Who is a Worker? – (September 2013, Issue 1)

September 11, 2013, by Sajeda Farisa Kabir

After the tragic Rana Plaza incident in Savar in April 2013, the issue of rights and privileges of workers, amongst others, has become a pressing issue. The term ‘worker’ has a very specific connotation in law and order to ascertain what rights and privileges attach the key question to ask is, “who is actually a ‘worker?

 

Bangladesh Labour Act 2006 (“the 2006 Act”) defines a worker as “any person including an apprentice employed in any establishment or industry, either directly or through a contractor, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward whether the terms of employment be expressed or implied, but does not include a person employed mainly in a managerial or administrative capacity”. In this regard, the issue of not being engaged in a ‘managerial or supervisory capacity’ creates a doubt when determining the status of an employee. A recent case of Mehdi Hassan & Another vs . The Government of Bangladesh & Other [1] provides some guideline.

 

In this case, two writ petitions were made on analogous facts where the Petitioners were employees of Unilever Bangladesh Limited and demanded their share of the Company’s profit for the year 2006 as per the provisions of (Workers’ Participation) Act 1968 (“the 1968 Act”). In this case, the High Court cited and relied on Indian case law and listed certain objective standards for determining whether an employee is a worker or not.

 

According to the 1968 Act, a “worker” in relation to a company means an employee of the company whose basic monthly wage does not exceed Taka nine thousand and who has been in the employment of the company for a period of not less than six months[2]. However, this law is repealed by the 2006 Act which provides that the protections ensured by the 2006 Act can be enjoyed by an employee of the company, irrespective of his designation or position, who has been in the employment of the company for a period of not less than six months but does not include any employee who is employed in a managerial or administrative capacity or who is employed in a supervisory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature[3]. This leads to a vast question in the labour law field as to which employee is a worker and who is not.

 

In reaching its decision, the Court in this case relied on various decisions to explain who ‘workers’ are. Syed Refaat Ahmed J in this case listed the judicially sanctioned objective standards for determining whether an employee is a worker or not. They are as follows[4]:

 

1. The employee has no power to hire or fire, their functions are neither managerial nor supervisory in nature in the sense in which those terms are understood in industrial law[5].
2. The employee has no authority to appoint any employee or take any disciplinary action on their own initiative and therefore, do not perform managerial or administrative functions[6].

 

1. The employee does not discharge any policy making responsibility on behalf of the company[7].

 

1. No discernible degree of discretionary power has been given to the employee in the discharge of their duties[8].

 

In the case of Mehedi Hassan, the Court applied the abovementioned judicially sanctioned objective standards to the job description of the petitioners of this case provided by the Company and held that the petitioners qualify to be termed as ‘workers’ under section 2(f) and section 233(1)(Ja) (1) and (2) of the 2006 Act. The latter states that the primary determinant of an employee’s status as a worker is whether the employee is performing managerial and administrative functions. Section 233(1)(Ja)(2) specifically excludes from the definition of ‘worker’ persons employed in a supervisory capacity performing managerial and administrative functions.

 

The case of Mehedi Hassan provides much needed assistance in determining this very basic but crucial question. The objective standards provide a practical guideline which employers may use in order to classify their employees and afford them with the rights and privileges which are sanctioned to them by law.

 

Written by Sajeda Farisa Kabir, Partner  

 

† Disclaimer: The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg.