The Labour Act of 2006 in Bangladesh identifies certain types of organizations, workers of which do not fall within the scope of this particular law. The list includes government offices or those under the control of the government, agricultural farms with less than five workers, domestic servants, family-run establishments where no worker has been employed with wages, ordnance factories, seamen, any institution run for treatment, care or service of the sick, disabled, aged, destitute, handicapped, orphaned, abandoned woman or child or widow, shops or stalls in any public fair or bazaar established for religious or charitable purposes, hospitals and clinics that are non-profitable, and educational, research, and training institutions.
The relationship between the Labour Act and service rules is not one of competition but of hierarchy. Service rules serve as a supplementary framework. But it never can diminish the protections afforded by labour law. Service rules refer to an internal framework of an establishment that falls within the labour law's purview akin to a constitution. Service rules outline an organization's formal guidelines to regulate its employees' operation, conduct, and overall discipline. Any establishment can create its own service rules to regulate operations and employee behaviour.
Now, for instance, if someone works at Reckitt Benckiser Bangladesh Ltd, the nature of the job being white-collared or otherwise, would they 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 service rules from the company's end?
Of course, a company would better be able to accommodate its own regulations according 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. This means that, provided employee benefits, leaves or any other components of Reckitt Benckiser's policies are contradictory to or put employees in a worse off position than what is mentioned in the Labour Act, such would be challengeable in the court of law.
Chapter II, Section 3 of the Labour Act of 2006 states that service rules for workers must follow the rules set out in the Act. It further went on to say in subsection (1) that any service rules must not be less favourable to workers than the provisions of this chapter. Moreover, in 2015, the Ministry of Labour and Employment adopted Bangladesh Labour Rules conferred by section 351 of the Labour Act. Rule 3(3) of Bangladesh Labour Rules, 2015 mentions that these service rules must reflect the provisions of the relevant Act and cannot be less favourable to workers than similar provisions prescribed by law.
Therefore, any service rule enacted by an employer must meet or exceed the protections established in the Labour Act. In practice, multinational companies 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 Act requires.
However, our main concern with this writing is to find out whether service rules in organizations that fall outside the scope of the Act, can be drawn up without maintaining any consistency with the Act.
For the sake of understanding the depth of the matter, let us look at an example -- provided a female teacher of a secondary school (exempted from the ambit of the Act) is entitled to a maternity leave of three months in accordance to its 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?
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 service rules contain provisions mentioning that subject to the discretion of a concerned board (of directors, trustees, or others), the organization's services rules might change overnight, to what extent would an employee feel protected? Thus, it is safe to say that employees who solely depend on their institutions' rules (and are not protected by the Act) are the most deprived bunch.
But there is a particular provision in the Labour Act that is often overlooked. In fact, we were unable to look for significant case precedents either. The last part of Section 3(1) of the Labour Act mentions that “establishments to which the Act does not apply shall not make any policy, rule or house policy providing benefits less than the benefits provided in the Act.”
This clearly means that the aforementioned secondary school, irrespective of what its service rules state, would actually not be able to provide its teacher with a maternity leave of less than four months (the minimum mentioned in the Labour Act).
In the case of Md Abdul Malek and Ors. vs. Government of the People's Republic of Bangladesh and Ors (2013), there was a conflict between statutory law and service rules. The Public Corporation (Management Co-ordination) Ordinance, 1986 allows workers in public enterprises to serve until the age of 60, while the Service Rules of Government Owned Enterprises mandate retirement at 57. The Honourable Appellate Division of the Supreme Court of Bangladesh in that case held that,
"We further find that Service Rules of government-owned enterprise or corporation as to retiring their workers after completion of 57 years of age is not conducive for the workers and, as such, the provisions of the Proviso of section 3(1) as well as section 336 of Labour Act, 2006 will operate here in these cases to make the petitioners entitled to be in their respective service till they complete 60 years of their respective age."
From this, we can deduce that service rules cannot legally undermine the protections afforded by statutory laws such as the Labour Act, even though the organization (government office in this case) may technically fall outside the ambit of the Act.
Saquib Rahman and Ragib Shahriar are Senior Lecturer and third-year student of the Department of Law at North South University, respectively.
