Health, safety and welfare duties: The key obligations are summarised in table 1 below. They are almost identical to the duties that were set out in the Factories Act 1961.

Table 1: Summary of Obligations (with relevant section)

ENFORCEMENT OF HEALTH, SAFETY AND WELFARE OBLIGATIONS UNDER THE ACT

There are two kinds of formal means by which health, safety and welfare obligations can be enforced. First through use of powers provided to inspectors to require improvements  to made; and second through the use of criminal prosecutions.

Inspector Powers

‘Factory Inspectors’ are given certain powers to take steps requiring improvement if inspectors believe certain circumstances exist. These are set out below in Table 2:

Table 2: Summary of formal enforcement powers of inspectors

The Factory Inspectorate does not keep any information on the numbers of times these specific powers are used.

Criminal Prosecution

Although employees can seek direct civil law redress from the Labour courts for alleged breaches of the duties regarding appointment/employment conditions and payment of wages, this is not the case with health, safety, hygiene, welfare, maternity rights and child labour. In relation to these duties, criminal prosecution is the principal way of enforcement in the new Act. (see Table 3).

Table 3: Enforcement by Civil and Criminal law

Not only is the use of the criminal law wide-ranging in the new Act – the sentences that can be imposed following conviction are much harsher than those contained in the old labour legislation (see table 4). In the old legislation no sentences of imprisonment were available for any health, safety and welfare breaches and the maximum fine was only 1000 taka

Table 4: Levels of Imprisonment for offences in the Labour Act 2006

Health and Safety Offences

There are five offences in the Act[i] specifically relating to health, safety and welfare – the selling of unguarded machinery,[ii] failure to give notice of an accident,[iii] a breach causing death[iv], a breach causing grievous bodily harm[v] and a breach causing any harm.[vi]

In addition, there is a ‘catch-all’ offence that allows prosecutions against “whoever contravenes of fails to comply with any provisions of the Code, or any rules of scheme made under it” – which is punishable by upto three months imprisonment or with a fine of upto Tk 1,000 or both.[vii] This offence would, for example, apply to any breach of the obligations involving health, safety and welfare, not already covered by the offences above. A repeat conviction for the same offence can result in double the fine or sentence of imprisonment.[viii]

When there has been a breach of a duty imposed upon an employer, any one of individuals defined as an employer (see above) can be prosecuted. In addition, when a company is prosecuted, “every director, partner, shareholder or manager or secretary or any other officer or representative directly involved in [its] administration” shall be deemed guilty unless he can prove the offence has been committed without his knowledge or consent or he has tried his best to prevent such commission.”[ix]

Changes To Prosecution Procedures

The new Act has brought about two important new procedural features relating to prosecution. Prior to the introduction of the Act, the labor courts dealt almost solely with civil law disputes[x] (i.e. those relating to wages, terms and conditions of work, and compensation) most of which would be brought by workers themselves.[xi] Criminal law cases (i.e those relating to health, safety and welfare obligations) were processed by the Magistrates court. Now, the labour courts not only have jurisdiction over civil law matters but also criminal prosecutions.[xii]

The other important procedural change is that proceedings for any criminal offence can now be instituted not only by the Factory Inspectors but also by an “aggrieved person or trade union”.[xiii] Workers, bereaved families or trade unions could not, prior to the Act, have instituted criminal proceedings against employers who breached their obligations set out in the law.[xiv] The term ‘aggrieved person’ is not defined, but it would almost certainly include (a) a worker injured as a result of, unsafe conditions in breach of the Act or otherwise personally disadvantaged by a breach of the Act or (b) a member of a family bereaved by a death caused by a breach of the Act. An “aggrieved trade union” would, arguably, include a union whose members(s) are exposed to risks as a result of a breach of the law.

Factory inspectors can continue to initiate prosecutions.

Prosecution Process

Criminal cases must be initiated in the Labour Court by means of a written “complaint” sent to the Labour Court within six months[xv] of the alleged commission of an offence. What then happens will depend on who has made the “complaint”. If it is an Inspector, the Court[xvi] will probably immediately summon the defendant to court; if, however, the complainant is a worker or trade union, then the magistrate will first examine him or her under oath (and possibly some further witnesses) to establish the credibility of the allegations,[xvii] and only then, if satisfied,[xviii] issue a summons against the defendant. The normal process of criminal trial will then take place. In prosecuting these cases, the Code says that Labour Court should follow “as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure.”[xix] and should hear the case without the trade union or employer members sitting as judges.[xx]

IMPROVED ACCESS TO JUSTICE FOR WORKERS

This new right for workers and trade unions to prosecute cases allows them to enforce parts of the labour code that previously could only be enforced by a factory inspector. Whilst clearly reforms need to be made within the Inspectorate – increased numbers, training, transport facilities, equipment etc – so that they can carry out their enforcement powers properly, it is now possible for workers and trade unions – with the help of legal aid organisations – to enforce health, safety and welfare obligations imposed upon an employer through initiating criminal proceedings, without having to wait for an inspector to take action. The increased levels of sentence attached to many of these offences makes prosecution, or the threat of it, for the first time, a real deterrent.

Labour rights NGOs, legal aid organisations and trade unions now have the possibility of a new range of strategies to improve workplace conditions. If for example, there is a factory with health and safety conditions in clear breach of the requirements of the labour Act, NGOs can use the threat of prosecution as a way of levering improvements. If the employer fails to make the necessary changes, a criminal case can then be initiated. Depending on the circumstances, the employer could be told that the case will be withdrawn if the employer finally makes the requisite improvements. If the employer fails to do this, then the legal aid organization can go through with the prosecution. Any convictions, particularly those that result in imprisonment could have a significant deterrent  upon other employers.[xxi]

The effectiveness of the strategy is however likely to depend on whether there is a trade union with members at the relevant workplace – since individual employees are likely to feel very vulnerable to take this kind of action. However, former workers might be able to take action in relation to conditions to which they were subject that were a violation of the law.

CONTINUING OBSTACLES TO SAFETY ENFORCEMENT

This new ‘right’ discussed above provides some real new opportunities for enforcement – but obstacles do remain for effective enforcement of the law

Courts

There are only seven labour courts in Bangladesh – three are based in Dhaka, two in Chittagong, one in Rajshahi and one in Khulna[xxii] – compared to 1300 magistrates courts. So physically accessing the courts for justice is clearly much harder. An extreme example of this relates to Labour Act offences in Sylhet; since there is no court in Sylhet, cases have to be brought in the Chittagong courts – literally the other end of Bangladesh.[xxiii] The need for additional labour courts in other major industrial towns and cities is clearly necessary.

However, even though there are far too few labour courts, these courts may well prove to be a much more appropriate forum for prosecuting these cases than magistrates courts. In the labour court there is a specialist judge with a good understanding of labour law issues and this may help with the speedy disposal of cases. In addition, corruption is generally considered to be far less significant in Labour compared to magistrates courts.

Absence of lawyers in the Factory Inspectorate

Prior to the Labour Act when the level of fines were low,[xxiv] and sentences of imprisonment were not available, prosecutions were rarely contested. The small fines were just paid by the employer. However, now, since almost all convictions can result in an imprisonment, employers will almost certainly contest cases. This will have a big impact upon inspectors who file criminal ‘complaints’ – since they would have to be present during the trial. Due to the small number of inspectors this could create a real problem – something that could be avoided if the Inspectorate employed lawyers who could the represent inspectors in court.[xxv] Lawyers must be appointed to the Inspectorate.

WHAT IS THE CCA DOING?

The CCA’s “Bangladesh Worker Safety Programme” hopes to work alongside legal aid organisations (in particular BLAST) and relevant labour rights NGOs and trade unions to discuss how they can make use of the new rights of workers/trade unions to access to the courts and enforce the Labour Act in relation to worker health, safety and welfare issues.

Annex 1:

Extracts from Section 2 of BLA 2006, setting out meaning of ‘establishment’

(31) Establishment means shop, commercial establishment, industrial establishment or premises in which workers are employed for industrial work.

(41)     Commercial establishment means an establishment in which the business of advertising, commission or forwarding is conducted or which is a commercial agency and it includes:

(a)    a clerical department of a factory or any industrial or commercial undertaking;

(b)   the office-establishment of a person who for the purpose of fulfilling a contract with the owner or any commercial establishment or industrial establishment employs workers;

(c)    a unit of a joint stock company;

(d)   an insurance company, a banking company or a bank;

(e)   a broker’s office;

(f)    stock exchange;

(g)    a club, a hotel or a restaurant or an eating house;

(h)   a cinema or theatre or;

(i)     such other establishment or class thereof as the Government may, by notification in the official gazette, declare to be a commercial establishment for the purpose of this act.

(61)     Industrial establishment mean any workshop or other establishment in which articles are produced, adapted, or manufactured or where the work of making, altering, repairing, ornamenting, finishing or packing or otherwise treating any article or substance with a view to their use, transport, sale, delivery or disposal, is carried on or such other class of establishment which the government may by notification in the official gazette, declare to be an industrial establishment for the purpose of this Act and includes –

(a)    road transport service or railway transport service

(b)   river transport service

(c)    airlines

(d)   dock, wharf or jetty,

(e)   mine, quarry, gas-field or oil-field,

(f)    plantation

(g)    factory

(h)   newspaper establishment

(i)     contractor’s or sub-contractor’s establishment for the purpose of construction, reconstruction. repair, alteration or demolition of any building, road, tunnel, drain, canal or bridge or ship-breaking or rebuilding or loading or unloading of cargo into vessel of carrying thereof;

(6)       Workshop means any premises including the precincts thereof, wherein any industrial process is carried on;

(7)       Factory means any premises including the precincts therof whereon generally five or more workers work on any day or the year and in part of which a manufacturing process is being carried on but does not include a mine.

(2)       Manufacturing process mean of the following processes:

(i)     for making, altering, repairing, ornamenting, painting, washing, finishing or packing or otherwise treating any articles or susbtances with a view to it use, sale, transport, delivery, display or disposal,

(ii)    for pumping oil, gas, water,, sewage, or other fluids or slurries or

(iii)   for generating, transforming, or transmitting power or gas,

(iv) for constructing, reconstructing repairing, refitting, finishing or breaking up of ships or vessels, or

(v)    for printing by letter press, lithography, photoguavure, computer, photocompose, offset or other similar work or book binding which is carried on by way of trade or for purposes of gain or incidental to another business so carried on;

(9)    Mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes all works, machinery, tramways and sidings, whether above or below groud, in or adjacent to or belonging to a mine;

Provided that it shall not include any part of such premises on which a manufacturing process is being carried on unless such process is a process for pulp making or the dressing of minerals;

Annex Two:

Other Key sections referred to in briefing relating to prosecution of offences:

309: Penalty for contravention of law with dangerous results:

(1)    Notwithstanding anything contained elsewhere in the Chapter, whoever contravenes any provision of this Act or any rules, regulations or schemes, shall be punishable

(a) if such contravention results in loss of life, with imprisonment which may extent to four years, or with fine which may extent to lone lackh taka or with borth; or

(b)   if such contravention results in serious bodily injury, with imprisonment which may extent to two years or with fine why may extent to ten thousand taka or with both; or

(c)    if such contravention otherwise causes injury or danger to workers or other persons in an establishment with imprisonment which may extend to six months or with fine which may extend to ten thousand taka or with both

(2)    Any court imposing a sentence of fine passed under this section may. When passing judgment order the whole or any part of the fine recovered to be paid as compensation to the person injured or in the case of his death, to his legal representative.

312: Offences by Companies, etc:

Where an offence punishable under this Act or under any rule, regulation or scheme is committed by a company or other body corporate or by a firm, every director, partner, manager, secretary, or other officer or agent thereof shall, if actively concerned in the conduct of the business of such company, body corporate or firm be deemed to have committed the offence unless he proves that the offence was committed without his knowledge or consent or that he exercised all due diligence to prevent the commission of the offence

313 Cognisance of offences:

(1)   No court other than a Labour court shall try an offence under this act or under any rules, regulatoion or schemes;

(2)    No Labour court shall take cognisance of an offence under this Act or under any rules, regulations or schemes except upon complaint made by:

(a) the person aggrieved or aggrieved trade union;

(b) ….

314: Limitation of prosecutions:

Unless otherwise specified elsewhere in this Act or in any rules, regulations, or schemes, no labour court shall take cognizance of an offence punishable this Act or under any rules, regulations or scheme unless complaints thereor is made within six months of the date on which the offence is alleged to have been committed

Annex Three: Criminal Offences

Writs (Under article 102)

The primary object of this article is to offer a systematic study of the “Writ Jurisdiction of the Supreme Court of Bangladesh” under the 1972 Constitution of the People’s Republic of Bangladesh. An attempt has been made to examine the definition of writs, common types of writs, comparison of writs, different types of writs under the Constitution. The article portrays writ jurisdiction of the Supreme Court of Bangladesh, comprising of the High Court Division and the Appellate Division, to be given in the nature of orders under the 1972 Constitution and the Code of Criminal Procedure, 1898. Relevant cases have been cited. Finally, the article summarizes general conclusions making an overall assessment of the writ jurisdiction of the Supreme Court of Bangladesh.

Article 102 of the Bangladesh Constitution contains various kinds of orders which may be issued by the High Court Division in the exercise of its writ jurisdiction. There are five writs to avail according to the constitution of Bangladesh, which are Prohibition, Habeas Corpus, Certiorari, Mandamus and Quo-Warranto.

Administrative Tribunal

The intention of administrative law is to provide a legal framework for regulating the powers, procedures and acts of public administration. All the matters in this relation are referred to an administrative tribunal which has exclusive jurisdiction to hear and determine an application made by a person in the service of the republic in respect of terms and conditions of his service.This piece of law results from the constitutional mandate as enshrined in Article 27 of the Constitution of our country.

Rule of law eschews arbitrariness or decision according to whim or caprice of authority which flows from the guarantee of equality before law and equal protection of law embodied in Article 27 of our constitution. It thus comprehends the governmental action according to law and within their prescribed bounds and it would not suffice to say that the sovereign’s will has the force of law but that law can be tested on the touchstone of reasonableness. In order to conform to Article 27 it must be right and just and fair and not arbitrary, fanciful or oppressive. Thus all powers must be exercised in a reasonable manner and only to effectuate the purpose for which it is enforced.

Our lawyers have gained experience in Administrative Law matters by developing expertise over the years with clients which includes prominent corporations, disadvantaged individuals, governmental agencies, etc. Our experience in most aspects of Administrative Law advocacy enables us to assess and plan cases expeditiously and effectively.

Commercial Lease

Understanding your needs

We pride ourselves on our friendly, no nonsense approach to Commercial leases. Our experienced team combines extensive, up-to-the-minute legal knowledge, with a sharp commercial insight and practical approach. We understand business and the different priorities of our clients, and we tailor our commercial lease advice accordingly.

Getting the deal done

Although they have different motivations, Landlord and tenant alike will usually share one aim. You may be a Landlord anxious to secure your income stream or a Tenant anxious to commence trading. In either case you will want to complete the deal as quickly as possible. We offer an expedited service which will never compromise on quality.

Complicated Subject – straightforward advice

Commercial leases are not simple and rarely straightforward. The advantage of the wealth of experience we can bring to bear on a range of topics is that we will have been there before. We can cut though the complexities and get to the point, explaining in jargon- free, simple English the risks and potential liabilities inherent in any commercial leasehold situation.