.g. printing press, cigarettes, etc. where child labor is still rampant.
The International Labour Organization (ILO)
The International Labour Organization (ILO) is the author of ILO conventions on working conditions, maternity protection, discrimination, freedom to organize, social security, child labourandmuchmore.
The International Labour Organization (ILO) is a specialized United Nations agency focusing on labour market and social issues. The organization was founded under the then League of Nations in 1919 after World War I as part of the Treaty of Versailles. The 1944 Declaration of Philadelphia extended the objectives of the organization to include social policies and general human rights rather than merely concentrating on the unjust treatment of workers.
The objectives of the ILO is to lay down and promote international standards for the living and working conditions of workers, which comprise trade union freedom, the right to bargain collectively, the abolition of forced labour and child labour, equality, working environment, social security, etc. The ILO monitors the implementation of such standards in the individual
The implementation is secured by the obligation of the individual Member States to submit regular reports describing the initiatives taken. The ILO has set up the Committee of Experts and the Committee on the Freedom of Association as supervisory bodies to monitor the implementationoftheseobligations.
Effective supervisory bodies
The ILO has set up both a reporting system and a complaints system to ensure observance of ratified conventions. Each country must report every year on the implementation of the conventions. Additionally, both governments and the social partners can complain of specific violations of the conventions on the freedom to organize and to bargain collectively. This possibility is used almost exclusively by workers’ and employers’ organizations. The ILO Governing Body has appointed special committees to deal with such complaints.
To make sure that the countries are able to observe the conventions, the ILO runs extensive activities to support the development of labour market structures in the third world and in Eastern Europe. This work is carried out in close liaison with and often through the relevant organizations.
The ILO Office acts as the secretariat to the Organization and as a research and documentation centre.
The ILO has more than 175 Member States, is headquartered in Geneva and also has field offices in more than 40 countries. At the same time, the ILO is unique in the UN system because decisions are not only made by the Member States. Decisions are made jointly by governments, workers’ organizations and employers’ organizations. The ILO has a conference each year.
Rights of indigenous peoples and women
The ILO has been of special importance to indigenous peoples, such as Greenlanders. In 1953, the ILO published the study ‘Indigenous Peoples: Living and Working Conditions for Aboriginal Populations in Independent Countries’. Shortly afterwards, the ILO started working on the ILO Convention on Indigenous and Tribal Populations (No. 107), which was adopted in 1957. This Convention was the first international treaty ever for the protection of indigenous peoples.
During the 1970s, other UN bodies also began investigating conditions of indigenous peoples. At the same time, indigenous peoples started forming their own organizations at international level. This led to ever increasing criticism of Convention No. 107 for its assimilatory approach, and a revision became necessary. The ILO initiated the revising process in 1985, and in 1989 the replacement instrument was adopted as the ILO Convention concerning Indigenous and Tribal PeoplesinIndependentCountries(No.169).
The most important difference between Conventions Nos. 107 and 169 is that Convention No. 107 anticipated that indigenous peoples would gradually disappear and become integrated in the mainstream population. Convention No. 169 adopted a general attitude of respect for the cultures and ways of life of indigenous peoples and accordingly their right to continue to exist and develop as peoples with their own priorities. The UN named 1993 a special year for indigenous peoples. The year before that, Rigoberta Menchú was awarded the Nobel Peace Prize. She is a Maya Indian, politician and human rights champion from Guatemala. The UN later launched an International Decade of Indigenous Peoples.
The International Labour Organization—a UN specialized agency with 185 Member States—drafts and oversees compliance with international labor standards, as set down in the various conventions drafted under its auspices. The ILO Constitution also provides for two grievance mechanisms for asserting that a Member State is not fulfilling its obligations under a particular ILO convention: the complaints procedure, and the representation procedure.
The complaints procedure allows for the consideration of complaints against a Member State by: another Member State of the same convention, a delegate to the International Labour Conference (of Member States), or the ILO Governing Body. A Commission of Inquiry may be formed to investigate the allegation.
The representation procedure allows employers and workers unions to make representations to the ILO Governing Body that a Member State has in some way failed to observe its obligations under an ILO convention. A three-member committee may be set up to review the allegation and Member State’s response, both of which may be published if the Governing Body determines that the State’s response was unsatisfactory.
Independently, the Committee on Freedom of Association also receives complaints regarding violations of freedom of association from employers and workers organizations against States, regardless of whether the State has ratified the relevant conventions. The Committee may issue a report and make recommendations to the State if it decides there has been a violation. Since its inception in 1951, the Committee has reviewed more than 2,300 complaints.
ILO Member States submit periodic reports on their compliance, and the ILO also engages in extensive research, reporting and campaigning around labor rights.
Although there are many ILO conventions, the following are the core and priority conventions:
- Freedom of Associate and Protection of Right to Organize Convention (No. 87)
- Right to Organize and Collective Bargaining Convention (No. 98)
- Forced Labour Convention (No. 29)
- Abolition of Forced Labour Convention (No. 105)
- Minimum Age Convention (No. 138)
- Worst Forms of Child Labour Convention (No. 182)
- Equal Remuneration Convention (No. 100)
- Discrimination (Employment and Occupation) Convention (No. 111)
- Labour Inspection Convention (No. 81)
- Labour Inspection (Agriculture) Convention (No. 129)
- Tripartite Consultation (International Labour Standards) Conventions (No. 144)
Russian labour law
Russian labour legislation covers the labour relations of all individuals regardless of their citizenship, as well as all legal entities regardless of their organizational legal form, ownership pattern and the right under which they were established. The labour issues are regulated primarily through the Labour Code of the Russian Federation. In the former Soviet Union, concluding a written employment agreement was not common. Often, no employment agreement was concluded at all. Today, concluding a written employment agreement between an employee and an employer is obligatory, and this is reflected in practice.
Concluding an employment agreement
An employment agreement is concluded as a result of agreement between an employee and an employer. At the same time, in accordance with Article 67 of the Russian Labour Code, an individual employment agreement must be concluded with each particular employee. The legislator unambiguously stipulates that a non-written agreement is considered unduly executed. Any amendments agreed upon by the parties to an employment agreement must also be in writing according to Article 72 of the labour code.
Each employee is granted 28 calendar days of paid vacation per annum according to the employer’s schedule of vacations. While scheduling vacations it is necessary to keep in mind that at least one portion of the total vacation time must not be less than 14 calendar days. In cases when labour legislation or the employment agreement establishes that total vacation time is in excess of 28 calendar days, the employee may be entitled to request payment of a cash compensation for the portion of unused vacation time that is in excess of 28 calendar days. If total vacation time is 28 calendar days, no cash compensation for unused vacation time may be paid. For specifically protected groups of people, such as pregnant women, employees under 18 years of age, and employees involved in arduous work, replacing vacations with cash compensations is prohibited.
Under current Russian labor law, workers engaged in occupations that expose them to health hazards have the right to retire with a full pension at age 50 for women and 55 for men. Russians working as miners, lumberjacks, pilots, cosmonauts, as well as those in a dozen of other professions included in the list of hazardous works.
SOME LEADING CASES
In the first labour court of Bangladesh
Complaint Case No.24 of 1974
Majibur Rahman – First Party
A.K.M. Nurul Islam–Second Party,
Mr. Amanullah Khan—Chairman.¬¬
Mr. M. Karim—Member
Mr. M.A. Mannan — Member
This is an application under section 25(1)(b) of the Employment of labour Act, 1965.The First Party Majibur Rahman alleges that he has been a driver of Truck No. DHAKA TA: 577 belonging to the second party Nurul Islam. He was appointed on 25-12-1972. He has been removed from service on 18-07-1974. From 3 months prior to his removal he had been driving another truck no. DHAKA TA: 2115 also belonging to the second party. He further alleges that he was never paid wages regularly and was paid only Taka 1,150.00 for the total period of his service and thus Taka 5,882.00 fell due as arrear wages. He further claims that the second party also took a loan of Taka 1,000.00 from him and has not paid it as yet. He now claims arrear wages along with termination benefits, overtime dues and the amount of loan advanced. According to him, his last wages had been Taka 375.00 per month.
The second party Nurul Islam submits in his written statement that for misconduct he dispensed with the service of the first party on 23-11-1973 clearing all his dues. Thereafter, at the request of well-wishers of the First party he re-employed him on 12-03-1974 at Taka 12.50. per day on no work no pay basis and finally terminated the services of the first party on 18-07-1974 settling up all his dues. It is further contended that this case is not maintainable as the first party is not a worker under the employment of labour (S.O.) Act, 1965.I shall take up the question of maintainability first as this will dispose of the case without going through the merits of the case on facts as any finding in facts may prejudice the parties in their future litigation over these facts at any other forum. A worker has been defined in the Employment of labour (S.O.) Act,1965 in the following terms: ‘worker’ means any person including an apprentice employed in any shop commercial establishment, or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person-
(I) who is employed mainly in a managerial or administrative capacity; or
(II) Who, being employed in a supervisory capacity exercise, either by nature, of the duties attached to the office or by reason or power vested in him functions mainly of managerial or administrative nature. Now let us see if a truck service is included in either the industrial establishment or commercial establishment. Industrial establishment, has been defined in the said Act as follows: ‘Industrial establishment’ means any workshop or other establishment in which articles are produced, adapted or manufactured or where the work of making, altering, repairing, ornamenting, finishing or packing or otherwise treating any article on or any such other class of establishments, including water transport vessels or any class there of which the provincial Government may, by notification in the official gazette, declare to be and industrial establishment for the purpose of this Act, and includes-
(I) any tramway or motor omnibus service;
(II) Any dock, wharf or jetty;
(III) Any mine, quarry, gas-field or oil-field;
(IV) Any plantation; or
(V) A factory as defined in the Factories Act,1934.
So a truck service is not included in any industrial establishment. Now let us see if a truck service falls under the category of commercial establishment which has been defined in the following terms: ‘Commercial establishment’ means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contest with the owner of any commercial establishment or industrial establishment employ workers, a unit of joint stock company, an insurance company, a banking company or a bank, a broker office or stock exchange, a club, a hotel or a restaurant or an eating house, a cinema or theatre or such other establishment or class there of as the provincial Government may, by notification in the official gazette, declare to be commercial establishment for this Act.
So this definition too does not cover a truck service. The learned advocate for the first party submits that commercial undertaking in the definition of commercial establishment will include a truck service. But the words commercial undertaking has been used there with reference to clerical departments of such commercial undertaking and not each and every worker of a commercial undertaking. I, therefore, find that the first party is not worker under the employment of labour (S.O.) Act.1965 and has no remedy under this Act. This case is not, therefore, maintainable in this Court. In fact his remedy lies under Road Transport Workers Ordinance, 1961.
Leading case (high court division):
Md. Idris Khan ………………… Petitioner
Chairman, 1st Labour court
Dhaka & others ……… ……. Respondents
A bus cannot be called a commercial or industrial establishment.
Having regard to the definition of commercial and Industrial establishment as contained in the said act, a bus cannot be termed as a commercial or industrial establishment within the meaning of section -2 of the act.
(Writ petition No.5 of 1971)
Abdur Rahman chowdhary, this Rule is directed against the judgment and order dated 14.12.70 passed by the first labour court, Dhaka Facts leading to this rule in brief are that respondent no-2(herein after called the respondent) filed an application under section 25(1) of the Employment of labor Act, 1965 (herein after referred to as ‘the Act’) on the allegations that he was a motor driver under the petitioner at a monthly pay of TK.360 from 1965 and his services were terminated on the ground that he was an active worker of motor transport Employees union which staged a strike. After the strike was called off, the respondent went to resume his duty, but he was not allowed to join and he was verbally dismissed. He sent a grievance petition for re-instatement with all his legal dues and the petition having been refused, he moved the labour court.
The petitioner contested the said case by filing written statement wherein he denied the allegations made in the complaint petition and also denied that he was the owner of the bus or employer of the respondent.
- The respondent adducted oral evidence, but the petitioner did not adduce any evidence. One consideration of the evidence on record, the [Government] consider to be representative organization of such employers and worker respectively.
- The members referred to in the proviso to sub-section (1) to represent the employers connected with and the workers engaged in the industry concerned shall be appointed after considering nomination if any, of such organizations as the Government considers to be representative organization of such employer & workers respectively.
The term of office of the members of the Board, the manner of the filling casual vacancies therein the appointment of its committees if any, the procedure and conduct of the Board and its committees and all matters connected therewith including the fees and allowances to be paid for attending such meeting and other expenses, including expenses for the services of experts and advisers obtained by the Board, shall be such may be prescribed by rules made under section 17.
Women’s access to employment in Guatemala: the Morales de Sierra case
In Guatemala, the Civil Code allowed married women to undertake an occupation only insofar as consistent with their role as housewives (art. 113), and allowed the husband to oppose the employment of his wife, provided that he had sufficient earnings to provide for the maintenance of the household and he had justified reasons (art. 114).
A constitutionality challenge of these discriminatory norms was rejected by the Constitutional Court on the basis inter alia of the need to ensure legal certainty and to protect the children (Case 84-92 of 1992). Another constitutionality challenge was brought before the Constitutional Court by the Attorney-General of Guatemala in 1996.
In 1995, a woman filed a complaint with the Inter-American Commission on Human Rights, challenging articles 113 and 114 as well as other provision of the Civil Code concerning the administration of family property.
In 1998, deciding on a preliminary controversy concerning locus standi (the woman had not suffered from the application of the challenged norms herself) and exhaustion of domestic remedies, the Commission admitted the complaint (Maria Eugenia Morales de Sierrav. Guatemala, Inter-American Commission on Human Rights, Case 11625, Report No. 28/98, 6 March 1998).
While the proceeding was pending, most of the challenged norms (including articles 113 and 114) were repealed by Decrees 80 (1998) and 27 (1999), reforming the Civil Code. In addition, Decree 7 of 1999 (Ley de Dignificación y Promoción Integral de la Mujer) was adopted, guaranteeing women’s right to freely choose their employment and prohibiting discrimination on the basis of marital status (art. 12).
In 2001, the Inter-American Commission issued a report on the merits. The Commission clarified that differences in treatment do not necessarily amount to discrimination, where they are based on “reasonable and objective criteria”. The Commission held however that the challenged provisions could not be justified, and violated articles 11, 17(4) 24 of the ACHR. The Commission recognized the important progress made with the 1998 and 1999 reforms, and called the state to fully comply with its international human rights obligations (Maria Eugenia Morales de Sierrav. Guatemala, Inter-American Commission on Human Rights, Case 11625, Report No. 4/01, 19 January 2001).
Judgment date: 9th March 1967
Dr. F.K.M.A Muslim ……….. (Petitioner)
M.M Golam Hafiz ……… (Respondandent)
Whether to effect retrenchment condition of the section must be fulfilled or not
In the present, case service of the employees have not been terminated in the manner provided in section (12) of the Act. The termination of the service on the ground of retrenchment in terms of section 12 can only take place when all the condition mentioned there under have been complied with and not before.
- M/S Caltex oil (Pakistan) Ltd. Vs. The chairman second labour court (1967) 19 DLR 264
In the present case it is obvious that one of the condition, namely, dispatching the notice in respect of the retrenchment to the chief inspector was not complied with. The Labour court was, therefore justified and acted quite within its jurisdiction in holding that the termination of the service of the respondents concerned was under section 19 of the Act and not under section 12 and claimed by the petitioner. The essential of a termination on the ground of retrenchment as prescribed under section 12 are (a) the worker must be given one month notice is writing indicating the reason for retrenchment or he has been paid in lieu of such notice in respect of retrenchment in sent to the chief inspector and(c) the worker has been paid at the time of retrenchment compensation or gratuity whichever is higher as required under clause (c) of the section 12 .
If notice in the chief inspector has not been served in terms of diction 12, the retrenchment of the employee by the employer is not is according with law.
For the purpose of calculation of the compensation under the section, wages shall mean the verge of the basic wages plus dearness allowance. If any paid to the worker during period the date of retrenchment. For the reasons stated above, we don’t think that the impugned order passed by the labour court suffers from any illegality. We accordingly discharge the rule in each one of the two petitioners without any order as to costs. Judge Abdul Hakim Khan also agrees with.
Aminul Islam Vs James Finlay Co.
Ltd 26DLR (SC) 33 1
Mr.Aminul Islam was a head Clerk-cum Accountant under James Finally Company Ltd at Khulna. His service was terminated allowing him wages in lieu of 90 days notice. The company preferred to pay his wages for that period in addition to compensation at the rate of 14 days wages for every completed year or part thereof in excess of six months. It was asserted that the termination was for trade union activities of the workers and that it was case of victimization. The labour court upheld the contention of the worker. On the appeal before the high court no opinion was expressed on merits as the case was remanded to the labour court since the opinion of a member was not obtained. On farther appeal to the Appellate division, it was held on fact that the worker’s service was terminated without any stigma or charge and it was a termination simplicater.
It has been contended that the service of Aminul Islam ware terminated due to his trade union activities and as such it was act of victimization and the termination
- Aminul Islam Vs James Finlay Co. Ltd 26DLR (SC) 33
virtually amounted to dismissal under the cloak of the tram ‘termination ’. But his contention does not hold good as on examination of the impugned order it has been found that the termination simpliciter under section 19 and as such he was no longer a worker within the meaning of the Act.
Bangladesh tea estate ltd v Bangladesh tea estate staff union
(1976)28DLR (AD) 190 1
One Mr. Nurul Abser Chowdhury was appointed as a clerk by the Bangladesh tea Estate ltd. On 1st June 1964. He was subsequently promoted to grade 2, gardener clerk on 3-7-67. The employer company terminated his service under section 19 of the employment of labour act 1965 by a letter with all termination benefits. The employer instead of receiving his dues raised a labour4 dispute through the union under the estate Pakistan labour dispute act 1965. The labour court on consideration of evidence held that the termination of service of Nurul Abser was malafide a code of victimization for his trade union activities and according made an award directing to be a unit representative of the union.
On appeal by the employer company the high court of East Pakistan made an elaborate discussion of evidence and dismissed the appeal on the ground that Nurul Abser was victimized for his trade union activities. Because of his participation in trade union activities the order of termination was passed by the management in disapproval of such activities.
The employer company obtained leave from the supreme court of Pakistan.
- Whether the question of termination under section 19 should only be decided under section 25 of the standing orders act 1965 and cannot be raised as an industrial dispute under the labour dispute act or it can be raised as an industrial dispute.
- Can the court go behind the order of termination to see if it is really victimization or not.
The ratio decldendi of the two cited decision reported in 25 DLR (SC) 85 and in 13 DLR (SC) 280 (PDL 1961 (SC) 403) appear to be that the employer has a right to terminate the service of a worker under section 19 of the standing order act without disclosing any cause and that the court should not go behind an order of termination simpliclter to find out whether the order was malafide or not.
- Bangladesh tea estate ltd v Bangladesh tea estate staff union (1976)28DLR (AD) 190
There is however an exception to the rule that court not to go behind the order of a service of the termination to see if it really was victimization. This exception is contained in section 19, itself when read with section 25. It says that if purported termination is in reality victimization of an officer of a registered trade union for his trade union activities the court can go behind the order to see the real purpose of termination and grant such relief as it thinks fit. The two propositions should be read together in order to arrive at the true import of section 19 of the standing orders act.
Labour dispute is broad enough to include a dispute of a terminated worker under section 19 of the standing act 1965 if the dispute centers round the victimization of the worker for his trade union activates. It is to be remembering that section 25 of the standing orders act has clearly provided that an individual worker can claim relief before the labour court under the said act unless the grievance ha was raised as labour dispute under labour dispute act (IRO). Through section 25 bars all complaints against the order of termination under section 19 of the said act yet it authorized the worker to claim relief if the termination is of an officer of the registered trade union for his trade union activities or the worker is deprived of his benefits under section 19. The two acts are pair material and the provision in section 25 indicates that if the termination of a worker is for his trade union actives and if he is an officer of a registered trade union his code may be raised as an industrial dispute.
Banks & Another v Coca-Cola SA 1
Subject: procedural fairness in Retrenchment.
An application to interdict the employer from implementing a dismissal based on operational requirements on the grounds of procedural fairness. There was a delay in the launch of the proceedings and disagreement on what the appropriate remedies were. There was also a material dispute of fact. The matter was referred to trial for the hearing of oral evidence.
The two applicants, both senior executives were dismissed due to operational requirements after the process of consultation had broken down. Two and a half months later they approached the Labour Court for relief in terms of Section 189A (13) and sought compensation in the event that the court found that their dismissal had been procedurally unfair.
The allegations of the process being a “shambles” was denied by the Respondent Company and the disputes were therefore factual and material to the issue.
The notice of termination was due to take place on the 30 June 2007 and therefore the urgency of the matter being heard to interdict the employer from dismissing the applicants and directing the respondent to commence the consultation process afresh as required by Section 189 of the Act.
The facts as alleged by the applicants on the consultation process used by the Respondent were very comprehensive and the basis of the claim was that the respondent failed to engage in any meaningful individual consultations about a structure that could save their jobs and that the consultation process was “nothing less than a shambles, that vague and subjective selection criteria were applied, that the respondent made a decision on restructuring and sought to consult thereafter and that it failed to make a proper severance proposal”.
The respondent alleged that the applicants’ referral was opportunistic and that the applicants are seeking to do no more than secure themselves reinstatement for the purposes of negotiating a more generous severance package.
Oosthuizen v Telkom SA Ltd 1
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment.
Whether the respondent employer ought to have redeployed the appellant, rather than make retrench him, and whether the selection criteria that did not include length of service were fair in the circumstances.
The appellant had been retrenched by the respondent. He lodged a claim in the Court that partially rested on the fact that the respondent had not negotiated with him personally but with a union that was representative at the workplace. The Court dismissed the applicant’s claim.
The appellant appealed to the LAC on the basis that (1) the respondent ought to have avoided the redundancy by redeploying to one of the positions that he applied for and (2) on the basis that the respondent’s selection criteria was unfair.
On the issue of redeployment, the Court noted that the appellant had applied for 26 positions, some of which he was short listed for. The respondent led no evidence at to why he was not appointed to those positions and the Court found that it had failed to justify the dismissal of the appellant. Interestingly, the Court found that if the appellant required training to be suitable for an alternative position, that the respondent must arrange such training as part of its obligations to look for alternatives to redundancy.
On the issue of the selection criteria, the respondent’s evidence was that skills, suitability and employment equity policy were the criteria adopted. The respondent did not take into account length of service, which was a significant issue given the appellant had been employed for 30 years with the respondent. The Court did not making any findings on this point, having already ruled that the dismissal was substantively unfair because the appellant could have been redeployed.
The LAC ordered that the appellant be reinstated. It also made specific orders about the need for a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus because of the reinstatement. Costs were awarded against the respondent.
Perumal & another v Tiger Brands
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment
In what circumstances can an employee allege that in the Labour Court that his or her dismissal, as part of a ‘mass redundancy’ (necessitating s.189A procedures), is procedurally unfair?
The applicant challenged the substantive and procedural fairness of her redundancy.
The respondent contended that the provisions of the LRA prohibited the applicant from disputing the procedural fairness in this instance.
In relation to substantive unfairness, the applicant alleged that the respondent had applied its selection criteria in an unfair manner, a contention denied by the respondent.
In respect of procedural fairness, the Court agreed with the respondent. It found that s.189A (18) of the LRA operates to bar procedural challenges from being raised in s.191 (5) (b)(ii) disputes (relating to dismissals for operational requirements), because s.189A(13) allows for challenges to procedural defects by way of an order compelling the employer to conform to fair procedure. In other words, because the applicant had not brought the procedural flaws to the attention of the employer via s.189A (13), she forfeited the right to challenge the procedural fairness altogether.
In respect of the substantive fairness, the Court noted that the respondent had subjected the applicant and her colleagues to a competency test and also required them to attend a meeting held by an interviewing panel. The Court found that in both the test and the interview, the respondent had acted in a biased manner towards the applicant. Accordingly, it found that the dismissal was substantively unfair. It ordered that the applicant be reinstated, paid compensation of 12 months with a partial costs order against the respondent
Zero Appliances (Pty) Ltd v CCMA & Others 1
Subject: Practice and Procedure/Appeal and Review
The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment
The applicant employer implemented a redundancy program that included, at the union’s request, the appointment of a facilitator from the CCMA and the execution of a facilitation agreement. Some three months after they have been made redundant, 63 employees lodged unfair dismissal claims alleging procedural unfairness. The employer alleged that the referral was out of time and had been directed at the wrong body. Nevertheless, a CCMA commissioner condoned the later referral and issued a certificate to the effect that the dispute remained unresolved.
The employer approached the Court to have the commissioner’s condonation and the certificate set aside.
The Court found that the mere fact that the CCMA had been involved during the facilitation phase of the retrenchment did not ‘entail the transfer of jurisdiction over the dispute’.
The Court noted that it is the correct forum for lodging disputes about the procedural fairness of ‘mass retrenchments’ pursuant to s.189A(13). The employees had embarked on the wrong dispute referral procedure. Accordingly, the Court held that the certificate was issued in error and stateside.
As to the condensation, the Court noted that the retrenched employees did not dispute or question the retrenchment process while it was in progress and only did so 97 days after their contracts were terminated, which ‘raised serious questions about their bona fides’. It took the employees 238 days, from date of termination of their contracts, to raise the dispute in the Court. It also found that the employees provided no explanation and had not applied for condensation.
Finally, the Court assessed the employer’s chances of success as ‘excellent’. The condensation was also set aside.
Costs were awarded against the employees.
Zietsman & others v Transnet Limited 1
Subject: Retrenchment: Severance Pay
The Employees sought a determination on whether the calculation of the severance pay by the Employer should have included the dealer bonuses of each of the Employees as provided for in a bonus scheme agreed to by the Employer.
The court held that as long as the Employer complied with the statutory minimum payments, there was no additional entitlement to other payments.
The 3 applicant Employees were retrenched by the Employer. They had all participated in a bonus scheme in terms of which bonuses were paid to them bi-annually.
When they were retrenched they were paid a severance package of 2 weeks’ salary for each completed year of service. The Employees claimed that their severance packages were calculated incorrectly as the bonuses were excluded from the quantum of remuneration on which the 2 weeks’ severance pay was calculated.
In exercising powers given to him in terms of section 35(5), the Minister published a schedule indicating payments to be included in an employee’s remuneration for the purposes of calculating pay for severance pay in terms of section 41 of the Act.
In terms of this notice discretionary payments not related to an employee’s hours of work or performance do not form part of the remuneration for the purpose of calculating severance pay. The court held that where an employer paid more than what section 41 of the Act required, a section 35(5) calculation would not apply. In this case, the Employees severance packages exceeded what they would have received had they been paid the statutory minimum calculated to include the bonuses.
As the Employees received more than what was provided for in section 41 of the Act and in the absence of an agreement to use the formula provided for in section 35, the court held that the Employer had complied with the requirement of the Act and that the Employees were not entitled to payment of their bonuses.
Thekiso v IBM South Africa (Pty) Ltd
[Redundancy & EEA requirement] 1
Subject: Procedural Fairness in Retrenchment
The applicant was made redundant and challenged the decision on a number of grounds, namely:
- That she had not been adequately consulted;
- That her employer used an inherently subjective selection criteria and she should have been informed of the merits of each employee that was subject to the redundancy process; and
- That the redundancy was unfair because the employer failed to consider the obligations contained in the Employment Equity Act (EEA).
The applicant worked in the employer’s asset management division which lost a number of contracts that necessitated redundancies. Positions in the division were made redundant and affected employees were invited to apply for a more complex post of asset administrator. The applicant applied but was unsuccessful. The employer appointed a white male.
The applicant’s claim for inadequate consultation relied on the fact that the employer commenced consultation meetings on the same day that she was given a s.189 letter.
Interestingly, the applicant initially pleaded that her dismissal was automatically unfair because of direct discrimination (on the grounds of race and gender). During the hearing, by leave of the Court, she amended her claim to plead that the employer failed to consider the obligations of the EEA when determining parties for retrenchment. The applicant relied on s.15 of the EEA.
- Thekiso v IBM South Africa (Pty) Ltd [Redundancy & EEA requirement]
The Court dismissed the applicant’s contention that she had not been adequately consulted, noting that the applicant, when asked to attend a meeting on the same day as receiving her s.189 letter, had not objected or asked for more time. A number of consultation meetings were also held subsequent to the initial meeting.
On the issue of the selection criteria, the Court found against the employee, noting that ‘a retrenching employer that has one post to fill is not required to debate the merits of each employee with the others before making the selection’.
The Court noted that the applicant relied on the EEA to claim that the employer was obliged to retain the applicant (a black woman) in preference to a white male provided she was ‘suitably qualified’ for the available position.
The Court was quick to reject this claim, referring to its earlier decision of Dudley y City of Cape Town in which it was determined that the EEA does ‘not bring about an individual right to affirmative action’. The applicant had submitted to the Court that Dudley was wrongly decided and should not be followed.
The Court did not agree and it noted, ‘the obligation imposed by the EEA obliges designated employers to take measures to retain and develop people from designated groups does not mean that designated employees should be afforded a preference when it comes to selection in the retrenchment context’.
Bangladesh: Amended Labor Law Falls Short
Some Improvements, But Workers Rights Still at Serious Risk
July 15, 2013
On April 30, 2013, A woman checks a list for the name of her missing relatives, garment workers, who are missing after the collapse of Rana Plaza building in Savar, 30 km outside Dhaka
The Bangladesh government desperately wants to move the spotlight away from the Rana Plaza disaster, so it’s not surprising it is now trying to show that it belatedly cares about workers’ rights. This would be good news if the new law fully met international standards, but the sad reality is that the government has consciously limited basic workers’ rights while exposing workers to continued risks and exploitation.
Phil Robertson, deputy Asia director
(New York) – Amendments to Bangladesh’s labor law make some improvements but still fall far short of protecting worker’s rights and meeting international standards, Human Rights Watch said today. Bangladesh’s donors and international investors should press the government to make further amendments to the law to fully ensure workers’ rights to form unions, bargain collectively, and participate in workplace decisions on safety.
Under domestic and international pressure, on July 15, 2013, the Bangladeshi parliament enacted changes to the Labor Act. The impetus for a reformed labor rights law sprang from the collapse of the Rana Plaza building in greater Dhaka in April, which killed more than 1,100 garment factory workers. The Rana Plaza tragedy followed many other workplace tragedies that resulted in large loss of life.
“The Bangladesh government desperately wants to move the spotlight away from the Rana Plaza disaster, so it’s not surprising it is now trying to show that it belatedly cares about workers’ rights,” said Phil Robertson, deputy Asia director. “This would be good news if the new law fully met international standards, but the sad reality is that the government has consciously limited basic workers’ rights while exposing workers to continued risks and exploitation.”
Bangladesh has ratified most of the core International Labour Organization labor standards, including Convention No. 87 on freedom of association and Convention No. 98 on the right to organize and bargain collectively. However, important sections of the Labor Act still do not meet thosestandards.
The new amendments deal with only some problematic provisions of the existing law, while leaving others untouched. For example:
- At least 30 percent of the workers in an establishment, which can comprise many factories, would still have to join a union for the government to register it.
- Unions will be allowed to select their leaders only from workers at the establishment. This will enable employers to force out union leaders by firing them for an ostensibly non-union-related reason, a common practice globally. Workers in export processing zones, which cover a large percentage of Bangladesh’s work force, would remain legally unable to form trade unions.
- The amended law adds more sectors, including non-profit education and training facilities, as well as “hospitals, clinics and diagnostic centers,” to a lengthy list of types of employment in which workers are not permitted to form unions.
- The right to strike will remain burdened by a cumbersome bureaucratic process and the requirement that two-thirds of the union’s membership would have to vote for a strike, a small improvement over the previous requirement of three-quarters of the membership.
- The government will be able to stop a strike if it decides it would cause “serious hardship to the community” or is “prejudicial to the national interest,” terms that are not defined but can easily be misused.
- Discriminatory anti-strike provisions in the law favor foreign investors by prohibiting strikes in any establishment during the first three years of operation if it is “owned by foreigners or is established in collaboration with foreigners.”
- The amended law also seeks to redirect attention to so-called “Participation Committees” and “Safety Committees,” largely powerless bodies made up of management and workers. Workers at non-union workplaces would directly elect their representatives to Participation Committees and Safety Committees, which would be created in factories with more than 50 workers. However, the role of these committees is not clearly defined. Both types of committees fulfill duties that should be handled by a union acting as the duly organized and elected representative of the workers.
“The government has not only missed a golden opportunity to get rid of provisions that limit workers’ rights, it has even snuck into the law new and harmful regulations,” Robertson said. “Even after Rana Plaza, the government still is not fully committed to the protection of workers’ right.
The revised Labor Act could also have a major negative impact on unions by expanding government control over unions’ access to foreign funding. The law would require prior approval from the Labor and Employment Ministry before either trade unions or employer organizations could receive “technical, technological, health & safety and financial support” from international sources.
“By controlling access to foreign funding, the government would have a stranglehold over assistance to unions, just as it has with devastating effect over other nongovernmental groups,” Robertson said. “Donor countries should reject this unjustified government interference with workerandemployergroups.”
The law contains important provisions prohibiting discrimination based on sex and disability, including equal wages for equal work. However, the revised law includes no measures to tackle sexual harassment of women, who make up the vast majority of workers in the ready-made garment sector, Human Rights Watch said. In offering amendments to the labor law, the government has missed an important opportunity to carry out 2009 High Court guidelines against sexualharassmentintheworkplace.
A major test of the government’s commitment will be implementation of provisions that protect worker safety and the rights to organize and collective bargaining. The ruling Awami League is backed by factory owners and has many members of parliament who own factories.
The government has failed to develop specific regulatory rules to carry out various provisions of the previous law, adopted in 2006, raising concerns about its willingness to implement new measures. For instance, the government has failed to carry out adequate factory inspections. The International Trade Union Confederation (ITUC) estimated in 2008 that the country had as few as 80 inspectors. The Bangladesh government, European Union, and International Labour Organization recognized this problem in a memorandum of understanding signed on July 8, 2012, which called for recruiting an additional 200 inspectors before the end of 2013. It set a long-term goal of “upgrading the Department of the Chief Inspector of Factories and Establishments to a Directorate with a strength of 800 inspectors, having an adequate annual budget allocation, and the development of the infrastructure required for its proper functioning.”
“The positive provisions in the new labor law demand a serious commitment to enforcing them,” Robertson said. “International companies sourcing from Bangladesh should press the government to recognize that empowered workers and unions are one of the best ways to ensure that reforms are actually made. If strong unions had been allowed when cracks first appeared at Rana Plaza, workers wouldn’t have been bullied into going to work the next day and then being killed when the building collapsed.
Observing the present unsatisfactory situation in Bangladesh garment sectors regarding the applicability of maternity leave and benefits we have listed the following recommendations to improve and ensure the maternity leave and other facilities for female workers_____
1) Ensure effective and impartial labor administration, increase effectiveness of labor inspections and labor courts by allocating adequate resources for proper functioning.
2) Extensive propagandas should be adopted to create awareness among the female workers about the provision of law regarding maternity benefit so that they can get the full benefit of it.
3) There should be a strong monitoring system in the garment sectors on the part of the government so that no female workers can be deprived of that benefit.
4) The procedure of appointing the workers should be more formal, each worker should be provided with a service book consisting of the rules and regulations of the service.
5) The garment factories can arrange workshops, training programs on maternity leave and benefits to make the workers conscious about it.
6) The rules and regulations of service should be made in a way which encourages the female workers to continue doing service after the leave of maternity expires.
7) The existing laws are needed to be reviewed at the same time the scope and nature of maternity benefits should made more convenient for the female workers with some additional benefits.
8) In most cases female workers are not supported by their superior/ manager assigned for less stressed work, so there should appoint an extra female worker who will look after the pregnant worker’s problems.
9) The government should provide the umbrella regulatory and legal framework within which employer-worker differences and disputes can be reconciled in an efficient, peaceful and equitable manner.
10) There should be a wide scope on the part of female employees to challenge any inconsistency and injustice done by the employers.
11) Different women organizations working for the rights and empowerment of women should come forward with diverse awareness raising activities among female workers to address the issue.
12) Trade union organizations at different levels should extend their work and take different measures to protect the rights of female workers.
13) The ministry of labor should spell out how organized and unorganized workers can seek redress for various grievances for various forums-in the workplace at the labor ministry or ate the labor court.
14) Government should provide concrete information to workers on remedies available to them (labor court, BGMEA arbitration committee);
The importance of labour law is very much in Bangladesh perspective. It is highly importance in Bangladesh perspective of labour law. We know that labour is a most important part of an industry. So, we can not think an industry with out labour. Labour right is most essential in Bangladesh. But the labours are aware about their right. They don’t know properly about labour education. It is a great problem.
For this reason, they retrenched by the employee as the employers wish. Very often, they retrenched without any legal process. This is injustice and in human. This should be protected for the interest of industrialization in Bangladesh. Proper and strict provisions should be included in Labour laws and state laws. The labours should not be deprived. Their rights should be protected.
Illegal retrenchment by the employer is inhuman and increased the suffering of the labours. In this respect the following action should be taken:
- The cause of retrenchment should genuine and proper in the eye of law.
- Proper notice for three months should be given to the respective labour for his self defense,
- If not the labour should be paid three months salary and other benefits allowable as per law.
In the light of the analysis of the legislation of the covered countries, it is possible to highlight some key issues affecting the labour rights of women agricultural workers. First, women’s access to employment may be restricted by family law norms requiring the authorization of the husband (e.g. in some Mexican states). In several countries, these norms have been successfully challenged by women at national and international level, and legislative reforms have been adopted to repeal them (e.g. in Guatemala). However, even where these norms are repealed, there are reports that marital authority continues to be applied in practice, especially in rural areas.
Second, while labour legislation in most of the covered countries explicitly prohibits sex discrimination, in some cases labour laws are silent on this issue (e.g. Kenya and Fiji). In yet other cases, while the non-discrimination principle is formally stated, no sanction is envisaged for violations (Burkina Faso). In most of the covered countries (with some exceptions; e.g. Italy), sex discrimination in remuneration is prohibited only with reference to “equal work”, not with reference to the internationally recognized criterion of “work of equal value”. In all these cases, discriminatory practices on the workplace are de jure or de facto allowed. Affirmative-action measures are envisaged only in some of the covered countries .
Third, women’s access to agricultural work may be hindered by “protective” legislation prohibiting women’s night work in the agricultural sector, while international conventions prohibit it only with regard to some industrial occupations .
Fourth, only some countries have adopted legislation addressing sexual harassment on the workplace (the Philippines). In India, the legislative lacuna was filled by guidelines adopted by the judiciary. In other countries, sexual harassment is left unaddressed . Field studies document that this is a major problem affecting women working in plantations.
Fifth, women enjoy special protection in case of maternity in all the countries examined. However, requirements for the application of this protection (e.g. in terms of duration of previous employment and of documentation to be produced) may be very demanding, and can de jure or de facto exclude women agricultural workers (who are concentrated in seasonal and temporary labour force). Furthermore, maternity leave is often considerably shorter than internationally recognized standards. In addition, while in some countries maternity leave is fully paid, in others it is unpaid or it covers only a limited portion of the full wage. Finally, where maternity benefits are wholly or in part paid by the employer , women’s access to employment is hindered by their higher labour costs.
Finally, women’s labour rights are severely limited by the lack of implementation of labour legislation. For example, while most countries state the equal pay principle, gender pay gaps are reported for most of the examined countries. Pregnancy testing and even sterilization practices have been documented in some countries (e.g. Mexico and Brazil). In plantations, women often work without contract on a daily and piece-work basis (as documented e.g. for Mexico, Brazil and South Africa). This deprives them of the protection accorded by labour law. In other cases, employment contracts are signed by the household head, and women provide labour as family members of employees; in these cases, wages are paid to the household head with regard to the global labour provided by the household (e.g. as documented for Tunisia and South Africa). More generally, a gender division of labour in agricultural work, whereby women are concentrated in low-pay, temporary agricultural work, is widespread in most of the covered countries, although to very different degrees.
It is true that the mobilization of women into the garments industry in Bangladesh reflects the operation of deep-seated and long-term economic and socio-cultural shifts. Though increasing number of women is part of the workforce, the inevitable fact is that they have to bear children which drive them out of the workforce at least temporarily. The study shows that the dream of women workers reaching equality to their male workers is far from reality in Bangladesh for that matter even in most places of the world. Though increasing number of women are part of the workforce, the fact that they have to bear children drives them out of the workforce at leas temporarily. If adequate privileges concerning maternity policy are not available, women are forced to stop working. Far more attention needs to be given to the needs of these workers and more needs to be learned from safety net mechanisms which have worked for them. Law should be amended as it is essential and law enforcing authority should be made more effective to ensure that the provisions of law are being enforced in its true spirit.
Labor problems constituted a serious menace to the society, and needed solution, if not to eradicate then at least to mitigate them in the very beginning. Employers paid their sole attention to the maintenance of machines and the improvement of the technical knowhow to the utter neglect of the human hands employed to man the machines because they were readily available and could be easily replaced. Workers were illiterate and poor and therefore unconscious of their rights. The socio-economic status of the workers was far below the status of their employer. As such they could not exercise their free will in negotiating with the employer for employment. The employer taking advantage of the poor condition of the workers dictated their own terms and conditions with regard to wages, hours of work, leave, etc. The workers were left with no choice but to accept such terms because service was the sole means of earning their livelihood.
Neither the Government nor the law courts took special notice of these problems because they laid too much emphasis on the policy of the non-interference and freedom of contract. Thus, with the lapse of time the situation turned out to be so worse and the society became so much adversely affected that the Government was compelled to take some action to remedy these problems. Ultimately some philanthropic agencies like Servants of India society, social service league and some industrial social workers raised their voice against these problems. They were successful in mobilizing the public opinion in support of their view point. Workers also started to form their own organization to fight against exploitation at the hands of industrialists. In the beginning the effort of the workers was not very successful because of their weak bargaining power and lack of resources on which they could rely for their livelihood in the absence of wages
Some employers also realized the seriousness of the problem and the necessity of mitigating these evils for they affected the production of the industry, they felt that investment on labour welfare was a policy with pursuing because a contended worker would produce better yields and would increase the efficiency. The Government too later on realized the gravity of the problem and could not remain a spectator for the workers constituted a large section the society. Moreover, the government had to intervene to settle the disputes in the interest of national economy and the welfare of the society at large. If some key industry is thrown out of gear, the whole system is paralyses. Frequent break downs of even a part of the economic system tend to impoverish the community. The prevention of industrial strife thus assumes an important role in national policy and the State, therefore, cannot afford to remain indifferent to the problems leading to industrial conflict.
After independence the national government paid much attention to the improvement of the conditions of labour in industry, for the prosperity of a country depends upon the development and growth of industry. No industry can flourish unless there is industrial peace and co-operation. Industrial peace is possible only with the co-operation of labour and capital. To ensure better co-operation the wage earner who is a partner in the production should be allowed to have his due share of the profit for increased production. Therefore, we have to shape our economic policy in such a manner as to give laborer his due status by offering him reasonable working conditions and due share in production. That means social justice and social security has to be restored to the laborer. Our Constitution guarantees social justice to the people of India. Social justice means achievement of socio-economic objectives. Labour legislation is one of the most progressive and dynamic instruments for achieving socio-economic progress.
 The Bangladesh Labour Code, 2006 by Md. Abdul Halim and Masum Saifur Rahman.
 . Dr. Zulfiqure Ahmed, A text book of the Bangladesh Labour Act,2006 (2nd Edn 2002;sams publication Dhaka)