Executive Summary: 1. Prior to the promulgation of the Bangladesh Labor Law 2006, the total number of Acts and Ordinances in this field was fifty, of which: • 15 were enacted during the British regime • 23 were enacted during the Pakistan regime, and • 12 were passed after the independence of Bangladesh In accordance with the ratified ILO conventions and with a view to creating a constructive environment, for the elimination of the imbalances that prevailed in the issues regarding development of congenial relations between workers and employers, information about existing labor and industrial laws were sought from concerned stakeholders, of both home and abroad .
Increase of productivity, the enhancement of favorable environment for investment, the acceleration of industrialization in the context of the changed environment during the post independence period, were also studied.
To meet the aforesaid demand, the government formed a National Labor Law Commission in 1992, with a view to enacting a modern, up dated and united labor law, headed by Justice Mohammad Abdul Quddus Chowdhury, along with 37 other members representing every concerned quarter. After two years of exhaustive study, the Commission submitted its report along with a draft of the unified modern and updated labor law in 1994. Subsequently, the draft was reviewed by ILO and numerous Employers and Workers Associations and other human rights organizations in phases for the last twelve years, and at last it was promulgated on the 11th of October 2006 as “Bangladesh Labor Law 2006” under the consensus of all the parties concerned. The salient features of the newly promulgated law are as follows: • One single modern updated code instead of the 25 scattered Acts and Ordinances • There are 354 sections in 21 different chapters in the Law • The scope and applicability of the law has been extended and definitions of different terms have been clarified. Ambiguity regarding the age limit of a child has been eliminated. According to this law any person below the age of 14 shall be treated as a child. •
The issuance of an appointment letter and the Identity card for a worker has been made compulsory. • Death benefits have been provided for even cases of normal deaths or in cases of any deaths due to causes other than accidents during the continuance of the service. • The usual retirement age has been scheduled at 57 and at that time the worker shall be entitled to get all the benefits as are applicable under this law. Even the case of a workers’ voluntary retirement, after his continuous service of 25 years with his employer, is also a subject which will come under this retirement benefit.
Child labor is prohibited even in non‐hazardous regular work in an establishment. Appointment of adolescent and female workers is prohibited during the nights and in dangerous occupations. Maternity benefits have been increased to 16 weeks and the qualifying service length has been decreased to six months, but this benefit is limited only up to the birth of two living infants. Special importance is given on occupational health and safety and working environment. There are 78 sections exclusively on it out of a total of 354 sections in the law.
Maintenance and preservation of safety record books and introduction of group insurances have been provided for. Time limits for payment of wages have been determined and a provision has been made to realize the unpaid wages through the court. Provisions have been made for the declaration of sector wise minimum wage rates after an interval of every five years. Amount of compensations in cases of death or injury because of accidents at the workplace has been increased. For deaths, the amount of compensation has been ascertained at Taka. 100000.00 per worker and for a permanent total disability, the amount fixed is Taka 125000.00 per worker. In case of an accident that may happen due to employer’s negligence, the compensation amount shall be double.
No one, other than those in the pay‐roll of the employer, shall be the member or officer of an establishment based basic trade union. The purview of unfair labor practices on the part of the workers, employers or the trade unions has been extended. Determination of CBA from amongst the establishment based basic trade unions has been made easier and the period of such determination has been fixed within a time frame of 120 days. Industrial or craft Federations of trade unions, under certain conditions, have been given the jurisdiction to act as CBA Provisions have been made to form compulsorily participation committees in every establishment where 50 or more permanent workers are engaged.
Labor courts shall be the only courts to adjudicate all issues under labor law and all appeals shall lie to the labor appellate tribunal Time has been fixed for the adjudication of each and every stage of the cases in the labor court to accelerate the procedure Only the workers employed in an establishment, irrespective of their designation and wage scale are entitled to get the benefits of the participation fund and the welfare fund developed out of the profit of the company. Provisions for provident funds have been made for the establishments run under the private management
The punishments for the breach of the provisions of the labor law have been revised appropriately. Imprisonment has also been provided for along with fines • A provision has been made to form a “National Industrial health and safety council” to enact the national policy to ensure the occupational health and safety at the enterprise level. • Provision has been made for the strict implementation of the “Equal pay for equal amount of work” policy of ILO convention • Any discrimination or indecent behavior towards female workers has been prohibited under the new law. • Sick Leave: 14 days sick leave with full average wages have been provided, in the new Labor Law. In previous laws sick leaves were paid for half average wages.
• Annual leave with wages: For adults one day for every 18 (eighteen) days of work performed by him/her during the previous period of twelve months. And for adolescents one day for every 15 days of work performed by him/her during the previous period of 12 months. • Festival Leave: Every worker shall be entitled to eleven days festival leaves in a calendar year. The Employer shall fix the days and dates of such leaves.
• Children Room: A children room for every 40 female workers having their children below the age of 6 years have been provided by the law. Previously it was provided for every 50 female workers. • Termination of employment by the worker: A permanent worker may terminate the employment serving a 30 days notice to the employer and a temporary worker may terminate it serving a notice of 30 and 14 days case wise. In lieu of the notice, the worker can even terminate the employment returning the wages for that period. • Grievance Procedure:
Limitation for the application of grievance has been extended to a period of 30 days, though previously it was 15 days only. • Fitness certificate: Previously a fitness certificate was issued by the District civil surgeon but now it is to be issued by any registered physician at the cost of the employers. • Training on the labor law: Arrangements for training on law was never provided for but now in this new law, training arrangement is made compulsory for the laborers.
The worker participating in the training program shall be deemed to be in his or her official duty during continuance of such training. This unified law is applicable with equal force to all the industrial and commercial establishment as previous Shops and Establishment Act‐1965 and other labour laws has been abrogated by the promulgation of this new labour code.
PART 1: WORKING CONDITIONS 1.1 1.1.1 WAGES Definition
Provisions of the new labour law: Chapter 10 of the new labour law deals with the provisions related to the wages of the labour. Wages include the following items as per section 120 of the new labour law: Any bonus payable or any other additional wages as per the terms and conditions of the employment; Any remuneration payable during leave, holiday and overtime; Any amount payable against the order of the court or against the award of arbitrator; Any amount payable to the worker against out of the contract between the owner and the worker after the employment is expired by dismissal, discharge, retrenchment, or termination; Any amount payable due to lay off or temporary suspension. The new law has also provided a list of exclusion in section 2(45) to exclude the following accounts head from the term wages: • Expense of housing facilities like lighting facilities, water supply, medical or any other facilities; •
Owners’ contribution to the provident fund of the worker; • Traveling allowances or concessions thereof; • Any other sum paid to worker to cover any special expenses entailed to her/him by the nature of the employment. But, as per different decisions of the courts of Bangladesh, the following items are also treated as part of the wages of a worker: Any amount payable to the worker by the order of the court or the award of the arbitrator shall be treated as the wages; Overtime allowance shall be treated as wages;
Compensation on retrenchment (on ground of redundancy) shall be treated as wages; Allowance during lay-off or temporary suspension shall be treated as wages; Increment shall be treated as wages; Compensation at the expiry of the employment by any means like dismissal, discharge or otherwise shall be treated as wages; Gratuity on discharge or any other gratuity shall be treated as wages; House rent allowances shall be treated as wages;
Wages during leaves or holidays shall be treated as wages. Changes in the present law: 1. Previous law excluded the gratuity on discharge from the wages of a worker but the new law includes it as part of the wages. 2. The word “gratuity” was never defined anywhere in the earlier labour law but the new law defines it properly in section 2 (10) where it is defined as the amount of the wages of at least 30 days payable to a worker who worked in a factory not less than 6 months at the expiry of her/his employment. 3. Previous law provided only the exclusion list with the definition of the wages but the present law provides both the inclusion and exclusion lists to make a complete sense. 4. Provident fund is considered to be the wages and is payable within 30 days of the expiry of the employment. 1.1.2 Persons responsible for the payment of wages
Provisions of the new labour law: Under the new law the following persons shall be responsible for the payment of the wages of the worker. Owner of the factory; Chief Executive Officer (CEO) of the company; Manager/person assigned responsibility by the company; The Contractor, for payment to workers appointed by the Contractor. Changes in the present law: In case of the failure of the contractor to pay the wages to the worker, the principal owner shall pay the same and subsequently it can be adjusted with the accounts of the contractor. 1.1.3 Fixation of wage periods and time of payment of wages
Provisions of the new labour law: The person responsible for the payment of wages of the worker shall fix a period of wages and accordingly pay it as per the time given in the law. Section 122 guides the paymaster to fix a period not exceeding 30 days and section 123 provides that payment shall be made within seven working days of the expiry of a wage period. Changes in the present law: There is a big change. In previous law, where there is less than 1000 workers employed, the employer had to pay before the expiry of the 7th day from the end of the wage period and in the railway or any other factory or industry , the employer had to pay before the expiry of the 10th day from the end of the wage period.
Deductions from the wages
Provisions of the new labour law: Section 125 of the labour law 2006 deals with the deductions made from the wages of the workers. Following are the deductions valid under the present law: 1. Fines under section 25 (section 25, however, states that no fine shall be allowed more than one-tenth of the total wages receivables by a worker in a particular wage period and no fine for a worker aged below 15); 2. Deductions for absence from duty; 3. Deduction for damage or loss of goods entrusted upon the worker in her/his custody; 4. Deduction for house accommodation supplied by the employer; 5. Deduction for such amenities or services supplied by the employer as the government has authorized; 6. Deduction for recovery of advances or for adjustment of overpayments;
7. Deduction for Income tax payable by the worker; 8. Deduction for subscription to and for repayment of advances from the provident fund 9. Deduction for the payment to the co-operative societies approved by the government. Up to these 9 points the new law remains exactly the same as section 7 of the earlier Payment of Wages Act 1936, but the new law added more deductions like the following: Deductions for the subscription of CBA Union in check-off method; Deduction for any welfare fund formed by the employer and authorized by the Government. 1.1.5
Grievance procedure in case of illegal deductions or delay in payment Provisions of the new labour law: Application by the worker her/himself or her/his successor in case of her/his death; Application to the labour court only; Application within 12 months from the date of such illegal deduction or the date of the payment being due, but the court can take it even after the expiry of the said period; Up to 25% as compensation on the wages due at that time may be ordered; No court fee is payable by the aggrieved worker; rather, if the worker wins the case it is the owner who shall reimburse the payable court fees; Single application on behalf of all the workers so aggrieved.
Changes in the present Law: At present, the Chairman of the Labour Courts is only eligible to hear the cases; Previously, the limitation period was only six months, now it is twelve months.
WORKING HOURS AND LEAVES Daily hours
Provisions of the new labour code: Section 100 makes a provision of 8 working hours a day for an adult worker, but an adult worker may work 10 hours a day provided all the conditions of section 108 have been fulfilled. According to that section, the employer is required to pay the worker, overtime, double the rate of her/his usual wages. i.e. basic & dearness allowance, if any. The employer is also required to maintain an overtime register as per the law.
Changes in the present law: Daily hours has been reduced to 8 hours-a-day from previous 9 hours-a-day 1.2.2 Interval for rest and meal* Provisions of the new labour code: Interval for rest is provided in the following manner: 1. One hour interval for rest or meal for six hours of work; 2. Half an hour interval for rest or meal for 5 hours of work. Changes in the present law: No change has been made. 1.2.3 Weekly hours**
Provisions of the new labour code: The new law makes a provision of total 48 (forty eight) working hours for a worker, but it can be extended up to sixty hours, subject to the payment of overtime allowances as per section 108 of the law. However, an average of 56 working hours per week in a year for a labour must not be exceeded under any circumstances. But the new law makes a provision for exemption approved by the government if it thinks so fit. Changes in present law:
Exemption clause has been inserted in the new law, by which the government is empowered to exempt any of the factories for the purpose of this rule for a maximum period of six months at a time. 1.2.4 Weekly Holiday*** Provisions of the new labour code: Section 103 of the new labour code makes the provision of one day weekly holiday for all the workers employed in a factory.
* Section 101 of the Labour Law, 2006 ** Section 102 of the Labour Law, 2006 *** Section 103 of the Labour Law, 2006
Changes in the new law: No change. 1.3 1.3.1 PAID ANNUAL LEAVE Annual leave with wage
Provisions of the new labour law: Section 117 of the new labour law deals with the provisions for annual leave with wages. The section provides as follows: 1) Each worker, who has completed one year of continuous service in a factory, shall be allowed during the subsequent period of twelve months’ leave with wages for a number of days calculated at the rate of i) for adult workers, one day for every 18 (eighteen) days of work performed by her/him during the previous twelve months; ii)
For adolescent worker, one day for every 15 (fifteen) days of work performed by her/him during the previous twelve months. 2) An adult worker shall cease to earn any such leave when the leave due to her/him amounts to 40 (forty) days and an adolescent worker shall cease to earn the said leave when the leave due to her/him amounts to 60 (sixty) days. 1.3.2 Festival holiday*
Provisions of the new labour law: 1) Every worker shall be entitled to eleven days festival-leave for every calendar year. The employer shall, at the beginning of the year, fix the day and date of such leaves. 2) The employer may require any worker to work on a festival holiday provided that two days additional compensatory holidays with full pay and one alternative holiday should be given to her/him under section 103. Changes in the present law: Festival holiday has been increased by a day in the new labour law 2006. 1.3.3 Casual leave
Provisions of the new labour law: Section 115 of the new labour law deals with the provisions for casual leave of a worker. It makes a provision for 10 days casual leave with full wages. 1.3.4 Sick leave **
Provisions of the new labour law:
9 * ** Section 118 of the Labour Law, 2006 Section 116 of the Labour Law, 2006
All workers employed in a factory shall be entitled to get 14 (fourteen) days sick leave with full average wages. Provided, such a leave shall not be granted unless a Registered Physician employed by the employer or any other Registered Physician has certified her/his illness. Changes in the present law: Earlier laws provided for the same period of leave with half average wages, whereas, the new law makes provisions for the sick leave to be one with full average wages. The requirement for certification by a Registered Physician does not exist in the earlier laws. However, it has been added to the new law. 1.4 EMPLOYMENT OF FEMALE
Provisions of the new labour law: There are a number of sections where the employment and protection of women have been discussed. The sections are 45, 50, 79, 87, 94, 109, 332 and 345 of the new labour law, 2006. Night-shift work of female workers: Section 109 of the labour law, 2006 creates a bar on the night works of the female workers. The section states as follows: “No female worker shall be engaged for work in any establishment without her consent between 10 pm and 6 am”. 1.5 1.5.1 MATERNITY BENEFITS Maternity leave
Provisions of the new labour code: In section 46 of the new labour law 2006 provisions have been created for maternity leave of 16 weeks (8 weeks before and 8 weeks after the delivery). But the law also makes a provision that no worker shall be entitled to receive the benefit unless she has served under the owner for a minimum period of six months prior to the notice of the probability of the delivery.
Provisions of the previous labour laws: Section 3 of the Maternity Benefits Act, 1939 provides maternity leave of 12 weeks (6 weeks before and 6 weeks after the delivery). Changes in present law: The new law increases the maternity leaves to sixteen weeks from twelve weeks and decreases the duration of the qualifying service period - for availing the benefit - to six months from 9 months. Also, no maternity benefit shall be payable to any woman if at the time of her confinement she has two or more surviving children.
Procedure of payment of the maternity benefit
Provisions of the new labour code: Three options are open to the mothers as per section 47 of the new labour law: 1. The owner shall pay the total benefits payable for the preceding 8 weeks within 3 days from the submission of the certificate of the probability of delivery (childbirth) by a Registered Physician and shall pay the remaining amount after three working days of the submission of the proof-of-delivery. 2. The owner shall pay the benefits payable for the preceding 8 weeks including the day of the delivery within 3 days from the submission of the proof of delivery and pay the remaining within the next eight weeks after the proof of delivery is submitted 3. The owner shall pay all the benefits payable within 3 days from the submission of the proof-of-delivery to the owner. Provisions of the previous labour laws: Previously the procedure was guided by the Maternity Benefits Act. 1939.
Section 5 of the aforesaid Act provided more stringent payment procedure as there was the provision of payment within 48 hours after the certificate from any physician was submitted, whether there remains any working day or not. Changes in the present law: Changes have been made in favor of the management, as the management is required to pay the benefit within three working days. As per the earlier law, it was binding upon the management to pay the benefit within 48 hours only. 1.5.3 Amount of the Maternity Benefits Provisions of the new labour code:
As per sections 48 of the new labour code there is a provision of the payment in terms of daily, weekly or monthly, as and where applicable, average wages. The section also provides the formulae for the calculation of the aforesaid average wages as follows: DAW* or WAW** or MAW*** = The total amount received by the worker during the immediate preceding three months / Total actual working days during that period. Changes brought by the new law: No change has been made. 1.5.4 Benefits in case of the death of mother****
Provisions of the new labour code: The person nominated by the mother who died, or in the case where no such person is nominated, her legal representative, shall be entitled to receive the benefits as described above. Changes brought by the new law: No change has been made. * ** *** **** Daily Average Wages Weekly Average Wages Monthly Average Wages Section 49 of the Labour Law, 2006
EMPLOYMENT OF ADOLESCENT Prohibition of employment of children and adolescent
Provisions of the new labour law: Section 34 of the new labour law creates a bar on the appointment of children in any establishment. The section states as follows: • No child shall be required or allowed to work in any factory. • Adolescent workers to carry token: An adolescent who has completed fourteen years of age shall not be required or allowed to work in a factory unless: 1. A certificate of fitness granted to her/him under section 68 is in the custody of the manager of the factory; 2.
Such adolescent carries a token - giving a reference to such certificate while he is at work; 3. Nothing in this section shall be applicable to an adolescent employed in any occupation or in a factory as an apprentice for vocational training; 4. If the Government considers appropriate, it may as well waive the enforcement of the pre-conditions of the employment of an adolescent for a particular period. Child : In the present law child means a person who has not yet completed his fourteen years of age. Adolescent: Adolescent means a person who has completed her/his fourteen years but has not completed her/his eighteen years of age.
Changes in the present law: In the earlier laws, the term “child” was used to mean a person who had not completed 16 years of age and the term “Young Person” was used to mean and include both the child and adolescent. Under the earlier law, even a child could have obtained a fitness certificate to get a job in a factory. But in the new law, child means a person who has completed her/his fourteen years of age and adolescent means the person who has completed sixteen years and has not completed eighteen years of age. The present law specifically prohibits employment of children and makes a provision for fitness certificates for the adolescent only. Exception :
A child who has completed twelve years of age, may be employed in such light work as not to endanger his health and development or interfere with his education. Provided that the hours of work of such child, where he is school going, shall be so arranged that they do not interfere with his school attendance. (as per section 44) 1.6.2 Certificate of fitness Provisions of the new labour law: Section 37 of the new labour law requires an adolescent to obtain a fitness certificate to be employed in any occupation or in a factory. • A registered medical practitioner shall, on the application of an adolescent or her/his parent or guardian accompanied by a document signed by the manager of a factory that 12
such person will be employed therein if certified to be fit for the work he or she has proposed to be employed for, issue a certificate of fitness. • • Such certificate shall be valid only for the subsequent 12 months. The employer shall pay the fees for obtaining such certificate and the fees cannot be realized from the parents or guardians of the worker.
1.6.3 Working hours of adolescent Provisions of the new labour law: Section 41 of the new labour law deals with provisions relating to the working hours of the adolescent. As per the section following points are important and relevant for the RMG industry. • • • • No adolescent shall be allowed or required to work 5 hours a day and 30 hours a week No adolescent shall be allowed or required to work between the hours from 7 pm to 7 am In every factory, the work of an adolescent shall be limited up to two shifts and no such shift shall be more than 7 and a half hours An adolescent can only be appointed in a single relay and such relay shall be changed only with the prior approval of the inspector for once in a month. Restriction of appointment of adolescent in certain work
Provisions of the new labour law: Section 39, 40 and 42 of the new labour law reports some activities for which the employment of the adolescent is strictly prohibited. As per the above mentioned sections, the employment of the adolescent are strictly restricted for the following activities: • • • • Cleaning of the machinery while it is in motion. Lubrication or for other adjustment operation of the machinery while it is in motion. Any work in-between the moving parts of a machine. Any work under ground or under water.
PART 2: EMPLOYMENT
2.1 Employer Definition in New Labour Law: The Term Employer is defined in section 2, Subsection (XLIX), previously the term was defined in different law for different purposes like for payment of wages, for Employment, for Factories and for Shops and establishment. But the new law provides a single definition to cover all the purposes. As per the above section any person in relation to an establishment who employs workers therein and includes: • An heir, Successor, Assignees, Guardian or legal representative of such persons • Manager or the person responsible for the management and control of the establishment •
The authority appointed by the government or the head of the Ministry or division concerned for the State owned establishment • Officer appointed for the purposes or where no such authority is appointed the CEO of the Local authority for the establishment run by the local authority. • For any other establishment, the Owner of the establishment and every director, Manager, Secretary or the agent of such persons • The person in occupation of the establishment or the person in ultimate control of the establishment
Provisions of the new labour law: Forced labour is strictly prohibited by the Constitution of the Peoples Republic of Bangladesh. Therefore, any Law approving forced labour is Void ab initio as per the constitutional framework of legislation in Bangladesh. Article 34 of the Constitution of the Peoples Republic of Bangladesh stated as follows: ----“All forms of Forced Labour are prohibited and any contravention of this provision shall be an offence and shall be punishable in accordance with the Law” Again, the two ILO fundamental rights Conventions (nos. 29 and 105) also addresses the abolition of forced labour, and Bangladesh has ratified these two conventions long time ago. But, this constitutional guideline is still ignored in the new Labour Law as the Law has not defined the word forced labour in it and has not provided for the punishment and procedure thereof. 14
Therefore, forcing the worker to work in a factory for days together continuously by the factory owners against their intention should be strictly prohibited and law should address this issue as per our Constitution and ratified ILO Conventions. 2.3 Discrimination
Provisions of the new labour law: Any discriminatory behavior on the basis of sex, color and creed is totally prohibited in any law in Bangladesh. Articles 27 and 28 have provided a guideline to the legislator to make the discrimination free environment in every walk of national life. Section 345 of the new labour law is, however, noteworthy in this connection. The section is stated as follows: “In determination of the wages for a worker or in fixation of the minimum wages equality irrespective of the sex of the worker, shall be maintained.
No discrimination in this regard shall be tolerated by law”. Article 27 of the Constitution is stated as follows: ----“All citizens are equal before Law and are entitled to equal protection of Law” Article 28 of the Constitution is stated as follows: ----“The State shall not discriminate against any citizen on the grounds of religion, race, caste, sex or place of birth.” Therefore, discrimination on the grounds of any of the above issues is prohibited in the country. 2.4 Service rules
Provisions of the new labour code: Section 3 of the new labour law allows an industrial establishment to make a service rule pursuant to the labour laws of the land. Provisions of the previous labour laws: Section 3 of the Employment of Labour (Standing Orders) Act, 1965 has the same provisions as above. Changes brought by the new law: No change has been made. Comments: Framing of the service rules by an employer is not mandatory, but if these are made, they must comply with the relevant laws. 2.5 Appointment Letter and ID Card
Provisions of the new labour code: Section 5 of the new “Labour Law 2006” provides that each and every worker should be given appointment letter and ID card by their employer free of charge. 15
Provisions of the previous labour laws: Previously there was no such law. Only the Newspaper Employees (Conditions of Services) Act, 1974 and The Road Transport Workers Ordinance of 1983 made the provision of the appointment letter for their employees. Comments: Rules are yet to-be-made to provide with a form of the appointment letter or ID card but from the earlier two Laws the following should be there in the appointment letter: employee’s name, father’s name, mother’s name, spouse’s name and address, date of appointment, type of employment and conditions of the employment. 2.6 Service book
Provisions of the new labour code: The law provides for a separate section i.e. Section 8 of the law for the entries of the service book of a labour. As per the section following entries shall be there in the service book of a labourer: • • • • • • • • • Employee’s name, spouse’s name , mother’s and father’s name and address Date of birth Mark of recognition Previous owner and her/his address if applicable Duration of the employment Occupation or designation Wages and allowances Leaves availed Conduct of the worker
Provisions of the previous labour laws: Employment of Labour (Standing Orders) Act 1965 does not provide any provisions related to this. Only the provisions for the maintenance of the service book were available in the Employment (Record of Services) Act 1952 and Employment (Record of Services) Rules 1957. Changes brought by the new law: No significant changes are there in the provisions for the service book in the new law. But the new law makes it mandatory for the service book to be signed by both the worker and the employer. The law provides for a list of information to be maintained in the service book of each labour. 2.7 Classification of workers
Provision of the new labour code: Section 4 of the new labour code of 2006 classifies the workers into following classes:
a) b) c) d) e) f)
Apprentices Badlies (transfer workers) Casuals Temporary Probationer and Permanent
These terms of classification have been properly defined in the present legislation Apprentice: A worker who is appointed in an establishment as a trainee and during the period of training he is paid an allowance is called an apprentice. Badlies (transfer workers): A worker who is employed for the period of absence of a permanent or probationer worker. Casual: A worker who is employed on casual basis. Temporary: A worker who is employed purely for a temporary nature of work. Probationer: A worker who is employed on probation for a fix time with a view to fill up a permanent vacancy. Permanent: A worker who is employed to fill up a permanent post or when a probationer completes her/his probation period in an establishment. 2.8 Probationary period
Provisions of the new labour law: Period of probation: • Six months for the worker employed in clerical activities • Three months for other workers. • If the employment of a probationer expires during the probation and if the same person is re-employed under the same employer within next three years of such employment shall be treated as a probationer and the previous period of probation shall be calculated with in new period. • If a permanent worker starts a new job as a probationer, then during that period of probation he can be shifted to her/his permanent post during the subsequent period of probation. Changes in the present law:
There is no change in the classification of labour. But in the calculation of the period of probation, the earlier laws included all the leaves and strikes and lockouts during that period which the new law has ignored and refrained from specific provisions in this regard. 2.9 Calculation of continuous service
Provisions of the new labour law: Section 14 of the new labour law provides for the method of the calculation of the continuous service period of a labour for the purpose of this law in the following manner: • If the actual number of the working days of a worker is 240 during the previous twelve calendar months he or she shall be deemed to be worked for a continuous period of one year. •
If the actual number of the working days in the previous twelve calendar months is 120 days s/he shall be deemed to be employed there for a continuous period of six months. For counting continuous service, the following issues will come under consideration: • • • • Days the worker was laid off; Days of leave with or without wages due to accident or illness; Non-working days due to legal strike or illegal lock out; Days on maternity leave for a female worker.
Changes in the present law: No significant change has been noticed in this purpose except for the inclusion of the number of days’ not-working due to legal strike or illegal lockout. And for calculation of six months of continuous employment the number of actual working days is 120, which was previously 140. 2.10 Payment of wages for un-availed leave*
Provisions of the new labour law: In case of the expiry of the specific employment of any worker by way of discharge, dismissal, termination, retrenchment or retirement, if there remains any un-availed leave of the aforesaid worker, he or she shall be entitled to get the wages of those days so un-availed. Changes in the present law: Actually this was also in previous law under section 5 (4) of SO Act 1965 .
Section 11 of Labour Law, 2006
2.11 Provident Funds for workers: Provisions of the new labour law Section 264 of the Labor Law 2006, provided for an establishment of a Provident Fund if so demanded by the three fourths of the total workers employed in a factory. The section also provided for the following: 1. It may constitute for the benefits of the worker in the private sector. 2. Such provident fund shall be constituted prescribed by the rules.
3. The Government may make rules for constitution of provident fund. 4. Such Provident Fund shall be held and administered by a Board of Trustee. 5. Such Board of Trustee shall consist of an equal number of representatives of the employer and workers employed in the establishment, and a person nominated by the Government shall be its Chairman. 6. Representative will be nominated by the employer and collective bargaining agent. 7. The above nomination shall be under the supervision of the Director of Labour. 8. All the representatives shall hold office for a period of two years.
9. A permanent worker shall subscribe to the fund not less than seven percent and not more than eight percent from his basic wage unless otherwise mutually agreed. 10. In the case of provident fund one fourth of total workers will claim in writing to their employer. 11. In order to provide provident fund the employer will establish rules within six months and the fund shall start by this period. 12. At least half of the total accumulations shall be invested for the purpose of any of the following, namely: a) I.C.B. Mutual Fund Certificates. b) I.C. B. Unit certificates and
c) Government securities including Defence and Postal Saving Certificates 13. The cost of maintenance shall be borne by the employer. 14. The accounts of provident fund shall be audited. 15. A statement of account together with audit report shall be forwarded to the director of Labour within one month of the submission of audit report. 16. Where the government is satisfied, he may by order exempt the establishment from the operation of this section. 17. A provident fund shall be deemed to be a public institution for the purposes of the Provident Funds Act, 1925 (XXIX of 1925). 18. Establishment in private sector means an establishment which is not managed directly by the Government.
Provisions of the new labour law: If any worker died after completing 3 (three) years continuous service with an employer, the worker shall be entitled to get benefits for 30-days’ wages for each completed year or service, or six-months thereof, or gratuity, whichever is higher. The worker shall get this benefit in addition to her/his other emoluments during the retirement. Changes in the present law: This is also a new addition to the labour law as previously no labour law has provided for the death benefit except for the Wage Board award for the Newspaper worker. 2.13 Stoppage of work
Provisions of the new labour law: Section 12 of the new labour law deals with the stoppage of work by the employer. As per the above-mentioned section following are the points to be noted: a) In the event of fire, other catastrophes, breakdown of machinery, epidemics, or civil commotion, or any other circumstance beyond her/his control, the employer can stop the work of a section or sections of her/his factory.
b) In the event of such stoppage occurring at any time beyond working hours, the employer shall by issuing a notice in the notice board of the factory inform the labourers as and when to resume the work and whether the worker is to be present at that specific place at that time. c) The notice also mentioned that those who are ordered to be so present, and if their presence is required for an hour only, then they may not be entitled to get any benefit.
Section 19 of Labour Law, 2006
Right of laid off workers*
Provisions of the new labour law: Lay off: Failure, refusal or inability of an employer, on account of shortage of coal, power or raw material or the accumulation of stock or break down of machinery or for any other reason, to continue the employment to workers whose names are brought to the muster-roll of the factory. Any worker, whose name is there in the muster-roll of the factory and who has completed a continuous period of one year service, if laid off, shall be entitled to get the benefits of compensation for all the days except for the weekly holidays. A badli (transfer) worker whose name is brought in the muster roll shall not be treated as badli for the purpose of the compensation under this chapter. • • • •
Compensation during lay off = (Total basic + dearness allowance + ad hoc wages)/2 + the house rent he or she would get if not so laid off. No worker shall get the compensation for more than 45 days in a calendar year of lay off If any worker is laid off for 15 days or more after the first 45 days of lay off in a single calendar year the employer can retrench the worker instead of lay her/him off. But, if the lay off extends beyond that 45 days up to a period of 15 more days, then the labour so laid-off shall be entitled to get benefits at the following rate: Compensation during lay-off beyond 45 days = (Total basic + dearness allowance + ad hoc wages)/4 + the house rent he or she would get if not so laid-off. Retrenchment**
Provisions of the new labour law: Retrenchment means the expiry of the employment of a worker on the ground of redundancy. For retrenchment, an employer has to follow the following provision of the new labour law: No worker, employed in any shop or commercial or industrial establishment, who has been in continuous service for not less than one year under an employer shall be retrenched by the employer, unless (a)
The worker has been given one month’s notice in writing, indicating the reasons for retrenchment or the worker has been paid in lieu of such notice, wages for the period of notice; (b) A copy of the notice in respect of the retrenchment has been sent to the Chief Inspector or any other officer authorized by her/him; and (c) He has been paid, at the time of retrenchment, compensation which shall be equivalent to thirty days’ wages for every completed year of service or for any part thereof in excess of six months, or gratuity, if any, whichever is higher. * ** Section 16 of Labour Law, 2006 Section 20 of Labour Law, 2006
Provisions of the new labour law: Discharge means the expiry of the employment of a worker on the ground of inability or incapacity because of ill health. Section 22 of the new labour code deals with the procedure of discharge. As per the section an employer can discharge a worker on the basis of the report of a Registered Physician. Compensation in case of discharge: Every worker who has completed a continuous service for one year shall be entitled to get a benefit of 30 days wages for every completed year of service or the gratuity, whichever is higher. 2.17 Dismissal
Provisions of the new labour law: Section 23 of the new labour law deals with the dismissal of the worker on the ground of misconduct and conviction. The section makes room for the employer to dismiss a worker without serving her/him a notice or the payment in lieu thereof for the following two grounds: If the worker is convicted by any criminal court If her/his misconduct is proved under section 24 of the labour law 2006. Misconduct, as defined in that section, is: Willful insubordination, alone or in combination with others, to any lawful or reasonable order;
Theft, fraud or dishonesty; Receiving or giving bribes; Habitual absence, without leave, for more than ten days; Habitual late-attendance; Habitual breach of any rule or law applicable to the establishment; Riotous or disorderly behavior; Habitual negligence or neglect of work; Frequent repetition of a work on which fine can be imposed; Resorting to illegal strike or go slow or instigating others to do so; Falsifying, tampering the official document of the employer.
Changes in the present law: The new law makes a provision of lighter punishment in case of the misconduct. Sub section 2 of section 23 says: Any worker, against whom misconduct has been charged and proved, may be punished by any of the following punishment other than dismissal from the job: Removal Demotion to lower grade; Withholding promotion for at least one year; Withholding increment for an year; Imposition of fine; Temporary suspension without wages; Censuring and warning; 2.18 Termination
Provisions of the new labour law: The employer can terminate a worker without assigning any reason whatsoever except for dismissal, etc. in the following manner as described in Section 26 of the new labour law 2006. For the permanent workers: 1. Serving 120 days notice to the workers employed on the monthly basis. 2. Serving 60 days notice to the other workers. For the temporary workers: 1. Serving 30 days notice to the workers employed on the monthly basis. 2. Serving 14 days notice to the other employees. Termination without any notice:
The employer can even terminate the employment of a particular worker without any notice as described in the section above, if the employer pays the wages to the terminated worker for the aforesaid period of notice. Compensation on termination of a permanent worker: When a permanent worker is terminated she or he shall be entitled to get a benefit of 30 days wage for every completed year of service in an establishment in addition to the other benefit payable to her/him.
PART 3: OCCUPATIONAL HEALTH, SAFETY AND WELFARE 3.1 3.1.1 SAFETY Fire
Present law with regards to fire: Section 62 deals with the provisions for measures to be taken by a factory to avoid dangers and damage due to fire. The section provides for the following: 1. At least one alternative exit with staircases connecting all the floors of the factory building as described in the rules for each and every factory. 2. No door affording exit can be locked or fastened during the working hours so that they can be easily or immediately opened from inside. 3. The doors affording exit must be open outwards, unless it is sliding in nature, if the door is between two rooms it must open in the direction of the nearest exit. 4.
Marking in red letter in proper size, in the language understood by the majority of the workers, on such doors, windows or any alternative exit affording means of escape in case of fire. 5. There shall be an effective and clearly audible means of fire-warning system to every worker. 6. There shall be a free passage-way giving access to each means to escape. 7. Where more than ten workers are employed other than in the ground floor, there shall be a training for all the workers about the means of escape in case of fire. 8. There shall be at least one fire-extinction parade and escape-drill at least once a year in a factory where more than fifty workers are employed. Changes in the present law: • • The new law makes a provision of an alterative staircase affording means of escape connecting all the floors Fire extinguishing and escape parade shall be arranged at least once every year.
Floors, stairs and means of access
Provisions of the new labour law: Section 72 of the new labour law deals with the floors, stairs and means of access. The section states as follows:
1. All floors, staircases, and passages shall be of sound construction and properly maintained, and if it is necessary to ensure safety, hand-railings shall be provided with them. 2. Reasonable safe passageway or access shall be maintained in a place where employees work. 3. All the floors, passageways, and staircases shall be maintained in a neat and clean manner, wide enough, and free from any blockade.
3.1.3 Excessive Weights Provisions of the new labour law: Section 74 of the new labour code states that, no person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury. 3.1.4 Safety of building and machineries
Provisions of the new labour law: Section 61 of the labour law 2006 provides for the measures to be taken as regards the safety measures related to building and machineries. The present law entrusts everything to be done in this regard with the Inspectors. The section goes as follows: 1. If it appears to an Inspector that any building or part thereof or any passageway or machine of the factory is in such a condition which is injurious for the life and health of the workers working therein, the Inspector may issue an order to the owner of the factory to take necessary steps immediately within the specified time therein. 2.
If the Inspector is of the opinion that the building or any machine is seriously dangerous for the life of the worker, he shall issue an order to repair or alter that immediately failing which, to not run the factory unless and until the building is so repaired or replaced. Changes in present law: Earlier laws didn’t empower the Inspector to stop the operation of a factory in a risky building but the present law has given sufficient discretion on the part of the Inspectors to take necessary steps so as to ensure building security and the like. 3.1.5 Fencing of machinery* Provisions of the new labour law: 1. Factories are required to secure the following parts of machinery in order to ensure safety of the workers:
Section 63 of Labour Law, 2006
a. Every moving part of a prime mover and every fly wheel connected to a prime mover b. The head-race and tail-race of every water wheel and water turbine c. Any part of a stock-bar which projects beyond the head stock of a lathe d. Every part of an electric generator, transmission machinery and other dangerous part of any machinery. 2. Fencing must also be done on any other parts (in motion) that contains screw, bolt and key on any revolving shaft, spindle wheel or pinion and all spur, toothed friction gearing, etc.
The fencing is required to prevent these items from harming the workers coming in close contact to them. 3. The Government may exempt fencing of the aforesaid objects, if and only if certain other measures are adopted that will ensure safety of the workers. 4. The Government may prescribe such further precautions to fence certain other parts of the machineries which are not mentioned above for ensuring safety of the workers. 3.1.6 Work on or near machinery on motion*
Provisions of the new labour law: 1. In case of examining, adjusting and lubricating part of machinery in motion, it is required to employ a well-trained adult male worker. The worker must wear tight-fitted clothing while conducting such jobs and no other person will be allowed to work on behalf of him during his absence. 2. Women and adolescent are not allowed to do the above-mentioned tasks and they are not also entitled to work in places between fixed and moving parts of any machinery in motion. 3. The Government may prohibit the cleaning, lubricating and adjusting, of any machinery in motion, by any person. 3.1.7 Explosive or inflammable dust or gas**
Provisions of the new labour law: 1. The following practicable measures must be taken in factories to avoid explosions caused by inflammable dust, gas or vapour produced during the manufacturing process: a) Effective enclosure of the plant or machinery used in the process b) Removal or prevention of the accumulation of inflammable objects c) Proper enclosure of all possible sources of ignition. * ** Section 64 of Labour Law, 2006 Section 78 of Labour Law, 2006
2. In case of the impossibility of placing a strong enclosure for the above-mentioned sources of inflammable objects, provisions of chokes, baffles, vent or other effective appliances have to be kept. 3. Enclosed parts of the plant that contain potentially explosive materials shall only be opened if certain required precautionary measures are met: a) Stop valves should be used to stop flow of gaseous objects in pipelines before working on any joint of that pipeline. b) Practicable measures should be taken to reduce pressure inside the pipeline before working on joints of that pipeline c)
Entrance of inflammable gases or vapours, into the pipeline through the joints that are to be worked on, must be carefully prevented. 4. Operation that requires actions of heat, such as welding, brazing, soldering or cutting, shall not be conducted in a factory that contains or previously contained inflammable objects without taking appropriate safety measures. . 3.1.8 Precautions against dangerous fumes*
Provisions of the new labour law: 1. No person shall be allowed to enter potentially hazardous chambers, containing dangerous fumes, such as tank, vat, pit, pipe, flue or confined spaces if there is not any manhole of adequate size. 2. No portable light of voltage exceeding 24 volts shall be permitted to use inside places mentioned above. 3. No person shall be allowed to enter the places mentioned above until the following measures are taken: a.
A certificate in writing has to be given by a competent person stating that the space is free from dangerous fumes and is fit for persons to enter. b. It has to be ensured that the worker wears a suitable breathing apparatus and a belt securely attached to a rope before going into any confined space. 4. No person shall be allowed to enter the places mentioned above for the purpose of working or making any examination before sufficiently cooling the places down by ventilation. 5. Suitable breathing apparatus, reviving apparatus and belts and ropes shall be kept ready beside the confined space for instant use. Other workers must also be trained and proficient in the use of all such apparatus.
Section 77 of Labour Law, 2006
Personal protective equipment
Provisions of the new labour law: There are several sections in the new law where the personal protection of the worker has been discussed. Section 75 deals with the protection of eyes. Effective screens or suitable goggles shall be provided for the protection of person’s eye where there is a risk: Of injury to eyes from particles or fragments thrown off in the course of the processing To the eyes, by reason of exposure to excessive light or heat. Section 79 also makes a provision of personal protection, sub-section (d) and (e) stated as follows: (d) Providing for the protection of all persons employed in the operation or in the vicinity of the places where it is carried on, and (e) Providing notice about the hazardous chemical to the workers.
3.1.10 Risk assessment and prevention Provisions of the new labour law: There are several sections in the new labour code regarding the assessment of risk and prevention thereof. Section 40 and 79 of the new labour law made provisions for the government to asses certain occupation. The sections state as follows: (a) The government shall, by notification in the official gazette, provide a list of the dangerous machines and risky operations for the adolescent workers (Section 40) (b) The workers employed in such machines and/or operations shall be sufficiently trained and supervised (c) The Government shall identify and provide a list of dangerous operations (section 79)
Powers of inspectors on certain matters:
i) Power to require any measures as to the safety of building and machinery: • • • • The inspector may serve an order specifying the measures which should be adopted or an order prohibiting its use until it has been properly repaired. (s. 61) The Chief Inspector may permit the continued use of machine on such conditions for ensuring safety as he may think fit to impose. (s. 66) The Chief Inspector may permit the continued use of a hoist or lift installed in a factory upon such conditions for ensuring safety as he may think fit to impose. (s. 69 (7)). The Inspector may serve on the employer an order in writing requiring him to furnish drawings, specifications and other particulars as may be necessary to determine whether 28
such buildings, ways, machinery or plant can be used safely and to carry out such tests as may be necessary to determine the strength or quality of nay specified parts and to inform the Inspectors of the results thereof. (s. 76).
ii) Power to require measures as to the precautions in case of fire: • The inspector may serve an order specifying the measures which should be adopted before a date specified in the order.( s.62 )
iii) Notice to be given to the Inspectors: • • • When any accident occurs in an establishment causing loss of life or bodily injury, the employer of the establishment shall give notice of the occurrence to the Inspector within two working days. ( s. 80) Where in an establishment any dangerous occurrence occurs whether causing any bodily injury or not the employer of the establishment shall send a notice to the Inspector within three working days. ( s. 81 ) Where any worker contacts any disease , the employer or the worker concerned or any person authorized by him shall send notice to the Inspector.( s. 82)
iv) Power to take samples: • • • • An Inspector may at any time take a sufficient sample of any substance used or intended to be used in the establishment such use being , in the o