IT HAS been more than two months since the Labour Reform Commission released its report, outlining the reformation of labour law in Bangladesh. Although the reform proposals have not yet been enacted into statutory law, the commission’s report offers insight into the changes that should be made to the existing legal framework.
Along with some other reform proposals, the commission has placed special emphasis on the universal applicability of labour laws. The commission’s proposal states that all workers in Bangladesh will be equally protected by labour laws, regardless of industry, sector, region or type of work. It also specified that, except for employers who hold authority over employee recruitment, termination and terms of employment, all working individuals, including the self-employed (where applicable), regardless of their responsibilities, will be recognised as workers.
It is worth mentioning that the Labour Act of 2006 was enacted as a comprehensive measure to protect the rights of working people in Bangladesh by consolidating previous labour laws and amending them in accordance with the conventions of the International Labour Organisation. Unfortunately, a significant portion of the labour sector has long been deprived of legal protection due to the current limitations in defining ‘worker’ under section 2(65) of the existing Act. The defining provision says, ‘Worker’ means any person, including an apprentice, employed in any establishment or industry, either directly or through a contractor, by whatever name he is called, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment are expressed or implied, but does not include a person employed mainly in a managerial, administrative or supervisory capacity.
This definition undermines the universal application of the labour law from two broad aspects. To call someone a worker, at first the definition requires a formal workplace, i.e., the individual must be employed in an establishment or industry. Secondly, the definition denies recognising someone as a worker whose role is principally administrative, supervisory or managerial in nature.
The first part directly excludes all workers in the informal labour sector in Bangladesh, such as daily wage earners, masons, private drivers, domestic workers, etc. The second part creates ambiguity regarding the status of low-paid employees with powerless designations. Their designations may contain terms like ‘administrative officer’, ‘supervisor’ or ‘manager’, but in reality, they lack the authority to make decisions without the owner’s permission.
So far, some initiatives have been taken to address these issues; however, they have not actually yielded much benefit.
One such initiative was the enactment of the Domestic Workers Protection and Welfare Policy, 2015. It was formulated in response to directives from the High Court Division in Bangladesh National Women Lawyers’ Association vs. Cabinet Division [(2011) 31 BLD (HCD) 265], the rule issued in Human Rights and Peace for Bangladesh vs. Bangladesh [Writ Petition No. 5770/2014] and broader activism by various human rights organisations. This policy provides protection to only a part of the country’s large informal labour sector. Nevertheless, it has yet to be properly implemented. Another initiative was defining ‘supervising officer’ and ‘persons bestowed the responsibility of administrative or managerial work’ in the Bangladesh Labour Rules, enacted in 2015. As per Rule 2(g) of the said enactment, ‘supervising officer’ refers to a person, authorised by the owner or the managing authority in writing, who determines the target of any work and service, controls the extent of the work and the implementation activities, assesses or reviews the work, gives direction or supervises the work of any section of the industry or establishment by dint of powers given to him.
In addition, Rule 2(j) of Bangladesh Labour Rules states that a person bestowed with the responsibility of administrative or managerial work refers to someone authorised by the owner or the managing authority in writing, who appoints workers or employees, determines the salaries and allowances, terminates the services or removes from the services, pays off the final dues and approves or controls the expenditures of the industry or establishment. The intent behind these definitions was to clarify the scope of supervisory, administrative, and managerial work. However, this has instead led to confusion. For example, the primary duty of a ‘production supervisor’ in a readymade garments factory is to ensure that garment production processes are running smoothly and that workers are performing their duties properly. According to the definition, the ‘production supervisor’ is considered a ‘supervising officer’ based on the nature of his work, and he will not be classified as a worker under the labour law.
In reality, the jobs of such supervisors are powerless and underpaid. In this case, since he does not fall under the definition of a worker, even if the employer violates labour law, he will be disadvantaged in terms of legal protection. Apparently, the definition of ‘worker’ in the Labour Act, enacted nearly two decades ago, was narrowly framed based on two key legislative intentions in accordance with the socio-economic context of Bangladesh at that time. First, to socially establish the concepts and principles of labour law by incorporating the formal labour sector with gradually expanding its coverage to other labour sectors. Second, to prevent employers from abusing labour law.
But in the social context of Bangladesh, where many obstacles are faced in achieving a right that is directly mentioned in the law, it is easy to imagine how little remedy can be found in cases where the law itself provides narrower protection. Taking advantage of this, many employers are completely depriving employees who fall into the loopholes of the legal definition of ‘worker’.
Therefore, regardless of the initial intent, the absence of an inclusive definition of ‘worker’ in the current age not only calls into question the establishment of the rule of law and justice but also directly infringes the constitutional right to equality of the working people.
The definition of ‘worker’ should be the simplest that includes every individual who works in exchange for wages. To achieve this, the proposal of the Labour Reform Commission on giving the labour law a universal form undoubtedly deserves praise. However, while transforming the proposal into law, legislators must prioritise an inclusive definition of ‘worker’ to prevent the wording of the law from being used as a tool of oppression.
Md Asif-Uz-Zaman is a lecturer in law at Shanto-Mariam University of Creative Technology.
