Labour law failing to ensure justice and compensation for workers killed and injured at the workplace: Study

According to a recent study conducted by Bangladesh Legal Aid and Services Trust (BLAST), the labour law of Bangladesh is failing to ensure justice and compensation for workers killed and injured at workplaces throughout the nation.

The report titled "Tire Them Out: Challenges of litigating compensation claims under the Bangladesh Labour Act 2006", authored by BLAST Research Specialist Taqbir Huda, showcased the findings of  80 compensation cases under the Bangladesh Labour Act 2006 Labour Courts where BLAST (in collaboration with Safety and Rights Society, and, OSHE Bangladesh) has represented claimants or sued on their behalf.

The paper was launched via a webinar organised by BLAST on Thursday, said a press release.

According to the study findings, out of these 80 cases, the Labour Court ordered compensation in 35 cases, while it rejected the claim in 36 cases. In the remaining 9 cases, the parties reached an out of court settlement before the Labour Court could pronounce a judgment.

The study shows that Long litigation periods, employer non-compliance and long distances from courts have hindered the worker's path to attaining justice. The study also found that delay in payment on the part of the employer and at the non-payment cases have also been found despite the court orders.

In regards to the study, the author Taqbir Huda said: "This report has been an attempt to expose the failure of our labour laws in ensuring justice for workers deaths and injuries. Non-compliance on part of employers with Labour Court orders cannot and should not be the norm. As we pride ourselves on becoming a middle-income country, we must also invest in ensuring employment injury insurance, which is a basic component of social security. The national employment injury insurance in line with ILO Convention No 121 must replace the existing group insurance scheme under labour law, but victims must retain the right to sue employers for compensation in Labour Courts since it is their negligence that usually causes the injury or death of a worker."

General Secretary, Bangladesh Trade Union Centre and Joint Secretary General, Bangladesh Institute of Labour Studies (BILS) Dr Wajedul Islam Khan, said, "Merely doubling the amount of compensation fixed in law (as was done in 2018 Amendment) can never be the solution. Calculating compensation based on the total loss of earnings, pain and suffering of the victims etc. is the only rightful way. The duty to compensate should also extend to those who benefit from the profit derived from the workers' labour, alongside the employer."

AKM Nasim, Advocate, Supreme Court of Bangladesh and Deputy Country Director, Solidarity Center Bangladesh said "The findings of the report, while harrowing, confirm something we have known for years. That the compensation framework is miserably failing workers. Labour law requires immediate reform. For instance, an alternative dispute resolution can be incorporated to speeding up the claims process. An employment injury insurance in line with international labour law must also be introduced. However, any reform of the labour law must be a tripartite effort - where workers representation is ensured."

Sara Hossain, Honorary Executive Director, BLAST said: "The findings of the report show that when victims of injustice such workplace deaths and injuries seek justice in Labour Courts they are subjected to another set of injustices, whereby continuing the court case becomes an extremely costly endeavour. This is precisely why an employment injury insurance scheme is the need of the hour, so victims have speedy recourse to compensation. Additionally, extending the operation of virtual courts throughout the justice system, such as to Labour Courts, instead of keeping it limited would go a long way in addressing the challenges and costs specific to a physical court system."

Sunzida Sultana, acting executive director, Karmojibi Nari said "As the report has shown, the fixed amount of compensation is leading to injustice. Compensation can never be fixed. ILO and other organisations are attempting to introduce the Employment Injury Insurance system in Bangladesh, but the employers' disinterest is obstructing the process. Additionally, ensuring freedom to form trade unions in all sectors can also be an important step to ensuring speedy recovery of compensation for workers from all occupations."

Dr Kamal Hossain "We need to remove the existing limit on compensation in our labour law so victims receive adequate relief. A national database needs to be established which tracks the number of workers killed and injured at the workplace across the country, and also tracks whether they have been given compensation or not. I hope these reform proposals presented in this research report will play an important role in informing the ongoing labour law reform process and those working to ensure labour rights."

Long litigation periods and non-compliance by employers result in delayed injustice

According to the study, labour courts took 630 days on average to award compensation compared to the 60-day time limit mentioned in labour law resulting in long litigation periods

Employers often do not comply with Labour Court orders to compensate for workers deaths and injuries, delaying the justice process even further.

The study also found that in cases where compensation was not pre-deposited by employers, on average they took up to 475 more days to pay compensation from the date of the Labour Court order, despite the Court usually ordering them to pay the compensation within 30- 45 days. In 16 out of 35 cases where the Labour Court ordered compensation, the employers are yet to pay compensation despite between 3 to 10 years have elapsed from the date of the judgment ordering compensation.

The average distance between the victim's home upazila and Labour Court was 201 KM, meaning they had to incur long and costly journeys to attend court hearings.

The long-distance to Labour Courts taken together with the long litigation period and seemingly endless wait to receive compensation means that victims incur high transport costs and lose faith in getting justice.

Remove limits on compensation and introduce employment injury insurance schemes

In the study, it was urged to amend the 5th schedule to the BLA, so the existing statutorily capped lump sum amounts, which are extremely inadequate and arbitrary, are treated as the minimum amount of compensation payable in the event of death or permanent disablement.

The report also urged to introduce a provision in Chapter XII of the BLA that obliges Labour Courts to follow basic principles of damages assessment in tort law (e.g. factoring in the age and loss of earnings of the worker, number of dependents etc.) when adjudicating compensation cases under the BLA.

It has also been urged to ratify ILO Conventions No 102 and 121 and establish an "Employment Injury Insurance scheme" in place of the group insurance system while preserving workers' rights to sue employers in cases of negligence.

Introduce strict monitoring mechanisms and increase the number of courts

The BLAST study also suggested the introduction of a strict monitoring mechanism to ensure timely disposal of Labour Court cases in line with the statutory limit and stipulate disciplinary consequences if the limit is breached, so it is more likely to have a binding effect in practice.

It has also been urged to increase the number of labour courts and introduce training programmes for labour court judges, focusing on the basic principles of employer liability for workplace injuries and deaths.

The study also urged the authorities concerned to issue a circular to all labour courts, which specifically requires labour courts to order interest to accrue in cases of late payment of a compensation award to incentivise timely compliance.