Status of worker and applicability of Bangladesh Labour Act, 2006
Bangladesh is an emerging industrial country expecting to reach its goal to be an industrial nation by the end of this decade and the main fuel of this enterprise is our cheap labour. Unlike any other country, we are also building our industry depending on our workers.
Generally, the therm worker or labour provides an image of a straggling man in a factory, it is true that a large number of worker lives under such situation but at the same time, there are a number of white-collar jobs and a growing middle class who do not recognize themself as labour or worker in the eye of the society.
Now as a layman the question arises, “will they fall into the definition of worker?” furthermore, the following questions also pop into the mind of a rational person “what would be the status of a contractual worker?”, “What is the status of day labourer or contractor?”
Who is a worker?
To find these answers we must look into the Bangladesh Labour Act, 2006 as that is the key instrument that provides the rules and regulations relating to labour and worker. If we look into the Bangladesh Labour Act, 2006 we can find that the term “worker” is defined under section 2 (65) of the law. It articulated,
‘worker’ means any person including an apprentice employed in any establishment or industry, either directly or through a contractor, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include a person employed mainly in a managerial or administrative capacity;
Analyzing this definition, it can be said that a person is a worker when he is employed in an establishment or an industry; appointed for the job directly or through a contractor to do any skilled or unskilled job, or to do any manual, technical or clerical job despite the status of his terms of employment, it could be expressed or implied contract. But in the end, it provided that any person employed mainly in a managerial or administrative capacity shall not be considered as a worker.
Surely, this section made few things clear that any person who is employed whether doing physical job or any other skilled job or technical job he will be considered as a worker despite their employment procedure. but at the same time, it also creates new confusion as to managerial or administrative capacity and what is the definition of those terms.
In order to interpret a law, the established principle is to read law as a whole not only the definite part of the law. Keeping that in mind section 2 (28) can be addressed, it defined the term administrative worker. It provided,
‘administrative worker’ means a person who is employed on a whole-time basis in, or in relation to, any newspaper establishment in any capacity other than that of a working journalist or a newspaper press worker;
But this section is specifically applicable in relation to any newspaper establishment therefore it is not the definition that we are looking for.
At this point, we can also look into the classification of the worker. According to section 4 of the Bangladesh labour act, there are 7 classes of worker as per law.
Classification of worker under labour law. 2006
A worker shall be called an apprentice if he is employed in an establishment as a learner, and is paid an allowance during the period of his training.
Badli / Substitute worker
A worker shall be called a badli / Substitute if he is employed in an establishment in the post of a permanent worker or of a probationer during the period who is temporarily absent.
A worker shall be called a casual worker if his employment in an establishment is of casual nature.
A worker shall be called a temporary worker if he is employed in an establishment for work which is essentially of temporary nature and is likely to be finished within a limited period.
A worker shall be called a probationer if he is provisionally employed in an establishment to fill a permanent vacancy in a post and has not completed the period of his probation in the establishment.
A worker shall be called a permanent worker if he is employed in an establishment on a permanent basis or if he has satisfactory completed the period of his probation in the establishment.
A worker shall be called a seasonal worker who is employed in an establishment for seasonal works, for a particular time of year. Under section 328 of the Bangladesh Labour Act, 2006 government may declare any factory as a Seasonal factory that runs not more than 180 days in a year. The government may also provide special or specific labour rule for that factory or that industry under section 250 of the Act.
Interestingly after all these discussions, it’s being more difficult to find the visual difference between worker and non-worker employee moreover the status of contractual worker is also very elusive. In such a situation, we must follow the judgment of the Supreme Court of Bangladesh because according to Article 111 of the Bangladesh Constitution precedent acts as law and lower court are bound to follow them.
In Managing Director, Rupali Bank Ltd. Vs. Md. Nazrul Islam Patwary & Others, It is held that “The term “worker”, contemplate not only a person to be employed in the work for productive purposes in any commercial or industrial establishment but also embraces a person who on being employed does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment is express or implied. But a person does not come within the category of “worker” who is employed mainly in a managerial or administrative capacity: or who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature.”
It is further cleared that where a person holds an ornamental managerial position but de facto works as a worker he shall be treated as a worker. As held by Uttara Bank Ltd Vs. Shahabuddin Khan
Last but not list an Indian case can be used as a general guiding principle to decide on the question that who is a worker and who is not. Shankar Balaji Waje vs the State Of Maharashtra cited at 1962 AIR 517 held that, where a person can do his job according to his wish and where there is no strong restriction from the employer, then that person shall not fall under the definition of worker [for labour benefit].
Kinds of Worker
Based on the above reference we can simplify and narrow down the status of an employed person to provide a general structure
- Worker / Permanent worker
A person who is employed by another person or institution for any kind of work which does not provide him sole managerial or administrative power is a permanent worker. It also includes apprentice worker, substitute worker, casual worker, Probationer worker.
These workers get the full benefit of the labour law as a permanent worker.
- Temporary worker
All temporary worker where nature or job is temporary, no permanent post is required are temporary worker, a seasonal worker is also a temporary worker.
These workers get partial benefit from the labour law.
For example, they do not get pension, compensation or gratuity benefit like a permanent worker.
It must be remembered that where any person falls under the definition of worker he must file his job related to a labour court.
Who is not a worker
Any person who does not fall in the above category, and;
- who is employed mainly in a managerial or administrative capacity; or
- who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to office or by reason of power vested in him, functions mainly of managerial or administrative nature. Or
- who does not require maintain any rules and regulation of the employer and who is free to work according to his own motion
Shall not be considered as a worker and he shell not get any benefit under the Bangladesh Labour Act, 2006.
The term “Worker” is the precondition to proceeding under the Bangladesh Labour Act, 2006 which is enacted to provide fair and proper treatment of workers who are otherwise vulnerable to the economic and muscle power of their employer. In order to get the benefit of labour law, a person must prove that he is a worker under the definition of labour law. I hope this article shall render assistance to prove and understand the status of a worker.