Do you even “WORK”? | The Daily Star
12:00 AM, October 24, 2017 / LAST MODIFIED: 12:14 AM, October 24, 2017

law ANALYSIS

Do you even “WORK”?

The Labour Act, 2006 defines a "worker" as “... any person including an apprentice employed in any establishment or industry either directly or through a contractor, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment are expressed or implied, but does not include a person employed mainly in managerial [or supervisory] capacity.”

It is deceptively simple- The law guarantees you rights as a worker - Rights that are inherent in the maintenance of the dignity and honor in one's labour as a human being. But these rights and benefits are incumbent upon whether or not you qualified as a "worker" within the definition of the law. But there lies the rub!

There is a recurring myth (emphasis added!)  that the legal definition of the "worker" is only meant for day laborers and industrial workers. It may be opined that the Act had done wonders for the reform of conditions for labourers toiling in the industrial sector, the existence of a significant definitional gap has led to many in the tertiary/service sector from being deprived of their hard earned benefits and entitlements and often arriving at moments of great distress while struggling through the time in which they find themselves indefinitely floating in the uncertain ether of the job market.

In the case of The Managing Director, Rupali Bank Ltd v Md Nazrul Islam Patwary and others, reported at 15 BLD (AD) at p.169 the learned judge explained, “The term 'worker' as in defined […] does not contemplate  only a person to be employed in the work for productive purposes in any commercial or industrial establishment, but also embraces a person who on being employed does any skilled, unskilled , manual, technical , trade promotional or clerical work for hire or reward, whether the term of employment be expressed or implied. But a person does not come within the category of 'worker' who is employed mainly in a managerial or administrative capacity , or who, being employed in a supervisory capacity, exercises either by nature of the duties attached to the office or by reason of power vested by him, functions mainly of a managerial nature.” This case illustrates a fact that is to be taken into account when determining the difference between someone who is a worker and someone who is in a managerial position.

One thing to remember is that the nature of the work you are about to engage in is of prime importance, however, citing the case of Indo Pak. Corporation v Chairman, Labour Court, reported at 21 DLR (1969) at page 285 (286), “As one swallow does not make a summer, so the mere signing of cheques…will not give one the status of a manager”. A very common determinant used to determine the presence of an employee-employer relationship has been the “Master-Servant test” which has been used extensively in many jurisdictions. In the case of V.P. Gopala Rao v Public Prosecutor, reported at (1969) 1 SCC at page 704, a four-stage test had been adopted  to determine the existence of such a relationship using such things as the extent of the “master's” power over the selection of the servant, the existence of the payment of wages and other remuneration, the extent of control the master has over the mode and means of doing the work , the extent of the master's control over the right of suspension or dismissal. 

Another myth that unscrupulous employers often exploit is that the definition of “establishment” excludes their organisations from the responsibility of providing their workers the prescribed statutory benefits and entitlements especially upon discharge. The definition of “establishment”, read correctly is actually meant to encompass a wide range of work that is done with the purpose of generating revenue and profits. In fact, it should never be the intent of a legislative body to narrow down such flexible definitions owing to the fact that with time, the type and number of bodies that perform functions of a commercial nature only proliferates.

Measures need to be taken to read the labour legislations in a way that does not deprive people of what they work hard for on the basis of arbitrary readings of definitions. Commercial ventures should invest in formulating their Human Resource and Labour policies to reflect the ends of justice for both parties to the Employment Contract. As a precautionary measure, it is wise to tone down the excitement of getting a new job,  so that you are not struck with tunnel vision to only look at how much you are going to get paid, or the number of days as leave you have. Take some time to read the terms and conditions of your employment contract well and understand them before you sign to it. A signature can open doors to new opportunities, but let not that same signature open you up to an undignified exit.

 

The writer is an Associate, The Legal Circle.

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