Labour Law
Labour Law regulates matters like 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 After the International Labour Organisation (ILO) was formed in 1919, this Act was amended and thereafter repealed, resulting in the promulgation of the Factories Act 1934, which remained in force till 1965, when the Factories Act 1965 was promulgated incorporating some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.
Under the Motor Vehicles Ordinance of 1983, the hours of work of drivers of motor vehicle are limited to fifty-four hours a week and nine hours a day. Exceptions may be granted in certain cases. A rest interval of at least half-an-hour is prescribed for five hours of work. Further conditions of service for workers employed in road transport service are included in the Road Transport Ordinance 1961, supplemented by those in the Road Transport Rules 1962. It contains provision for age limit of workers, hours of work and rest, leave and other service conditions. Under this Ordinance no person, other than a driver, can be employed in any road transport service unless he has attained the age of eighteen years, and in the case of a driver minimum age has been fixed at twenty-one years. The Merchant Shipping Ordinance, 1983 and Inland Water Transport (Control of Employment) Act, 1992 contain provisions for service conditions of the workers engaged in water transport services.
Under chapter VIA of the Railways Act of 1890, the railway workers are classified into two categories, continuous, and essentially intermittent. The workers of the former category may be employed for up to eight hours a day and are granted with pay each week a rest of not less than twenty-four consecutive hours. Payment for overtime is 125% of the ordinary rates.
For air transport workers, there are no special laws. Their services are guided by the provisions of the Employment of Labour (Standing Orders) Act, 1965 and in accordance with service rules framed thereunder.
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 victimisation 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 civilisation 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 are 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.
For fixation of minimum wages, in cases where there is no system of collective bargaining, a board called the Minimum Wages Board was established under the Minimum Wages Ordinance, 1961. This Board declares minimum wages of workers for specified number of industries, but it cannot declare any national minimum wages. In almost all the cases wages are fixed by collective agreements. Under the Merchant Shipping Ordinance of 1983 wages of a seaman are to be fixed by agreement with the seamen.
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 defence 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 thereunder, 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 authorises 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. An agreement to pledge the labour of child means an agreement, written or oral, express or implied, whereby the parent or guardian of a child, in return for any payment or benefit received or to be received by him, undertakes to cause or allow the services of a child to be utilised in any employment.
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 hours per day and fifty-four hours per week for surface workers and nine hours 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 Creche 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 bidi making, carpet weaving, cement manufacture, cloth printing manufacture of matches and explosives, mica-cutting and displitting 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 in 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. [Nirmalendu Dhar]
