Advocate, Supreme Court of Bangladesh Key facts: The Bangladesh Labour Act, 2006 (BLA) was enacted in 2006. Prior to BLA, almost 50 pieces of legislation dealt with labour issues. BLA repealed 25 pieces of legislation and codified largely all labour laws under one piece of legislation. BLA 2006 contains 354 sections and 5 Schedules. The process of amending the BLA was a near 7-year process. Bangladesh Labour (Amendment) Act, 2013 was enacted on 22 July 2013. However, BLA was also amended in 2008, 2009 and 2010. BLA is binding on all employers, excepting a few types of organizations as defined in the BLA. Rules under the BLA were formulated and inplemented from 15 Sep 2015 To which organizations does BLA apply?
It applies to every organization, except for a limited
category of organizations listed in section 1(4) of the BLA.
However, these exempted organizations cannot have
internal rules, which have less favorable terms than those in the BLA. NOTE: In this document, the term he shall mean and include both he and she Definition of Worker The BLA does not refer to the word Labourer, rather it uses the term Worker. Worker: Worker includes all persons working in any establishment or industry other than those working in managerial, supervisory or administrative capacity. Classification of Workers: Apprentice, Badli, Casual, Temporary, Permanent, Probationer and seasonal. All are Workers. Their rights and benefits varies to some extent depending on their category. For example notice period for termination, certain payments etc. Worker Vs Non-Worker
It is generally seen that there are two types of employees in every
organization:
- Employees falling within Worker category; and
- Employees falling within Non-Worker category.
As such it is important to have a clear understanding of the meaning of
Worker. Worker Vs Non-Worker
As per Section 2 (65) of the Bangladesh Labour Act 2006
(hereinafter referred to as BLA):
Worker means any person including an apprentice employed
in any establishment or industry, either directly or through a contractor, in whichever name it is referred to, to do any skilled, unskilled, manual, technical, trade promotion or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include a person employed mainly in a managerial, supervisor or administrative capacity. Rules 2 (g) and (j) Under Rule 2(g) Supervisory officer has been defined as a person deriving powers in writing from employer or managing authorities, who under powers so derived, provides or supervises the objectives, regulations of work, implementation of control, evaluation or review of work, directing the workers, in connection with an activity or service of a section of a factory or establishment. Rule 2(j) clarifies that Person employed in Administrative or Managerial capacity derives powers in writing from employer or managing authorities, and is employed for approving or controlling the expenses of the establishment and the recruitment, allocation of wages and benefits, termination or removal from services, paying out the final settlement of the workers or employees of the factory or establishment. 7 Worker Vs Non-Worker A Worker when on very solitary occasions performs the functions of a manager or administrative officer is not ceased to be a Worker. What is important in determining whether a person is a Worker is to see the main nature of the job done; not just the designation.
To be able to say that a person/title is not a Worker, it has to be
established further that he exercises functions mainly of a managerial or administrative nature. It has to be resolved in each case by reference to the evidence on record (i.e. the actual job description i.e. duties actually performed, meaning not only the paper based record). Worker Vs Non-worker Checklist Differentiating Likely to qualify as a Unlikely to qualify as a Factors worker worker Job Worker means any person A person employed mainly in description employed, either directly or a managerial, supervisory or through a contractor, to do administrative capacity. A any skilled, unskilled, person who being employed in manual, technical, trade a supervisory capacity, promotion or clerical work for exercises, such capacity hire or reward either by nature of the duties attached to the office or by reason of power vested in him.
Degree of In some reasonable sense, The employee may not always
control there has to be control of the be supervised. employer over the method of doing the work. The fact that the worker has to work under certain amount of supervision by the management. Worker Vs Non-worker checklist Exercising A Worker when on very To be able to say that functions solitary occasions someone is not a Worker mainly and performs the functions it has to be established occasionally of a manager or further that he exercises administrative officer is functions mainly of a not ceased to be a managerial or Worker. What is administrative nature. It important in has to be resolved in each determining whether a case by reference to the person is a Worker or evidence on record (i.e. not is to see the main the actual job description nature of the job done and actual duties by him/her. performed). Designation The designation is not at Managerial or supervisory all the decisive factor. designation will not The designation may conclusively make have, for example a someone non-worker. manager title. But it is the job description, Worker Vs Non-worker checklist White collar Vs While it is no longer a Blue collar unlikely to Blue Collar touch-stone, most of the qualify as non-worker. blue collar is likely to fall But, most of the white- within Worker. BUT, some collar will. white collar may also qualify as worker
Physical labour Non-decisive. BUT, more Not conclusive. But,
involved likely to qualify as worker unlikely to qualify as Non-Worker Why is the distinction important ?
The distinction is very important, as:
- For Worker category of employees the BLA
is applicable.
- For Non-Worker category of employees,
BLA is not applicable. Why BLAs applicability is important?
The BLA provides specific duties, responsibilities and
obligations of the employers and corresponding rights, benefits and privileges for the Workers.
Consequently, these become legally binding and obligatory for
the employer to abide by, with penal and other consequences for non-observance.
BLA sets the minimum standard.
Why BLAs applicability is important?
ON THE OTHER HAND, for non-worker category of employees
the BLA does not apply. The only governing rule is the master-servant rule. The master-servant rule provides that the employment contract will dictate all the terms of employment between the employer and the employee. All the rights and obligations of the employer and the employee will flow from the employment contract. Unless any clause in the employment contract contravenes any provision of the laws of the land and basic principles of the law of contract, the employment contract will be the governing law for the employer and the employee of non-worker category. Other relevant areas of law The following is a non-exhaustive list of relevant areas of laws that also applies to an employment scenario:
Discrimination and harassment
Conflict of interest Privacy and Confidentiality of information, Privacy of communication Natural Justice Investigation procedure Law of Contract (so far as the employment contract is concerned) Income Tax Ordinance 1984(so far as the salary etc. is concerned) Relevant Circulars, orders etc. that is passed by the Govt. (e.g. circulars of Bangladesh Bank for banking companies etc.) from time to time (for example, on office timing), etc. Internal rules Vs BLA Many establishments have their HR related internal rules, regulations and policies. What to follow? Internal rules or BLA? Both. BUT, in case where the internal rules restricts the rights and benefits of the Workers than those provided in the BLA, that internal rule cannot be followed. So, internal rules must give equal or better rights and benefits to employees. [S.3] The internal rules must be approved by the Chief Inspector within 90 days of the receipt. [s.3(2)] Practice Vs BLA Best practice is something that most of us like to follow. For example: Provident fund, when not compulsory, paternity benefit, Eid or festival bonus etc. Shall we follow practices ?? Answer depends: As long as they do not contradict/restrict the provisions of BLA. Key areas covered under BLA Rights, benefits, privileges for the Workers: - Conditions of service and employment [Chapter: II] - Child labour [Chapter: III] - Maternity benefit [Chapter: IV] - Health and Hygiene [Chapter: V] - Safety [Chapter: VI & VII] - Welfare [Chapter: VIII] - Working hours and leave [Chapter: IX] - Wages and Payments [Chapter: X] - Wages Board [Chapter: XI] - Compensation for injury by accident [Chapter: XII] - Trade Unions & Industrial Relations [Chapter: XIII] Key areas covered under BLL Workers participation in Companies Profit [Chapter: XV] Provident Fund [Chapter: XVII] Apprenticeship [Chapter: XVIII] Procedural aspects and disputes - Labour Court and Labour Appellate Tribunal [Chapter: XIV] - Penalty for violation- criminal offence [Chapter: XIX] - Administration and inspection [Chapter: XX] - Miscellaneous [Chapter: XXI] Thank you!
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