Since independence of Bangladesh, no major development took place in the history of labour legislation till the enactment of the Bangladesh Labour Act, 2006. The Bangladesh Labour Act, 2006 is a major and comprehensive enactment regarding industrial relation system–partly as a response to demand of stakeholders for improving regulatory framework on trade union and partly by demand for codification of existing labour laws in order to avoid overlapping and inconsistencies. It brought some significant changes in industrial relation system.
However, the Act has not been able to bring the desired changed due to its in-built weaknesses, suspension of many labour rights under state of emergency and lack of institutional capacity to implement the laws. Definition of Industrial Disputes:- Industrial disputes are conflicts, disorder or unrest arising between workers and employers on any ground. Such disputes finally result in strikes, lockouts and mass refusal of employees to work in the organization until the dispute is resolved.
So it can be concluded that Industrial Disputes harm both parties employees and employers and are always against the interest of both employees and the employers. Bangladesh Labour Act – 2006 ‘industrial dispute’ means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person; Cause of Industrial Disputes :-
The new industrial set-up has given birth to the capitalistic economy which divided the industrial society into two groups of labour and capitalists. The interests of these two groups are not common which created industrial disputes. The causes of industrial disputes can be broadly classified into two categories: economic and non-economic causes. The economic causes will include issues relating to compensation like wages, bonus, allowances, and conditions for work, working hours, leave and holidays without pay, unjust layoffs and retrenchments.
The non economic factors will include victimization of workers, ill treatment by staff members, sympathetic strikes, political factors, indiscipline etc. Economic causes : The most common causes of industrial disputes are economic causes. These are follows: Demand for higher Wages: Rise in the cost of living forces the workers to demand more wages to meet the rising cost of living index and to increase their standards of living. This brings them into conflict with their employers who are never willing to pay more wages to workers.
Demand for Allowances and Bonus: Increase in cost of living was the main cause of the demand of certain allowance allowances such as dearness allowance, house allowance, medical allowance, night shift allowance, conveyance allowance etc; by the workers to equate their wages with the rise of prices. Bonus also plays an important role as a cause of industrial dispute. Both the amount and the method of bonus payment have led to a number of disputes. High Industrial Profits: In the changing world, concept of labour has changed considerably.
At the present, employers consider themselves as a partner of the industry and demand their share in the profits. Non- Economic Causes: Working Conditions and Working Hours: The working conditions in Bangladesh industries are not hygienic. There is not ample provision of water, heating, lighting, safety etc. On the other hand, working hours are also greater. The demand of palatable working conditions and shorter hours of work led to labour disputes. Modernization and Automation of Plant and Machinery: The attempt at modernization and introduction of automatic machinery to replace labour has been the major cause of disputes of Bangladesh.
Workers go on strike, off and on, to resist such rationalization. Personnel Causes: Sometime industrial disputes arise because of personnel problems like dismissal, retrenchment, layoff, transfer, and promotion etc. Political Causes: Various political parties control trade unions in Bangladesh. In many cases, their leadership vests in hands of persons who are more interested in achieving their political interests rather than the interests of the workers. Indiscipline: Industrial disputes also take place because of indiscipline and violation on part of the workforce.
The managements to curb indiscipline and violence resort to lockouts Non-reorganization of trade unions: The employers usually do not like the interference by trade unions. They do not recognize them. This brings the workers into conflict with their employers. Weakness of Trade Unions: Weaknesses of trade unions encourages the employers to deny certain basic needs of the workers such as medical, education and housing facilities etc. This led to resentment on the part of workers who resorted to direct action.
Miscellaneous causes: Behaviour of supervisors, Lack of proper communication between management and workers, Rumors spread out by trade union, Inter-trade union rivalry etc; are the other causes that cause dispute between management and employers. Types of Industrial Disputes :- Industrial dispute may be of two types :- 1. Collective Dispute 2. Personal Dispute 1. Collective Dispute :- Dispute where the interests of many worker are related; like disputes in the terms of employment, or wages, or bonous, or gratuity, or medical allowances, or compensation, look-out etc. 2.
Personal Dispute :- Disputes raised with the employers, due to dismiss or discharge or suspension of any worker . Settlement Process of Industrial Disputes :- Dispute Settlement Machinery of the State The idea underlying the provisions of the Bangladesh Labour Act, 2006 is to settle industrial dispute and to promote industrial peace and establish a harmonious and cordial relationship between labour and capital by means of conciliation, mediation and adjudication. With this end in view different authorities under this Act have been set up to resolve anindustrial dispute.
The Act has been streamlined for some non-adjudicatory as well as adjudicatory authorities. Non-adjudicatory includes participation committee, conciliator and arbitrator, while adjudicatory (judicial) authorities include Labour Court, Labour AppellateTribunal etc. Bipartite Negotiation Bipartite negotiation as a means to prevent and solve disputes helps develop harmonious relationship between the management and workers. Bipartite negotiation takes place between the employers and their employees over job–related affairs.
The employees are usually represented by their elected representatives who form the CBAs, while the employers are allowed to participate in collective bargaining themselves or through their representative. The legal provisions relating to the process of bipartite negotiation need a brief discussion here. A trade union, which is elected as CBA, can raise a dispute in writing and place it before the management for settlement through negotiation. Similarly the employers can also raise a dispute and place it before the CBA for negotiation.
Bipartite negotiation starts within 15 days of submitting a written demand from either party. It has to be completed within 30 days after first meeting. If bargaining is successful, a memorandum of settlement is recorded in writing and signed by both the parties and a copy thereof is forwarded to the Government, Director of Labour and conciliator . It has been reported that though the law provides a favourable environment for bipartite negotiation, the scenario is different in practice. Bipartite negotiation is not so successful as is desired by the legislature in incorporating such mechanism for settlement of dispute.
Unfavourable and authoritarian attitude of management towards trade unionism, bribing trade union leaders, lack of experience and leadership skill in trade union officers, interference of the government and the ruling party in the settlement of industrial dispute, multiplicity of trade unions having political rivalries, low level of class consciousness among workers as well as trade union leaders, inefficiency in applying bargaining techniques etc. are the main reason for making bipartite negotiation as useless tools in the settlement of industrial dispute in Bangladesh.
Conciliation-Tripartite Negotiation The conciliation machinery is, undoubtedly, an important element of our industrial relations system. Conciliation in industrial dispute becomes necessary mainly when the settlement of disputes fail at the bipartite negotiation level. In fact conciliation can be taken as an extension of the function of collective bargaining or simply as “assisted collective bargaining” in which the conflicting parties can have a fair chance of settlement of industrial disputes through the services of expert negotiators.
If bipartite negotiation fails, any of the parties concerned may request the conciliator in writing, to conciliate the dispute within 15 days from the date of the failure of collective bargaining. The practice of conciliation is compulsory in Bangladesh before resorting to industrial action. The role of the conciliator is to suggest solutions that can help find a compromise between workers and the management, but can not impose a solution. The success of conciliation depends on the willingness of the two sides to resolve their differences.
If a settlement of the dispute is arrived at in the course of conciliation, the conciliatorshall send a report thereof to the Government together with a memorandum of settlement signed by the parties to the dispute. If the conciliation fails, the conciliator shall try to persuade the parties to agree to refer the dispute to an Arbitrator for settlement. If the parties do not agree to refer the dispute to an Arbitrator for settlement, the Conciliator shall, within three days of the failure of the conciliation proceedings, gives a certificate thereof to the parties.
The conciliation proceedings may continue for more than 30 days if the parties agree. The Director of Labour may, at any time, carry on with conciliation proceedings, withdraw the same from a conciliator or transfer the same to any other conciliator, and the other provisions of this section shall apply thereto. Arbitration Arbitration is a voluntary process for the settlement of industrial dispute. When conciliation fails, arbitration may prove to be a satisfactory and most enlightened method ofresolving industrial dispute. The legal provisions relating to the process of collective beginning need a brief discussion here.
If the conciliation fails, the conciliator tries to persuade the parties to refer their dispute to an arbitrator. If the parties agree to refer the dispute to an arbitrator for settlement, they make a joint request in writing to the arbitrator agreed upon by them. The arbitrator shall give his award within a period of thirty days from the date on which the dispute is referred to him or such further period as may be agreed upon by the parties to the dispute. After he has made an award, the arbitrator shall forward a copy thereof to the parties and to the Government. The award of the arbitrator is final and no appeal shall lie against it.
An award shall be valid for period not exceeding two years, as may be fixed by arbitrator. In practice no dispute is referred to the Arbitrator due to the fact that either the dispute is settled at the time of conciliation or in failure the parties feel interested to go to the Labour Court rather going for arbitration. Right to strike or lock-out In case of failure of conciliation, the party which has raised an industrial dispute may, within fifteen days from the date of the receipt of a certificate of failure under section 210(11), serve on a notice of strike or lock-out to the other party.
However, the CBA, before serving any such notice, has to obtain the consent of three-fourths of its members through a secret ballot specifically held for the purpose of obtaining their consent over the strike action. The secret ballot has to be conducted by ballot committee formed by the CBA. Examination/verification of the records relating to secret ballot is done by the conciliator. The Bangladesh Labour Act 2006 not only recognized the right to strike and lock but also put some limitations, namely, ) No party can serve a notice of strike or lockout while conciliation is taking place or during the proceeding before the Labour Court or Labour Appellate Tribunal. b) The Labour Court and the Labour Appellate Tribunal has the right to prohibit any strike or lockout during pendency of any proceeding before it. c) If a strike or lock-out lasts for more than 30 days, the Government may, by order in writing, prohibit the strike or lock-out. But the Government may prohibit a strike or lock-out at any time before the expiry of thirty days if it causing serious hardship to the community or is prejudicial to the national interest. ) In the case of any of the public utility services the Government may, by order in writing, prohibit a strike or lock-out at any time either before or after the commencement of a strike or lock-out. If the strike does not follow the above procedures, it can be considered an illegal strike or lock-out and in that case the liable worker or employer shall be punished with imprisonment for a term which may be extended to one year or with fine which may extend to five thousand taka. The Adjudication system
After the stages of bipartite negotiation and conciliation are exhausted, the disputant parties may resort to settling their dispute by referring it to the arbitrator or by a strike action or lock-out as discussed above or through the Labour Court. An industrial dispute may be referred to the labour court in any of the following ways: i. If no settlement is arrived by way of conciliation and the parties agree not to refer the dispute to an arbitrator, the work man may go on strike or the employer may declare lock-out.
However, the parties at dispute may, either before or after the commencement of a strike or lock-out, may give an application to the Labour Court for the adjudication of the matter. ii. If a strike or lock-out lasts more than 30 days the Government may prohibit such strike or lock-out and in that case the government must refer the dispute to the Labour Court. Any collective bargaining agent or any employer or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. iii.
Any individual worker including a person who has been dismissed, retrenched, laid-off or otherwise removed from employment can make a complaint to the Labour Court on failure of the employer to perform his obligation in that Behalf . iv. The worker himself or his legal heir in case he dies or any legal representative may apply to the Labour Court for a payment on the ground that an amount from such payment has been deducted from the wages in contravention of the provision of the law or that any payment of wages has not been made or delayed or that under any rule the payment of any gratuity or provident fund is delayed. . On rejection of the application for registration of Trade Union by the Director of Labour or after settlement of objection disposal such application is delayed by the Labour Director beyond the period of sixty days, the applicant Trade Union within thirty days from the date of such rejection or from the date of the expiry of the said time limit may appeal to the Laobur Court. vi. If the Director of Labour is satisfied after investigation that the registration of a trade union should be cancelled, he shall submit an application to the Labour Court praying for permission to cancel such registration.
The Labour Court is constituted with a Chairman and two Members to advise him, however, in the case of trial of an offence or adjudication of any matter under Chapters Ten and Twelve it shall consist of the Chairman alone. The Members of the Labour Court are appointed by the Government in prescribed manner and to be the Chairman of the Labour Court a person is to be the sitting District Judge or Additional District Judge. While trying an offence the Labour Court shall administer its proceedings without its members.
The Labour Court has the power to dismiss the case or to decide the same ex-parte. The award, decision or judgment of the Labour Court shall be delivered, unless the parties to thedispute give their consent in writing to extend the time-limit, within sixty days following the date Section 33(1) of the Bangladesh Labour Act: 2006 – Any individual worker including a person who has been dismissed, retrenched, laid-off or otherwise removed from employment who has a grievance in respect of any matter covered under this chapter and intends to seek redress thereof under this section, shall ubmit his grievance to his employer, in writing, by registered post within thirty days of the occurrence of the cause of such grievance: Provided that, if the employer receives the grievance directly with acknowledgement in writing, there will be no need to send the grievance by registered post. Section 33(2) Ibid – The employer shall within fifteen days of receipt of such grievance, enquire into the matter, give the worker concerned an opportunity of being heard and communicate his decision, in writing to the said worker. f filing of the case, provided that the delay of its delivery shall not invalidate the award, decision or judgment. An award, decision or judgment of Labour Court shall be given in writing and delivered in open Court and a copy thereof shall be forwarded to each of the parties. Any party aggrieved by an award, decision or judgment of the Labour Court may prefer an appeal to the Labour Appellate Tribunal within sixty days of the delivery thereof and the decision of the Tribunal in such appeal shall be final.
Adjudication by Labour Appellate Tribunal The Labour Appellate Tribunal has the power to hear or dispose appeals from the Labour Court. It consists of a Chairman or if the Government deems fit, of Chairman and such number of Members as determined by the Government. The Chairman shall be a former Judge or Additional Judge of the Supreme Court and any Member thereof shall have been a Judge or an Additional Judge of the Supreme Court or is or has been a District Judge for at least three years.
The Labour Appellate Tribunal on appeal may set aside, vary or modify any award decision in judgment or sentence given by the Labour Court or send the case back to the Court for rehearing; and shall exercise all the powers conferred by the Code on the Labour Court. The judgment of the Tribunal shall be delivered within a period of not more than 60 days following the filing of the appeal. High Court Division of the Supreme Court of Bangladesh
Even though the Labour Court has been entrusted with the exclusive jurisdiction in respect of deciding labour issues, the aggrieved person can invoke the jurisdiction of the High Court Division on the ground that the matter in question leads to the violation of fundamental rights and that there is no other efficacious remedy in the matter. It will not be out of place to mention here that before enactment of the Bangladesh Labour Act, 2006, there was no scope of appeal against the decision of the Labour Court to Labour Appellate Tribunal and the right to appeal could be exercised only in the case of award of a Labour Court.
So, it was only way to invoke the writ jurisdiction of the High Court Division of the Supreme Court for challenging a decision passed by the Labour Court. But now by the Bangladesh Labour Act, 2006 everydecision passed by the Labour Court is appealable before the Labour Appellate Tribunal. Inspite of this the jurisdiction of the High Court Division can only be invoked on the grounds of violation of fundamental rights or any procedural error committed by the Labour Court. Industrial Disputes and Settlement according to BD Lobour Act 2006 :- Scction – 209.
Raising of industrial disputes : No industrial dispute shall be deemed to exist, unless it has been raised in accordance with this chapter by a collective bargaining agent or an employer. Section – 210. Settlement of industrial disputes : (1) If, at any time an employer or a collective bargaining agent finds that an industrial dispute is likely to arise between the employer and workers or any of the workers, the employer, or, as the case may be, the collective bargaining agent shall communicate his or its views in writing to the other party. 2) Within fifteen days of the receipt of a communication under sub-section (1), the party receiving it shall, in consultation with the representatives of the other party, arrange a meeting for collective bargaining on the issue raised in the communication with a view to reaching an agreement thereon, and such meeting may be held with the representatives of the parties authorized in this behalf. 3) If the parties reach a settlement on the issues discussed, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded by the employer to the Government, the Director of Labour and the Conciliator. (4) If- (a) the party receiving a communication under sub-section (1) fails to arrange a meeting with the representatives of the other party for collective bargaining within the time specified in sub-section (2), the other party, or (b) no settlement is reached through dialogue within a period of one month rom the date of the first meeting for negotiation, or, such further period as may be agreed upon in writing by the parties, any of the parties, may, within fifteen days from the expiry of the period mentioned in sub-section (2) or clause (b) of this sub-section, as the case may be, report the matter to the conciliator and request him in writing to conciliate in the dispute and the conciliator shall, within ten days of receipt of such request, proceed to conciliate in the dispute. 5) The Government shall, for the purposes of this chapter, by notification in the official Gazette, appoint such number of persons as it considers necessary, as conciliator for such specific area or any industrial establishment or industry, and the conciliator shall take up the conciliation to whom the request shall be made for conciliation under sub-section (4), (6) The conciliator, upon receipt of the request as aforesaid, shall star conciliation and shall call a meeting of the parties to the dispute for the purpose of bringing about a settlement. 7) The parties to the dispute shall appear before the conciliator in person or shall be represented before him by person nominated by them and authorized to negotiate and enter into an agreement binding on the parties. (8) If any settlement of the dispute is arrived at in the course of the proceedings before him, the conciliator shall send a report thereof to the Government together with a memorandum of settlement signed by the parties to the dispute. 9) If no settlement is arrived at within the period of thirty days of receipt of request under subsection (4) by the conciliator, the conciliation proceedings shall fail or the conciliation may be continued for such further period as may be agreed upon in writing by the parties. (10) If the conciliation proceeding fails, the conciliator shall try to persuade the parties to agree to refer the dispute to an Arbitrator. 11) If the parties do not agree to refer the dispute to an Arbitrator, the conciliator shall, within three days of failure of the conciliation proceedings, issue a certificate to the parties to the dispute to the effect that such proceedings have failed. (12) If the parties agree to refer the dispute to an arbitrator, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them. (13) The arbitrator, to whom a dispute is referred under sub-section (12), may be a person borne on a panel to be maintained by the
Government or any other person agreed upon by the parties. (14) The Arbitrator shall give award within a period of thirty days from the date on which the dispute is referred to him or such further period as may be agreed upon in writing by the parties to the dispute. (15) After he has made an award, the arbitrator shall forward a copy thereof to the parties and to the Government. (16) The award of the arbitrator shall be final and no appeal shall lie against it. 17) An award shall be valid for a period not exceeding two years as may be fixed by the arbitrator. (18) The Director of Labour may, if he deems fit in the interest of settlement of a dispute, at any time, take over any conciliation proceedings pending before any conciliator and proceed to conciliate in the dispute himself or transfer such proceedings to any other conciliator, and the provisions of the preceding subsections shall apply to such proceedings. 19) Notwithstanding anything contained in this section, collective bargaining agent in the establishments in respect of which trade union of employers or federation of trade unions of employers have been registered shall communicate with such trade union or federation regarding any industrial dispute and a settlement between them shall be binding upon all the employers and workers of those establishments. Conclusion and Recommendations :- The industrial relation system is pre-dominantly confrontational in nature rather than cooperative in Bangladesh.
It is characterized by the pre-dominant position of informal economy, fragmented unions, weak labour institutions, lack of enforcement of labour laws and conflictridden employer-employee relations. A number of policy initiatives could strengthen the industrial relations system, namely: ? The promotion of industrial federations and the provision of equal footing in the system; recent turmoil in the RMG sector indicates that the garment workers need to be organized for systematic collective bargaining.
The deliberate discouragement by the government and owners to forms trade union and collective bargaining is responsible for present unrest in RMG sector. ?To strengthen the institutional capacity of basic unions and industrial federations to deliver effective membership services; more transparent and responsible action by the union leadership is also needed. ?Immediate gazette notification of the Rules for the Labour Act, 2006 is highly recommended. Government and all concerned entities should take strong initiative to popularize the concept and benefits of social dialogue among the workers and employers. ?Improve implementation of minimum wages fixed by the government in RMG. ?Formation of participation committees in all RMG factories should be ensured. ?The capacity of the labour institutions should be enhanced for the promotion of collective bargaining. ?Data base of existing government agencies on labour relations should be improved. Labour laws should be amended to bring it consistent with ILO ratified conventions regarding freedom of association and the right to collective bargaining. ?Procedures for the recruitment of the members of the labour courts should ensure appropriate qualifications and experience in the labour field; remunerations should match the requested qualifications and relevance of the assignments; the Labour Court should have adequate logistic support in order to strengthen its capacity to dispose of the case as early as possible.
In order to ensure smooth functioning of the Labour Court the authority of the same is to be transferred from the Ministry of Labour & Employment to Ministry of Law, Justice & Parliamentary Affairs; there should be adequate members of the judiciary to avoid pending cases in courts.
REFERENCE 1- The Bangladesh Labour act, 2006 2- A Handbook on the Bangladesh Labour Act , 2006, Bangladesh Employers Federation (BEF),Dhaka. – Ahmed, Z. 2007. A Text Book of the Bangladesh Labour Act (Dhaka, Shams Publications). 4- Halim , Md. Abdul, “The Text Book on Labour and Industrial Law Of Bangladesh”, Dhaka 2007, 5- The Export Processing Zones Workers Union and Industrial Relation Act, 2006. 6- www. law. com 7- www. encyclopediacenter. com 8- www. wikipedia. org