The Prospect of ADR in Settling Labour Disputes in Bangladesh
by Miss Farzana Khanom
The Constitution of Bangladesh pursuant to Article 32 guarantees justice to all regarding equal right to life and personal liberty and in addition Article 27 guarantees equality before law and equal protection of law. But due to tremendous pressure on the court and due to long time process and lack of adequate judges justice is not always established. Currently there are 3.3 million cases pending which may increase by 5.5 million by 2020.Thus the judicial process is failing to solve all these cases at a time. This created the necessity for applying alternative measures. ADR has been applied in Bangladesh at first in 1985 in the Family Court Ordinance under section 11-13 to solve dispute between parties to the dispute. This made a step to the amendment of the Code of Civil Procedure (CPC) in 2003 incorporating ADR vide section 89A-89C.Though the process was slow at first but it became fast later in solving civil matters .
In 2006 Government of Bangladesh enacted Bangladesh Labour Act, 2006 in order to settle industrial dispute and to promote industrial peace and establish a harmonious and cordial relationship between labour and capital by means of conciliation, mediation and adjudication. The Act states about some non-adjudicatory as well as adjudicatory authorities. Non-adjudicatory consists, bipartite negotiation, Conciliation and Arbitration, while adjudicatory (judicial) authorities include Labour Court, Labour Appellate Tribunal etc.
Section 33 of The Labor Act 2006 prescribes the procedure for filing of a complaint by a worker. Section 33 was intended by the Parliament to allow the parties to resolve the matter amicably, before filing the dispute to the Court. This section states that if any labor has any complain regarding lay-off, retrenchment, dismissal, removal, termination benefit and wants to get a remedy under the Act, then he must make a written complaint stating the required reason of complaint to the employer within thirty (30) days of removal/ being aggrieved. The employer shall investigate the matter of complain within fifteen 30 days of receiving complaint and shall summon the concerned labor and make a decision in consideration of investigation and summon of the matter and inform the decision to the concerned labor otherwise. If the labor is dissatisfied with the decision of the employer or if the employer fails to take any decision within 30 days from the date of the complaint, then the labor may within thirty (30) days after the completion of the process under sub-section (2) file a complaint labor court. The labour court shall after receiving the complaint shall summon the both party and take decision as necessary and for establishment of justice. If any of the parties (employer or worker) is dissatisfied with the decision or verdict of the labor court then they can file an appeal in the Appellate Tribunal within thirty days of the decision of the labor court and the decision of Appellate tribunal shall be final in this case. Nonetheless in high level cases, against the decision of the Appellate Tribunal, the aggrieved party prefers Writ Petition before the Hon’ble High Court Divison, which can further lingered to Appellate Division of the Supreme Court of Bangladesh. Thus the judicial process under section 33 of the Labour Act is time consuming and it cost money too and it may have balance of inconvenience too. In many cases, the expenses outreach the demand. If this process is solved in an alternative ways outside court, it would not have wastage of time and the decision will be balanced for both parties. In this regard section 210 of the labour law states about alternative measure of solving dispute. The section states that if at any time if the employer or CBA (Collective Bargaining Agent) observes that an industrial dispute is likely to arise between employers and workers, then the employers or the collective bargaining agent shall communicate his or its views in writing to the other party. Parties are first allowed to negotiate the matter and reach to a conclusion between themselves. In case the parties fail to reach to a settlement within 30 days of the first meeting, any of the party may, within next 15 days, refer the matter to an authorized conciliator. The conciliator fails to resolve the dispute within 30 days of referral (can be extended), the conciliator may propose dispute settlement through arbitration. The Arbitrator must declare an award within 30 days of referral or within such extended period as agreed between the parties. The award of the Arbitrator shall be final and binding.
Loopholes in judicial method : The loopholes of existing laws and the weak performance of courts frustrate the aggrieved persons. Generally, the time limit to dispose a case in the Labour Tribunal is 60 days but about 50 percent of the cases took a time period ranging between 12 months to 36 months. The time required for 25 percent of the cases ranged between three years to five years. Till now there are seven labour courts in Bangladesh. Three in Dhaka, two in Chittagong, and one each in Rajshahi and Khulna. There is only one Labour Appellate Tribunal at Dhaka. Though the Act mandated the Government to establish required number of labour courts. Among these, Courts of Dhaka and Chittagong are situated in the divisional headquarters. Even there is no labour court at four divisions-Sylhet, Barisal, Rangpur and Mymensingh. As a result, a tea garden worker of Sylhet and a rice-mill worker of Brahmanbariahas to go the Labour Court of Chittagong to file cases for their grievance, unpaid wages and compensation. A worker of Syedpur has to go the Labour Court of Rajshahi and a worker of Barishal has to go Khulna for seeking labour justice. After traveling hundreds of kilometers and after waiting months after months, remedy awarded by the labour courts simply becomes mockery to the workers when their claims are so minimal. That’s why, instead of going courts for their redress many workers have to embrace injustice. Harassing the toiling masses and workers such a way in the name of delivering justice amount to exploitation by the state which is contrary to the spirit of our Constitution.By analyzing court registers, it is found that, till September 2016: in the Labour Courts of Bangladesh, 15128 cases were pending among these 11272 cases were pending for more than six months. It is also found that, case filing rate is higher than case disposal rate. As a result backlog and delay in disposal of cases, both are increasing simultaneously, which cause great sufferings to the working masses.
Benefits of solving Labour disputes through ADR: There are many benefits to alternative dispute resolution (ADR), including: Complaints are processed more quickly and resolved earlier, this process leads to more creative solutions , Savings in time of attorneys, staff, and parties who are federal employees, quicker resolution than a hearing would offer and less time that the parties have spent under the cloud of pending litigation, Creative resolutions acceptable to the parties, but which a third-party reviewer could not impose. Thus if ADR is applied before judicial process then matter can be solved earlier and the parties will be satisfied by the verdict as it is not any forced decision on them ,whereas in court it is time consuming, lacking of adequate judge and court overall delays the process in which the workers tends to suffer the most. Thus the prospect of Alternative Dispute Resolution will have effectiveness over judicial process.