Savar tragedy through legal prism
Corporate greed and government inaction
The Savar building collapse tragedy on 24 April 2013 is one of the major human-made industrial accidents happened in succession after the Ashulia Tazreen Fashions factory fire in November 2012. The Savar tragedy not only shocks the conscience of humankind throughout the world, but also solicits our attention, assaults our moral propriety, and offends our sense of justice. These tragedies are attributable to certain legal reasons and responsibilities, which are briefly explained below.
Existing law on the occupational safety and health (OSH) of workers
The Labour Act 2006 of Bangladesh covers the safety and security of the workers at workplace. There are plenty of international standards for OSH, such as safety requirements to certain special type of industry, personal protective equipment, protective clothing, safety signs, radiation exposed environment, and the use of electrical appliances. These requirements are not covered by the Labour Act, except only eye protection. Many national laws, such as the Nepalese Labour Act, cover OSH issues in a comprehensive way and the relevant provisions are more specific conforming to the international OSH standards. Bangladesh Act does not use the term 'OSH' and thus the fundamental protective spirit and requirements are missing in the Act. Bangladesh needs to have a separate law to embrace and implement the international OSH standards, perhaps like Thailand, which has a separate OSH law titled: The Safety, Health and Work Place Act (revised in 2011).
Existing compensation provisions and penal sanctions
Employers are liable to compensate for any injury or death caused to workers during the course of employment (Labour Act s150), though the amount of compensation is not clearly defined. The annexed schedule for the calculation of compensation in terms of the per cent of wages warrants articulation like the Labour Act of Nepal, which categorically defines all types of compensation in legal provisions such as compensation against injury, compensation in cases of grievous hurt resulting in physical disability, and compensation in cases of death. In cases of compensation for death, the amount is equivalent to the three years wages or remuneration.
Section 309 of the labour Act 2006 states that 'whoever contravenes any provision of this Act or any rules or regulations shall be punishable with imprisonment for any term' up to four years or with fine of up to one lac taka or both if the such contravention results in death. If it results in bodily injury for any term, the punishment is the maximum imprisonment of two years or fine of up to ten thousand taka. These penal sanctions are grossly inadequate and do not correspond to the gravity of the offence.
Non-enforcement of the right to work in safe environment and compensation
Social compliance under multi-stakeholder codes or buyer company codes is limited to large scale companies. Big European, North American, and Australian multinational retailers offer lowest possible price forcing local producers to cut costs in industry maintenance and OSH. Yet they always shrug off their responsibility to local sub-contractors whenever disasters occur. Self-regulation by the RMG industry has never been sincere and effective. It is used as a convenient tool to minimise costs and maximise profits. The Lack of government initiatives and obligation to ensure OSF standards for workers is evident from its non-ratification of ILO Convention on OSH. The OSH inspection system under the Labour Act is poor, reportedly understaffed, and corrupt that cuts corners of legal requirements. There is no specialised governmental department to deal specifically with OSH. Penal sanctions for the violation of OSH requirements are negligible for industrial tycoons, who manage to ignore the OSH requirements with impunity often under political patronage and cover-up.
Impediments to active trade unionism in RMG
The governments are less worker-friendly and more owner-biased, as owners are seen as the creator of employment amid massive unemployment and earners of much needed foreign currencies. Strict trade union registration requirements (such as under the EPZ Act 2004) were an impediment to trade union functioning. These restrictions have been relaxed in a recent Cabinet meeting. Bangladesh has also ratified the ILO Convention on the right to organisation, but the concerned department is yet to embrace and implement the long overdue expansion of trade union practice in RMG.
The owners associations, notably BGMEA and BKMEA, do not promote union practice to maintain employer-workers relation and dialogue in their industrial units; instead they form pliable participation committees to manage industrial relations to their advantage. Their role is thus a part of the problem as they are stakeholder in the vested interest of the industry. They are not meant and expected to be representing the interests of the workers. Most of the trade union leaders are not from the workers, particularly in RMG. They are like mercenaries and grab leaderships politically as conduits of different political parties' influence on the workers. There is no effective workers representative body. As such, existing workers organisations are more political than the representative of the workers. As a result, there is hardly any serious pressure to be brought to bear on government and owners to improve working conditions of labourers who are mostly powerless and voiceless.
The consequence this corporate greed boosts the profit-margins, the rate of return from investment, and bargaining power of the owners and foreign retailers. Chronic unemployment and highly competitive job markets have resulted in the lower wages, inferior working conditions, inadequate OSH, suppression of legitimate rights, and erosion of collective bargaining power of the workers.
Government responsibility and inaction
Workers' right to OHS is a core human right under the ILO Convention on Occupational Safety and Health 1981, the ILO Convention 187: Promotional Framework for OSH 2006, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 ( Art 7:b). Bangladesh is a signatory of both ILO Conventions (not ratified) but has ratified the ICESCR under which the government is obliged to provide 'effective remedy' under Article 2 for the violation of Article 7(b).
The Labour Act deals with safety of building and machinery (s 61-62), authorising the Inspector/Chief Inspector for Labour to order the employer to provide necessary OSH arrangements, such as means of escape, connecting stairway with each floor, and active fire-fighting apparatus. The Inspector is authorised to serve notice on the employer in writing prohibiting the use of any machineries and/or buildings dangerous to the workers until they are properly repaired. The Building Construction Act 1952 is still in force and its s3A(1) states that no owner or occupier of a building shall, without obtaining previous permission from authorised officer or the committee, use the building for the purpose other than mentioned in the approved building plan. If a building is used for purposes other than the authorised one, the responsible government office is mandated to issue a written order directing the owner/occupier/person in charge of the building to discontinue such use and dismantle the building. The Labour Act (s323) also prescribes that the government constitutes a council, to be called the National Council for Industrial Health and Safety, to prepare national policy for ensuring safety in industrial establishments and maintaining healthy and hygienic working conditions and to frame guidelines for implementation of its policy. This Council is yet to be established.
Suggestions for improvement
The forming of an independent body/agency to look after OSH with mandate for periodic inspections, monitoring, and reporting system may be a viable option. Trade unionism led by workers' representatives needs to be strengthened. The existing Labour Act is to be revised to articulate and raise in conformity of international OSH standards (a) the standards of OSH, (b) the amount of compensation for specific injuries or deaths, and (c) penal provisions for non-compliance. Negligent manslaughter under corporate criminal responsibility may be introduced like Australia. Multiple checks for ensuring OSH standards may be introduced through (a) industrial licensing requiring the examination of workplace building construction in terms of its safety and security; and (b) the requirement of obtaining environmental clearance certificate for the plant/industry under the Environmental Conservation Act 1995. The establishment of the National Council for Industrial OSH with broader responsibility is an immediate necessity. The workers should be given training about the obligations and rights pertaining to OSH at the initial stage of employment.
Permission for industrial/factory operation should not be granted in a commercial building constructed for other purpose. The Building Construction Act 1952 needs to be revised to reflect this requirement. The National Building Code (NBC) 2008 should include mandatory governmental responsibility for inquiry into the construction process and design. The government's belated move only recently at the aftermath of the Savar tragedy to set up an authority to enforce the NBC is a right step, which the High Court had asked the government to set up on 3 November 2011. Reportedly, many existing legal requirements were ignored in the construction of the Rana Plaza in Savar and responsible officials demonstratively failed to perform their statutory and administrative duties. All those responsible should be brought to justice as a deterrent to avert future tragedies. Given the significance of RMG in the GDP growth, the government is better off by being pro-active in addressing the perilous working conditions that touch the boundary of slave labour and in averting mind-boggling successive industrial tragedies.
The author is a professor of Law at Macquarie University, Sydney, Australia.
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