Bangladesh Labour Act 2006 | Case Reference

Bangladesh Labour Act, 2006

Sections 207, 219(gha), 303(e) and 307

Bangladesh Srama Bidhimala, 2015

Rule 205(4) -The law and the rules clearly spelt out that limitation act would certainly operate as an aid to a party seeking condonation of delay in filing the appeal. This legal fiction or so to say the analogy has certainly escaped notice of the Appellate Tribunal. Further it has also failed to take into consideration the provisions of Rules, 2015 in the manner.

Right to appeal is a statutory right, a right which certainly should not be circumvent with any other provisions having prohibiting effect. Rules, 2015 came into force in chapter 15(9) of 2015 by SRO No. 291/Ain/2015. This Rule was framed and promulgated pursuant to Section 351 of Act, 2006 which is the enabling Section.

The High Court Division is of the view that the submissions of the learned Counsel for the petitioners merit substance and hold that with the introduction of Rules, 2015 the question of Section 5 of the limitation Act shall have clear application in filing of appeal before the Labour Appellate Tribunal. This aspect was not considered while passing the impugned judgment summarily rejecting the appeal on the ground of limitation. Therefore, this Rule succeeds, In the result the rule is made absolute. Islam Prodhan and another -Vs.- The Government of Bangladesh and others (Spl. Original) 23 ALR (HCD) 79

Code of Civil Procedure [V of 1908] Section 151 read with Order 7 Rule 11

Labour Act [XLII of 2006] 

Section 213

Section 213 of the Labour Act, 2006, is not to be used as an instrument for establishment of any right, but only for enforcement of existing rights, guaranteed or secured by law.

The High Court Division opined that the respondent No. 2 is indeed an employee of an independent contractor named TEAM Services. The contractual relationship is between the petitioners and TEAM Services, the respondent No. 2 is not a privy to it. So, he has no cause of action against the petitioner. The High Court Division is also swayed to the equation that the alleged dispute not being an industrial one, section 213 of the Act is not attracted and hence the Labour Court concerned was coram non-judice. It follows that the Court below was bounden to accept the application for rejection of plaint. For the reasons assigned above, the Rule is made absolute....(21, 22 & 23) [2020] 19 ALR (HCD) 50

Constitution of Bangladesh, 1972

Article 102

Bangladesh Srama Ain (XLII of 2006)

Sections 2(65), 2(49) and 233 (S)

Some employees of Unilever Bangladesh Limited claimed share from the Profit (Workers Participation) Fund and Welfare Fund of the Company as they claimed to be worker as per definition of the বাংলাদেশ শ্রম আইন, ২০০৬ as they are not involved in any task of Managerial or Administrative nature. The only issue framed by the 2nd Labour Court, Chittagong was, whether the respondent Nos. 3 to 21 are entitled to get any share of profit from Company’s Profit (Workers Participation) Fund. The Labour Court as well as Labour Appellate Tribunal allowed the case of the respondent Nos. 3 to 21 finding them as workers of the Company as defined in Section 233 (S) of the বাংলাদেশ শ্রম আইন, ২০০৬. Mere designation does not determine whether an employee is an Officer or a Worker which is clearly embodied in section 233(S) of বাংলাদেশ শ্রম আইন, ২০০৬. The respondent No. 22-company like the petitioner failed to show that the respondent Nos.3 to 21 ever performed the managerial or administrative functions of the company other than workers. The respondent Nos. 3 to 21 are the workers of the respondent No. 22- company and they are entitled to get benefit from the (Worker Participation) Profit Fund. . . . (3, 19, 30, 32 and 33) 3 LNJ (2014) 207

Employment of Labour (Standing Orders) Act (VIII of 1965)

Sections 2(V) & 25

Code of Civil Procedure (V of 1908)

Section 9

Mere designation of the plaintiff as Officer Grade II (Cash) is not sufficient to indicate that he was not a ‘worker’. It is the nature of his work knowing the extent of his authority which determines whether he is a worker or not. Even if it is accepted that he was employed in a supervisory capacity it will not bring him into the category of ‘employer’ unless he functioned mainly managerial and administrative in nature.  [AVP, UTTARA BANK LTD. VS. SHAHABUDDIN KHAN AND OTHERS, 59 DLR (2007) 166]

 

Mere designation is not sufficient to indicate whether a person is a 'worker' or an 'employer', but it is the nature of the work showing the extent of his authority which determines whether he is a worker or employer. Dosta Textile Mills vs SB Nath 40 DLR (AD) 45.

In the absence of establishing by the Management that the worker discharged duties or functions of the office of administrative nature or of managerial nature, mere designation is not sufficient to show that he is not a worker. Managing Director, Contiforms Forms Limited and Peasant Trading Cold Storage (Pvt) Ltd vs Member, Labour Appellate Tribunal, Dhaka and others 50 DLR 476.

Bangladesh Labour Law, 2006

(XLII of 2006)

 

Sections l(4)(Ka) and 214(1)—

Titas Gas Transmission and Distribution Com­pany, respondent No. 3 is absolutely owned by the Government and section 1(4) (Ka) of the Bangladesh Labour Act, 2006 declares that the Act shall not apply to the Govern­ment or any office under the Government or to any labour/worker thereof and at the same time, the Labour Court is established under Section 214 (1) of the Act. Therefore, the Labour Court has no jurisdiction to entertain and adjudicate any dispute involving the Government or any office under the Government or any worker/ labour thereof. Jashim Uddin vs Ministry of Energy and Mineral Resources Division 16 BLC 633.

Sections 33, 307 and 210—

 The two notices were served upon the petitioners through a Legal Aid Organisation namely, BLAST but such notices cannot be treated as grievance notices as provided by section 33 of the Bangladesh Labour Act. The facts of the present case do not attract the provisions of section 307 or section 310 of Bangladesh Labour Act and hence the filing of criminal case is illegal and is liable to be quashed. Kazi Rokanuddin Ahmed vs Chairman, 1st Labour Court 16 BLC 892.

Section 33(6)—

The complaint cases having been filed under section 25 of the Employment of Labour (Standing Order) Act of 1965 and the judgment passed in such cases is final against which appeal under section 33(6) of the Bangladesh Labour Act, 2006 is impermissible. Iqbal Hossain vs Chair­man, Labour Appellate Tribunal 16 BLC 889.

Section 28— 

For the purpose of retirement of the workers working under the Corporation specific provision has been laid down under Section 14A of the Public Corpo­rations (Management Co-ordination) Ordi­nance, 1986 and, as such, section 14A Public Corporations (Management Co-ordination) Ordinance, 1986 is applicable for the workers and employees working under the Corpora­tion and, as such, Section 28 of the Bangla­desh Labour Law, 2006 is not applicable for the retirement of the workers working under the Public Corporation. Service Rules of the Corporation will apply upon all the workers under the Corporation. The petitioner being a worker under the Corporation is entitled to serve to the Corporation up to 60th year of his age and, as such,, we find that the impugned order issued by the respondent No. 4 under Memo No. UFFL/Admin-02/ 16/1987 dated 2-4-2008 is liable to be declared to have been passed without lawful authority and is of no legal effect. AH Azam vs Bangladesh 15 BLC 761.

Workers under the Labour Act are entitled to receive benefits from the employer by whom they are employed. If for argument's sake it is accepted that the employer of any person engaged in service is bound to provide a letter of appointment/contract of service under the Labour Act, that liability will fall squarely on the person/organisation employing the workers.  [74 DLR (AD) 74]

Editors’ Note:

Opposite Party No.2, an Inspector of Labor, in course of inspection of the GTC detected some violations of the labor law and submitted a complaint under Bangladesh Labor Act, 2006 in the Court of learned third Labor Court, Dhaka. The alleged violations of Labor Law by the GTC are- (i) on completion of probationary period job of the labors and employees are not made permanent, (ii) the labors and employees are not granted annual leave with pay or encashment of leave or money in lieu of annual leave and (iii) the company did not constitute Labor Participation Fund and Labor Welfare Fund nor deposited 5% of net profit in above fund under the Sramik Kollan Foundation Ain, 2006. On behalf of the petitioner it was submitted that there is no date of occurrence of this case and this case is barred by the law of limitation for not having filed within 6 months as provided in Section 314 of Bangladesh Labor Ain, 2006; even if all the averments made in the complaint are taken as true in its entirety even then no complicity of the petitioner can be established; the petitioner is a Nobel laureate and an internationally acclaimed personality who had no role in the management of financial or administrative affairs of the GTC; the GTC is a nonprofit organization registered under Section 28 of the Companies Act, 1991 therefore does not require to constitute a Labor Participation Fund; and the GTC works in the telecommunication sector on the basis of its contract with other companies and as such its labors and employees are also appointed on contractual basis for which the proceeding in Labor Court is an abuse of the process of the Court. The High Court Division analyzing relevant laws and rules and considering admitted facts found the above contentions of the petitioner are not tenable in law as because the question of limitation is a mixed question of law and facts which cannot be determined without taking evidence; section 28 of the Companies Act does not exempt any Company from making contribution to the Labor Welfare Fund and article 33 and 34 of the Memorandum and Articles and Association of the GTC mentions that the Board of Directors exercises full managerial and financial control over the GTC and is responsible for the management and administration of the affairs of GTC and as such it cannot be said at this stage of the proceedings that the petitioner has no role in the financial management and administration of the GTC. Consequently, the Rule was discharged.

Section 28 of Companies Act: There is nothing in Section 28 of the Companies Act which exempts any Company registered under above provision from making contribution to the Labor Welfare Fund: The learned Advocate for the petitioner repeatedly submits that the GTC is a nonprofit company and registered under Section 28 of Companies Act. As such GTC is not liable to contribute 5% of the net profit to the Labor Welfare Fund. In support of above submission the learned Advocate produced the Memorandum and Articles and Association of the GTC. But there is no mention in above Memorandum that the GTC is a nonprofit company. On the contrary Article 71 of above Memorandum shows that GTC may earn profit but the profit shall be utilized for the advancement of the objectives as stated in the above Memorandum. Since the GTC is a profit earning company it is not understandable as to why the company will not contribute a very insignificant part of its net profit for the welfare of its labors. There is nothing in Section 28 of the Companies Act which exempts any Company registered under above provision from making above contribution to the Labor Welfare Fund. (Para 28, 29)

Section 314 of Bangladesh Labor Ain, 2006: The alleged violations were first detected by the complainant on 09.02.2020. He issued a letter to the GTC for taking remedial measures. No satisfactory reply having received a second inspection was held on 16.08.2021 and again the same violations were discovered. This Complaint was filed in the concerned labor court on 28.08.2021. As such, it prima facie appears that this case has a date of occurrence and the same has been filed within six months from the date of occurrence as provided in Section 314 of Bangladesh Labor Ain, 2006. Moreover it is well settled that a question of limitation is a mixed question of law and facts which can be determined on consideration of evidence to be adduced at trial. (Para 34) [17 SCOB [2023] HCD 162]

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