At a recent conference in Dhaka a panel had been organized on the human resources management and applications of employment and labour laws. One from the participants came up with a question- whether an executive is a worker?
The questioner was reportedly from a senior manager working for a big establishment employing thousands of employees and workers.
Given the ‘sensitivity’ of answering such questions ‘in public,’ the panelist (including three lawyers among the six) seemingly decided to remain reluctant in responding to the question and remained between ‘yes’ and ‘no’. That made the question unaddressed indeed.
The Bangladesh Labour Act, 2006 (with amendment in 2013) (BLA thereafter) provides a general definition for a worker. According to section 2(65)- a worker would include any person including an apprentice employed in an establishment or industry and doing any kind of skilled, unskilled, manual, technical, trade promotion or clerical works; however, the work has to be done for a wage or reward. The conditions of the employment could be expressed or implied. Again, a worker could be employed directly by the employer concerned or through a contractor.
However, any person employed mainly in a managerial, administrative or supervisory capacity would not be a worker, as per the BLA.
For the purposes of any proceeding in connection to industrial relations (under chapter XIII of the BLA), a worker would also include a person who has been laid off, retrenched, discharged, dismissed or otherwise removed from his her employment in connection with or as a consequence of such a dispute.
These are general definitions of workers, however, it could hardly and should be generalized. Whether someone is a worker or not it depends on the job descriptions concerned and particular works he or she is mainly performing.
Who is a worker?
Along with the statutory definitions case laws have set criteria for determination of who would be a worker- which heavily emphasis not on the mere designation of the person involved, rather, on the very nature of works of the individual concerned. Also, the extent of the authority of the individual is to be taken into consideration for determining whether someone will be a worker or not.
The case laws suggest that to be a worker (or workman in Indian context), one has to satisfy following conditions- shall be a person employed in an industry for hire or reward, and be engaged in skilled or unskilled manual, supervisory, technical or clerical work.
From the legal point of view, designation is not the only criteria for determination of whether an individual would be a worker or not. It is always what are the primary duties of the person concerned in a given context [Lloyds Bank Ltd., New Delhi vs. Panna Lal Gupta, AIR 1967 SC 428: (1961) I LLJ 18]. It has to be considered from case to case basis.
In a case, Managing Director, Contiforms Forms Limited vs Labour Appellate Tribunal, Dhaka [50 DLR (1998) 476 (482), the Respondent No. 3 was a Sales Assistant and was transferred as a Production Manager, and subsequently was again transferred to the head office (of the company) as a Sales Assistant. The Honourable High Court Division, of the Supreme Court of Bangladesh, in agreement with the decision of the Labour Appellate Tribunal, had confirmed that the Respondent would be a worker. Here the designation was not taken into consideration, rather works performed by the individual were taken into consideration.
In the case, Mehdi Hassan vs. Bangladesh [19 BLC (2014) 472 (488) (para 50) it was held that a person does not cease to be a worker only because of being employed in a supervisory capacity. The considering elements would be whether functions exercised by such a person are mainly of managerial or administrative in nature or not.
Take away
The Bangladesh Labour Rules, 2015 has top up a definition of “Supervisory Officer” [Rule 2(g)] which reads:
“Supervising officer” means any person who has been authorized in writing by the employer or management, who shall, for the sake of such power, determine the target of any work or service, control the workload, control the implementation activities, evaluate or review the work, give instruction or supervise to the workers of any section of the factory or establishment.
There is fear among the trade union movements that introduction of such a definition would contribute to ‘exclude’ a good number of employees from the spectrum of workers.
The attempted trend is phenomenon while it has been seen that the security guards (who are responsible for security screening at entrance) at the hospitals of a renowned group of companies (at Panthapath area in Dhaka) are designated as “Client Relations Associates”!
Allegedly there are misconceptions that if someone is not covered within the definition of a worker then he or she would not be able to enjoy rights to freedom of association including joining a trade union and collective bargaining thereof.
However, case laws suggest the opposite- mere designation of employed persons are not determining factors whether someone would be fallen within the definition and parameter of workers or not.
The definition of the same would not be a qualifying element to brand someone as a worker or not. Rather the determining elements would be what the primary duties of the individual concerned are.
Let us look into another case law [Indo Pak Corporation vs. Chairman, Labour Court, 21 DLR (1969) 285 (286) (para 6)]:
The main job of the Respondent was to maintain accounting in the head office, and occasionally he was made by the authority to sign cheques jointly with the manager concerned. From the appointment letter it was clear that he was not appointed to either as an administrative officer or to a managerial office to an office which can be said to be a supervisory in nature.
The Court held that merely signing of cheques (by the respondent) along with a manager, under the orders of the authority if and when necessary, would not give him the status of either of an administrative manager or of a manager of an office with supervisory powers.
So, given the above-mentioned discussions, whether an executive would be a worker or not it needs to be taken into consideration his/her main duties performed during a given period of time. Also, it can’t and should not be generalized, rather it has to be seen from case to case basis, and be taken into consideration given the job description concerned and the spectrum of actual duties only performed by the individual.
Even being employed in a supervisory capacity, an individual could be a worker (or does not cease to be a worker), unless functions exercised by such a person are mainly of managerial and administrative nature. [Mehdi Hasan vs Bangladesh, 19 BLC (2014) 472(488).]
Hence, while someone would a worker or not in a given context that should not be concluded merely based on an individual perception, whim, and vested interest thereof, rather it should be evaluated on a case to case basis and taking into consideration the related contexts and legal and judicial points of view.
Analyzed and contributed by the Legal Practitioners specializing on the labour laws of Bangladesh and industrial relations. Contact for further query and comments: thelawyersbd@gmail.com
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