Dr Uttam Kumar Das
(Continuation from yesterday)
The situation has been contributed to be worst which are apparent lack of clear communications and coordination among the employers and respective workers in case of a factory. The same has worsened while respective association kept it undecided and "non-speaking" during few crucial moments.
We all know that the Government has declared Taka 5,000 crore incentive packages, among others, for support of the export-oriented industries. This is a kind of "no-interest" stimulus package; the capital has to be returned within stipulated time adding on 2% service charges.
The said incentive is meant for keeping workers and employees of respective sector in employment (job) and earning on continuation for next few months. However, the respective authority (e.g., MoLE) has failed to provide clear messages out clarifying that it does not matter whether factory is open or in operation or not and also failed in doing necessary advocacy with the employers' organizations in that respect- the workers and employees would be continuing in employment and to get wages regularly.
These confusions as stated also prompted a section of factory owners to declare their units "closed" and/or "laid-off" even starting from 27 March 2020. This is eventually seemed to be illogical and unreasonable action and happened to be too early.
As per the Labour Act, declaration of close down and lay-off are legal options for an employer of and establishment or industry in a situation in case the "cause beyond his control," like the situation of coronavirus (COVID-19). It could be an instrument to save revenue for an employer in this critical time; if so, an employer is obliged to pay half of basic wages and house rent (plus other applicable allowance). The statutory limit of lay-off is 45 days in a calendar year.
However, it could be extended beyond 45 days; 15 days or more in phases or if otherwise agreed with workers. After 45 days, the entitlement in regard to lay-off becomes one-fourth of the basic wage and house rent (plus other applicable allowance). After the end of lay-off period, if the factory would resume its functions, the workers (who were laid-off) would come back, and laid-off period is to be a continuity of service as well. And, after 45 days-lay-off, retrenchment of respective workers is an option by an employer in consideration of redundancy.
However, the negative impacts of lay-off are on workers and employees; firstly, those who are permanent workers do get reduced wages as stated earlier. At the same time, those workers who are with less than one year of service in the respective establishment or are in the category of casual workers will face major hardships during lay-off; although they have employment relations, however, are not entitled to get wage (except the house rent) during the duration of lay-off; and ultimately, could be thrown out of employment relations (job) if the employer of the establishment or factory move to retrenchment following the lay-off.
According to press reports, 15% to 20% of about four million workers in the ready-made garment sector are with less than one year of service; meaning about one million workers could be forced to be out of income if lay-off is implemented. There should be administrative notifications regarding prohibition of lay-off and retrenchment immediately in addition to the public declarations which were made by the Honourable State Minister. (One point is to be noted here that if a worker has completed 240 days of service, including weekly holidays etc., during the preceding 12 calendar months that shall be considered as one year, Section 14).
And thus questions come up in the context of morality and equity- whether cessation (termination) of employment of a big number of workers under the coverage of lay-off and/or retrenchment could be allowed to happen while the "general holidays" are ongoing. In that consideration, such actions should be considered to have been done with mala fide intentions and to victimize the workers. Arguably, the Government (through the Division of Finance) has notified that those factories which have opted for lay-offs will not be eligible for the incentive allotted for the export industries.
At the same time from the context of an employer, the payment of salary and related benefits are reciprocal to works accomplished under an employment relation. Given the ongoing holidays and situation of non-work, how an employer could be held liable then?
Unfortunately, the trade union movements have clearly failed to compile information and evidences on the gamut of workers losing jobs under the guise of so-called lay-off, retrenchment and termination which are executed unlawfully in few sectors including the ready-made garment and textiles.
There are allegations of forced resignation as well. According to available information, about 918 factories in the RMG sector have declared to be on lay-offs. Again, following the notification from the Division of Finance some of them now opted to come back from the lay-offs.
While talking about employment relations and industrial relations, ideal parties to be on board to discuss and decide on any matter impacting conditions and terms of employment, occupational safety and health etc.
are respective employer (owner) and the Collective Bargaining Agent (CBA)/trade unions, if available, at an establishment or industry-level. The CBA is the legitimate body to bargain and negotiate with the employer and vice versa as prescribed by the Labour Act.
However, establishment-based trade unions (and CBA) could not become empowered and capacitated due to various reasons, including among others, non-recognition of the same by respective employer, union busting, unfair labour practices etc.
It is alleged that respective employers don't want to see that a union become strengthened as true bargaining medium for workers at floor levels. However, may be it is the time to appreciate and reconsider importance of a trade union while employers in few sectors are desperately looking for whom to talk with for assessment of the situation and have agreements to overcome the same.
Also, given the scope to handle an unprecedented situation like now, we may think of existence of sectoral federations of trade unions and national confederation of trade unions in Bangladesh which could work as a single body to talk to and negotiate with the employers’ organizations and the Government.
Lately, there is a statutory mechanism (added in 2018 in the Labour Act), which is the Tripartite Consultative Council (TCC)- at the national level and a particular one for the ready-made garment (RMG) sector.
These frameworks accommodate representatives from the Government, Employers' Organizations, and Workers' Organizations. However, the mandate and role of the TCC is of advisory in nature, and it is to submit its recommendations in a given context of industrial relations to the Government.
However, the TCC necessarily does not have any executive authority to perform directly or indirectly on behalf of the Government. Therefore, any decision taken in any meeting of the TCC or recommendations thereof will not be turned into a legally binding and enforceable order unless the same is notified by the Government in the prescribed manner.
The Chair of the TCC (both the national and RMG) is the Minister-in-Charge of the Ministry of Labour and employment.
Also to be noted that both the TCCs are constrained with lack of institutional structure, like permanent secretariat with required skilled manpower and expertise to undertake action researches on contemporary issues and production of policy briefs and other documents as may be required, among others.
Amid recent coronavirus (COVID-19) situation and looming labour unrests around garment factories, the TCCs come to discussions once again. However, it is to be kept in mind that the TCC is a committee with specific mandate of advising the Government in a given situation and context.
And, it is the time to remind and reflect on how a forum like the TCC could be more instrumental in taking note of related issues and assisting the Government and other stakeholders in regard to industrial relations in critical time like now.
Dr Uttam Kumar Das is an Advocate in the Honourable High Court Division, Supreme Court of Bangladesh, and specializes on human rights law and labour and employment matters