Author Topic: ADR in Bangladesh.  (Read 41 times)

Offline Md Nazim

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ADR in Bangladesh.
« on: July 21, 2018, 02:11:49 PM »
ADR in Bangladesh:


Section 210 of the labour act, 2006 introduces the alternative dispute resolution system for the
settlement of industrial dispute between the worker and worker or the worker and employer or the employer and
employer. Alternative dispute resolution (ADR; known in some countries, such as Australia, as external dispute
resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to
come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with
or without the help of a third party.4 To settle the industrial disputes of the parties firstly they have to negotiate
with each other which is called negotiation. In this step help of the third party is not required. The main purpose
of the process is for sufficient communication about the case for each side to take place so that agreement can be
reached. If negotiation is not fruitful than they shall refer the matter to the conciliator which is called
conciliation proceeding and here help of the third party is required. In this case conciliator is a person who is
appointed by the government and whose duty is to help the parties to reach an agreement. He just helps the
parties without giving any binding decision. He shall make the parties understand that what will be the ultimate
result, if they settle the matter between them; what will be their loss and what will be their gain, if they go to the
court. This is a win-win process; there is no fair of loss from any party. If the parties fail to settle the dispute
between them in conciliation proceeding than they may refer the dispute either to the arbitration or may call
strike or lock-out. If they go to the arbitration the arbitrator shall give a binding decision and it shall be valid for
sixty days. If they do not refer the matter to the arbitrator, one party giving required notice to the other party
may start strike or lock-out which can be continued for thirty days and after thirty days the government shall ban
the strike or lock-out and shall refer the matter to the labour court. Alternative dispute resolution (ADR), for
instances negotiation, conciliation and arbitration, is often regarded as a better option than the more
conventional mechanisms for the settlement of labour dispute, because of the lower cost and greater speed
involved, it has the potential of presenting a more successful and sustainable solution to the labour dispute.
II. METHODOLOGY

1
Soabarin Siddiqua is a Assistant professor, Department of Law, Leading University, Sylhet.
2 Barrister Arif Anwar is a Assistant professor, Department of Law, Leading University, Sylhet.
3 MD. Rashedul Islam is a Assistant professor, Department of Law, Leading University, Sylhet.
4 Australian Securities and Investments Commission Complaints Resolution Schemes. Asic.gov.au. Retrived on
2013-07-14.Available at: http//en.wikipedia.org/wiki/Alternative_dispute_resolution
Alternative Dispute Resolution under Labour Laws of Bangladesh: A Critical Review
DOI: 10.9790/0837-2207060913 www.iosrjournals.org 10 | Page
This study based on secondary sources. The secondary sources which have been reviewed are: books, journals,
reports, news papers and data from various official and unofficial sources. Internet sources have also used to
collect information on the alternative dispute resolution system under labour law.
Concept of ADR:
“The concept of alternative dispute resolution (ADR) includes all dispute resolution mechanisms other
than the formal process of adjudication in a court of law (Pretorius 1991:264). According to Zack (1997:95),
ADR offers a means of bringing workplace justice to more people, at lower cost and with greater speed than
conventional government channels. It also helps to clear the backlog of cases at statutory dispute resolution
institutes and is thus assisting government agencies to meet their societal responsibilities more effectively.
Wittenberg et al (1997:155) mentioned that more and more disputants, courts, public agencies and legislatures in
the USA are embracing the use of ADR in employment disputes. Slate (1998:1) indicated that the American
Arbitration Association is dedicated to the promotion of specifically the mediation process for dispute
settlement. Mediation or conciliation is seen as a fast, cheap and effective way to resolve disputes. The
settlement rate achieved through mediation was as high as 85% in the USA.”
5 ADR is a broad spectrum of
structured processes, including mediation and conciliation, which does not include litigation though it may be
linked to or integrated with litigation, and which involves the assistance of a neutral third party, and which
empowers parties to resolve their own problems. 6
So, ADR is an umbrella term for a variety of processes which
differ in form and application. Differences include: levels of formality, the presence of lawyers and other
parties, the role of the third party (for example, the mediator or conciliator) and the legal status of any agreement
reached. 7Despite these differentials, the Victorian Parliament Law Reform Committee suggests that it is
possible to identify some common features relating to the acronym ‘ADR’. For Example:
 There is a wide range of ADR processes;
 ADR excludes litigation
 ADR is a structured process
 ADR normally involves the presence of an impartial and independent third party;
 Depending on the ADR process, the third party assists the other two parties to reach a decision, or to
make a decision on their behalf; and
 A decision reached in ADR may be binding or non-binding.8
Concept of Industrial dispute
An industrial dispute may be defined as a conflict or difference of opinion between management and
workers on the terms of employment. It is a disagreement between an employer and employees’ representative;
usually a trade union, over pay and other working conditions can result in industrial actions. When an industrial
dispute occurs, both the parties, that is the management and the workmen, try to pressurize each other. The
management may resort to lockouts while the workers may resort to strikes, picketing or gherao.
Section 2(62) of the Bangladesh Labour Act, 2006 defines-“the industrial dispute means any dispute or
difference between employers and employers or between employers and workers or between workers and
workers which is connected with the employment or non-employment or the terms of employment or the
conditions of work of any person.”
Causes of Industrial Dispute

5
http://www,accord.org.za/ajcr-issues/%EF%BF%BCalternative-dispute-resolution-adr-in-theworkplace.
6
LRC CP 50-2008 at 2.12.
7
Lewis and McCrimmon ‘The Role of ADR process in the criminal justice system: A view from
Australia’. Paper presented ALRAESA Conference, Uganda, September 2005 at 2. Available at:
http://www.justice.gov.za.
8
Discussion paper for the inquiry into Alternative Dispute Resolution (Victoria parliament Law Reform
Committee, September 2007) ; p-6.
Alternative Dispute Resolution under Labour Laws of Bangladesh: A Critical Review
DOI: 10.9790/0837-2207060913 www.iosrjournals.org 11 | Page
The causes of industrial dispute can be broadly classified into two categories: economic and noneconomic
causes. The economic causes will include issues relating to compensation like wages, bonus,
allowances and conditions for work, working hours, leave and holidays without pay, unjust lay-offs and
retrenchments. The non-economic factors will include victimization of workers, ill treatment by staff members,
sympathetic strikes, political factors, indiscipline etc.
An industrial dispute can be raised only by a collective bargaining agent or an employer. Section 209 of
the Bangladesh labour act, 2006 provides the provisions for raising an industrial dispute which lays down “no
industrial dispute shall be deemed to exit unless it has been raised in the prescribed manner by a collective
bargaining agent or an employer.”
Industrial dispute settlement procedure under labour law
Settlement means to arrive at a peaceful decision and it will be in writing as an agreement between the
parties regarding the Industrial dispute. Section 2(xxv) defines Settlement as a settlement arrived at in the course
of conciliation proceeding and includes an agreement between an employer and his worker arrived at otherwise
than in the course of any conciliation proceedings, where such agreement is in writing, has been signed by the
parties thereto and a copy thereof has been sent to the director of labour and the conciliator. Industrial dispute
settlement procedure is divided into three steps9
:
(i) Negotiation
(ii) Conciliation
(iii) Arbitration
(i) Negotiation: If, at any time, an employer or a collective bargaining agent finds that an industrial dispute is
likely to arise between the employer and the workers or any of the workers and the employer, the collective
bargaining agent shall communicate its view in writing to the other party. The party receiving the
communication shall arrange a meeting for collective agent on the issue raised in the communication with a
view to reaching an agreement within fifteen days from the date on which it was received. If the parties
reach a settlement, it shall be recorded in writing and signed by both the parties and a copy shall be
forwarded by the employer to the government, the director of labour and the conciliator.
(ii) Conciliation: if the party receiving communication fails to arrange a meeting within fifteen days or if the
parties fail to do a settlement through negotiation within one month from the date of the first meeting for
negotiation, any of the parties can apply to the conciliator within fifteen days from the expiry of the said
fifteen days. The conciliator shall proceed to conciliate the dispute within ten days from the receipt of such
dispute. The conciliator shall be such a person who is appointed by the government by notification in the
official gazette for a specific area or any industrial establishment. The conciliator shall call a meeting of the
parties to the dispute for the purpose of bringing about a settlement. If the parties reach a settlement, it shall
be recorded in writing and signed by both the parties and a copy shall be forwarded by the conciliator to the
government. If the conciliator fails to settle the matter within thirty days from the date of the receipt of the
dispute, it shall be deemed that the conciliation proceeding fails. If the conciliation proceeding fails, the
conciliator shall try to persuade the parties to refer the dispute to the arbitrator. If the parties do not agree to
refer the dispute to the arbitrator, the conciliator shall issue a certificate to the parties within three days that
the proceedings have failed.
(iii) Arbitration: arbitrator may be a person borne on a panel to be maintained by the government or any other
person agreed upon by the parties. If the parties refer the dispute to the arbitrator than the arbitrator shall
give award within a period of thirty days from the date on which it was referred to him. After giving an
award, the arbitrator shall forward a copy to the parties and the government. This award shall be valid for
two years and no appeal shall lie against it.
Right to strike and lock-out: After failing the conciliation proceeding, if the parties don’t agree to refer the
dispute to the arbitrator, in that case within three days the conciliator shall issue a certificate to the parties that
the proceedings have failed. The party which raised the dispute may within fifteen days of the issue to it a
certificate of failure, shall give to the other party a notice or make an application to the labour court for
adjudication of the dispute. There is a condition that collective bargaining agent shall not serve any notice of
strike, if three-fourths of its members give their consent to it through a secret ballot specially held for this
purpose, under the supervision of the conciliator. If a strike or lock-out is commenced, either of the parties to the
dispute may make an application to the labour court for adjudication of the dispute. A strike or lack-out may last

9
Bangladesh labour act,2006. Secton 210
Alternative Dispute Resolution under Labour Laws of Bangladesh: A Critical Review
DOI: 10.9790/0837-2207060913 www.iosrjournals.org 12 | Page
for thirty days. After thirty days the government may prohibit the strike or lock-out and refer the dispute to the
labour court. The labour court, after hearing of both the parties, shall give an award within sixty days from the
date on which the dispute was referred to it. This award shall be valid for not more than two years. This is the
legal way to call strike or lock-out. 10
Why ADR system is important and necessary to resolve industrial dispute:
Alternative dispute resolution (ADR) is a collection of processes used for the purpose of resolving
conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as
grievances and complaints; however, it does not displace those traditional processes. The legal system is
adversarial and expensive. Most people feel the need to hire a lawyer to serve as a guide and interpreter of that
system. Lawyers are expensive and many people fear that they cannot afford a lawyer to resolve their dispute.
Furthermore, in an adversarial system in which a judge or a jury decides who wins and who loses, it is unlucky
that all parties will feel that their interests or needs have been satisfied. In fact, sometimes, no party’s interests
or needs will be satisfied. Some reasons for using ADR are that it is faster, less costly, easier, less formality
involved, less confrontational or adversarial, it encourages creativity and searching for practical solutions, it
avoids the unpredictability involved when decisions are rendered as a result of the traditional dispute resolution
mechanisms. There is a much wider range of outcomes with ADR than with courts. When it works, negotiation,
conciliation or mediation can produce a solution that satisfies both sides.
In case of negotiation sitting back, smiling and making open and relaxed body movements can suggest
confidence and might encourage negotiation. Psychological factors and non-verbal communication should not
be ignored. Crossed arms and looking away can show hostility. Unfortunately the lack of a clear process,
different strategies and tactics and factors such as stress can make communication difficult. This might prevent
agreement, if the disputant does not avoid or address problems.
In case of conciliation, Conciliators encourage the people in dispute to have creative discussion about a
range of options. Rather than just aiming for an acceptable compromise; they will try to end up with an
agreement which reflects the best possible outcome for all involved. This can have an effect on what happens
afterwards. It results in participants’ satisfaction; solutions tent to be durable or long lasting, increases
workplace morale and can make the disputants feel better about coming to work.
Now a days the courts are encouraging the use of ADR in general. However, in many cases, the courts
have stressed the importance of mediation in particular, and the flexibility of the process provides for resolving
the disputes. In Dunnett vs Railtrack plc [2002] 1 WLR 2434 per Brooke L J at [14] said, skilled
mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the
power of the lawyers and courts to achieve. This court has knowledge of cases where intense feelings have
arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral
soil with a skilled mediator to help them resolve their differences it may very well be that, the mediator is able
to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled
the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are
beyond the power of the court to provide.11In Halsey vs Milton Keynes General NHS Trust [2004] 1
WLR 3002, Dyson LJ at [15] said, we recognize that mediation has a number of advantages over the court
process. It is usually less expensive than litigation which goes all the way to litigation……mediation provides
litigants apology ; an explanation; the continuation of an existing professional or business relationship perhaps
on new terms; and an agreement by one party to do something without any existing legal obligation to do so.12
Under labour law we can see that to settle the industrial dispute ADR (negotiation, conciliation) is an
effective and overall a statutory mechanism. If it cannot be resolved by ADR then they can refer the matter to
the labour court or may call strike or lock-out legally. When the disputants not following the steps of the
procedure of settlement of industrial dispute, call the strike or lock-out, then it will be termed as illegal strike or
lock-out. In the event of an illegal strike by any section or department of any establishment, the employer may
close down wholly or partly such section or department and the workers participated in the illegal strike shall
not be paid any wages for such closure.13
Reason behind illegal strike and non observance of ADR:

10 Bangladesh labour act,2006. Section 211
11 Blake susan, Browne Julie and Sime Stuart, A practical approach to alternative dispute resolution( OXFORD
University press), p.203
12 Ibid, p.203
13 Bangladesh labour act, 2006. Section 13
Alternative Dispute Resolution under Labour Laws of Bangladesh: A Critical Review
DOI: 10.9790/0837-2207060913 www.iosrjournals.org 13 | Page
It is the statutory provision of the labour act is that industrial dispute shall be raised by a collective
bargaining agent or the employer. Most of the cases it is to be seen that employers do not allow the workers to
form trade union in an industry or where there is trade union in an industry, the collective bargaining
agent(CBA) is not strong there. If CBA leaders raise their voice on behalf of the workers, they are threatened by
the employer. There is a risk of lost of job, sometimes it is likely to cause death. It is to be said that, Aminul
Islam, a CBA leader has to leave this earth, only for raising voice on behalf of the workers. So, there is no one
on behalf of the workers to reach their demands to the employers. For this if any dispute arises regarding wages,
bonus, allowances, and conditions for work, working hours, leave and holidays without pay , unjust lay offs and
retrenchments, they cannot negotiate with the employer or the employer do not want to negotiate with the
workers. As a result the workers become aggrieved and most of the times it causes strike. The workers thinking
are that strike is the way to fulfill their demands. This strike is illegal strike, because of not following the
procedure of settlement of industrial dispute. In this circumstance the employer shall close down the
establishment. The employers not only refrain from fulfilling the demands of the workers but also close down
the establishment. So the ultimate losers are the workers. On the creation of a movement by the workers of a
ready made garment factory named Goldtex in Ashulia for overtime and increasing the allowance for lunch,
the authority close down the factory. 14
To protest the movement of the worker eight readymade garment industries in Gazipur closed down
sine die.15 So, most of the cases it is to be seen that workers took the way to go on a movement to fulfill their
demands and the employers always ignore the demands of the worker. As a result illegal strike took places
which are defined in labour law and the employers get the scope lawfully to closure of the establishments.
To improve this situation the following measures should be taken:
 A strong and stable trade union in each industry is essential to represent the majority of the workers, to
maintain good industrial relation and negotiate with the management about the terms and conditions of
service.
 Trade unions should persuade their members to work for the common objectives of the organization. Both
the management and the labour unions should have faith in collective bargaining and other peaceful
methods of settling dispute.
 Both the management and the labour should help in the development of an atmosphere of mutual co
operation, confidence and respect.
 The participation of the workers in the management of the industry shall improve communication between
managers and workers, increase productivity and lead to greater effectiveness.
 The employers must recognize the right of collective bargaining of the trade unions. Their approach must
be of mutual “give and take” rather than “take and leave”.
 The management should sincerely implement the settlements reached with the trade union as any
agreement.
 The government should play an active role for promoting industrial relations. It should make law for the
compulsory recognition of the trade union and the CBA in each industry, where CBA is necessary to raise
voice relating to any industrial dispute.
III. Conclusion
A large number of workers are not aware of their rights. They do not know that, they have a right to
form trade union, collective bargaining agent should be present in the industrial sectors, whose duty is to raise
the voice regarding any industrial dispute and maintain the other formalities of the dispute settlement procedure.
In this regard initiatives should be taken to improve the knowledge of the worker about their rights, liabilities
and their duties; as well as they should have loyalty to the employers. These initiatives can be taken by
preparing a motivational programme in the television, radio or other media which is easily accessible to the
worker. Our government should come forward with strong motivation and this can be done by the compulsory
observance of the laws relating to Alternative Dispute Resolution.

14 Prothomalo, 2011, 26th December. Available in: http//epaper.prothom-alo.com/view/Dhaka/2011-
12-26/4
15 Prothomalo, 2013, 27th February. Available in: http://epaper.prothom-alo.com/view/dhaka/2013-02-27/5
Soabarin Siddiqua. "Alternative Dispute Resolution under Labour Laws of Bangladesh: A
Critical Review." IOSR Journal Of Humanities And Social Science (IOSR-JHSS) 22.7 (2017):
09-13.[/left][/center][/right]