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Unconstitutional restriction on trade unions

Khaled Saifullah
TRAGIC incidents in garment factories saw an alarming rise last year and the most devastating one took place when the Rana Plaza in Savar collapsed in April this year. The collapse exposed to the world the fragility of our labour legislations and administration to protect our workers' rights. Consequently, both national and international communities mounted pressure on the government to lift up the existing mechanisms. In this backdrop, the legislature made a hasty attempt to play down these concerns by amending the Bangladesh Labour Act 2006 (BLA) in mid-July this year.
But the amended Act still falls short to protect the rights and interests of the workers in many aspects including their right to form trade unions, to bargain collectively and to participate in safety related workplace decisions. Certain provisions of the BLA also appear to lag behind in meeting the constitutional obligations in relation to the right of workers to form trade unions.
Article 37 of our Constitution entitles every citizen to the right to assemble and participate in public meetings and processions peacefully and without arms. The Article then curbs out the generality of the right by asserting that 'reasonable restriction' may be imposed by law, provided that such restriction serves the interests of'morality' or 'public order'.
The BLA, claiming to be operating within the 'reasonable restriction' clause of Article 37, imposes restriction on free trade unionism. It asks trade unions to meet a minimum membership requirement of 30% of the total number of workers employed in the establishment in order to be registered, and surprisingly keeps the percentage requirement same even for a group of establishments (Sections 179(2) and 183(6)). A group of establishment refers to all establishments of an area specified by the government which employ no more than twenty workers and carry on the same or identical industry.
Furthermore, the Act provides for cancellation of the registration of the unions that fall below this level (Section 187(f)). The critical question here is whether this 30% membership requirement imposed by the law goes beyond the exception clause of Article 37.
Though our judiciary is yet to explain the nature and characteristics of 'reasonable restriction', the Indian judiciary, in Himmatlal v. Police Commissioner (1973), clarified that reasonable restriction must have
a rational connection with morality and public order, and must not be vague or in excess of the requirement. The LIS Court considers a restriction in excess of the requirement if it is disproportionate to the mischief it seeks to remedy (Louisiana ex rel. Gremillon v. NAACP (1961)). The court added that regulations must be highly selective and as narrow as possible when they affect freedom of association.
The decisions of both the Indian and the I IS Courts make it clear that any restriction on free trade unionism must not be in excess of the requirement. Compared to our flat 30% requirement, the threshold of minimum membership requirement is 10% in India. While institution of a minimum membership requirement for filtration purpose is quite plausible, the 30% membership requirement in our law implies that, regardless of the number of the workers employed in an establishment, there can be no more than three trade unions.
This practically means that in an establishment where there are 500 workers, only 150 workers may form a trade union, but in another establishment where there are 50,000 workers, it will take 15000 workers to form a trade union. By imposing the same percentage requirement for a group of establishments, the law made it almost impossible to form trade unions in a group of establishments.
As the 'morality' test is not relevant in trade union issue, only 'public order' test remains relevant. Just as 'reasonable restriction', our judiciary has not yet explained 'public order'. But the Indian Court, in Madhu Limaye v. S.D.M. Monghyr (1971), claimed that 'public order' includes absence of all acts which are danger to the security of the State and absence of insurrection, riot, turbulence or crimes of violence, but not acts which merely disturb the serenity of others. At the one extreme, there are those who feel that multiple trade unions would spur turbulence and disorder in an economically critical sector like the garment industry.
But the other extreme would argue that turbulence and disorder also happen in factories that have a few or no trade unions. Moreover, the Indian judiciary, in Chosh v. Joseph (1963), stated that a restriction must directly relate to public order; its remote and farfetched connection with public order won't be enough.
In addition to Article 37, Article 25 of our Constitution also makes the case for free trade union-
ism. The Article promises to be respectful to the international law, and Bangladesh has ratified most of the core ILO labor standards, including Convention No. 87 on freedom of association and Convention No. 98 on the right to organise and bargain collectively.
Besides, all three instruments of the International Bill of Human Rights include the right to free trade unions - 1CCPR in Article 22(1), ICESCR in Article 8(1 )(a), and UDHR in Article 23(4). These instruments impose an obligation on the legislature to make provisions for free trade unionism.
In fact, our legislature is beating around the bush by imposing high membership requirement on trade unions, instead of imposing it distinctly on collective bargaining agents. Trade unions do a lot of other things to protect the rights of workers apart from just collective bargaining. While it is understandable that there should be high percentage requirement for collective bargaining agents as smaller collective bargaining agents can exert little influence in the workplace decisions, trade unions need not have such high percentage of workers to perform the other functions.
In fact, trade unions with lesser percentage of workers should work more efficiently to improve communication between employers and workers, to increase productivity by supplying information to management about how working practices can be improved and by reducing the turnover of employees.
Our $11,000 million garments industry comprises of an estimated 5,600 factories, accounts for roughly 80% of total exports, and houses 4 million workers. Unfortunately, the workers who engineer such huge revenue for the county face grave human rights violations at their workplaces day in and day out.
It is no wonder that the rights groups with their limited resources often fail to raise all the needs and demands of these millions of workers, and the government regulatory bodies marred by bad governance are hardly effective in inspecting this huge number of factories. Institutionalisation of free and efficient trade unions can effectively fill up this vacuum by helping workers to raise their own needs and demands, instead of waiting for some rights groups or regulatory bodies to show up. In the long run, this might help us avoid another Tazreen fire incident, another Rana Plaza collapse.