Outside the scope of labour law
Section 2 of Bangladesh's Labour Act 2006 identifies certain institutions that would not fall within the purview of this law. The list includes offices of or under the government (with some narrowly-defined exception), non-profit hospitals and clinics, and educational, training, and research institutions. With the assumption that most readers, as non-lawyers, might have limited idea of the existence and the implementation of the labour regulations, in simple words, I would like to clear the difference between the Act and a company's service rules/regulations/policies (words interchangeable here), both of which binds employees to follow. Subsequently, I would like to introduce a problem, the solution to which we might be in need of in the near future.
Service rules and the law
Now, for instance, if someone works at Reckitt Benckiser Bangladesh Ltd, the nature of the job being white collared or otherwise, would he or she be subject to the provisions of the Labour Act of 2006? Yes! Then what might be the reason for the same employee to mandatorily abide by another set of rules from the company's end? Of course, a company would better be able to accommodate its own regulations in accordance to its requirements, principles, work ethics, environment and convenience. But, taking into consideration an employee's side, it is only likely that an existing service regulation would be more flexible and pro-employee, than the minimum standards set in accordance to the Labour Act. Meaning that, provided employee benefits, leaves or any other components of Reckitt Benckiser's policies are contradictory to or puts employees at a worse off position than what is mentioned in the Labour Act, such would be challengeable in the court of law. Section 3(1) provides that an establishment may have its own service rules as to the appointment of its workers, but such rules shall not be less favourable than the provisions made in the Act. Hence, the multinational companies in practice are seen to possess the best of policies, while local companies hardly expand their hearts for their workers while drafting their own rules, beyond the least that the law requires.
When law does not protect?
Having spoken of the above, what would happen to an organisation that falls outside the scope of the Labour Act 2006? For the sake of understanding the depth of the matter, let us look at a few examples – provided a female teacher of a secondary school is entitled to a maternity leave of three months in accordance to the educational institution's service rules, whereas, the minimum set of standards (as per the Act) that would apply to a female garments worker is four months, does it not strike as something unfair? On the other hand, it is worth mentioning that the government had solely taken care of the female public servants by publishing a gazette notification on six months maternity leave – amendment made in the Bangladesh Service Rules in January 2011.
Moreover, if we look into the definition of a 'permanent worker' in the Labour Act, according to a university service rule book which I have recently come across, the definition of such kind of worker differs from the Act to an extent that the Act would have deemed a full-time faculty member of that particular university as a contractual worker (contracts renewed every year).
Furthermore, what would happen at an instance when the same teacher from secondary school might feel that a penal decision has been wrongfully imposed on her? The service rules usually contain provisions mentioning where appeals may lie. However, in reality, since appeals are made to superiors of the workplace anyway, chances are high that she would not be left with her desired remedy.
Above all, when services rules contain provisions mentioning that, subject to the discretion of a concerned board (of directors, trustees or others) the organisation's services rules might change overnight, to what extent would an employee feel protected?
Writ petitions at the High Court Division of the Supreme Court, against an institution's service rules would only lie, provided the rules are contradictory to any provision(s) of the highest law of the land- Constitution of the People's Republic of Bangladesh. Though rules might seem unfair, tailoring a petition in a manner that provisions seem contrary to the principles of the Constitution would certainly not be the most feasible solution. Let alone, the costs associated with the process.
Also, the employee from the secondary school suing for breach of contract would not bear any fruit, until and unless the contract of employment specifically mentions that a new contract between the institution and the employee would have to be signed, every time alterations are brought to the service rules. Since otherwise, in almost all employment contracts, employees agree to serve with grace, accepting all changes that might be made in the service rules during their tenure of employment.
Whereas amendments in the Act were made in 2013, followed by the enactment of Labour Rules for better clarification of some of its provisions in 2015, the labour law in many aspects yet fall short of international standards and expectations. So, employees at the private sector institutions (with the exception of a few) that fall beyond its range are more regularly being subject to immoral practices, unfairness and hostile behaviour by the proprietors (in whichever name or form you might choose to address them) or their delegated managers/ high-ups of the respective institutions. Thus, employees who solely depend on their institutions' rules are the most deprived bunch, whose rights to be heard are questionable.
It is high time that the government makes rules for each of the institutions that the Labour Act excludes to cover.
The writer teaches postgraduate Corporate Governance at North South University.