The advantages to be a worker under the Bangladesh Labour Act 2006 (as amended up to 2018) is that it allows one to be guided by the provisions of the Act, e.g., conditions of employment and services, right to form and join a trade union, access to labour courts etc. The Act prescribes that the provisions of the same shall be considered as the minimum standards. Any establishment may adopt its internal service rules, however, provisions of the same shall be in line with the Act. Even an establishment which is not listed under the Act shall not be able to provide any benefit which is lower than the standards already set by the Act (section 3).
However, the COVID-19 pandemic has posed serious challenges for the existing legal framework to deal with labour relations and labour rights. The Government, through an executive order dated 24 March 2020, has announced executive general holidays beginning from 26 March. It was aimed to contain and prevent spread of the virus. The general holidays were extended until 30 May in phases.
Confusions have been created over how the "general holidays"which were declared by the Government would be made applicable for privately-owned establishments and factories regulated under the Act. The Act is premised in the context of normal situation and did not take note of unprecedented situation like this pandemic. That has resulted in confusions among the owners and management of industries in few sectors which resulted in sufferings and financial losses of respective workers.
For example, although the owners have the liberty to lay-off workers, however, the criteria listed in the Act does not correspond with the prevailing situation. Section 12 of the Act listed causes like "epidemic" and "situation beyond control" which allows an owner to prefer stoppage of works in his/her establishment; if the same is for more than three working days, could be transformed to lay-off of workers. The COVID-19 is yet to be included in the Act as a disease connected to occupation; this requires an immediate and positive consideration or similar framework in the Act to keep it open to address situations like a pandemic in future. This could be done by amending section 28A.
Also, the Act is not clear on matters like the consideration of days "actually worked" in connection to the calculation of maternity benefits for woman workers, who are expecting and were out of work due to the "general holidays" or for health reasons or being advised by the management. Those leavea room for misinterpretation and vagueness, and deprivation from entitlements in many cases.
The COVID-19 situation has already brought "new normal" in the world of work. It has pushed for a new dimension in the typical working modalities – work from home. The UN agencies, international and national organisations, multinational corporations have allowed and designated their employees to be working from home. Few multinationals have introduced the same around mid of March amid spread of the coronavirus. However, such arrangements are linked to the particular nature of works of employees concerned and modalities thereof. For example, those who are working in the factory set-up or linked to productions, for them remote working is unlikely to take place.
The Act is silent about the modality of work from home; a worker is employed in connection to an establishment or industry. However, the particular location of work is designated by the employer concerned which is transferable as well. Given this situation, it can be said that the Act is silent on the concept of work from home – it neither prescribes for nor prohibits the same.
However, while introducing and implementing work from home modality, the respective employers might require certain steps to consider and be followed; for example, designation of a location as a workplace for an employee (e.g., one's residence as per office record), issues related to occupational health and issues involving potential accident, injury and death, coverage of insurance, sexual and other forms of harassments while communicating online (i.e., telecommunication, online meeting etc), cyber security etc. Also, related logistics such as required furniture for a workstation, computer or laptop, printer and scanner, internet connection, backup for power supply etc. are an issue. All those matters are required to be taken care of by respective employers in consultation with the employee concerned.
Furthermore, the determination and calculation of working hours, assessment and record of performance of employees etc. are important issues which deserve serious attention from labour law perspective. All those issues are to be determined and decided upon by the employer concerned. It could be done through adoption or modifications in the service rules of the establishment and issuance of internal memos and/or notifications as applicable. At the same time, required consultation and agreement need to be undertaken with workers and employees involved in consideration and appreciation of the situation emerged. Intimation to the respective regulatory authority may also be required.
THE WRITER IS AN ADVOCATE AT THE SUPREME COURT OF BANGLADESH AND A SPECIALIST LAWYER ON LABOUR AND EMPLOYMENT MATTERS.