• Saturday, Nov 26, 2022
  • Last Update : 10:24 am

OP-ED: In case of emergency

  • Published at 10:18 am July 12th, 2021
shezan factory fire narayanganj
Smoke coming out of the Shezan juice factory in Narayanganj which left at least 52 people dead Dhaka Tribune

Workers need to be protected -- could an Employment Injury Scheme be the answer?

Deaths and injuries of workers out of workplace accidents are a very common phenomenon in Bangladesh. We have seen too many tragic workplace accidents in Bangladesh in recent years, lost hundreds of workers’ lives, and left many others permanently disabled.

Since the Rana Plaza disaster, no fewer than 150 accidents have occurred. Among these, at least 35 were textile factory incidents in which 491 workers were injured and 27 lost their lives.

In the absence of a well-functioning labour inspection system and of appropriate enforcement mechanisms, decent work and life in dignity are still far from reality for the vast majority of workers in the various industries and their families.

In the recent workplace accident at the factory of Sajeeb Group in Rupganj, at least 49 workers and staffers died in the fire, being trapped on the third floor with its lone exit locked when the blaze engulfed the building. Three others died after jumping off the six-storey food processing factory. The death toll stood at 52, most of whom were women and children.

Bangladesh is a promising country in terms of the economic progress seen in the past 12 years under the leadership of our Prime Minister Sheikh Hasina. More specifically, in the nine years following the collapse of Rana Plaza, Bangladesh has made real and unprecedented progress in improving workers’ health and safety in its garment industry.

There have been many positive changes in the Bangladesh Labour Law and policies with regards to workers’ health and safety. Therefore, Bangladesh has a well-established system for paying compensation in case of workplace accidents, which is covered by the Bangladesh Labour Act, 2006 (BLA), revised in 2018; the Bangladesh Labour Rules, 2015 (BLR); and the Bangladesh EPZ Labour Act, 2019.

The system has clear provisions for payment of compensation in case of workplace accidents and the subsequent death or injury of any worker. This particular system is applicable for workers/employees of all the sectors across the country.

However, it has been experienced that the system could not be implemented properly in informal sectors due to insufficient enforcement mechanisms by the Department of Inspection for Factories and Establishments (DIFE), under the Ministry of Labour and Inspection. Any workers/employees of formal sectors are compensated through this system. The detailed system is narrated below.

In case of death

If any worker dies while working in the floor/workplace, or dies following an accident, then they will be entitled to:

Legal obligation:

1. The legal heir of the deceased worker will get the death compensation as mentioned under section 19 of BLA and section 18 of the Bangladesh EPZ Labour Act. The section of BLA says that:

“If a worker dies while in service for at least more than 2 (two) years continuously under an employer, such an employer shall pay as compensation 30 (thirty) days’ wages or, in the case of his death while working in the establishment or in the case of his death following an accident while working in the establishment 45 (forty five) days’ wages for every completed year of his service or any part thereof exceeding 6 (six) months or gratuity, whichever is higher, to the nominee of the deceased worker or, in the absence of the nominee, to his dependent and this money shall be in addition to the retirement benefit to which the deceased worker would have been entitled had he retired from service.”

The EPZ act denotes the same proviso except the employment time shall be not less than one year.

2. The legal heir of the deceased worker will get the retirement benefit mentioned under section 28(3) and 26(4).

According to section 26(4): “Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of 30 (thirty) days’ wages for his every completed year of service or gratuity, if payable, whichever is higher, and this compensation shall be in addition to any other benefit which is payable to such worker under this Act.”

3. The EPZ Labour Act expands the benefit narrating in section 24(3), “If any worker retires under this section, the employer shall pay him compensation at the rate of 45(forty-five) day’s wages for every completed year of service in addition to any other benefit to which he may be entitled under this Act or under own service rule of the establishment, shall be paid his benefits due to him.”

The legal heir of the deceased worker will also get the benefit from the group insurance as envisaged in section 99(3) of BLA. In practice, the group insurance was bought by the employers from private insurance companies for factories with more than 100 workers. Group insurance provided coverage of a maximum of 20 death cases.

However, the provision says that if a central fund is established by the government in the 100% export-oriented industrial sector under sub-section (3) of section 232, or 100% foreign money investors in the export-oriented industrial sector, group insurance for the workers of such industrial sector shall not be necessary, and in such cases, the workers shall be paid from such fund equal to the money of group insurance.

5. Legal heirs who fall under the ambit of the EPZ Act will also get benefits from group insurance as mentioned in article 36 of the EPZ Act. It further narrates the amount claimed as insurance shall be in addition to the other dues of a worker under this Act and shall be secured within 120 days of such claim.

6. The legal heir of the deceased worker shall also be entitled to get the compensation as envisaged under section 151(1)(a) of the BLA. The section says that the amount of compensation shall be where death results from the injury, the sum mentioned in the second column of the Fifth Schedule. The amount of compensation mentioned in 2nd column of Fifth Schedule of the BLA is BDT 200,000/- whatever be the amount of basic wages of the worker.

7. Section 75(1)(a) of the EPZ Act says the amount of compensation shall be where death results from the injury, the sum mentioned in the second column of the Fifth Schedule of the EPZ Act. The mentioned amount is BDT 2, 00,000, whatever be the amount of basic wages of the worker.

8. If the employer bears the expenses for his treatment (subsequently resulting in death), burial, or carrying of the dead body. Then the employer cannot deduct from the compensation payable to the dependents of the worker.

According to proviso of section 155(3): “Provided that where, in the case of a deceased worker, any amount is paid for his burial or treatment or carrying of the dead body, it shall not be deducted from any amount paid in advance by the employer or from the compensation payable to the dependents through the Labour Court.”

9. In addition, he/she will also get the benefit from the Provident Fund if the establishment has the Provident Fund system (rule 263 of BLR) and unavailed leave encashment (if any) according to section 11 of BLA.

In case of temporary disablement

If any worker meets an accident during working hours (in the workplace) and, as a result, the worker is injured “temporarily.” Temporary disablement reduces the earning capacity of a worker in any employment in which he was engaged at the time of the accident. A worker who acquires temporary disablement will be entitled to get the following benefits from the employer.

Legal obligation:

1. The injured worker shall be provided treatment at the expense of the employer. According to section 89 (7) of the Bangladesh Labour Act, 2006: “The treatment of a worker or an employee suffering from professional disease or work-time accident shall be continued by a competent or specialist medical practitioner at the expense and responsibility of the employer until such worker or employee is fully cured of such disease, hurt or sickness.”

Whether a worker is fully cured or not will be determined by a registered medical practitioner.

2. Section 82 of the EPZ Act says: Where a worker gives notice of an accident, the employer shall, within 3 (three) days of service of such notice, cause the worker to be examined at the expense of the employer by a medical practitioner. It further says in (3) that medical examination, treatment under sub-section (1), and details related thereof shall be determined by regulation.

3. The worker will get monthly payment as compensation as envisaged in the fourth column of the fifth schedule of the BLA.

The provision says that: “Compensation shall be paid for the period of disablement or for 1 (one) year, whichever is shorter. Such compensation shall be paid at the rate of full monthly wages for the first 2 (two) months, at the rate of two-thirds of the monthly wages for the next 2 (two) months and at the rate of half of monthly wages for the subsequent months.”

74 (1) (d) of the EPZ Act says that a worker shall get compensation under the last column of the fifth schedule of the act. It reads the same as the BLA above mentioned provision. 

In case of permanent disablement

If any worker meets an accident during working hours (in the workplace) and, as a result, the worker is injured “permanently,” then they will be entitled to get the following benefits.

Legal obligation:

1. The injured worker shall be provided treatment at the expense of the employer.

According to section 89 (7) of the Bangladesh Labour Act, 2006 (BLA): “The treatment of a worker or an employee suffering from professional disease or work-time accident shall be continued by a competent or specialist medical practitioner at the expense and responsibility of the employer until such worker or employee is fully cured of such disease, hurt or sickness.”

According to this section, the employers are liable to give all medical support for proper treatment of the injured worker as long as needed. 

2. Section 82 of the EPZ Act says: (1) Where a worker gives notice of an accident, the employer shall, within three days of service of such notice, cause the worker to be examined at the expense of the employer by a medical practitioner. It further says in (3) that medical examination, treatment under sub-section (1), and details related thereof shall be determined by regulation.

3. The worker shall be entitled to get the compensation as envisaged under section 151 (1) (b) of the BLA.

The section says that: “The amount of compensation shall be where permanent total disablement results from the injury the sum mentioned in the third column of the fifth schedule.”

The amount of compensation mentioned in the third column of the fifth schedule of the BLA is Tk250,000 -- whatever be the amount of basic wages of the worker.

4. As per section 151 (1) (d) of the BLA, in case of temporary disablement -- whether total or partial -- resulting from the injury, a monthly compensation shall be payable on the first day of the month following the month in which it is due after the expiry of a waiting period of four days from the date of disablement, and thereafter shall be payable for the period of disablement or for a period as specified in the last column of the fifth schedule, whichever is shorter.

The last column of the fifth schedule provides that compensation shall be paid for the period of disablement or for one year, whichever is shorter. Such compensation shall be paid at the rate of full monthly wages for the first two months, at the rate of two-thirds of the monthly wages for the next two months, and at the rate of half of monthly wages for the subsequent months.

Temporary disability (TD) determines when the workers return to work, or when the doctor grants permission that the worker may return to work, or states that he can work without any kind of problems.

In the case of prolonged occupational disease, compensation for disablement shall be paid at the rate of half of monthly wages during the period of disablement, but such period shall in no case exceed two years.

5. Section 74 (1) (b) of the EPZ Act states where permanent total disablement results from the injury, the sum mentioned in the third column of the fifth schedule shall be payable as compensation. The amount mentioned in the third column of the fifth Schedule of the EPZ Act is Tk2,50,000 -- whatever be the amount of basic wages of the worker.

The worker will also get the benefit from the group insurance as envisaged in section 99 (3) of the BLA. However, the provision says that if a central fund is established by the government in a 100% export-oriented industrial sector under sub-section (3) of section 232, or 100% foreign money investors in an export-oriented industrial sector, group insurance for the workers of such industrial sectors shall not be necessary. In such cases, the workers shall be paid from such funds equal to the money of the group insurance.

Please note that the central fund for the garments sector was established under Rule 214 of the Bangladesh Labour Rules, 2015 (BLR). According to the rule, the source of the central fund will be: 

(a)    0.03% of total value of export against each work-order of a hundred percent export oriented industrial establishment;

(b)    Voluntary contributions by the buyers or work-order issuing establishment; 

(c)    Voluntary donation from the government; 

(d)    Voluntary donations from any national or foreign individual or establishment; and 

(e)    Interest received from investment of the fund.

A worker under the EPZ Act can also be benefitted from group insurance as mentioned in section 32 of the EPZ Act.

Now, the question is whether this current compensation system for workplace death and injuries adequate for workers, especially for the workers who are not working in 100% export-oriented garments sectors. 

Is the current compensation system sufficient?

Under the current legal structure for compensation for workplace injuries and deaths due to accident, we can highlight the following observations from the experience of the Rana Plaza disaster:  

1. Both employers and workers in Bangladesh are at risk from a catastrophic accident in the workplace.

2. Employers are at risk of financial failure because they have no affordable and universal protection against the risk of such an accident.

3. Workers are at risk because in cases of catastrophic losses, funds may not be available to pay the compensation they are entitled to. Workers are further at risk because the administrative scheme in place for the recovery of that compensation is ineffective and does not provide improved access to medical treatment and rehabilitation. 

4. Furthermore, the Rana Plaza compensation scheme has served to highlight the inadequacy of the levels of compensation that are currently specified in the Bangladesh Labour Act for a workplace death or disabling injury.

5. Because there was no pre-existing fund established by employers or by the government to protect against such a catastrophic loss, funds needed to be raised. (Because of the export nature of the RMG industry and the susceptibility to public image, funds were raised from outside the country. That may not be possible if the disaster were a purely domestic industrial undertaking.)

6. The Rana Plaza experience highlighted what can happen as a result of the lack of enforcement of OHS and building safety standards and the need for greater compliance.

To address these issues, it is high time for Bangladesh to introduce an Employment Injury Insurance (EII) scheme as per the ILO convention 121. The International Labour Organization (ILO), Germany [Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ)] and the government of Bangladesh are committed to work in collaboration for the development of an Employment Injury Insurance (EII) Scheme for Bangladesh since 2015.

And now, the government of Bangladesh shall take the front seat to drive the initiative to form and implement the Employment Injury Insurance (EII) Scheme for the workers of Bangladesh to ensure adequate compensation for workplace accidents.

A new system

Furthermore, an efficient EII scheme strengthens the social fabric of a nation. It protects employers from catastrophic loss and provides a safety net for disabled workers and the dependents of deceased workers. It is a system that is self-funding.

Employers who are liable for the loss suffered by injured and deceased workers fund the system through a levy on their business. The EII systems generally have a “return to work objective” and a rehabilitation component. The protection of the country’s workforce and a commitment to the rehabilitation of the disabled is clear evidence of a “caring society” and a commitment to a healthy and prosperous population.

The government of Bangladesh should be cognizant of the need for an insurance fund against a catastrophic industrial accident. In the case of Rana Plaza external funding was available, largely because of the export nature of industry and the susceptibility of the international purchasers of ready-made garments to western consumer pressure. In other sectors and industries, external funds for the compensation of victims may not be available and pressure will fall on government resources where employers fail.

From the government perspective, there are other incidental positive outcomes from an effective EII scheme. An EII scheme highlights to employers the cost of workplace injuries and encourages safer workplaces. Enforcement of Occupational Health and Safety rules is always a challenge for the government.

As much as possible, governments should encourage voluntary compliance by employers. When employers see an annual assessment for the cost of accidents, they have an incentive towards voluntary compliance with regulations.

Again, although it is an incidental contribution, the funding and the systematic referral of injured workers to medical treatment and rehabilitation does have a positive impact on the development of those services.

Arafat Hosen Khan is Barrister at Law, and Advocate, Bangladesh Supreme Court. He is also Senior Lecturer, Department of Law, North South University and Legal Advisor, bridging solution of Employment Injury Protection Scheme (EIPS), GiZ.

301
Facebook 301
blogger sharing button blogger
buffer sharing button buffer
diaspora sharing button diaspora
digg sharing button digg
douban sharing button douban
email sharing button email
evernote sharing button evernote
flipboard sharing button flipboard
pocket sharing button getpocket
github sharing button github
gmail sharing button gmail
googlebookmarks sharing button googlebookmarks
hackernews sharing button hackernews
instapaper sharing button instapaper
line sharing button line
linkedin sharing button linkedin
livejournal sharing button livejournal
mailru sharing button mailru
medium sharing button medium
meneame sharing button meneame
messenger sharing button messenger
odnoklassniki sharing button odnoklassniki
pinterest sharing button pinterest
print sharing button print
qzone sharing button qzone
reddit sharing button reddit
refind sharing button refind
renren sharing button renren
skype sharing button skype
snapchat sharing button snapchat
surfingbird sharing button surfingbird
telegram sharing button telegram
tumblr sharing button tumblr
twitter sharing button twitter
vk sharing button vk
wechat sharing button wechat
weibo sharing button weibo
whatsapp sharing button whatsapp
wordpress sharing button wordpress
xing sharing button xing
yahoomail sharing button yahoomail