Failure to comply with minimum leave entitlements
There is no separate legislation that regulates employment in Bangladesh; however, the Labour Act 2006 (the Act) is considered as the minimum standard for employee benefits. Therefore, nothing can stop a company's employment policy from offering more benefits to its employees than other companies, but the provision of fewer benefits than those set out the Labour Act 2006 constitutes a violation.
This article looks at one of the most significant baseline benefits – leave – and gives an overview of the provisions of leave under the relevant legal framework. The Act provides for different types of leave, which are set out below (except for maternity leave).
According to section 115 of the Act, workers can take casual leave with full wages for 10 days per year. If a worker does not take all casual leave days in a given year, they cannot carry any remaining days into the following year.
As per rule 106 of the Bangladesh Labour Rules 2015 (the Rules), workers can take casual leave before or after weekly leave or occasional leave. In that case, the weekly or occasional leave shall not be considered as casual leave. However, if casual leave is taken during weekly or festival leave, the leave shall be considered as casual leave. In addition, the worker can enjoy the leave proportionately if they join the company after the start of the year.
According to section 116 of the Act, every worker can take 14 days of sick leave with full wages per year. However, in order for workers to qualify for this type of leave, they must be examined by a medical practitioner to obtain a certificate that affirms their sickness. As with casual leave, sick leave cannot not be carried forward to the following year.
As per rule 106 of the Rules, the worker can take sick leave before or after the weekly leave or occasional leave. In that case, the weekly or occasional leave shall not be considered as sick leave. However, if the sick leave falls into the weekly or festival leave, the leave shall be included in the original leave. In addition, the worker can enjoy the leave proportionately if they join the workplace after the start of the year.
As per section 117 of the Act, every adult worker who has completed one year of continuous service in an establishment shall be afforded leave with wages during the subsequent 12-month period. These leave days are calculated based on the type of work that was carried out during the preceding 12 months:
- one day for every 18 days of work for employees of:
- commercial or industrial establishments;
- factories; and
- road transport establishments;
- one day for every 22 days of work for tea plantation workers; and
- one day for every 11 days of work for factory workers.
The same rule applies for non-adult workers, but at the following rate:
- one day for every 15 days of work for factory workers;
- one day for every 18 days of work for tea plantation workers; and
- one day for every 14 days of work for employees of shops or commercial or industrial establishments.
If national holidays occur during annual leave, such days shall be included in the annual leave. If a worker does not take any annual leave in a 12-month period, either in whole or in part, such leave shall be added to their entitlement in the subsequent 12 months of employment. In such cases, an adult worker shall cease to earn any annual leave when they have accumulated more than:
- 40 days – for workers in factories or road transport establishments; or
- 60 days – for workers on tea plantations or in shops or commercial or industrial establishments.
This limitation also applies to non-adult workers who have accumulated more than:
- 60 days – for workers in factories or on tea plantations; or
- 80 days – for workers in shops or commercial or industrial establishments.
If a worker applies for earned leave and their employer refuses for any reason, the leave that has been refused shall be added to that worker's leave credit and may be in excess of the above limits.
In order to be eligible for annual leave, workers are required to complete one year of service wherein the following should not be deemed as an interruption or break in continuity:
- leave with wages;
- leave with or without wages due to sickness or an accident;
- maternity leave that does not exceed 16 weeks;
- lay-off; and
- illegal strikes or lockouts.
According to section 11 of the Act, if a worker is dismissed from their role, they shall be entitled to the equivalent amount of wages for any outstanding annual leave.
Moreover, according to rule 107 of the Rules, when calculating annual leave, the presence of the worker in the workplace during the previous 12 months must be considered. However, more than half of the earned leave cannot be cashed in a given year and such an encashment can occur only once per year. If a worker who has unused, fully paid leave days dies, their legal inheritor(s) will be entitled to the wages for such unused leave.
As per section 118 of the Act, a worker is entitled to 11 days of leave per year with full wages for festival holidays. The employer is obliged to fix the date of such leave after a discussion with the relevant joint bargaining representative (or participating committee, in their absence). A worker may be asked to work during a festival holiday, but that would entitle the worker to a substitute holiday of one day and two days of compensatory wages. Further, the number of festival leave days shall not be fewer than 11 per year.
Under section 103 of the Act, workers in factories or industrial establishments are entitled to one day of holiday per week, while shop workers are entitled to one-and-a-half days of holiday per week. Further, according to section 104 of the Act, workers are permitted, as soon as possible, to take compensatory holidays that are in equal number to the number of any weekly holidays during which they were required to work.
Where the stipulated weekly leave cannot be given to workers, the deprived days must be given within the following three days and no worker can be made to work for more than 10 consecutive days without being given weekly leave (rule 101 of the Rules). Moreover, under the same rule, workers who are to receive compensatory leave under section 104 of the Act are entitled to compensatory weekly leave within 30 days from the respective leave due date.
If a worker is dismissed before they take their full compensatory weekly leave, they will be entitled to the equivalent amount of wages for any outstanding leave days.
Failure to comply with minimum leave entitlements
Employers can be fined 25,000 takas (approximately $290) under section 307 of the Act for any contravention of, or failure to comply with, any of the provisions of the Act or the rules made thereunder. However, this provision applies only when there is no other relevant penalty for such contravention or failure. This rule applies to matters of leave and both the employer and employee may be found liable.
For further information on this topic please contact Ibtida Farhat Tropa at AS & Associates by telephone (+880 182 222 2272) or email ([email protected]). The AS & Associates website can be accessed at www.as-associates.net.