Limitations of BLA in compensating workers for death and injury

Undesirable events like building collapse and fire incidents in various establishments have been a prevalent menace in Bangladesh. Hundreds of workers have lost their lives and many have developed disabilities due to such incidents, driving their families to a state of helplessness. 

A report published by the Bangladesh Occupational Safety, Health and Environment Foundation (OSHE) says 266 workers sustained injuries and a further 945 lost their lives in their workplaces in various sectors in the country in 2019. 

The report further shows deaths in the informal sector continue to be dominant with 676 deaths, while 269 deaths were reported in formal sector in the same year. Earlier, in 2018, altogether, 898 workers died and 341 were injured in their workplaces from all over the country.

In 2017, a report published by the International Labour Organisation (ILO) estimated that over 11,000 workers suffer fatal accidents and 24,500 die from work-related diseases across all sectors each year in Bangladesh.
It appears that majority of those tragedies occurred due to negligence, non-compliance, or ineffectiveness of the stakeholders. It is internationally recognised that most of the occupational deaths and injuries could be avoided if the employers and workers maintained simple safety measures in workplace. 

Though under the Bangladesh Labour Act (BLA) 2006 (as amended in 2018), an injured or deceased worker's heirs are entitled to compensation, the amount is woefully inadequate. 

Additionally, BLA compliance mainly focuses on workers employed in the formal sectors. Thus, a number of workers employed in informal sectors remain outside the ambit of the act due to its implementation factor.

Moreover, most of the workers are unaware of the fact that they can file a suit for damages under the Fatal Accidents Act (FA act) 1885 and receive adequate damages from the employer since the legislation is enacted in order to recover damages for the death of a person caused by wrongful act, neglect or default of another person. The nature of the legislation belongs primarily to the realm of tort.

The FA act provides that on the death of a person caused by the "wrongful act, neglect or default" of another person, a beneficiary, i.e., wife, husband, parent and child, if any, of the deceased can maintain an action for damages, if "the wrongful act, neglect or default" is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof. 

Two conditions need to be fulfilled to file a suit under the FA act. One is that the death of a person must be caused by a wrongful, neglect or default of another person. The second condition is that the wrongful act, neglect or default must be such as would have entitled the person injured to maintain an action and recover damages in respect thereof if death had not ensued.

The BLA prescribes that a worker is entitled to compensation in case of injury caused in the course of employment and in case of workplace death, the deceased's beneficiary is entitled to compensation. Therefore, if any wrongful act, neglect or default on the part of employer causes death of a worker, the deceased's beneficiary can invoke the jurisdiction of appropriate court to file a suit claiming damages under the FA act.

The FA act provides that a beneficiary can receive damages under two broad heads. One is damages, generally asked by the family members of the deceased, for pecuniary loss suffered by certain members of the family of the deceased as a consequence of death. Another, pecuniary loss resulting to the estate of the deceased, such action may be brought by different persons such as mortgagees, creditors etc. 

The two claims are based upon different causes of action and the claimants would be entitled to recover damages separately under both the heads but no claimant can recover twice over the same loss. 

However, the act does not prescribe any regulation for calculating damages. Thus, courts use its discretion to award damages. In a tort case, Bangladesh Beverage v. Rowshan Akhter (69 DLR 129), filed under the 1885 Act, the High Court Division of the Supreme Court of Bangladesh awarded damages for both calculable and non-calculable losses. 

The court observed that loss of dependency can be quantified but compensation for pain, suffering, agony and loss of expectation of life can only be in lump sum and not on calculation. It awarded the beneficiaries approximately Tk170 lakh.

On the other hand, the labour court established under the BLA has no scope to consider the factors, e.g., past or future earning, loss of dependency, etc. while paying compensation. The compensation is generally deposited to the labour court by the employer and the court provides the same to the beneficiary. 

The maximum amount of compensation which can be recovered by the beneficiaries of a deceased worker is fixed and the amount is Tk2 lakh. It, however, is pertinent to mention that, a beneficiary is not entitled to recover damages under the FA act if he recovers compensation under the BLA and vice versa.

Furthermore, another legislation, the Rights and Protection of the Persons with Disabilities Act 2013 (2013 Act) provides, "If disability occurs while in service, to continue in service, or to get appropriate rehabilitation or adequate compensation." Though this clause emphasises employment of the workers who have acquired disability, BLA affords employers a great deal of discretion in discharging such workers. 

Under the current labour legislation, a worker may be discharged on mere apprehension of diminished productivity even if in reality, the worker is capable of discharging his duties.

Additionally, Section 35 of the 2013 Act provides that despite being qualified for a position, which is suitable for a disabled person according to the type of disability, no disabled person shall be deprived of or discriminated against in getting such position. 

It adds that if any question arises as to whether any position is suitable for any disabled person, the National Coordination Committee shall provide necessary instruction and the instruction provided by the National Coordination Committee shall be final. 

However, the 2013 Act does not prescribe what measures should be taken by any person if he feels aggrieved by the decision of such committee.

Another aspect of the clause is rehabilitation of disabled persons. The disability act prescribes to ensure rehabilitation, but it does not detail out the instrument of rehabilitation. BLA is also silent in this regard. Therefore, it is important to adopt policies regarding rehabilitation of PWDs. 

Factories should adopt their own policies for rehabilitation as they are bound to ensure rehabilitation as per the disability act. Once the policy is adopted, the affected workers will get necessary training with a view to facilitating their return to work in the same or different industry in similar or equal positions.

Apart from these issues, another contemporary concern in the labour sector is the pandemic and its consequences. As per the order of the government, all factories remained closed for almost three months and now, they have resumed operations. Since it is quite unfeasible to maintain social distance and health rules in factories, workers are being infected by Covid-19, consequently losing their lives, or suffering from post-pandemic health complications. 

The BLA only recognises workplace deaths and diseases stipulated in the act. Given that current situation, would the stakeholders consider providing health benefits to the workers who are victims of the pandemic? The question is yet to be addressed.

In conclusion, we can say that with regards to compensation for workplace death and injury, a number of limitations are present in the BLA and therefore, the rights of the workers are not fully protected. Hence, it is high time to look into the matter and take immediate steps to amend the labour act in line with other laws available as discussed above.

Atiya Marzia studied Bachelor of Laws at North South University and is currently working as a labour law researcher