Rana Plaza and liability of regulators

VOL 20 NO 157 REGD NO DA 1589 | Dhaka, Friday, May 24 2013
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Rana Plaza and liability of regulators
The regulatory authority says in its defense that it does not have enough manpower to enforce the building regulations. But is there any instance of taking action against an offender anywhere in the country? The department has 45 inspectors and other staffer and officials but could not use the absolute power to shut down any of the “business organizations” as per of any preventive measures writes M S Siddiqui

Over and above the constitutional obligations, Bangladesh has commitments to workers' rights, having ratified several ILO conventions, while its laws guarantee health and safety and other working conditions. But deaths and injuries of workers remain unacceptably high, with little or no prevention.

The government is amending the Labour Law to meet the requirements for retention of the Generalised System of Preference (GSP) facility in the USA market. What the Bangladesh government and the employers are doing on safety compliance is intended more to satisfy the overseas garment buyers than to ensure safety of the employees' lives.

The recent series of incidents exposed the lack of proper law implementation. The issues of hazardous and outdated installations, ineffective machinery and inadequate safety tools and Personal Protective Equipment at workplace also came to the fore.

The Labour Law-2006 is the most significant legislation dealing with occupational health and safety in establishments in Bangladesh. The law has a wider scope of applying to all 'establishments'. It defines an establishment as a: "shop, commercial establishment, industrial establishment or premises on which workers are employed for industrial work." The definition of a 'factory' is limited to the premises of a factory and, therefore, it appears to exclude business activities that take place outside its premises. Agricultural farms that employ more than 10 workers, rubber, coffee and tea estates, construction sites and road, river and railway transport services come under the purview of the definition, though 'ocean-going vessels' are specifically excluded. It also includes airlines, docks, wharfs or jetties, mine, quarry, gas-field, oil-field and other establishments. There are different kinds of offices coming under the purview of the definition of 'commercial establishments'-an administrative department of a factory or any industrial or commercial undertaking, which employs workers for the commercial or industrial purpose and some other business organisations like insurance companies, banks, clubs, hotels, restaurants, cinemas and theatres.

A much-preferred approach of the law would be its applicability to all establishments, other than a specified list of exemptions. The scope of the legislation should be much clearer. The "establishments" should be defined as "any trade or business or other activity providing employment or contracts for services, and include domestic premises in relation to any domestic staff working there." Workers are often sent to undertake hazardous work outside the perimeter as part of their duties. So it makes no sense that the law will apply only to activities inside an establishment's premises.

Interestingly, some kinds of other premises are specifically exempted from the law's purview, like offices of or under the government, although it is not clear whether this exemption includes autonomous bodies or public corporations, the exhibition shops, shops or stalls in any public exhibition or show which deal with retail trade. We have many instances that accidents have taken place at exhibitions and educational institutions and other establishments.

Taking into account the definition of 'commercial' and industrial establishments' and the exemptions set out in section 1(4) of the 2006 Labour Law, the ordnance factories manufacturing weapons are, however, exempted. The law has given immunity for negligence to the persons who run few organisations for "profit and gain". This sort of immunity is conflicting with our Constitution. This is an extremely wide exemption which is highly problematic since many government bodies are involved in hazardous activities. There is also ambiguity in the meaning of "offices of or under the government" - whether it applies to government corporations and autonomous bodies or not. For example, from our point of view, the rural electrification committees should not be exempted from the law, as their employees are involved in hazardous work and each year a number of them suffer fatal injuries.

India also tried to give immunity to government officials, religious and government offices. But the Indian Supreme Court has held that there will be industrial work, only if there is any systematic activity, which is organised through cooperation between employers and employees for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (though not spiritual or religious). Absence of profit motive or gainful objective is irrelevant, and it includes the public sector.

There is a provision for providing information and training to workers and doing their supervision. It is a cornerstone of the most health and safety legislations around the world. But the law in our country should further clarify what kind of information to provide, what kind of training to give and what kind of supervision should be in place.

It is now internationally accepted that workplace safety and health are best managed through the undertaking of 'risk assessments'- as set out in many ILO conventions. Risk assessments mean the employers first identify what safety and health hazards the workers face, then assess the level of risks (the extent of possible harm and the likelihood of the harm taking place), and then determine what measures need to be taken to mitigate the risk. There should be a hierarchy of controls - elimination of hazard, engineering controls, safe method of work, protective clothing etc.

The law does not set out any provision for making available personal protective equipment. Section 62(1) of the labour law and the Rules 51 and 52 of the Factories Rules do set out a number of obligations relating to fire safety - but the obligations are very specific and do not elaborate how to avert any fire incident.

The law has no clear provisions on the (i) specific weight limit (for load carried by workers in any factory) according to age, condition and sex; (ii) availability of alternative stairs as a precaution in case of any fire or other apparatuses against the number of workers; and (iii) the workers-toilet ratio. The overseas buyers insist on compliance with these conditions which are lacking in our national law.

Despite criticism of the law as it has some ambiguity and limitation, the law has given enormous authority to the regulator to enforce it. The law empowers an inspector to take steps for forcing employers to improve safety standards for workers.

In addition, enforcement can take place through prosecution. There are five offences in the act specifically relating to health, safety and welfare-the operation of unguarded machinery, failure to give any notice about an impending accident, a breach causing death, a breach causing grievous bodily harm and a breach causing any other harm.

The factory inspectors have many formal enforcement powers, in addition. The inspectors on sudden inspections can take punitive action against "whoever contravenes or fails to comply with any provisions of the law, or any rules of scheme made under it". The offence is punishable with a fine up to Tk 5,000. This punishment would, for example, apply to any breach of the obligations involving health, safety and welfare, not already covered by the offences above. A repeat conviction for the same offence can result in double the fine or the sentence of imprisonment.

When there has been a breach of a duty imposed upon an employer, anyone of the individuals defined as an employer can be prosecuted. In addition, when a company is prosecuted, "every director, partner, shareholder or manager or secretary or any other officer or representative directly involved in administration" shall be deemed guilty unless he can prove the offence has been committed without his knowledge or consent or he has tried his best to prevent it."

The government's regulatory authority has the power as per Sec 61(1) to evaluate the condition of any part of a building or ascertain whether its machinery is 'dangerous to human life or safety'. They may serve an order on an employer in writing to make specified changes within a specified period of time. Under Sec 61(2) he can prohibit use of any part of a building or machinery that "involves imminent danger to human life or safety" until it has been properly repaired or altered.

They may serve an order on the establishment specifying the measures that should be taken within a specified period of time under Sec 62 (1) to make provisions for separate fire escapes. Under Sec 76, if it appears that machine, plant or part of a building may be dangerous to human life or safety, the authority may order the employer to submit his or her structural drawings or carry out tests. If the regulator feels a situation exists within an establishment that is dangerous to life and safety of people or is so faulty that it may cause physical injury to the human beings-it may take action under Sec 85 (1). This is a discretionary power of the regulator. The regulator will write to the employer and direct the employer to rectify it in a particular way and in a particular period.

Under Section 85(2) the authority can order demolishing a building, if any pillar of it is likely to fall or is dangerous to it. Even as per Sec 83 (3), they may prohibit the employer from demolishing it, if it thinks that life and safety of any worker are threatened. It may inform the owner in writing and prohibit the employment of any workers in that establishment until the danger is addressed.

In a writ petition of some human rights bodies, the petitioners alleged that the state's failure to set up such an enforcement agency and take appropriate steps to implement the law had resulted in deaths of some 50 construction workers in 2007. The High Court on February 29, 2008 asked the government to explain within four weeks why its failure to establish an agency to enforce the Bangladesh National Building Construction Code 2006 should not be held to have been a violation of the law. The High Court also directed the government to submit a statement setting out steps taken to ensure safety of construction workers since the Code was adopted on November 15, 2006.

The regulatory authority says in its defence that it does not have enough manpower to enforce the regulation. But is there any instance of taking action against an offender anywhere in the country? The department has 45 inspectors and other staffers and officials but could not use the absolute power to shut down any of the "business organisations" under any preventive measure.

Bangladeshi bureaucrats have the total immunity against their action-both willful and non-willful negligence. But how can we excuse them for no action to save our citizens from accidents and negligence of employers? How to bring them to book since they fail to take action against a single offender?