International Legal Labor Standards
The basic human rights standards that guarantee everyone the right to just and safe conditions of work including reasonable limitations on work hours and fair pay as well as non-discrimination in the work place are articulated in the Universal Declaration of Human Rights (UDHR), and then enshrined as legally binding commitments in several of the international human rights treaties, which Bangladesh has ratified. Key amongst them are both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as multiple core International Labor Organisation (ILO) conventions discussed below.
The ICESCR in particular requires all states party to ensure safe and healthy working conditions, reasonable limitations of working hours and non-discrimination in the work place. In the context of this report, two aspects of labor law: the right to freedom of association and rights of women workers are set out in more detail below.
Freedom of Association and Right to Organize
Workers’ right to organize is well established under international human rights law, and explicitly guaranteed in the ICCPR and the ICESCR as well as two of the core ILO conventions, ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise and ILO Convention 98 concerning the Right to Organise and Collective Bargaining that Bangladesh has ratified.
These conventions, and their authoritative interpretations by the UN Human Rights Committee, UN Committee on Economic, Social and Cultural Rights and the ILO Committee on Freedom of Association (CFA), which examines complaints from workers’ and employers’ organizations against ILO members, impose an obligation on the Bangladesh government to ensure that employers do not thwart workers’ right to union formation and participation.
The ICCPR provides that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests” and the ICESCR recognizes “[t]he right of everyone to form trade unions and join the trade union of his choice.”
As a party to the ICCPR, Bangladesh is required to “take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect to” the right to form and join trade unions and to ensure that any person whose right to organize is violated “shall have an effective remedy.”
As a member of the ILO, Bangladesh has “an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles the fundamental rights which are the subject of [the core] Conventions.” The ILO CFA has noted that ILO members, by virtue of their membership, are “bound to respect a certain number of general rules which have been established for the common good….Among these principles, freedom of association has become a customary rule above the Conventions.”
Under ILO Convention 87, “Workers… without distinction whatsoever, shall have the right to establish and… to join organizations of their own choosing without previous authorization” and “to elect their representatives in full freedom.” Authorities should refrain from any interference that would restrict this right or impede its enjoyment. States are free to prescribe legal formalities for establishing unions, but they cannot abuse this freedom by prescribing formalities that impair fundamental labor rights guarantees.
The right to organize includes the right to official recognition through registration, and the conditions of registration cannot constitute a form of prior authorization before establishing a union. The law should clearly specify the conditions for union registration and the grounds on which the registrar may refuse or cancel registration. Government procedures that result in undue delays to registration are an infringement of workers’ right to organize. If the law requires a minimum number of founder members to establish a union, states are not allowed to set the number so high that it effectively renders it impossible to set up a union. The Committee has repeatedly found that “a minimum membership requirement of 30 per cent of the workers concerned to establish an organization is too high.”
Convention 98 guarantees that:
Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment….Such protection shall apply more particularly in respect of acts calculated to … (b) [c]ause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
The ILO Committee of Freedom of Association has repeatedly underscored the importance of adequate penalties and mechanisms to ensure compliance with laws against union interference. The committee has noted:
The existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice…. Legislation must … establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2 of Convention No. 98.
Women Workers: Creating a Violence-Free, Non-Discriminatory Workplace with Maternity Protection
Bangladesh is party to several international legal conventions that protect women at work from violence and discrimination, including pregnancy based discrimination. In addition to the ICCPR, and ICESCR Bangladesh is a party to the International Convention on the Elimination of Discrimination Against Women (CEDAW), and has also ratified the core ILO Convention No. 111 Discrimination (Employment and Occupation) Convention, 1958.
Bangladesh’s international obligations under these conventions include promoting equality at the workplace and prohibiting discrimination on the basis of sex or pregnancy. Women have a right to a workplace free of sexual harassment and states are duty-bound to take preventive steps and ensure access to redress. Women are entitled to special protection during pregnancy to avoid work harmful to them. Protection against pregnancy-based discrimination includes but is not limited to dismissal.
ILO Convention No. 111 on Discrimination defines discrimination as “any distinction, exclusion or preference made on the basis of ... sex... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”
The UN Guiding Principles on Business and Human Rights reaffirm that states have a duty to protect their citizens from human rights abuses committed by business. This requires them to take “appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.”
The UN Guiding Principles also set out the responsibilities that companies have to prevent human rights abuses. Regardless of their size or where they are based, businesses must “avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur.” They should also “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”
In order to meet these responsibilities, businesses should put in place a “human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights.” Additionally, “where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.”
Domestic Law Reform
Under domestic and international pressure following the collapse of the Rana Plaza building, on July 15, 2013, the Bangladeshi parliament enacted amendments to the Labor Act. However, these amendments fall far short of protecting worker’s rights and meeting international standards.
Important sections of the Labor Act still do not meet ILO standards. The new amendments dealt with only some problematic provisions of the existing law, while leaving others untouched.
For instance, at least 30 percent of the workers in an “establishment,” which can comprise many factories, must agree to join a union in order for the government to register it. This is a violation of freedom of association standards. Unions are allowed to select their leaders only from workers at the establishment, which enables employers to force out union leaders by firing them for an ostensibly non-union-related reason. Workers in export processing zones, which cover a large percentage of Bangladesh’s work force, remain legally unable to form trade unions.
The right to strike is burdened by a cumbersome bureaucratic process, although the requirement that two-thirds of the union’s membership has to vote for a strike is an improvement over the previous requirement of three-quarters of the membership. The government retains the right to stop a strike if it decides it causes “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 directly elect their representatives to Participation Committees and Safety Committees. 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 revised Labor Act can also have a major negative impact on unions by expanding government control over unions’ access to foreign funding. The law requires prior approval from the Labor and Employment Ministry before either trade unions or employer organizations receive “technical, technological, health & safety and financial support” from international sources.
The law contains important provisions prohibiting discrimination based on gender 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. The government is yet to fully carry out 2009 High Court guidelines against sexual harassment in the workplace.