DISCRIMINATION IN THE LABOUR MARKET OF BANGLADESH &

INTERNATIONAL STANDARD

By

Md. Mohiuddin Ahmed Khan

ID No. LLB 03005956

A thesis submitted in partial fulfilment of the requirements of the degree of

LL.B. (Honours)

Stamford University Bangladesh

Supervised By

Mr. Ahmed Ehsanul Kabir

Lecturer

July 2010

DEPARTMENT OF LAW

STAMFORD UNIVERSITY BANGLADESH

1

DECLARATION

I hereby do solemnly declare that the work presented in this thesis has been carried

out by me and has not been previously submitted to any other institution. The work I

have presented does not breach any copyright.

I further undertake to indemnify the university against any loss or damage arising

from breach of the forgoing obligations.

………………………………………

Md. Mohiuddin Ahmed Khan

ID No. LLB 03005956

Department of Law

Stamford University Bangladesh

2

CERTIFICATION

This is to certify that the thesis on “Discrimination in the Labour Market of

Bangladesh & International Standard” done by Md. Mohiuddin Ahmed Khan in

partial fulfillment of the requirements for the degree of LL.B (Honours) from

Stamford University Bangladesh. The thesis has been carried out under my guidance

and is a record of the bona fide work carried out successfully.

Mr. Ahmed Ehsanul Kabir

Lecturer

Department of Law

Stamford University Bangladesh

3

ABSTRACT

This dissertation deals with the existing discrimination in the labour market of

Bangladesh and International Standard to eradicate that discrimination. It tries to

investigate the discrimination in the garments and industrial sector regarding wage,

working hours, bonus, leave, health and any other facilities provided by the work

place between male and female worker. The present thesis also deals with the legal

instruments available in both national and international arena to safeguard the rights

of worker. Finally, I have given some necessary recommendations to protect the

rights of workers and the ways to eliminate discrimination from the labour market of

Bangladesh.

4

ACKNOWLEDGEMENTS

All praises are due to the “Almighty” Who is supreme authority of this

universe who enabled me to complete the research work and writing up the

thesis for the degree of Bachelor of Law (Honour’s).

The author is immensely grateful to all of them who have given guidance,

help and co-operation during the tenure of the study. Although it is not

possible to mention every one by name, it will be an act of ungratefulness if

some names are not mentioned here. I would like to acknowledge the untiring

inspiration, encouragement and precise guidance provided by my respected

teacher and Supervisor Mr. Ahmed Ehsanul Kabir, Department of Law,

Stamford University Bangladesh. His constructive criticisms, continuous

supervision and valuable suggestions were helpful in completing the research

and writing the manuscript.

I take the opportunity to express my appreciation and hearties thanks to

my entire respected teachers of the Department of Law for their proficient

teaching and helpful advice.

………………………………………

Md. Mohiuddin Ahmed Khan

ID No. LLB 03005956

Department of Law

Stamford University Bangladesh

5

ABBREVIATIONS

A.D : Appellate division.

Art : Article.

AIR : All India Report

B.L.D : Bangladesh legal Decision.

Ch : Chapter.

Cl : Clause.

Cls : Clauses.

CR.P.C : Code of Criminal Procedure.

DLR : Dhaka Law Report

EU : European Union

Ed : Edition

H.C.D : High court division.

ILO : International Labour Organizations

NGO : Non Governmental Organization

P : plaintiff.

P : page.

PC : penal code 1860.

RMG : Ready made Garments

Sec : Section.

Secs : sections.

S.C : supreme Court.

VOL : volume.

V. : Versus

WTO : World Trade Organization

6

TABLE OF CONTENTS

Page No.

Acknowledgements v

Abbreviations vi

Chapter 1

INTRODUCTION

1.1 Introduction 1

1.2 Definition 2

Chapter 2

HISTORICAL BACKGROUND

2.1 History 10

2.2 Types of Worker 10

2.3 Theory of labour Market 11

2.4 Considerations 11

2.5 Benefits 12

Chapter 3

INTERNATIONAL PERSPECTIVE

3.1 Discrimination in labour Market in International Standard 13

3.2 Economic Impacts of Labour Market Discrimination 13

3.3 Comments of Discrimination 19

3.4 Why does discrimination occur in the labour market 19

7

3.5 What factors explain the gender pay gap in the UK 21

3.6 Government Intervention to reduce the gender gap 22

3.7 The ILO Conventions on Discrimination & Equal Remuneration 23

3.8 An Overview of the ILO Conventions 23

3.9 The UN Convention on the Rights of the Child 25

3.10 What the Treaties say on discrimination in the Workplace 25

Chapter 4

BANGLADESH PERSPECTIVE

4.1 Background (Coverage for women Industrial workers under the labour Laws of

Bangladesh) 34

4.2 Safety, Welfare, health and other terms and conditions of Employment: The

Bangladesh Labour Code, 2006 35

4.3 Working hours Overtime and Leave 36

4.4 Health and Safety 38

4.5 Welfare for Workers 39

4.6 Cognizance of Offence and penalty 40

4.7 Wages and Deductions 40

4.8 Wages Standardisation 42

4.9 Protection for Trade Unionists 42

4.10 Gender Equality, Competitiveness and Expert performance in the Garments

sector of Bangladesh 43

4.11 Labour Market Discrimination against Women - at home and abroad 50

4.12 The ILO Conventions on Discrimination and Equal Remuneration: A Legal

Review of Its Impact and Implications in Bangladesh 50

4.13 An Overview of the ILO Conventions Concerning Discrimination and the equal

remuneration for Men and Women for the Work of Equal Value 51

4.14 Ratification of the Conventions Concerning Discrimination 52

Chapter 5

RECOMMENDATIONS 53

8

Chapter 6

CONCLUSION 55

REFERENCES

9

Chapter 1

INTRODUCTION

1.1 Introduction:

People of colour, women, lesbian, gay, bisexual and trans-gendered (LGBT) people,

aboriginal people, and people with disabilities face many different forms of

discrimination in the workplace. It ranges from being excluded from social activities

to harassment. From being the last to know about training opportunities to being

denied the opportunity to do a job that you are qualified for. This section of the

workbook will look at one aspect of that discrimination - the economic impact. Our

experience in the labour market depends on the combination of our sex, our race and

our disability status. It is difficult to show the complexity of our experience with

numbers. Forms of discrimination overlap and multiply in ways that any one statistic

is unable to show. Furthermore, the qualitative experience of discrimination - how it

feels - is not captured by numbers. What the information below does show is the

economic impact of discrimination in the workplace. The experience of

discrimination and the way that it occurs varies among equality-seeking groups. For

people with disabilities, many barriers prevent them from entering the labour market.

Other groups feel the effects of discrimination by how difficult it is to get a job, and

which workplaces and jobs they find themselves in. However, the end result is similar

— discrimination hits people economically. It leads to lower wages and less money to

live on for people and their families. Unions are important are to equality seeking

groups. From a strictly bottom-line economic point of view, union’s help workers to

increase average wage rates, and close the wage gap.

10

1.2 Definition:

1.2.1 Labour:

a social class comprising those who do manual labor or work for wages; "there is a

shortage of skilled labor in this field". Labor- Childbirth, the aptly-named experience

of delivering the baby and placenta from the uterus to the vagina to the outside world.

There are two stages of labor. During the first stage (called the stage of dilatation),

the cervix dilates fully to a diameter of about 10 cm. In the second stage (called the

stage of expulsion), the baby moves out through the cervix and vagina to be born. The

first stage of labor, the time when the cervix dilates, is conventionally divided into

two phases: The latent phase -- Contractions become progressively more coordinated

and the cervix dilates to 4 cm. The latent phase averages about 8 hours in a nullipara

(a woman having her first baby) and 5 hours in a multipara (a woman with multiple

pregnancies). This phase is considered distinctly abnormal if it lasts more than 20

hours in a nullipara or more than 12 hours in a multigravida. The active phase -- The

cervix becomes fully dilated and the presenting part of the baby descends into the

midpelvis. The active phase averages about 5 hours in nulliparas and 2 hours in

multiparas.

The second stage of labor, the time from full cervical dilation to the delivery

of the baby, lasts on the average 2 hours in nulliparas and l hour in multiparas. It may

last an additional hour if there is an epidural in a spontaneous delivery, the woman

must supplement her uterine contractions by bearing down. In Latin, the

word labor means "a troublesome effort or suffering." Parturition is another term for

"labor." It comes from the Latin parturire, "to be ready to bear young" and is related

to partus, "to produce." To labor in this sense is to produce.

1.2.2 Wages:

The issue of wages is also central for women workers. Studies have been shown that

they are often lowly and irregularly paid and subjected to discrimination by way of

11

less pay than their male co-workers.1 The primary purpose of the payment of Wages

Act, 1936 is to require employers to make timely payments of wages to workers.

Thus in the case of the workers sustaining hardship arising out of non-payment of

wages, or any unreasonable delays in payment may seek respite under this statute.

The basic rule, is that the ‘employer shall be responsible for the payment to persons

employed by him of all wages required to be paid under this Act’.2 ‘Wages has been

defined as:

‘...any bonus or other additional remuneration payable as per the terms of

employment or any remuneration payable in respect of holiday, leave, or overtime or

any remuneration payable under order of any court or under any award or settlement

between the parties or any sum payable under this Code or any agreement by reason

of termination of employment whether by way of discharge retrenchment retirement,

removal, resignation, dismissal or any sum payable due to lay-off or suspension…’3

It was held in the case of Arvind Mills Ltd. v. K R Gadgil, that the term

‘wages’ as defined in this section means wages actually earned and not potential

wages. It means remuneration payable on fulfillment of the contract.4 It has also been

held that all remuneration due to a worker for overtime work falls within the

definition of wages under the Act. Unpaid overtime wages of the worker was held to

have been a case of illegal deduction.

1 Nazma Begum, Women workers Statutes in Bangladesh: A case of Government Work, (Dhaka: Women for Women, 2002), p. 2022 The Payment of Wages Act, 1936, s. 3.3 The Bangladesh Labour Code, 2006, s. 1204 AIR (1941), Bom., 26.

12

1.2.3 Discrimination:

In plain English, to "discriminate" means to distinguish, single out, or make a

distinction. In everyday life, when faced with more than one option, we discriminate

in arriving at almost every decision we make. But in the context of civil rights law,

unlawful discrimination refers to unfair or unequal treatment of an individual (or

group) based on certain characteristics, including: Age, Disability, Ethnicity, Gender,

Marital status, National origin, Race, Religion, and Sexual orientation.

Discrimination in employment and occupation has been prohibited by the

discrimination (Employment and Occupation) Convention (No. 111). Article 1,

paragraph 1(a) of the Convention defines that discrimination as— “Any distinction,

exclusion or preference made on the basis of certain criteria which has the effect of

nullifying or impairing or equality of opportunity or treatment in employment or

occupation”. This purely descriptive definition contains three elements—

i) A factual element (the existence of a distinction, an exclusion or a

preference, without specifying whether this arises from an act or an omission) which

constitutes a difference in treatment; ii) A ground on which the treatment is based; iii)

The objective result of this difference in treatment (the nullification or impairment of

equality of opportunity or treatment).

Racial and Ethnicity discrimination differentiates between individuals on the

basis of real and perceived racial differences, and has been official government policy

in several countries, such as South Africa in the apartheid era, and the USA. In

the United States, racial profiling of minorities by law enforcement officials has been

called racial discrimination. As early as 1865, the Civil Rights Act provided a remedy

for intentional race discrimination in employment by private employers and state and

local public employers. The Civil Rights Act of 1871 applies to public employment or

employment involving state action prohibiting deprivation of rights secured by the

federal constitution or federal laws through action under color of law. Title VII is the

principal federal statute with regard to employment discrimination prohibiting

unlawful employment discrimination by public and private employers, labor

13

organizations, training programs and employment agencies based on race or color,

religion, gender, and national origin.

Title VII also prohibits retaliation against any person for opposing any

practice forbidden by statute, or for making a charge, testifying, assisting, or

participating in a proceeding under the statute. The Civil Rights Act of 1991expanded

the damages available in Title VII cases and granted Title VII plaintiffs the right to a

jury trial. Title VII also provides that race and color discrimination against every race

and color is prohibited.

Age discrimination is discrimination on the grounds of age. Although

theoretically the word can refer to the discrimination against any age group, age

discrimination usually comes in one of three forms: discrimination against youth (also

called adultism), discrimination against those 40 years old or older, and

discrimination against elderly people. In the United States, the Age Discrimination in

Employment Act prohibits employment discrimination nationwide based on age with

respect to employees 40 years of age or older. The Age Discrimination in

Employment Act also addresses the difficulty older workers face in obtaining new

employment after being displaced from their jobs, arbitrary age limits. In many

countries, companies more or less openly refuse to hire people above a certain age

despite the increasing life spans and average age of the population. The reasons for

this range from vague feelings younger people are more "dynamic" and create a

positive image for the company, to more concrete concerns about regulations granting

older employees higher salaries or other benefits without these expenses being fully

justified by an older employees' greater experience. Unions cite age as the most

common form of discrimination in the workplace. Workers ages 45 and over form a

disproportionate share of the long-term unemployed – those who have been out of

work for six months or longer, according to the U.S. Bureau of Labor Statistics. Some

people consider that teenagers and youth (around 15–25 years old) are victims

of adultism, age discrimination framed as a paternalistic form of protection. In

seeking social justice, they feel that it is necessary to remove the use of a false moral

14

agenda in order to achieve agency and empowerment. This perspective is based on

the grounds that youth should be treated more respectfully by adults and not as

second-class citizens. Some suggest that social stratification in age groups causes

outsiders to incorrectly stereotype and generalize the group, for instance that all

adolescents are equally immature, violent or rebellious, listen to rock tunes, and

do drugs. Some have organized groups against age discrimination.

Though gender discrimination and sexism refers to beliefs and attitudes in

relation to the gender of a person, such beliefs and attitudes are of a social nature and

do not, normally, carry any legal consequences. Sex discrimination, on the other

hand, may have legal consequences. Though what constitutes sex discrimination

varies between countries, the essence is that it is an adverse action taken by one

person against another person that would not have occurred had the person been of

another sex. Discrimination of that nature in certain enumerated circumstances is

illegal in many countries. Currently, discrimination based on sex is defined as adverse

action against another person that would not have occurred had the person been of

another sex. This is considered a form of prejudice and is illegal in certain

enumerated circumstances in most countries. Sexual discrimination can arise in

different contexts. For instance an employee may be discriminated against by being

asked discriminatory questions during a job interview, or because an employer did

not hire, promote or wrongfully terminated an employee based on his or her gender,

or employers pay unequally based on gender. In an educational setting there could be

claims that a student was excluded from an educational institution, program,

opportunity, loan, student group, or scholarship due to his or her gender. In the

housing setting there could be claims that a person was refused negotiations on

seeking a house, contracting/leasing a house or getting a loan based on his or her

gender. Another setting where there have been claims of gender discrimination is

banking; for example if one is refused credit or is offered unequal loan terms based

on one’s gender. Another setting where there is usually gender discrimination is when

one is refused to extend his or her credit, refused approval of credit/loan process, and

15

if there is a burden of unequal loan terms based on one’s gender. Socially, sexual

differences have been used to justify different roles for men and women, in some

cases giving rise to claims of primary and secondary roles. While there are alleged

non-physical differences between men and women, major reviews of the academic

literature on gender difference find only a tiny minority of characteristics where there

are consistent psychological differences between men and women, and these relate

directly to experiences grounded in biological difference. However, there are also

some psychological differences in regard to how problems are dealt with and

emotional perceptions and reactions which may relate to hormones and the successful

characteristics of each gender during longstanding roles in past primitive lifestyles.

Unfair discrimination usually follows the gender stereotyping held by a society.

The United Nations had concluded that women often experience a "glass ceiling" and

that there are no societies in which women enjoy the same opportunities as men. The

term "glass ceiling" is used to describe a perceived barrier to advancement in

employment based on discrimination, especially sex discrimination. In the United

States in 1995, the Glass Ceiling Commission, a government-funded group, stated:

"Over half of all Master’s degrees are now awarded to women, yet 95% of senior-

level managers, of the top Fortune 1000 industrial and 500 service companies are

men. Of them, 97% are white." In its report, it recommended affirmative action,

which is the consideration of an employee's gender and race in hiring and promotion

decisions, as a means to end this form of discrimination. In 2008, women accounted

for 51% of all workers in the high-paying management, professional, and related

occupations. They outnumbered men in such occupations as public relations

managers; financial managers; and human resource managers. The China's leading

headhunter, Chinahr.com, reported in 2007 that the average salary for white-collar

men was 44,000 yuan ($6,441), compared with 28,700 yuan ($4,201) for women. The

PwC research found that among FTSE 350 companies in the United Kingdom in 2002

almost 40% of senior management posts were occupied by women. When that

research was repeated in 2007, the number of senior management posts held by

16

women had fallen to 22%. Transgender individuals, both male to female and female

to male, often experience problems which often lead to dismissals, underachievement,

difficulty in finding a job, social isolation, and, occasionally, violent attacks against

them. Nevertheless, the problem of gender discrimination does not stop at transgender

individuals or with women. Men are often the victim in certain areas of employment

as men begin to seek work in office and childcare settings traditionally perceived as

"women's jobs". One such situation seems to be evident in a recent case concerning

alleged YMCA discrimination and a Federal Court Case in Texas. The case actually

involves alleged discrimination against both men and blacks in childcare, even when

they pass the same strict background tests and other standards of employment. It is

currently being contended in federal court, as of fall 2009, and sheds light on how a

workplace dominated by a majority (- women in this case) sometimes will seemingly

"justify" whatever they wish to do, regardless of the law. This may be done as an

effort at self-protection, to uphold traditional societal roles, or some other faulty,

unethical or illegal prejudicial reasoning. Affirmative action also leads to white men

being discriminated against for entry level and blue collar positions. An employer

cannot hire a white man with the same "on paper" qualifications over a woman or

minority worker or the employer will face prosecution.

Caste discrimination: According to UNICEF and Human Rights

Watch, caste dis-crimination affects an estimated 250 million people

worldwide. The Hindu population of South Asia comprises about 2,000 castes.

Currently, there are an estimated 160 million Dalits or "untouchables" in India. The

majority of Dalits live in segregation and experience violence, murder, rape and other

atrocities to the scale of 110,000 registered cases a year, according to 2005 statistics.

An estimated 40 million people in India, most of them Dalits, are bonded workers,

many working to pay off debts that were incurred generations ago.

1.2.4 Remuneration:

17

Remuneration includes the ordinary, basic or minimum wage or salary and any

additional emoluments whatsoever payable directly or indirectly, whether in cash or

in kind, by the employer to the worker and arising out of the worker’s employment”.5

5 Remuneration Convention and Recommendation of ILO, 1951, art. 1, para (a)

18

Chapter 2

HISTORICAL BACKGROUND

2.1 History:

Slave labor, or slavery, refers to individuals being forced to work against their will for

the benefit of someone else. Slaves were not paid for their work and had to face harsh

conditions as well as the threat of death if the work was not completed. Slavery is

prohibited in the United States, as well as in most other countries in the world.

2.2 Types of worker:

Blue-collar workers are those individuals whose jobs consist of physical labor. These

individuals often are paid hourly wages. In the past, these workers were considered to

be less formally educated than other workers, which is not necessarily the case today

at all. Blue-collar jobs include those in factories, plants, mines, construction,

mechanical, maintenance and railroad work. They also include jobs in the service

industries, such as retail or food service. Many blue-collar workers have a great deal

of education and skills and are paid very well. The term "blue collar" originated

during the 19th century, when people who worked these types of jobs often wore blue

shirts or uniforms, which wouldn't show as much dirt, as opposed to wearing white

shirts as other workers wore.

White collar refers to those workers who often work in offices and don't have

to do physical labor. These are thought of as the "shirt and tie" workers. They are also

generally known as earning salaries, rather than hourly wages. These days, white-

collar workers are the dominant working class in America. These workers don't

necessarily always earn higher salaries or great benefits. White-collar jobs include

those as educators, physicians, CEO's, lawyers, accountants, bankers, telemarketers or

19

customer service agents. Accoding to the Act of Bangladesh workers are classified

into 6 (six) categories:6

a) apprentice, b) badli, c) casual, d) temporary, e) probationer; and f) permanent.

2.3 Theory of labour market discrimination:

We can model the effects of discrimination using a simple labour demand and supply

framework.7

It is difficult to be precise about the effects of discrimination in the labour market.

Employers rarely have full information about the productivity of all of their workers,

let alone prejudiced or ignorant views about the relative merits and de-merits of

different groups. Increasingly employers’ organisations along with trade unions are

6 The Bangladesh Labour Code, 2006, s. 47

20

working hard to break down barriers to the employment of different minority groups

and in highlighting instances of discriminatory behaviour.

2.4 Consideration:

Child labor commonly occurs when children perform labor on a regular basis, often

for low wages or no pay at all. In some countries they are forced into doing so, as

opposed to having the opportunity to receive an education. This work varies but often

includes tasks such as assembly, making clothes, cleaning, and selling products. In

some cases child labor forces children into prostitution or military work.

2.5 Benefits:

Organized labor refers to organizations, or unions, who represent a group of workers

for the purpose of improving the workers' conditions, equality, wages and benefits.

The union negotiates on the behalf of the employees when it comes to these issues.

21

Chapter 3

INTERNATIONAL PERSPECTIVE

3.1 Discrimination in Labor Market in International Standard:

Employers may not treat workers, be they actual or potential employees in the same

way in which case discrimination is said to occur. It is a possible cause of market

failure and we consider different aspects of labour market discrimination in this note.

3.2 Economic Impacts of Labour Market Discrimination:

People of colour, women, lesbian, gay, bisexual and transgender (LGBT) people,

aboriginal people, and people with disabilities face many different forms of

discrimination in the workplace. It ranges from being excluded from social activities

to harassment. From being the last to know about training opportunities to being

denied the opportunity to do a job that you are qualified for. This section of the

workbook will look at one aspect of that discrimination - the economic impact. Our

experience in the labour market depends on the combination of our sex, our race and

our disability status. It is difficult to show the complexity of our experience with

numbers. Forms of discrimination overlap and multiply in ways that any one statistic

is unable to show. Furthermore, the qualitative experience of discrimination - how it

feels - is not captured by numbers.

What the information below does show is the economic impact of

discrimination in the workplace.

The experience of discrimination and the way that it occurs varies among

equality-seeking groups. For people with disabilities, many barriers prevent them

from entering the labour market. Other groups feel the effects of discrimination by

how difficult it is to get a job, and which workplaces and jobs they find themselves in.

22

However, the end result is similar — discrimination hits people economically. It leads

to lower wages and less money to live on for people and their families. Unions are

important are to equality seeking groups. From a strictly bottom-line economic point

of view, union’s help workers to increase average wage rates, and close the wage gap.

3.2.1 People of Colour:

Over the last 35 years, Canada has become increasingly racially diverse. The

percentage of people of colour in the population was under 4% in 1971, grew to 11%

in 1996 and is projected to be 20% by 2016. Stats Canada found (in 2001) over 4

million Canadians were members of a visible minority, and (in 2005) over 5 million

Canadians had a mother tongue other than French or English. The number of people

of colour in Canada is growing at a rate six times faster than the country’s overall rate

of population growth. Most of this increase is due to immigration. A Canadian

Labour Congress report estimates that by 2011, there will be as many Canadian-born

workers retiring as there are Canadian-born workers entering the labour force,

meaning that by then immigration will account for all of the growth in the labour

force. However, the national numbers do not show how our larger cities have become

even more diverse. In 1996, people of colour accounted for 32% of the population of

greater Toronto, 31% in Vancouver, 16% in Calgary, and 12% in Montreal. It is

expected that by 2017 half of all Torontonians and Vancouverites will be people of

colour. Canadian people of colour are more likely to be unemployed, to have lower

incomes, to work in low paid jobs, and less likely to work in well paid jobs. The

poverty rate among people of colour was 36% in 1995, compared to 20% for

everyone. In 2001, the unemployment rate among visible minorities was nearly

double the national average (12.6% vs. 6.7%). Riches are gendered and racialized,

too. Over 84% of Canadian earning over $100,000 a year are men. The number of

women of colour in this category rounds off to 0%. The chart below shows earnings

from employment by race in 2000. It shows that, on average, people of colour earned

almost $2900 or 12.3% less than white people in that year.

23

A recent study by Grace Edward Galabuzi— shows that these differences in

income remained when you compare the incomes of people of colour and white

people in a number of different ways. These differences in income remain when you

compare low-income earners, and when you compare high-income earners. They

remain when you compared those with a lot of education and when you compared

those with little education. What this shows is that the differences in income cannot

be explained away by factors other than discrimination. Of course, gender and racial

discrimination can and do overlap. Women of colour face both of these types of

discrimination in compounding ways. As people of colour they are economically

disadvantaged, and as women they are economically disadvantaged. For example, not

only are women less likely to employed than men, and not only do they tend to earn

less than men. But when women of colour are compared to other women, the numbers

show that they are even less likely to be employed, and earn even less.

 

3.2.2 Impact of Organizing:

The chart below shows the impact of unionizing on the wages of workers. We all

know that unionized workers earn more than non-union workers. There are two other

important aspects of organizing for people of colour. The first is that organizing has a

bigger impact on the wages of people of colour. Unionizing increases people of

colours’ average wages by 39% and white people’s wages by 32%. The second is that

the wage gap between people of colour and white people is smaller for union

members.

The next chart shows the impact of unionizing on wages rates for women of

colour and men of colour. It tells a similar story to the last one. It shows that

unionizing increases wage for both men and women. Because women of colour’s

wages increase more as a result of unionizing, it also shows that unionizing closes the

wage gap between men and women.

3.2.3 Unionizing for equity:

24

The data above show that unionizing helps to close the wage gap between people of

colour and white people. Unionizing is an important strategy for getting more equity

in the workplace. As right wing governments roll back employment equity and other

progressive legislation for people of colour, unionizing is becoming one of the few

strategies available.

Lower unionization rates among people of colour and higher interest in joining a

union mean that there is a large potential for organizing more people of colour. A

recent Vector opinion poll shows that 35% of non-union people of colour would like

a union in their workplace. This is slightly higher than the 32% for all non-union

workers. The chare below shows that while nearly 34% of white workers are

organized, less than 25% of people of colour are organized.

 

3.2.4 Women:

Women work in the paid labour force to support themselves and to support their

families. Despite 35 years of increasing labour force participation, breakthroughs in

pay equity legislation, and all our organizing, full-time working women in Canada

made only 72 cents for every dollar that working men made in 2004. If you include

all men and women, working and non-working, then women only earned 58 cents for

every dollar that men earned. There are a number of reasons for this difference in

wages. Women work in industries and jobs where the pay is lower. Women are more

likely to work part-time than men. Women spend more time out of the labour force

taking care of their children and other family members. A 2005 Statistics Canada

report found that women, especially single mothers, are more affected by chronic (or

on-going) unemployment than men.

The chart below shows the impact of that difference in earnings on different

types of families. The differences are really large for families with kids. While two-

earner families averaged about $66,000, families with two parents and one earner had

an average income of about $45,000. The average income for a single mom was about

$24,000, and 57% of those families lived with incomes below the poverty line. These

25

differences remain, although they aren’t as large, when you compare women and men

who are living on their own. Men on their own average about $5,000 more a year in

income than women on their own do.

 

3.2.5 Impact of organizing on women’s wages:

One of the best ways to make more money, and close the gap between men’s and

women’s wages, is to unionize. In 2004, union women earned $20.66 an hour on

average compared to $14.98 an hour for non-union women. As the chart below

shows, the wage gap between unionized men and women is smaller than the wage

gap between non-unionized men and women.

3.2.6 People with Disabilities:

People with disabilities face a number of barriers before they get to the labour market,

and they also face barriers and discrimination in the workplace. Access to education,

training and the workplace itself can be a barrier to people with disabilities. Another

barrier is that fact that daily living is more expensive for people with disabilities.

These costs range from medication to personal assistants to transportation. As a

result, people with disabilities need more money to meet their basic needs. Disability

pensions and other public benefits cover these costs. If people with disabilities find a

job, these benefits are cut off or reduced. This makes it difficult for people with

disabilities to leave these benefit programs even though they provide very low

incomes. The 2004 Employment Equity Act review (of workplaces in the federal

sector only) found that people with disabilities were in the disadvantaged group for

which there was the least improvement over the last eight years. Even more than for

other groups, the discrimination against hiring or promoting people with disabilities

has persisted. Further, nothing has changed to remove the glass ceiling that keeps

working people with disabilities clustered in clerical work.

 3.2.7 Women with disabilities:

26

Women with disabilities also face compounding effects of economic discrimination.

Women as a group already face economic disadvantages compared to men, but

women with disabilities are at even more of a disadvantage. For example, they are

only half as likely as other women to be in the paid workforce. Women with

disabilities face many of the same employment barriers as those confronting men with

disabilities. But, because women’s daily reality is often different than men’s they can

often face additional barriers that men do not face. Women with disabilities are more

likely than men to live as single parents than men with disabilities. As a result, they

are more likely to be out of the paid labour force because of family responsibilities.

Mothers with disabilities have to find childcare that is both accessible and affordable

to work outside the home. Despite these additional household responsibilities, women

with disabilities are less likely to have assistance with household tasks than men with

disabilities. Experience shows that having help with household tasks can help women

with disabilities to get and keep a job.

 

3.2.8 Impact of organizing on people with disabilities’ wages:

Organizing increases the average wage of people with disabilities and reduces the

wage gap between people with disabilities and those without disabilities. A 2005

Canadian Council on Social Development study found that workers with a disability

were more than twice as likely to be in the lowest paid jobs in a workplace when the

work was not covered by a collective agreement. Having an agreement increased the

likelihood that workers with a disability had something other than the lowest paid

jobs. While unionizing assists people with disabilities in the workplace, many other

barriers need to be addressed that are beyond the reach of collective bargaining.

3.3 Comments of Discrimination:

27

Nobel-prize winning economist Kenneth Arrow has defined discrimination as “the

valuation in the market place of personal characteristics of the worker that are

unrelated to worker productivity”. These personal characteristics may be sex, race,

age, national origin or sexual preference. Discrimination is a cause of labour market

failure and a source of inequity in the distribution of income and wealth and it is

usually subject to government intervention e.g. through regulation and legislation.

Discriminatory treatment of minority groups leads to lower wages and reduced

employment opportunities, including less training and fewer promotions. The result is

that groups subject to discrimination earn less than they would and suffer a fall in

relative living standards.

3.4 Why does discrimination occur in the labour market?

The 'Taste' Model (Gary Becker) - Discrimination arises here because employers and

workers have a  distaste for working with people from different ethnic backgrounds

or final customers dislike buying goods from salespeople from different races i.e.

people prefer to associate with others from their own group. They are willing to pay a

price to avoid contact with other groups. With reference to race, this is equivalent to

racial prejudice.

Employer ignorance – Discrimination arises because employers are unable to

directly observe the productive ability of individuals and therefore easily observable

characteristics such as gender or race may be used as proxies – the employer through

ignorance or prejudice assumes that certain groups of workers are less productive

than others and is therefore less willing to employ them, or pay them a wage or salary

that fairly reflects their productivity, experience and applicability for a particular job.

Occupational crowding effects – Females and minorities may be crowded into lower

paying occupations.

Although big changes have occurred in the UK labour market and those of

many countries in terms of the participation rates and employment levels of females,

28

there is little doubt that a permanent gap exists between average pay rates for females

and males in the UK labour market. However there is evidence that this gap is closing

albeit slowly. A report by the Women and Work Commission released in February

2006 found that women in full-time work were earning 17% less than men. The

gender pay gap is not confined to the UK. Average earnings for women in the

European Union are 15% less than men. In America, the difference in median weekly

pay is around 20%. Evidence of the gender pay gap comes each year from the New

Earnings Survey.

Hourly earnings: Since 1999 women’s hourly earnings have remained at just

over 80 per cent of men’s earnings. The average hourly wage rate for men in 2003

was £12.88 while the rate for women was £10.56.

Weekly earnings: Average weekly earnings of full-time employees in 2003 for

women (£396.0) were 75.4 per cent of those for men (£525.0). Women's weekly

earnings were lower than men's partly because they worked on average 3.5 fewer

hours per week. Britain's equal pay record is poor when compared to other European

countries - tenth out of fifteen countries surveyed. Over a lifetime, the gender pay gap

can cost a childless mid skilled woman just under £250 000

3.5 What factors explain the gender pay gap in the UK?

Human capital i.e. there are differences in educational levels and work experience

between males and females. This is most marked when one compares married males

with married females. Breaks from paid work, including time to raise a family, also

impact on women's level of work experience. It is calculated that a mid skilled mother

of two, loses an additional £140 000 of her potential earnings after childbirth.

Part-time working— a significant proportion of women work part-time and

part-time work typically pays less well than full-time jobs. Nearly 50% of women in

29

the UK whose youngest child is under 5 are not in employment and of those who do

work, 65% work part-time.

Travel patterns— on average, women spend less time commuting than men

with the result that they will have a smaller pool of jobs to choose from. It may also

result in lots of women wanting work in the same location near to where they live

which will result in lower equilibrium wages for those jobs.

Occupational segregation— women’s employment tends to be concentrated in

certain occupations. Indeed, indeed 60 per cent of working women work in just 10

occupations. Occupations which are female-dominated are often relatively poorly

paid jobs (e.g. Caring, Cashiering, Catering, Cleaning and Clerical jobs) and there is

continued under-representation in higher paid jobs within occupations – the so-called

"glass ceiling" effect.

Employer discrimination— Work by the LSE calculates that up to 42% of the

gender pay gap is attributable to direct discrimination against women. Since 1995 the

number of equal pay cases registered with employment tribunals has more than

doubled.

The effects of monophony power— Females may be relatively geographically

immobile (because they are tied to their husbands' place of employment) and may be

paid less than a competitive wage by a monopsonist employer. A reduction in the

demand for female labour relative to male labour will result in a reduction in the

employment of females and a reduction in the relative wages of females compared to

males (assuming that supply of female labour is not perfectly elastic).

3.6 Government Intervention to reduce the gender gap:

30

Intervention has taken several forms. The Equal Pay Act introduced in 1970 sought to

provide legal protection for female workers and encouraged employers to bring the

pay for males and females into line. The Sex Discrimination Act of 1975 outlawed

unequal opportunities for employment and promotion in the workplace because of

gender and it set up the Equal Opportunities Commission.

Attention has switched in recent years away from legislation towards

encouraging more women to stay on in further and higher education providing and

targeted assistance for single parents to find work and thereby increase the labour

market participation ratio among female workers.

3.6.1 Earnings Differentials between Ethic Groups:

Ethnic minority groups in the UK are more likely to experience unemployment than

White Irish or White British groups. Despite sustained, record low unemployment

among the white population at 4.4 per cent, among black and Asian people

unemployment is two and half times greater at 11.3 per cent. And in terms of their

earnings from the labour market, ethnic minority workers in Britain are over-

represented in low-paying occupations such as service industries, which employ

three-quarters of ethnic minority male employees and self-employed work compared

to around three-fifths of white men. Fifty-two per cent of male Bangladeshi

employees and self-employed work in the restaurant industry, compared to only 1 per

cent of white men. High proportions of Indian and Pakistani women work in the retail

trade, another low-paying sector. Occupational segregation is one reason for

persistent earnings differentials between whites and non-whites in the UK labour

market. Ethnic minorities face two kinds of discrimination in the UK labour market:

Less access to higher status occupations than their white counterpart’s lower pays for

a given job. The latter effect is the more powerful, accounting for a five percentage

point difference between white and ethnic minority wages.

31

3.7 The ILO Conventions on Discrimination (Employment and Occupation) and

Equal Remuneration:

The pursuit of the ideal of social justice involves the rejection of discrimination

against workers of any race, color or creed and the refusal to support inequality of

treatment for women workers. Consequently the removal of discrimination and the

creation of equality of opportunity have been implicit in all ILO’s activities. In

explicit terms it has affirmed its belief in equality of opportunity and treatment in

various declarations of principles, in numerous convention and recommendations.

Finally, in 1958 the Conference adopted the Discrimination (Employment and

Occupation) Convention (No. 111) and the accompanying Recommendation, manner.

Equality of treatment foe women workers involves, amongst other things, equal

remuneration for work of equal value. This Principle has been the subject of well-

known convention concerning Equal Value (No. 100) adopted by the ILO in 1951.8

3.8 An Overview of the ILO Conventions Concerning Discrimination (Employment and

Occupation) and the equal Remuneration for Men and Women for the Work of Equal

Value:

Under the equal Remuneration Convention and Recommendation of 1951, following

the words of the Preamble to the ILO Constitution, equal remuneration foe men and

women workers is to be established “for work of equal value” . Thus, unlike a

number of other instruments on equal treatment, the ILO standards go beyond a

reference to “the same” or “similar” work, in choosing the value of the work as the

point of comparison. According to article 1 (b) of the Convention, the term “equal

remuneration for men and women for work of equal value” refers to rates of

remuneration established without discrimination based on sex. While clearly

excluding any consideration related to the sex of the worker, this definition provides

8

32

no positive indification as to how the ‘value’ of work is to be determined.9 According

to article 1, paragraph (a) of the Convention—

“Remuneration includes the ordinary, basic or minimum wage or salary and

any additional emoluments whatsoever payable directly or indirectly, whether in cash

or in kind, by the employer to the worker and arising out of the worker’s

employment”.

This definition, which is couched in the broadest possible terms, seeks to ensure that

equality is not limited to the basic or ordinary wage, or in any other way restricted

accordingly to semantic distinctions. Discrimination in employment and occupation

has been prohibited by the discrimination (Employment and Occupation) Convention

(No. 111). Article 1, paragraph 1(a) of the Convention defines that discrimination as

—

“Any distinction, exclusion or preference made on the basis of certain criteria

which has the effect of nullifying or impairing or equality of opportunity or treatment

in employment or occupation”. This purely descriptive definition contains three

elements—

i) A factual element (the existence of a distinction, an exclusion or a

preference, without specifying whether this arises from an act or an

omission) which constitutes a difference in treatment ;

ii) A ground on which the treatment is based ;

iii) The objective result of this difference in treatment (the nullification or

impairment of equality of opportunity or treatment).

Through this board definition, the 1958 Convention discrimination

(Employment and Occupation) Convention (No. 111) cover all the situations, which

may affect the quality of opportunity and treatment that they are to promote.

3.9 The UN Convention on the Rights of the Child:

9 ILO, Equal Remuneration, General Survey by the committee of Experts on the Application of Conventions and the Recommendations, Geneva, 1986, p. 10

33

The CRC takes a holistic approach to children’s well being and considers a wide

range of child rights. The Article of the Convention that must closely relates to

children’s work states that: “ States parties recognize the right of the child to be

protected from economic exploitation and from performing any work that is likely to

be hazardous or to be harmful to the child’s health or physical, mental, spiritual,

moral or social development.”10

Many of the terms given in this Article are ambiguous and open to wide

interpretation. Attempts have been made to define hazardous labour and exploitation

(for example SCF 1995). These definitions include long working hours, vulnerability

to abuse, working in a dangerous environment and low pay, while Article 32 of the

Convention most closely relates to children’s work; many other Articles within the

CRC are also relevant. In particular Article 31 states the right to rest and leisure.

Article 28 states that the right to education, Article 24 states the right to health and

Article 6 states the right to life and development. As summarized in the box below,

child shrimp work is both harmful and beneficial to the rights outlined in the CRC.

The extent to which shrimp work will harm or benefit children’s rights varies with the

section of the shrimp industry and with individual child. For example- for some child

fry catchers, depot workers, and shrimp farm workers, work means less time to play,

for others, work is enjoyable and provides opportunities to play.

3.10 What the Treaties Say on Discrimination in the Workplace:11

3.10.1 Convention on the Elimination of All Forms of Discrimination against

Women-

Article 11 requires states to ensure that women have the right to the same employment

opportunities, including specifically the right to equal remuneration and benefits, and

to equal treatment in respect of work of equal value. Article 11’s guarantee of equal

10 UN Convention on the rights of the child ,1989, art. 32.11 http://www.unifem-eseasia.org/projects/migrant/, Last visited 15 June 2010.

34

opportunities in employment includes a provision that requires states to ensure

women have the equal right to promotion and the right to receive vocational training

and recurrent training. The CEDAW Committee has noted, in its General

Recommendation on equal remuneration for work of equal value (No. 13, 1989) that

even though the principle of equal remuneration for work of equal value has been

accepted in the legislation of many countries, more remains to be done to ensure the

application of that principle in practice. In the same General Recommendation, the

CEDAW Committee recommended that states consider the study, development and

adoption of job evaluation systems based on gender-neutral criteria that would

facilitate the comparison of the value of those jobs of a different nature, in which

women presently predominate, with those jobs in which men presently predominate,

and they should include the results achieved in their reports to the Committee.

Finally, the Committee recommended that states should support, as far as practicable,

the creation of implementation machinery and encourage collective agreements,

where they apply, to ensure the application of the principle of equal remuneration for

work of equal value.

Article 5 requires states to take all appropriate measures to modify the social

and cultural patterns of conduct of men and women, with a view to achieving the

elimination of prejudices, and customary and all other practices which are based on

the idea of the inferiority or superiority of either of the sexes or on stereotyped roles

for men and women. Article 10 also requires states to ensure women have the right to

the same opportunities for access to programs of continuing education, including

adult and functional literacy programs, particularly those aimed at reducing any gap

in education existing between men and women.

3.10.2 International Covenant on Economic, Social and Cultural Rights:

35

Article 2 calls on states to ensure that the rights included in the Convention are

exercised without discrimination of any kind as to race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other

status. Article 3 requires states to ensure the equal right of men and women to the

enjoyment of all economic, social and cultural rights in the Convention. Article 7(a)

recognizes the right to the enjoyment of just and favourable conditions of work,

including remuneration which provides all workers, at a minimum, with: fair wages

and equal remuneration for work of equal value without distinction of any kind, in

particular women being guaranteed conditions of work not inferior to those enjoyed

by men, with equal pay for equal work; and a decent living for themselves and their

families. Article 7(c) sets out the right of equal opportunity for everyone to be

promoted in employment to an appropriate higher level, subject to no considerations

other than those of seniority and competence.

3.10.3 International Convention on the Elimination of All Forms of Racial

Discrimination:

Article 5(e)(i) guarantees the rights to non-discrimination on the basis of race, colour,

or national or ethnic origin in work, to free choice of employment, to just and

favorable conditions of work, to protection against unemployment, to equal pay for

equal work, to just and favourable remuneration.

3.10.4 International Convention on the Protection of the Rights of All Migrant

Workers and their Families:

Article 25 guarantees migrant workers treatment not less favourable than that which

applies to nationals of the state of employment in respect of remuneration. This

standard is applicable to all contracts – including those concluded within the private

sector. Article 25 also makes clear that employers cannot be relieved of their

obligation to pay migrant workers fairly on the basis of a migrant’s irregular status.

Article 1 provides that the protections in the Convention are applicable without

36

distinction of any kind as to sex, race, colour, language, religion or conviction,

political or other opinion, national, ethnic, or social origin, nationality, age, economic

position, property, marital status, birth or other status.

3.10.5 Selected Concluding Comments and Observations from UN Treaty-

Monitoring Committees:

Committee on the Elimination of Discrimination against Women - Greece 1999:

“Noting that there are positive trends in the employment situation of women, the

Committee remains concerned about the situation of women in the formal and

informal labour market, including the high percentage of unemployed women and the

continuing pay gap between women and men. It is also concerned that many of the

new jobs occupied by women might provide only low pay and limited career

prospects. The Committee is further concerned that the employment prospects for

women in rural areas, for women who are migrating from the agricultural sector into

other employment areas and for immigrant women remain precarious, especially for

those with low skills or who are functionally illiterate.” (203)

Slovakia 1998:“The segregation of women and men into different

employment sectors is not valid justification for unequal pay between women and

men. The Committee is concerned that job descriptions that link ‘physically

demanding’ elements to male strength and to higher pay for men may be based on a

one sided understanding of those elements. These descriptions may underestimate

other physically demanding elements found in women’s work, thereby discriminating

against women in terms of pay.” (87)

Turkey 1997: “The high level of unemployment of migrant urban female

workers, the lack of measures to integrate them into the labour markets and the

persistent occupational segregation in lower paid jobs impeded their upward mobility

and further reinforced discrimination against women in the labour market... The

Committee urged the Government of Turkey to take adequate measures to provide

skills training, retraining and credit facilities or other support services that would

37

provide employment opportunities or self-employment for urban migrant workers, to

correct occupational segregation through concrete measures and to provide the

necessary protection to working women to ensure their safety and healthy conditions

of work.” (188, 202)

3.10.6 Committee on the Elimination of Racial Discrimination:

Republic of Korea 1999: “While acknowledging the fact that the state party has

recently taken measures to improve the status of foreign ‘industrial trainees’ and

other foreigners working in the country, the Committee suggests that the Government

of the Republic of Korea take further measures against discrimination in the labour

conditions of foreign workers. The Committee also recommends that measures be

taken to improve the situation of all migrant workers, particularly those with irregular

status.” (16)

Lebanon 1998: “In relation to Article 5 (e) (i) of the Convention, the situation

of migrant workers is of concern, especially in relation to access to work and

equitable conditions of employment.” (15)

3.10.7 Committee on Economic, Social and Cultural Rights:

Colombia 2001: “The Committee is also concerned that there is still a large disparity

between the wages of men and women, particularly in the commercial sector, and that

according to the Presidential Advisory Office on Women’s Equity, women’s wages in

general are 25 percent lower than men’s... [The Committee] urges the state party to

adopt a policy of equal pay for work of equal value as provided for in the Covenant

and to reduce the wage gap between men and women.” (16, 37)

Libya 1997: “The Committee expresses its concern at reports that foreign

workers who have come to work in the State party in connection with the Great-Man-

Made River project are living and working in appalling conditions. According to a

report of the Committee of Experts on the Application of Conventions and

Recommendations of the International Labour Organisation (ILO), foreign employees

38

in the State party who are accused of infringing disciplinary rules may be punishable

by penalties of imprisonment which can include compulsory labour. According to the

same ILO report, the State party also maintains different rates of payment of pensions

for foreign and Libyan workers which, in the view of the Committee, is

discriminatory... It is... recommended that the status and working conditions of

foreign workers be improved and without undue delay, and that these persons be

treated with dignity and fully benefit from the rights enumerated in the Covenant.”

(16, 22)

Republic of Korea 1995: “Particular concern is expressed as to the wage

differential between men and women and to other discriminatory practices in the

workplace including an apparently high rate of sexual discrimination in recruitment.

The Committee expresses its concern with regard to the non-enforcement by the

Government of its own employees in the State party who are accused of infringing

disciplinary rules may be punishable by penalties of imprisonment which can include

compulsory labour. According to the same ILO report, the State party also maintains

different rates of payment of pensions for foreign and Libyan workers which, in the

view of the Committee, is discriminatory... It is... recommended that the status and

working conditions of foreign workers be improved and without undue delay, and

that these persons be treated with dignity and fully benefit from the rights enumerated

in the Covenant.” (16, 22)

Republic of Korea 1995: “Particular concern is expressed as to the wage

differential between men and women and to other discriminatory practices in the

workplace including an apparently high rate of sexual discrimination in recruitment.

The Committee expresses its concern with regard to the non-enforcement by the

Government of its own policies and legislation in these matters.” (11)

3.10.8 Responding with Human Rights Treaties:Regarding discrimination in the workplace, the Convention on the Elimination of All

Forms of Discrimination against Women provides the most robust protections,

requiring states to ensure women have the same rights as men in the field of

39

employment, and specifying that women have the right to equal remuneration and

benefits for work of equal value. The Convention also requires states to ensure

women have the same rights as men in the field of education; under this provision,

sending states must ensure that women are not excluded from certain educational

paths, and host states must ensure the same conditions for vocational guidance apply

to women and men.

The International Covenant on Economic, Social, and Cultural Rights

includes protections against gender discrimination as well as substantive rights to

favourable working conditions for all. Although the Convention’s provisions are open

to interpretation concerning discrimination on the basis of alien status, the CESCR

Committee has treated this kind of discrimination as prohibited under the Covenant.

Taken together then, these provisions translate into guarantees for fair wages

sufficient to support a decent living without distinction on the basis of gender or alien

status.

The International Convention on the Elimination of All Forms of Racial

Discrimination prohibits discrimination in employment, conditions of work, and

remuneration on the basis of race, colour, or national or ethnic origin. These

protections apply equally to men and women. Finally, the Migrant Workers

Convention guarantees migrant workers – male and female alike – treatment not less

favourable than that which applies to nationals in respect of remuneration. Based on

the treaties and the guidance provided by the treaty monitoring committees, it is now

clear that states may be required to take a range of steps to fulfill their obligations,

including the following examples: States may need to adopt the principle of equal

remuneration for work of equal value, and develop job evaluation systems based on

gender-neutral criteria. This could help migrant women by putting greater value on

fields where they predominate, such as domestic work. As a general rule, states

should ensure that the same pay rates are applied to foreign workers as to citizens.

States may also need to adopt special measures aimed at directly combating gender-

based labour market segregation. Measures may be required on the part of both

40

sending and receiving states to facilitate women’s entry into growth sectors of the

economy instead of traditionally female-dominated sectors. States should watch

carefully for the ways in which race and gender may interact to keep women migrant

workers’ wages low, and take corrective measures.

3.11 The Minimum Age Convention (No. 138) and Recommendation (No. 146),

1973:

The most pertinent of the ILO Conventions relating to working children is the

minimum Age Convention (No. 138) and Recommendations (No. 146) 0f 1973. the

conventions requires ratifying states to pursue a national policy designed to ensure the

effective elimination of child labour and to progressively raise the minimum age for

admission to employment or work which shall not be less than the age of completion

of compulsory schooling in any case, not less than 15 years. However, concessions

are made for developing economics where the minimum age may be set at 14 years

initially.12 However, urgent steps are recommended for raising this age as soon as

practicable.

3.12 The Declaration of the Rights of the Child, 1959:

The Declaration of the Rights of the Child, 1959 purported to grant a series of

benefits and entitlements and provided that every child shall be protected from all

forms of neglect, cruelty and exploitation. Article 9 of the Declaration stated that-

“No child shall be employed before an appropriate minimum age and in no case shall

it be permitted to engage in any occupation that may prejudice its health and

education or interfere with its physical, mental and moral development.”

3.12.1 Age when Children started Work and Motives for seeking Factory

Employment:

12

41

Section 66 of The Factories Act 1956 specially prohibits the employment of children

who have not completed their fourteenth year. A child who has completed the age of

fourteen (14) shall be permitted to work in a factory only when he/she has received a

certificate of fitness from a certifying surgeon upon application of the factory where

the child wishes to work.13 During the field research there were situations in which

none of the above requirements were fulfilled.

13 The Factories Act, 1965, s.67-68.

42

Chapter 4

BANGLADESH PERSPECTIVE

4.1 ‘Paper Rights Revisited’: Coverage for women Industrial workers under the

Labour Laws of Bangladesh, Background:

Various factors such as historical, political, and economic have shaped the

development of labour legislation in Bangladesh. Labour legislation was introduced

to the sub-continent by the british colonizers. Quite often these measures were rooted

not in the spirit of benevolence for the colonized, but were a means of regulating

them and to protect interests of the colonizer. Legislative measures very often treated

the colonial subjects, male and female differently from one another and had different

implications for them. Some of these labour laws that were introduced by the British

continue in Bangladesh today as part of its colonial legacy. Within this body of

legislation women were allocated a position in conformity with the existing ideology

of the male legislators. Women seem to missing in the entire body of labour laws

except for certain provision that take ‘protective’ measures in their favour. The most

commonly forwarded reason behind this nature of the measures is that at the time of

formulation the numbers of female workers were negligible. However, this view is

partial. Although in much smaller numbers compared to male workers, women were

nevertheless a significant part of the workforce. The more probable reason would be

the patriarchal attitude of the colonial masters who introduced the law to the

subcontinent, who were themselves predominantly men and saw industrial work

essentially as a domain of the stronger sex. Law therefore interpolated a male subject.

De Sousa comments that the manner in which labour law was gendered is seen in the

43

narratives that always referred to the workers in the masculine, and also in the deeper

structural imbalance established in the sphere of production not just of goods, but of

culture and ideology as well. The modernization of industry and the worker was a

gendered process. While men were being reformed by the law to make them healthy

and efficient workers, women’s role in the social economy was being redefined in a

way that constructed them primarily as mothers in order to ensure the reproduction of

patriarchal ideology and of labour power. The vast majority of local legislators who

were also male did not oppose the manner in which these measures were constructed.

The following discussion is on the key labour laws that create substantive

rights for women workers in Bangladesh. The discussion is structured on the basis of

different issues and rights of workers, drawing upon several important statutes. In

many case two or more pieces of legislation may be applicable to a particular factual

situation and there is normally no bar to advancing complementary legal theories in

attempting to achieve justice for workers. 14 More specifically, the discussion is aimed

at emphasizing those issues that are of relevance to women workers in the industrial

sectors such as jute, electronics and garments. Going through all the statutes and

provisions, one is compelled to admit that there is needed a substantial body of labour

laws in Bangladesh. It has been commented that, “while labour laws in general are

not as ubiquitous as in India, they are found to be more so compared to east Asian

countries”. Beginning from the regulation of minimum wages, to securing healthy

working environment and trade union activity, virtually all areas of concern are

covered by statute law. This brings into question the potential of these legislative

measures to protect the rights of women industrial workers in Bangladesh, and the

following discussion is aimed at exploring these possibilities.

4.2 Safety, welfare, health and other terms and conditions of Employment: The

Bangladesh Labour Code, 2006

14

44

Women workers face various health hazards at work. There is enough evidence to

show that they work extremely long hours under unhealthy working conditions. From

garments factories to bidi industries the scenario the same. However because of the

large numbers of women who have entered the garments industries their problems are

highlighted more often in the media. Women employed in this sector are suffering

from various kinds of diseases, including eye trouble, weakness, asthma, headaches

and urinary tract infections. There is a lack of ventilation in the buildings in which

factories are situated that are usually not purpose built.15 Fire hazards are also a

matter of deep concern and have caused death and injury to many workers over years.

The provisions of the Bangladesh Labour Code, 2006 are aimed at ensuring the

maintenance of a healthy workforce and a favorable working environment. The

workers of any factory or industrial establishment are entitled to certain minimum

standards of safety and comfort at work. They are also entitled to certain periods of

breaks or rest and holidays in the course of their work. Although not very different

from its predecessors, it is nevertheless an important piece of legislation applicable to

women in industrial employment in Bangladesh.

4.3 Working hours Overtime and Leave:

The Law stipulates that an Adult worker ordinarily can only be required to work in a

factory for eight (8) hours per day and subject to the provisions of section 108 an

adult worker in an establishment for more than nine (nine) hours.16 If the provisions

of sections 100, 101, 103, 115, 116 and 102, relating to weekly hours, intervals for

rest or meals, spread-over, and extra allowance for overtime work are met.

The Act also places particular restrictions on women’s working hours. It

stipulates that women are not allowed to work in a factory except between 7 a.m. and

8 p.m. This restriction on night-work goes back to the colonial period. The

Government may make rules providing for exemption from this restriction to

15 Protima Paul Majumder and Salma Zahir Chowdhury. Bangladesher Poshak Shilpe Niyojito Nari Sromiker Artho- shamajik Abostha, (Dhaka: Ekota Publications, 1991), p. 95.16 The Bangladesh Labour Code, 2006, s.100.

45

particular types of factories. The maximum weekly working hours of adults is forty-

eight (48) hours in any week17 , and workers are entitled to an hour’s break within six

hours of starting their working day for rest or a meal.18 The spread-over of work,

should be arranged such that it will not be longer than ten (10) and a half hours

including the break.19 Regarding weekly holiday the law stipulates that a worker is

entitled to at least one full day’s holiday each week. This can be on a Sunday or

Friday.20 Provision for a compensatory holiday has also been made if a worker is

required to work on weekly holidays.21 The law further provides for ten days paid

festival holidays. Whenever a worker is required to work on any festival holiday tow

days’ additional compensation holidays with full pay a substitute holiday are to be

provided.22 Workers are also entitled to annual leave and holidays with wages. The

law further requires that every worker who has completed one year of continuous

service in a factory, be allowed during the subsequent period of twelve (12) months,

leave with wages. The number of days that she is allowed such leave shall be

cancelled at the rate of one day for every twenty-two days of work performed by her

during the previous year.23

Workers are entitled to leave and sick leave. The law provides that a worker is

entitled to ten (10) days casual leave with full wages and fourteen days sick leave on

half-average wages each year, provided that sick leave or casual leave admissible

under this section is not accumulated and carried forward to the succeeding year. The

Act requires allowance for overtime work. When a worker in a factory for more than

nine (9) hours in a week, she is entitled to overtime wages at the rate twice her

ordinary rate of wages, without allowance for any bonus or other additional

payments. Even if she works less than forty-eight hours in a week, but more than nine

(9) hours on any day, she must be paid double for every extra hour.24 In Bangladesh

17 Ibid, s.102.18 Ibid, s.101.19 Ibid, s.103.20 Ibid, s.103.21 Ibid, s.103.22 Ibid, s.118.23 Ibid, s.118.24 The Bangladesh Labour Code, 2006, s.51.

46

almost without exception workers are paid overtime wages calculated on the basis of

basic wages.

4.4 Health and Safety:

Safety of the most important provisions of the Bangladesh Labour Code, 2006 is

aimed at the maintenance of health and hygiene in the factory environment. These

include cleanliness, disposal of wastes and effluents, adequate ventilation and

provision of a reasonable temperature, prevention of accumulations of dust and

fumes, artificial humidification, prevention of overcrowding, and arrangements for

adequate lighting where workers are working or passing.25 There are provisions for

clean and sanitary toilet facilities are also required under the law and these must be

conveniently situated and accessible, with separate facilities for male and female

workers. Special protective measures for women includes the prohibition of work by

women in any factory that requires cleaning, lubricating or adjusting, on or near any

part of machinery while is in motion. Employment of women near cotton openers is

also prohibited.26

It is further provided that, workers are not to be required to lift, carry or move

any load so heavy as to be likely to cause her injury, and the Government may make

rules prescribing the maximum weights which may be lifted by adult women in any

particular factory.27

4.5 Welfare for Workers:

25 Ibid, s.52.26 Ibid, s.53.27 Ibid, s.54.

47

The Bangladesh Labour Code, 2006 also provides welfare provisions. These are

aimed at securing reasonable standards of comport for the workers in their working

environment and these include washing facilities, both for the use of male and female

workers, which are conveniently placed and clean.28 First and boxesn or cupboards,

one for every one hundred and fifty workers must be provided. Furthermore, in the

case of any factory where five hundred or more workers are employed, an ambulance

room or dispensary containing the prescribed equipment in the charge of medical and

nursing staff must be provided and maintained.29 Additional facilities require canteen

facilities for factories where more than two hundred and fifty (250) workers are

ordinarily employed, and rest and lunch rooms in case of factories employing more

than a hundred (100) workers.30

Crèche facilities are required in every factory wherein more than fifty (50)

women workers are ordinarily employed. These are to be provided and maintained for

the use of children of such employees under the age of six years with adequate

accommodation, lighting, ventilation and are to be maintained in a clean and sanitary

condition. These facilities should be under the charge of women trained or

experienced in the care of children and infants. Welfare officers are required under

the law to be employed in factories employing five hundred or more workers.31

4.6 Cognizance of Offence and Penalty:

No Court can entertain an application under the Act unless it is a complaint made by,

or under the Authority of, or with the previous permission in writing of an Inspector.

No Court inferior to that of a Magistrate of the First Class shall try an offence under

this Act or any rules or order made there under. The law states that any manager of a

factory who contravenes any of the provisions of the Act will be guilty of an offence

punishable with a fine that may extend to TK. 1000. If the contravention continues

28 Ibid, s.89.29 Ibid, s.90.30 Ibid, s.92.31 Ibid, s.94.

48

after conviction, a further fine of up to TK. 75 for every day of the period during

which the contravention continues shall be imposed.

4.7 Wages and Deductions:

The issue of wages is also central for women workers. Studies have been shown that

they are often lowly and irregularly paid and subjected to discrimination by way of

less pay than their male co-workers.32

The primary purpose of the payment of Wages Act, 1936 is to require

employers to make timely payments of wages to workers. Thus in the case of the

workers sustaining hardship arising out of non-payment of wages, or any

unreasonable delays in payment may seek respite under this statute. The basic rule, is

that the ‘employer shall be responsible for the payment to persons employed by him

of all wages required to be paid under this Act’.33 ‘Wages has been defined as:

...all remuneration, capable of being expressed in terms of money, which

would, if the terms of the contract of employment, express or implied were fulfilled,

be payable. Whether conditionally upon the regular attendance, good work or conduct

or other behaviour of the person employed in respect of his employment or of work

done in such employment, and includes any bonus or other additional remuneration of

the nature aforesaid which would be so payable and any sum payable to such person

by reason of the termination of his employment…’34

The definition however excludes provident fund contributions, travel

allowances, or other contributions made by the employer as special expenses. It was

held in the case Arvind Mills Ltd. v. K R Gadgil that the term ‘wages’ as defined in

this section means wages actually earned and not potential wages. It means

remuneration payable on fulfillment of the contract.35 It has also been held that all

remuneration due to a worker for overtime work falls within the definition of wages

32 The Bangladesh Labour Code, 2006, s.121.33 Ibid, s.121.34 Ibid, s.120.35 A.I.R., 1941, Bombay 26.

49

under the Act. Unpaid overtime wages of the worker was held to have been a case of

illegal deduction.

The most important wage related problems that workers face and can seek

redress under this Act are the failure on the employer’s part to pay wages earned, the

failure to pay wages in a timely manner, and unlawful deductions from earned wages.

Therefore,

a) No wage period shall exceed on month;

b) Any factory or industrial establishment employing less than 1000 workers

by the seventh day after the last day of the wage period in respect of which

the wages are payable;

c) Wages must be paid to workers on a regular working day; and

d) Wages of an employed person shall be paid to her without any deductions

of any kind except those specifically mentioned under this Act.36

4.8 Wages Standardisation:

The applicable law for setting the standard of minimum wages is found in the

Bangladesh Labour Code, 2006. This Code gives power to the Minimum Wages

Board to set, upon compliance with specified procedures, minimum wages by

industry, sector or group of employees. The Board must provide notification by

official gazette, which then creates a legal obligation by employers to pay the wages.

The Ordinance states that, subject to such deductions as may be authorized under this

Code, or under any other law for the time being in force, no employer shall pay any

worker wages at a rate lower than the rate declared to be the minimum rate.

4.9 Protection for Trade Unionists:

Often the main issue for workers is securing the protection of the law while they are

attempting to form a trade union. Employers often resort to illegal means, such as

terminating workers, to prevent unions from forming. The basic legislative protection

36 Ibid, ss.176-182.

50

of workers during the stage of formation of a union is contained under the Bangladesh

Labour Code, 2006. The Ordinance provides the list of ‘unfair labour practices are

acts and omissions that obstruct the right of freedom of associations of the workers or

create tension and confusion that result in the destruction of a congenial working

environment. Unfair labour practices on the part of employers include: (a) imposing

any condition in a contract of employment seeking to restrain the right of a person

who is a party to such contract to join a trade union. (b) Refusing to employ or

continue to employ any person on the ground that such person is or is not a member

or officer of trade union. (c) Discriminating against any person in regard to any

employment and (d) about the increase of salary.37

4.10 Gender Equality, Competitiveness and Expert Performance in the

Garments sector in Bangladesh:38

In the last couple of decades, gender equality have marked significant decline over

the years across countries. This has led to better opportunities for women in the

countries undergoing industrialization especially in the labour intensive industries in

developing countries. It is, however, generally believed that a country may gain a

competitive edge due to gender inequality manifesting lower female wages. This

apprehension has led to inclusion of this agenda into a wider range of topics related to

basic labour standards. Rich countries have insisted on inclusion of binding rules

within WTO to deal effectively with fundamental workers’ rights. Developing

countries on the other hand, have resisted these moves in the fear that high-income

countries may take recourse to protectionist trade measures against foreign

competition accusing their low cost competitors of abusing labour standards.

According to a very recent discussion paper titled “Gender Inequality and

Trade” presented at the Hamburg Institute of International Economics by Matthias

Busse & Christian Spielmann “there is a positive linkage between comparative

advantage in labour-intensive goods and gender wage inequality and a negative link

37 The Bangladesh Labour Code, 2006, s.176-183.38

51

with respect to gender inequality in labour market participation rates and access to

education. While the links between trade and gender inequality in labour market

participation rates and educational attainment are somewhat weaker, depending on

whether all countries or just developing countries are included or whether a particular

trade indicator for comparative advantage has been used, the clearest link (in terms of

statistical significance) can be established regarding the gender wage gap, as firms

may exploit wage discrimination to gain or enhance a comparative advantage in

labour intensive products.”

Bangladesh scenario:

Female workers in Bangladesh were traditionally linked to global markets through

export of tea and raw jute. It is only with the emergence of the RMG sector in the late

1980s as Bangladesh’s leading export industry that the country’s female labour force

was integrated into international markets in a more direct and intense way. The

transition from traditional to non-traditional export-oriented activities is of

considerable significance, because it brings out some critical dimensions of the

evolving pattern of female employment in Bangladesh. First, RMG a manufacturing

activity differs from the previous agro-based exports. Second, RMG units are

concentrated mostly in urban areas, whereas earlier female intensive processing

industries were located in the rural areas. Third, the rapid growth of the RMG sector

and its increasing share in the export basket testifies the importance and potential of

female employment in exports, as well as industrialization in Bangladesh. These three

features inter alia, have important implications from a gender perspective, particularly

in terms of employment opportunities, skill development and wage level.

Recent studies indicate that women in Bangladesh constitute the majority of

the incremental labour absorption in the country’s export-oriented manufacturing

enterprises. It is also generally believed that cheap and readily employable female

labour underpins the competitive advantage of Bangladesh’s export sector. To

understand the nature of women’s employment in Bangladesh we therefore need to

52

examine the factors that contributed to the feminization of manufacturing

employment here. Is it the gender gap in the effective wage structure that underpins

the growth of female labour in Bangladesh? Are they paid less than men for similar

jobs even when productivity differentials are accounted for? Why the entrepreneurs

prefer to employ young, single, literate women? Does this preference stem from

supposedly lower wages of women or other non-wage factors such as their social

docility and amenability to repetitive process functions? Available information

suggests that conventional measures of gender bias such as wage gaps, access to

employment and lack of job security are relatively less conspicuous in organized

segment of the manufacturing sector in Bangladesh. Let us test the above context

though a case study. Newage Group is a leading exporter of RMG from Bangladesh

that employ over 4000 people, 70% of whom are females. Given below is a table that

shows the employment in their three production facilities broken down into groups of

various skills. The last column of the table shows the discrimination index of average

wages of the various groups of employees as compared with their male counterparts.

A look at the above table reveals that the male employees generally have

wage advantage over the females. With some exception the discrimination is more

prominent in the employees of higher skill level and reduces as the skill level reduces.

Helpers of both genders who are at the bottom of the skill ladder enjoy same level of

wages whereas male supervisors possessing high levels of technical and managerial

skills enjoy a 21% wage advantage over their female counterparts. The equivalence of

wages at the helpers’ level is perhaps a result of the minimum wages for non-skilled

labours fixed by the government and enforced by very strict monitoring mechanism

of the buyers to ensure compliance with their code of conduct. On the other hand,

Better labour management skills of the male supervisors perhaps account for a part of

their discriminatory wage level. For the rest of the production staff, the wage

discrimination is only 3% to 12%. As wages is only about 11% of total cost (see table

below), a 3% to 12% wage advantage of a section of workers would result in 0.33%

to 1% comparative advantage in the cost of production and perhaps less than 0.3%

53

comparative advantage at the retail value of the product, a very insignificant amount

indeed.

The above example convincingly reinforces the thought that conventional

measures of gender bias such as wage gaps are relatively less conspicuous in the

RMG sector in Bangladesh. The example is quite representative of the entire export-

oriented RMG trade in Bangladesh where the non-wage factors such as docility and

amenability to repetitive functions clearly have more influence in the employment

pattern. The sustainability of current trends in female labour absorption in the

organized manufacturing sector is linked to the broader issues of competitiveness of

the industry. The major source of creation and protection of industrial competitive

advantage in the global economy lies in the adaptation and diffusion of new

technologies, which lead to growth in the productivity of factors of production. It is

thus important to endow women workers with basic education and vocational training

including computer literacy. Female oriented investment in human resource

development may therefore be the most dependable deterrent to technological

redundancies. Alternatively, with the changing nature of national competitive

advantages, a mismatch may emerge between the skill and quality endowments of the

female labour and the skill and the quality endowments demanded. Under these

circumstances, if certain supply side constraints are not addressed through public

policy interventions (e.g. the areas of skill development and healthcare), female

employment in the export sector can not be maintained and enlarged – in absolute and

relative terms.

Empowerment of women:

54

Empowerment of women is a precondition to reduce gender discrimination. The first

step to empowerment is to ensure access to education. Female education got boost in

Bangladesh in the last decades perhaps because the country has been ruled by

successive governments in the last fourteen years headed by women prime ministers.

Even today the head of the government and the leader of the opposition in

Bangladesh are both women. The affirmative policy of the government ensured free

education for girls up to grade 12 compared to grade 5 for boys. Making women

education free up to grade 14 is presently under active consideration of the

government. Girls are now at par with boys in terms of enrollment in primary and

secondary education in Bangladesh. GOB initiated stipend scheme in the 90s for

female secondary school students that helped achieving gender parity. While the

government’s affirmative policy measures with respect to free primary and secondary

education is helping to reduce the gender gap, the commendable work of some

leading NGOs like BRAC, ASA and several others led by Grameen Bank in

providing micro-credits to the women has opened up a new vista in the empowerment

of the rural women in Bangladesh. Thus education and access to finance, the two

most important endowment factors responsible for empowerment of women in this

country seem to have been well taken care of. As a result we have witnessed

emergence of a conducive social structure that has provided to the women of

Bangladesh increased purchasing power and respect from family members. The

process has also resulted in delay in marriages and popularization of Planned

Parenthood. The GOB policy providing for reserved seats in the local governments at

Union level (a Union is made up of a few villages) has ensured participation of

women in the local administration. Moreover, in the metropolitan areas, women have

been successfully taking part in election for ‘wards’ (a geographic boundary in cities)

as Ward commissioners. These positions are powerful and exercise considerable

authority. Mobility is another useful indicator of empowerment of women. The RMG

sector that currently employs around 2 million workforces had an important role in

promoting this mobility. Almost 70% of these RMG workers are women and most of

55

them have migrated to the urban areas from their villages. A large number of women

work in the NGOs and many of them provide bicycles and motor cycles to women

workers creating positive role models. During the last national election, the NGOs

worked to encourage women voters to vote by identifying rural constituencies where

women were denied their right to vote and intensifying efforts in these areas by

holding discussion meetings in the community, with religious leaders and government

officials focusing on discussions to dispel superstitions that were adversely affecting

women’s participation in the electoral system. As a result, the general election held in

2001 witnessed the highest turn out of voters, a whopping 74% in which more women

cast their votes than men. We have earlier referred to the findings of Matthias Busse

& Christian Spielmann in their paper titled “Gender Inequality and Trade” presented

at the Hamburg Institute of International Economics. According to them there is a

positive linkage between comparative advantage in labour-intensive goods and

gender wage inequality and a negative link with respect to gender inequality in labour

market participation rates and access to education. In their paper they established a

clear link in terms of statistical significance with regard to the gender wage gap, as

firms may exploit wage discrimination to gain or enhance a comparative advantage in

labour intensive products. We have also seen in the case example cited above that this

comparative advantage for the RMG sector in Bangladesh is not very significant.

Bangladesh is perhaps a rare exception in its group of least developed countries in

respect of gender wage gap. The authors in the same paper expressed apprehension

that the linkage between gender inequality and comparative advantage in labour

intensive goods may prompt imposition of sanctions – on an international level – on

commodities from countries with poor fundamental labour standards, such as high

gender inequality in wage remuneration. Supporters of this position, who usually

come from high-income OECD countries, argue for connecting trade and labour

standards, if possible within the WTO framework, thereby punishing developing

countries that do not observe basic standards. The effectiveness of trade sanctions as

an instrument is highly questionable. In a large number of cases, the authors found

56

that countries do not change their behavior because sanctions have been imposed on

them. What is more, this instrument focuses only on export industries and does not

tackle gender bias in other areas. Trade sanctions may thus drive females to other

sectors with potentially even lower labour standards as happened in Bangladesh with

removal of child labour from the RMG sector It was also apprehended that inclusion

of labour standards in the WTO framework may even be exploited by high-income

countries to protect their markets against allegedly “unfair” imports from poorer

countries with lower standards. This is exactly what the developing countries fear, as

high-income countries like the EU are still calling for discussions for links between

trade and fundamental workers rights like gender discrimination. The EU brought this

issue forward at the WTO conference in Doha in November 2001, but the attempt

was rejected by several developing countries.

Consequently, all parties agreed that the issue of core labour standards would

remain in the sphere of influence of the ILO. Since trade unions, human rights

activists and some governments of high-income countries show an ongoing interest in

the matter, it is highly likely that the issue of gender inequality will reappear on the

international trade policy agenda.

4.11 Labour Market Discrimination against Women – at Home and Abroad:

Gender-based discrimination in the labour market at home is one of the factors that

lead women to cross borders in search of work. When pervasive, such discrimination

can result in scarce opportunities, shrunken salaries, and limited horizons for women.

Seeking a better fortune abroad becomes an attractive option. Gender discrimination

in the labour market takes many forms, both direct and indirect. Three (3) specific

phenomena – a) The wage gap between men and women, b) Labour market

segregation by gender, and c) The glass ceiling – have been of particular concern to

women workers in both sending and receiving countries. Unfortunately, women

migrants usually find that discrimination is also present in the host country. Indeed,

sometimes it is worse, with women migrants tracked into very specific sectors while

57

men are recruited for others. Many women find their options limited to work in the

domestic sector, for example, where they act as housekeepers, servants, personal

assistants, tailors, cooks, and childcare attendants.

4.12 The ILO Conventions on Discrimination (Employment and Occupation)

and Equal Remuneration: A Legal Review of Its Impact and Implications in

Bangladesh

The pursuit of the ideal of social justice involves the rejection of discrimination

against workers of any race, color or creed and the refusal to support inequality of

treatment for women workers. Consequently the removal of discrimination and the

creation of equality of opportunity have been implicit in all ILO’s activities. In

explicit terms it has affirmed its belief in equality of opportunity and treatment in

various declarations of principles, in numerous convention and recommendations.

Finally, in 1958 the Conference adopted the Discrimination (Employment and

Occupation) Convention (No. 111) and the accompanying Recommendation, manner.

Equality of treatment foe women workers involves, amongst other things, equal

remuneration for work of equal value. This Principle has been the subject of well-

known convention concerning Equal Value (No. 100) adopted by the ILO in 1951.

4.13 An Overview of the ILO Conventions Concerning Discrimination

(Employment and Occupation) and the equal Remuneration for Men and

Women for the Work of Equal Value:

Under the equal Remuneration Convention and Recommendation of 1951, following

the words of the Preamble to the ILO Constitution, equal remuneration foe men and

women workers is to be established “for work of equal value” . Thus, unlike a

number of other instruments on equal treatment, the ILO standards go beyond a

reference to “the same” or “similar” work, in choosing the value of the work as the

point of comparison. According to article 1 (b) of the Convention, the term “equal

58

remuneration for men and women for work of equal value” refers to rates of

remuneration established without discrimination based on sex. While clearly

excluding any consideration related to the sex of the worker, this definition provides

no positive indification as to how the ‘value’ of work is to be determined.39 According

to article 1, paragraph (a) of the Convention—

“Remuneration includes the ordinary, basic or minimum wage or salary and

any additional emoluments whatsoever payable directly or indirectly, whether in cash

or in kind, by the employer to the worker and arising out of the worker’s

employment”.

This definition, which is couched in the broadest possible terms, seeks to ensure that

equality is not limited to the basic or ordinary wage, or in any other way restricted

accordingly to semantic distinctions.

Discrimination in employment and occupation has been prohibited by the

discrimination (Employment and Occupation) Convention (No. 111). Article 1,

paragraph 1(a) of the Convention defines that discrimination as—

“Any distinction, exclusion or preference made on the basis of certain criteria

which has the effect of nullifying or impairing or equality of opportunity or treatment

in employment or occupation”. This purely descriptive definition contains three

elements— a) A factual element (the existence of a distinction, an exclusion or a

preference, without specifying whether this arises from an act or an omission) which

constitutes a difference in treatment ; b) A ground on which the treatment is based ;

c)The objective result of this difference in treatment (the nullification or impairment

of equality of opportunity or treatment).

Through this board definition, the 1958 Convention discrimination

(Employment and Occupation) Convention (No. 111) cover all the situations, which

may affect the quality of opportunity and treatment that they are to promote.

39 ILO, Equal Remuneration, General Survey by the committee of Experts on the Application of Conventions and the Recommendations, Geneva, 1986, p. 10

59

4.14 Ratification of the Conventions concerning Discrimination (Employment

and Occupation) and the Equal Remuneration for Men and Women by the

Government of Bangladesh:

The government of Bangladesh has ratified the Discrimination (Employment and

Occupation) Convention (No. 111) on 22 June 1972. it may however be emphasized

that the Convention was in force in the territory now comprising Bangladesh since 24

January 1961 as being ratified by the then government of Pakistan. While ratification

of Convention concerning Equal Remuneration for Men and women workers for

Equal Value (No. 100) is more recent i.e., on 28 January 1998. It may be emphasized

that their ratification by member states are not academic exercises. Their objects are

to bring about effective and harmonized progress in the national law and practice.

Implication of Ratification of ILO Convention Concerning discrimination

(Employment and Occupation) and the Equal Remuneration by the Government of

Bangladesh

Whatever effect the ungratified Conventions can have in the absence of

bonding obligations,40 it is in connection with the formal act of ratification that their

impact is likely to be tangible and lasting. This is due to the fact that ratification

involves the formal commitment of states to give effect to the Conventions within

their territory and it sets in motion the regular supervisory machinery of the ILO.41

A state which ratifies a Convention gives an undertaking that it will make its

provisions effective as from the date of its entry into force for the country

concerned, which is twelve months after the registration of its formal ratification with

the Director-General of the International Labour Office.42 The assumption of

obligations under a Convention will have noticeable repercussions at the national

level whenever the law or practice of the country needs to be modified in order to

ensure compliance with the terms of the instrument. Such modification may occur in

40

41

42

60

four circumstances with it; they may occur during the period between ratification and

entry into force; or they may take place when the Convention is already binding. The

last mentioned alternative, although unsatisfactory from a legal point of view, none

the less represents a case of influence and one where the effect of ILO standards is

liable to be particularly clear-cut.

61

Chapter 5

RECOMMENDATIONS

The experience of discrimination and the way that it occurs varies among equality-

seeking groups. For people with disabilities, many barriers prevent them from

entering the labour market. Other groups feel the effects of discrimination by how

difficult it is to get a job, and which workplaces and jobs they find themselves in.

However, the end result is similar — discrimination hits people economically. It leads

to lower wages and less money to live on for people and their families. Unions are

important are to equality seeking groups. From a strictly bottom-line economic point

of view, union’s help workers to increase average wage rates, and close the wage gap.

Though gender wage discrimination does not seem to have a significant effect on the

Competitiveness of the RMG sector in Bangladesh, it is the other qualities of the

females like amenability to repetitive work and docility that definitely made a

difference in the competitiveness of this sector. Affirmative policy measures are

therefore needed to encourage the females to join the productive export-oriented

sector by elimination of gender discrimination. To achieve this end, positive policies

in the following areas are required to be pursued:

a. Ensure access to basic education

b. Develop schemes for skill development, business counseling, networking and

development of professionalism.

c. Ensure access to finance - micro-credit as well as providing collateral free loans of

bigger amounts.

d. Develop marketing and sales infrastructure to facilitate and promote marketing of

products produced by women.

62

e. Develop mechanisms to encourage women headed businesses.

f. Develop institutional capacity and encourage creation of women entrepreneurs

associations.

g. Ease Transportation and accommodation problems of the female workers

h. Ensure security of workers enroute to their work.

i. Encourage freedom of association

j. Honor the emancipated.

k.Bangladesh Government should be forced the Garments and Industrial sector for

abiding the law as well as should be declare the strongest Labor Law.

l. Internationally, resist move to link trade with labour standards. Instead improve

monitoring and surveillance by the ILO, as there is evidence that most governments

respond to complaints presented under the formal procedures of the ILO. In addition,

the ILO could provide technical assistance to the LDCs which may lack the required

skills. If monitoring and surveillance do not work effectively, the issue of

strengthening ILO enforcement powers may be considered.

63

Chapter 6

CONCLUSION

The usual scene that meets the eye in the early morning on the streets of Dhaka is that

of an army of women walking purposefully in groups, each with a lunchbox in hand.

While most of them are young, some are merely children, and far too young to be

designated as women. They live their homes in the slums each day to fill the morning

streets of Dhaka’s industrial areas and head for the city’s various garment factories.

This army is the country’s female garment industry workers. In Bangladesh, most

industries prefer to engage young, single females as workers. In the garment export

sector the trend is particularly marked. The bulk of the workforce also absorbs a

considerable number of girl children without whom the ‘assembly lines’ within the

factory cannot function properly. The pursuit of the ideal of social justice involves the

rejection of discrimination against workers of any race, colour or creed and the

refusal to support inequality of treatment for women workers. Consequently the

removal of discrimination and the creation of equality of opportunity have been

implicit in all ILO’s activities. In explicit terms it has affirmed its belief in equality of

opportunity and treatment in various declarations of principles, in numerous

convention and recommendations.

Finally, in 1958 the Conference adopted the Discrimination (Employment and

Occupation) Convention (No. 111) and the accompanying Recommendation, both of

which deal with discrimination in a comprehensive manner. Equality of treatment for

women workers involves, amongst other things, equal remuneration for work of equal

value. The principle has been the subject of well-known Convention concerning

Equal Remuneration for Men and Women Workers for Equal Value (No. 100)

adopted by the ILO in 1951. Legally speaking, there is no discrimination regarding

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employment and occupation & remuneration. However in order to ensure that women

in practice enjoy the same right of employment and remuneration with their male

counter-part, there still remains a lot to be done.

The present paper is based on an empirical investigation that carried out some

arising problems and cause of discrimination in the Labour Market, e.g. race, colour,

sex, ethnics, age and wages discrimination between employment and workers, both in

Male and Female. The existing laws are not sufficient to combat discrimination in

labour market. The Labour Code, 2006 though a comprehensive code, it requires to

amendment in the light of International Conventions to eliminate and eradicate

discrimination in labour market of Bangladesh.

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REFERENCES

Books

1. S. K. Kapoor, International Law & Human Rights, 12th ed. (Alahabad: Central

Law Agency, 2003).

2. K. Kittichaisaree, International Criminal Law, (New York: Oxford University

Press, 2002).

3. Abdul Halim & Masum Saifur Rahman, The Bangladesh Labour Code,2006,

3rd ed. (Dhaka: CCB Foundation, 2007).

Web pages

1. http://www.ilo.org/Dhaka/ Last visited 27 June 2010.

2. http://www.ilo.org/ Last visited 27 June 2010.

3. http://www.unifem-eseasia.org/projects/migrant/, Last visited 15th June 2010

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