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Revisiting Labour Act 2006 [Daily Star Article}

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The Daily Star

Published on May 28, 2010

See original at http://www.thedailystar.net/law/2010/05/05/alter.htm

Md Sekender Ali Mina

SAFE and healthy workplace is a fundamental prerequisite for increased production. Safe workplace is a legal prerogative of the workers. To ensure health and safety at workplaces, proper and updated laws are needed. The Bangladesh Labour Act, 2006 (BLA 2006) has some health and safety regulations but it does not cover all the matters relating to health and safety at workplaces. Before enacting the BLA 2006, about 40 laws dealt with labour related matters. The BLA has repealed 25 different laws incorporating some of them like The Factories Act, 1965 (FA 1965) and The Dock Labourers Act, 1932 (DLA 1932) but very few updated obligations has been included in it. In recent times, trade and business has increased significantly in terms of nature and variety in Bangladesh. Workplace health and safety, work atmosphere, worker-employer relations etc are always changing in the diversified business arena of Bangladesh. The government has taken an initiative to amend BLA, 2006 to ensure the rights of the labours and matters connected therewith. In this backdrop, the following aspects of the law may seriously be taken into consideration:

Scope of application

Unlike previous legislation (which was limited to factories and docks) the BLA engulfs wider amplitude and scope, applying to all 'establishments'. But its list of exemptions [section 1(4)] is very complicated. BLA should be applicable to all establishments, other than a specified list of exemptions. And the list should be as limited as possible excluding “offices of or under the Government”, “small factories employing less than five workers”, “agricultural farms employing less than ten workers”, “educational and research organisations” and “domestic workers”. And “establishments” should be defined in a way so that the Act can be applied to the activities undertaken by establishments both inside and outside of their premises.

Duty holder

The safety, health and welfare duties contained in Chapters five to eight of the BLA, 2006 is not explicit about who is the 'duty holder'. It is assumed that the duty holder is in fact the 'employer' in control of the establishment. But many cases, 'employer' cannot be identified clearly for imposing obligations for ensuring health and safety.

This confusion can be easily resolved by reverting back to the concept of 'occupier' of Factories Act, 1965. The BLA should have a provision attributing the duties upon the 'occupier' who is in the control of the establishment. It should recognize the definition of the term 'occupier' as given in the Factories Act 1965, and also make clear that in relation to a construction site, the occupier is the developer or overall contractor of the site.

Health, safety and welfare duties

The health, safety and welfare duties required for 'establishments' are set out in chapters 5, 6, 7 and 8 of BLA 2006. In addition, section 205 of the BLA 2006 requires establishments employing more than 50 workers to set up a 'participation committee.' One of its functions is to 'improve and maintain safety, occupational health and working conditions'. The amendment should focus on general duty on occupiers along with new provisions for providing information, training, safe systems of work etc to the workers as well as supervision, risk assessment; personal protective equipment (PPE), noise, avoidance of fire and medical surveillance.

Enforcement

As per section 61(1) of the BLA, an inspector can serve an order on an employer in writing to make specified changes within a specified period of time if any part of a building or its machinery is 'dangerous to human life or safety.'

In addition, enforcement can take place through prosecution. There are five offences under the BLA 2006 specifically relating to health, safety and welfare the selling of unguarded machinery, failure to give notice of an accident, a breach causing death, a breach causing grievous bodily harm and a breach causing any harm. Punishment can also be enforced under section 307 for breaching any obligation under the BLA. All criminal prosecutions must take place in the Labour Courts. Proceedings for any criminal offence can be instituted not only by Factory Inspectors but also by an “aggrieved person or trade union” within six months of an offence (Section 314). To ensure proper enforcement of BLA 2006 the inspectorate should be given some new powers and functions such as power to prohibit or restrict certain chemicals, work processes etc, power to fix exposure limits, power to take action following a reportable death etc. In addition, the initiation of the prosecution period should be increased upto one year.

Apart from specified government officers, section 313 only allows aggrieved workers and aggrieved trade unions to initiate criminal cases. That results very few criminal cases even except one in Chittagong Labour Court involving breaches of health, safety and welfare duties have been brought before the labour court. There should be a provision by which registered NGOs can initiate criminal cases for health, safety and welfare offences after taking consent of the Factory Inspectorate.

Compensation

Chapter 12 of the BLA 2006 sets out that an 'employer' is liable to pay compensation to an injured worker or, following a death, to the dependents. Here the duty to pay compensation should be placed on 'occupier' instead of 'employer'. Under section 150(8) (b) only those workers “appointed to a post under the Fourth schedule” can obtain compensation. This contains a number of exemptions including for example those employed in: loading-unloading or transport of materials; the setting up of tube wells, and any other kind of water pump; and in earth cutting or the breaking up of bricks or stone. In addition some of the sub-sections are not clear. Moreover, it is not consistent with those establishments which are under an obligation to abide by health and safety duties in the BLA 2006.

The preferred approach is to remove this schedule entirely, so that an employed worker is entitled to compensation whatever the job or position that he or she holds.

The BLA also sets out that the employer must deposit Tk 1 lakh to the labour court for a deceased worker as compensation while Tk 1.25 lakh for 'permanent total disability' of a worker. The Tk 1 lakh is too small for the dependent family. So, it should be Tk 2.5 lakh. In relation to the serious permanent injury the sum should be Tk 3 lakh.

It seems that the above points hold much substance to be incorporated in the proposed amendment of the Labour Act. It is true that the law had introduced some significant aspects like retirement benefit, death benefit, appointment letter, enhancement of compensation amounts both for death and permanent disability, introduction of provident fund for workers, punishment for sexual harassment at workplace etc. But due to lack of enforcement and other shortcomings, as mentioned above, the law loses its efficacy. Hence revitalization of the labour law is necessary.

The writer is Programme Director, Safety and Rights Society, Dhaka.