WORKER’S RETRENCHMENT UNDER LABOUR LAW, PART 2

Chapter-5

LABOUR COURT AND LABOUR APPELLATE TRIBUNAL

5.1 Basic Idea

5.2 Application of the Labour court

5.3 Jurisdiction of the labour court

5.4 Power and status of the labour court in trying offences

5.5 A labour court is a civil court

5.6 Power and functions of the tribunal

(5.1) Basic Idea

To promote industrial peace and to establish a harmonious and cordial relationship between labour and capital by means of conciliation mediation and adjudication. With this end in view different authorities have been created under the code to resolve an industrial dispute. Of these tow bodies are adjudicatory or judicial. They are the labour court and the labour appellate tribunal. The code has streamlined for some non-adjudicatory as well as adjudicatory authorities. Non-adjudicatory authorities include participation committee conciliator and arbitrator while adjudicatory authorities include labour court and labour appellate tribunal.

(5.2) Application of the labour court1

An industrial dispute may be referred to the labour court in any of the following ways:

  • If no settlement is arrived by way of conciliation and the parties agree not refer the dispute to an arbitrator and the parties have received a certificate of failure under section 210(11) the worker may go on strike or the employer may declare lock out. However the parties raising the dispute may either before or after the commencement of a strike or lock out make an application to the labour court for adjudication of the matter (section 211)
  • Again if a strike or lock out lasts for mare than 30 days the government may prohibits such strike or lock out and in that case the government must refer the dispute to the labour court 1 (section 211,(3,4,5))
  • Again under section 213 any collective bargaining agent or any employer or worker may apply to the labour court for the enforcement of any right guaranteed or secured to it or him by or under this code or any award settlement.
  1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.280

(5.3) Jurisdiction of the labour court

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

  • Adjudicate and determine an industrial dispute which has been referred to or brought before it under this code;
  • Enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the government
  • Try offences under this code
  • Exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by under this code or any other law.

(5.4)Power and status of the labour court in trying offences

Section 215 and 216 of the code provides the procedure and powers of labour court which is may be of two types; 1

  • Power and status in trying offences and
  • Power and status in civil maters
  • The labour court shall follow as nearly as possible summary procedure as prescribed under the code of criminal procedure 1898 (Act V of 1898)
  • A labour court shall for the purpose of trying an offence under the code have the same powers as are vested in the court of a magistrate of the first class under the code of criminal procedure.
  • The labour court shall for the purpose of inflicting punishment have the same powers as are vested in Court of Session under that code.
  • A labour court shall while trying an offence hear the case without the members.

(5.5)  Labour court is a civil court

In the case of Pubali Bank V the Chairman 1st labour court 44DLR(AD)40 the question was raised whether a labour court is a civil court or not their. Lordship of

  1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.282

the appellate division upon consideration of relevant provision of the industrial relations ordinance 1969 held that the labour court acts as civil court for limited purpose but not a civil court at all it is only by a legal fiction or a statutory hypothesis that it is to be treated as a civil court.

Labour Appellate tribunal Constitution

  • The labour Appellate tribunal shall consist 1 of a chairman or the government deems fit of a chairman and such number of members as determined by the government additional judge of the high court division (section 218(1))
  • The chairman of the tribunal shall be from amongst persons who is or has been a judge or an additional judge of the Supreme Court or is or has been a district judge for at least three years.
  • If the chairman is absent or unable to the tribunal the chairman any reasons the senior the senior member of the tribunal if any shall discharge the functions of the chairman.
  • An appeal or any matter before the tribunal may be heard and disposed of by the tribunal sitting as a whole or by any bench thereof.

(5.6) Power and function of the tribunal 2

  • Subject to this code, the tribunal shall follow as nearly as possible such procedure as are prescribed under the code of civil procedure, for hearing of an appeal by and appellate court from original decrees.

If the members of a bench are divided in their opinion as to the decision to be given on any point-

(a)The same shall be decided according to the opinion of the majority, if any

(b) If the member of the bench is equally divided, they shall state the point on  which they differ and the case shall be referred by them to the chairman for hearing on such point by the chairman himself, if he is not a member of the tribunal, and such point shall be decided according to the opinion of the chairman or member or majority of the members hearing the points, as the case may be.

  1. The Labour Code of Bangladesh 2006, {section 218(1)}
  2. Md. Abdul Halim, The Bangladesh Labour Code, 2006, CCB Foundation, Ed.1, p.287

(2) Where a bench includes the chairman of the tribunal as one of its members and there is a difference of opinion among. The members and the members are     equally divided, the Decision of the chairman shall prevail and the decision of The Bench shall be expressed in terms of the opinion of the Chairman.

(3) The judgment of the tribunal shall be delivered within a period of not    more then    60 days following the filing of the appeal.

(4) The tribunal shall have authority to punish for contempt of its authority, or that of any labour court as if it’s were a high court division of the Supreme Court.

(5) The tribunal may, on its own motion or on the application of any party, transfer a case from one labour court to another.

(6) The tribunal shall have superintendence and control over all labour courts.

Chapter 6

CONCLUSION 

6.1 Findings

6.2 Recommendations

6.3 Scope for Further Study

(6.1) Finding:

Worker’s retrenchment is a very essential function of the labour law. It’s a very effect                            for Labours and the Employers. No worker employed in any shop or commercial or industrial establishment who has been in continuous service for not less then one year under an employees shall not be retrenched by the employer unless-

  • the worker has been given one month’s notice in writing, indicating the reason for retrenchment or the worker has been paid in lieu of such notice, wages for the period of notice;
  • a copy of the notice in respect of the retrenchment is send to the chief inspector or any other officer authorized by him ; and
  • the worker has been paid, at the time of retrenchment , compensation which shall be equivalent of fourteen days’ wages for every completed year of service or for any part thereof in excess of six month, or gratuity, if any, whichever is higher :

For the purpose of calculation of compensation under this Section, wages shall mean the average of the basic wages plus dearness allowance, if   any, paid to the   worker during the period of twelve month immediately preceding the   date of retrenchment.

(6.2)Recommendations

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 with out any legal process. This is injustice and in human. This should be protected for the interest of industrialisation 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 he following action should be taken:

  1. The cause of retrenchment should genuine and proper in the eye of law.
  2. Proper notice for three months should be given to the respective labour for his self defence,
  3. If not the labour should be paid three months salary and other benefits allowable as per law.

(6.3) Scope of the further study

The discussion of this thesis 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.

In Bangladesh perspective we find that there are several problems remain related with Labour disputes, Workers Problem, Trade Union Problems, Employments problems, Working Hour Schedule etc. So we think further study may be done on the following issues:

  1. Labour disputes solution process.
  2. Trade Union Problems and their functions
  3. Employers and Employees relation.

 BIBLIOGRAPHY

  1. Md. Abdul Halim, the Bangladesh Labour Code, 2006, CCB Foundation, (July, 2008) Dhaka, Bangladesh.
  2. Md. Abdul Halim & Masum Saifur Rahman, the Bangladesh Labour Code, 2006, CCB Foundation, Ed.: 3rd, (June, 2007) Dhaka, Bangladesh.
  3. Nirmalendu Dhar, Labour & Industrial Laws of Bangladesh, Remisi Publishers, and Ed.: 2nd, (August, 2004) Dhaka, Bangladesh.
  4. www.skillsportal.co.za net. (Visited on- 25thmay2009)       .
  5. 5. Human_resource_manamement/caselaw net. (Visited on- 25thmay2009)

ABBREVIATION

AD                              : Appellate Division

ADR                            : Alternative Dispute Resolution

BCR                            : Bangladesh Case Reports

BLC                            : Bangladesh Law Chronicles

BLD                            : Bangladesh Legal Decisions

BLT                             : Bangladesh Law Times

BVC                            : Bar vocational Course

CD                               : Case Dairy

CPC                             : The Code of Civil Procedure, 1908

CrPC                           : The Code of Criminal Procedure, 1898

DLR                            : Dhaka law Reports

DP                               : Departmental Procedure

SC                               : Supreme Court

CASE INDEX

  1. Aminul Islam vs. James Finlay Co. Ltd 26DLR (SC)33.
  2. Bangladesh Tea Estate Ltd. vs. Bangladesh tea estate staff union (1976)28DLR (AD) 190.
  3. Bangladesh jute corporation vs.2nd Labour court, Dhaka (1989) 41 DLR 265.
  4. M/S Caltex oil (Pakistan) Ltd. vs. The chairman second labour court (1967) 19 DLR 264.
  5. Pakistan Tobacco Company Ltd. vs. Pakistan Tobacco Company Employee union, Dhaka, 13 DLR (sc) 280.
  6. U.B. Datt Co. vs. workmen AIR 1953(SC) 411

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