Dr Uttam Kumar Das
The world is now passing through an unprecedented situation due to the coronavirus (COVID-19). The waves have reached our doors. How we are to address and manage the situation and would survive ultimately are big questions before all of us. The same has touched upon and impacted on our lives, health, education, work and employment relations, among others.
The focus of this article is to look into the employment relations amid the situation involving coronavirus (COVID-19).
The employment relations in Bangladesh are controlled and guided by mainly two types of legal frameworks: those who are in the public service, their conditions of employment and service are controlled and guided by respective rules and procedures, and those who are in the private sectors (e.g., any office which is not under the Government) have separate statute and rules. At the same time, autonomous bodies and similar other organizations have their own service rules and policies for the purposes.
The employment relations in the private sectors, e.g., workers and employees employed at an establishment, industry, industrial establishment, commercial establishments etc., are controlled by the provisions of the Bangladesh Labour Act, 2006 (thereafter referred as the Labour Act). Broadly, the Labour Act covered all private establishments in the country, excepts those establishments and industries which are located within the premises of the export processing zones (EPZ); there is a separate statutory framework for them namely the Bangladesh EPZ Labour Act, 2019.
The mandate of the Labour Act (of 2006), among others, is to look after relations between employers and workers, and related conditions of employment and service involving a worker.
According to general definition, a worker is to include any person, including an apprentice, employed in an establishment or industry for a remuneration or reward. This employment could be a direct recruitment by the employer (who is termed as the Owner in the Labour Act), or through a third party named as the contractor. In this employment relations, the terms of employment could be expressed or implied; and types of services rendered by a worker could be skilled, unskilled, manual, business promotion, or clerical [Section 2(65) of the Labour Act].
In fact, the Government was constrained to take the path of
application of "general holidays" with an aim to prevent
people's movement, to prevent and contain the spread
of coronavirus (COVID-19) in the country
However, there are few exceptions as well: an individual who is performing mainly managerial, administrative or supervisory tasks shall not be a worker. At the same time, the decisions from the higher judiciary have observed that those exceptions shall be determined based on the nature of work of individuals concerned, and it may vary from case to case. Merely any designation of an individual would not act as a justification to keep someone out of the scope of the definition a worker and benefit thereof.
According to the Labour Act, there are two types of holidays, which are actually the paid day-off and are decided and declared by the employer concerned; for examples, weekly holidays (like Friday) and festival leave (which should read as festival holidays indeed). Others are leave (e. g, annual leave, casual leave, sick or medical leave etc). The character of the leave is that it is an entitlement of respective worker or employee, however, subject to an application for the same and according approval by an employer.
Here comes the questions: What about the "general holidays", which have been announced by the Government in application of its prerogative authority. How to link these ongoing holidays with the employers (owners) and workers who are to be covered by the Labour Act?
In fact, the Government was constrained to take the path of application of "general holidays" with an aim to prevent people's movement, to prevent and contain the spread of coronavirus (COVID-19) in the country.
If we undertake an appraisal of the Notifications regarding the "general holidays" which are issued by the Government through the Ministry of Public Administration, we would observe that those Notifications were issued in reference to the power vested upon the Government through the "Allocation of Business Among The Different Ministries and Divisions (Schedule I of The Rules of Business, 1996) (Revised up to April 1997)."
The series of Notifications are issued dated 24 March, 1 April, 10 April, 23 April 2020 and 4 May 2020 (until drafting of this piece); and through which the "general holidays" are being imposed from 27 March to 16 May 2020. There is possibility for further extension. At the same time, the Notifications have made exemptions for some services, like emergency/essential services and for few industries, like the export-oriented industries, pharmaceuticals industries etc. from the scope of those Notifications in regard to the "general holidays."
Again, on 16 April, for the first time, the Director General of the Department of Health (thereafter DG Health), in exercise of his authority under Section 11(1) of the Contagious Diseases (Prevention, Control and Eradication) Act, 2018, has issued an Order asking people to stay at home mandatorily to prevent spread of the coronavirus (CIVID-19).
The Order has banned people's going out between 6 in the evening to 6 in the morning (later on the same is modified between 8:00 pm to 6:00 am). Although the Order of the DG Health has mentioned exceptions in reference to few "essential needs," however, it did not provide any list of the same. The Act also has no implementation Rules which make the same handicapped.
The Order of the DG Health did not mention any expiry date, meaning it will be in operation until further notice in that regard. However, while the Order is in force, any violation of the same would constitute criminal offence and warranted for punishment and penalty.
Surprisingly, the Order of the DG Health has made no reference to the Government Notifications already made regarding the "general holidays". The latest Notification regarding the "general holidays" dated 4 May has made no reference to the Order issued by the DG Health (dated 16 April), however, it has referred to the directions issued by the Department of Health Services.
Coming back to the employment relations in the private sector, it could be argued that since the Government has issued Notifications and that should be considered as "law". At the same time, the counter-argument could be brought forward: whether such Notifications issued by the Executive do have any override effect on the existing provisions of the Labour Act, which is a special law and was passed by the national parliament.
Then, how to overcome those gaps and confusions? There are further requirements for issuing supplementary administrative notes and directives for that by the line ministries and/or departments.
Along with or in parallel to the Notifications prescribing in the "general holidays," the respective administrative authorities mandated for the Labour Act, which is the Ministry of Labour and Employment (MoLE) and regulatory authorities, like the Department of Inspection for Factories and Establishment (DIFE) and the Department of Labour (DoL) and given their respective mandate should have taken initiatives to make links among those Notifications from the Executive and existing provisions regarding holidays contained in the Labour Act.
Supplementary notifications, clarifications and guidelines should have been issued by those bodies accordingly, and those should have been circulated to the different respective ministries and departments within the Government (including the Department of Health, Ministry of Commerce, Ministry of Home Affairs, Bangladesh Police, Industrial Police etc), Employers' Organizations, Workers' Organizations etc.
In our case, absence of such written supplementary directives and clarifications from the respective authorities, especially the Ministry of Labour and Employment (MoLE) have contributed to create confusions among the general public, especially that of the workers and employers. The workers are taking risks of their lives to come to factory premises even without knowing whether receptive workplaces are going to open or not.
Dr Uttam Kumar Das is an Advocate in the Honourable High Court Division, Supreme Court of Bangladesh, and specializes on human rights law and labour and employment matters. He is a Former Senior National Legal Consultant (Programme Officer) to the International Labour Organization (ILO) in Bangladesh. E-mail: [email protected]
