Sunday, December 19, 2010

The Labour Law Act, 2006 Bnagladesh.

Semester Final Examination.
Subject: Labour & Industrial Law

What is unfair labour practice of the part of employers? Sec-195

Unfair labour practices on the part of employers briefly given in section 195 of Bangladesh Labour Act, 2006:
No employer or trade union of employers and no person acting on their behalf shall-
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union ; or
(b) Refuse to employ or refuse to continue to employ any person on the ground that such person is, or is not, a member or officer of a trade union; or
(c) Discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a trade union; or
(d) Dismiss, discharge, remove from employment or threaten to dismiss, discharge or remove from employment a worker or injure or threaten to injure him in respect of his employment by reason that the worker is or proposes to become, or seeks to persuade any other person to become a member or officer of a trade union, or participates in the promotion,
(e) Induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by inferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person;
(f) Compel or attempt to compel any officer of the collective bargaining agent to sing a memorandum o settlement or arrive at a settlement, by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods.
(g) Interfere with, or in any way influence the election provided for in section 202;
(h) Recruit any new worker during the period of strike under section 211 or during the currency or a strike which is not illegal, except where the conciliator has, being satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, permitted temporary employment or a limited number of workers, in the
Section where the damage is likely to occur;
(i) Deliberately fails to take measures recommended by the participation committee;
(j) Fails to give reply to any communications made by the collective bargaining agent in respect of any industrial dispute;
(k) Transfer the president, general secretary, organizing secretary or treasurer of any registered trade union in contravention of section 187;
(l) Commence, continue, instigate or incite others to take part in an illegal lockout.

2. Discuses the different provision factories act, 2006 regarding the welfare of the worker men in factory? Sec-89-99

89. First-aid appliances : (1) there shall, in every establishment be provided and maintained, so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the contents prescribed by rules.
(2) The number of such boxes or cupboards shall not be less than one for every one hundred fifty workers ordinarily employed in the establishment.
(3) Every first-aid box or cupboard shall be kept in charge of a responsible person who is trained in first-aid treatment and who shall always be available during the working hours of the establishment. etc

90. Maintenance of safety Record Book: In every establishment factory wherein more than twenty five workers are employed, shall maintain compulsorily, in the prescribed manner, a safety record book and safety board.
91. Washing facilities:
(1) In every establishment-
(2) The Government may in respect of any establishment or class or description of establishments or of any manufacturing process, prescribed standards of adequate and suitable facilities for washing.
92. Canteens:
(1) In every establishment wherein more than one hundred workers are ordinarily employed, there shall be provided adequate number of canteens for the use of the workers.
(2) The Government may make rules providing for-
(a) The standards in respect of construction, accommodation, furniture and other equipment of the canteen; and
(b) The constitution of a managing committee for the canteen and representation of the workers in the management of the canteen.
(3) The managing committee to be formed under the rules shall determine the foodstuff to be served in the canteen, and the charges therefore,
93. Shelters, etc.:
(1) In every establishment wherein more than fifty workers are ordinarily employed, adequate and suitable shelters or rest rooms, and a suitable lunch room, with provision for drinking water, where workers can eat meals brought by them, shall be provided and maintained for the use of the workers. Provided that any canteen maintained in accordance with the provisions of section 92 shall be regarded as part of the requirements of this sub-section: Provided further that where a lunch room exist, no worker shall eat any food in the work room.
(2) The shelters, rest rooms or lunchrooms provided under sub-section (1) shall be sufficiently lighted and ventilated and shall be maintained in a cool and clean condition. etc
94. Rooms for children:
(1) In every establishment, wherein forty or more workers are ordinarily employed, thee shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such women.
(2) Such rooms shall provide adequate accommodation, adequately lighted and ventilated and maintained in a clean and sanitary condition and shall be under the charge of woman trained or experienced in the care of children and infants.
(3) Such rooms shall be conveniently accessible to the mothers o the children accommodated therein and so far as is reasonably practicable they shall not be situated in close proximity to an part of the establishment where obnoxious fumes, dust or odors are given off or in which excessively noisy processes are carried on.
(4) Such rooms shall be solidly constructed and all the walls and roof shall be of suitable heat resisting materials and shall be water-proof.
(5) The height of such rooms shall not be less than 360cm from the floor to the lowest part of the roof and there shall be not less than 600sq. cm of floor area for each child to be accommodated.
(6) Effective and suitable provisions shall be made in every part of such room for securing and maintaining adequate ventilation by the circulation of fresh air. etc
95. Recreational and educational facilities in tea plantation: The Government may, in respect of the plantations: (a) make rules requiring every employer to make provision for such recreational facilities for the workers and their children as may be prescribed;
(b) Where the children of the tea plantation workers between the ages of six and twelve of the workers exceed twenty-five in number, make rules requiring the employer to provide educational facilities for the children in such manner and of such standard as may be prescribed. etc
96. Housing facilities in tea plantation: Every employer in a tea plantation shall provide housing facilities to every worker and his family residing in the tea plantation.
97. Facilities for daily necessities, etc. in tea plantation: Every employer in a tea plantation shall provide facilities within easy reach of the workers for obtaining the daily necessities of life.
98. Medical care for newspaper workers: Every newspaper worker and his dependents shall be entitled to medical care at the cost of the newspaper establishment in such manner and to such extent as may be prescribed.
Explanation : For the purpose of this section, ‘dependents’ means wife, or husband, as the case may be, widowed-mother, invalid parents and legitimate sons and daughters of a newspaper worker residing with him and wholly dependent upon him.
99. Compulsory Group Insurance: Government may, in the manner provided by rules, introduce group insurance, in the establishments wherein minimum 200 permanent workers are employed.

3. Discuses the different provisions of the factory act, 2006 regarding the health and hygienic of the workers in a factory? Sec-51-60

51. Cleanliness: Every establishment shall be kept clean and free from effluvia arising from any drain, privy or other nuisance, and in particular-
(a) Accumulation of dirt and refuge shall be removed daily by sweeping or by any other effective method from the floors and benches of work-rooms and from staircases and passage and disposed of in a suitable manner;
(b) The floor of every work-room shall be cleaned at least once in every week by washing, using disinfectant where necessary or by some other effective method;
(c) where the floor is liable to become wet in the course of any manufacturing process to such extent as is capable of being drained, effective means of drainage shall be provided and maintained;
52. Ventilation and temperature:
(1) Effective and suitable provisions shall be made in every establishment for securing and maintaining in every work-room adequate ventilation by the circulation of fresh air;
(2) Such temperature as will secure to workers therein reasonable conditions of comfort and prevent injury to health.
(3) The walls and roofs, as required by sub-section (2), shall be of such material and so designed that such temperature shall not be exceeded but kept as low as practicable; ETC
53. Dust and fume:
(1) In every establishment in which, by reason of any manufacturing process carried on, there is given off any dust or fume or other impurity of such a nature and to such an extent as is likely to be injurious or offensive to the workers employed therein, effective measures shall be taken to prevent its accumulation in any work-room and it inhalation by workers, and if any exhaust appliance is necessary for this purpose, it shall he applied as near as possible to the point of origin of the dust, fume or other impurity, and such point shall be enclosed so far as possible. ETC
54. Disposal of wastes and effluents: Effective arrangements shall be made in every establishment for disposal of wastes and effluents due to the manufacturing process carried on therein.
55. Artificial humidification:
(1) In any establishment in which the humidity of the air is artificially increased, the water used for the purpose shall be taken from a public supply, or other source of drinking water, or shall be effectively purified before it is so used.
(2) If it appears to an Inspector that the water used in an establishment for increasing humidity which is required to be effectively purified under sub-section ETC
56. Overcrowding:
(1) No work-room in any establishment shall be overcrowded to an extent injurious to the health of the workers employed therein.
(2) Without prejudice to the generality of the provisions of sub-section (1), there shall be provided for every worker employed in a work-room at least 9.5 cubic meter of space in the establishment.
Explanation: For the purpose of this sub-section no account shall be taken of a space which is more than 4.25 meter above the level of the floor of the room. ETC
57. Lighting:
(1) In every part of an establishment where workers are working or passing, there shall be provided and maintained sufficient and suitable lighting, natural or artificial, or both.
(2) In every establishment all glazed windows and skylights used for the lighting of the work-room shall be kept clean on both the outer and inner surfaces and free from obstruction as far as possible. ETC
58. Drinking water:
(1) In every establishment effective arrangement shall be made to provide and maintain at a suitable point conveniently situated for all workers employed therein, a sufficient supply of wholesome drinking water.
(2) All such points where water is supplied shall be legibly marked ‘Drinking water’ in Bangla. ETC
59. Latrines and urinals: In every establishment-
(a) Sufficient latrines and urinals of prescribed types shall be provided conveniently situated and accessible to workers at all times while they are in the establishment.
(b) Such latrines and urinals shall be provided separately for male and female workers; ETC
60. Dust bean and spittoon: (1) In every establishment there shall be provided, at convenient places, sufficient number of dust beans and spittoons which shall be maintained in a clean and hygienic condition.
(2) No person shall throw any dirt or spit within the premises of an establishment except in the dust beans and spittoons provided for the purpose.
(3) A notice containing this provision and the penalty for its violation shall be prominently displayed at suitable places in the premises.

4. (i) What is the definition of wages? Sec-120

120. Special definition of ‘wages’: In this Chapter, unless there is anything repugnant in the subject or context, ‘wages, means wages as defined in section 2 (XLV), and includes-
(a) Any bonus or other additional remuneration payable under the terms of employment;
(b) Any remuneration payable in respect of overtime work, holiday or leave;
(c) Any remuneration payable under any award or settlement between the parties or under order of any Court;
(d) Any sum payable under this Act or any agreement by reason of termination of employment whether by way of retrenchment, discharge, removal, resignation, retirement, dismissal or otherwise; and
(e) Any sum payable due to lay-off or suspension.

(ii)When does time of payment of wages? Sec-123
123. Time of payment of wages: (1) The wages of every worker shall be paid before the expiry of the seventh day after the last day of the wage period in respect of which the wages are payable.
(2) Where the employment of any worker is terminated by retirement or by the employer, whether by way of retrenchment, discharge, removal, dismissal or otherwise, the wages payable to him shall be paid before the expiry of the seventh working day from the day on which his employment is so terminated.
(3) All payment of wages shall be made on a working day
(iii)When deduction which may be made from wages? Sec-125
125. Deductions which may be made from wages:
(1) No deduction shall be made from the wages of a worker except those authorized by or under this Act.
(2) Deductions from the wages of a worker shall be made only in accordance with the provisions of this Act, ETC

5. What is an industrial dispute? 209
Discuses the procedure for settlement of such dispute according to the industrial relation ordinance? 210

An industrial dispute:
Section 209. Raising of industrial disputes: No industrial dispute shall be deemed to exist, unless it has been raised in accordance with this chapter by a collective bargaining agent or an employer.

Dispute according to the industrial relation ordinance:
210. Settlement of industrial disputes:
(1) If, at any time an employer or a collective bargaining agent finds that an industrial dispute is likely to arise between the employer and workers or any of the workers, the employer, or, as the case may be, the collective bargaining agent shall communicate his or its views in writing to the other party.
(2) Within fifteen days of the receipt of a communication under sub-section (1), the party receiving it shall, in consultation with the representatives of the other party, arrange a meeting for collective bargaining on the issue raised in the communication with a view to reaching an agreement thereon, and such meeting may be held with the representatives of the parties authorized in this behalf.
(3) If the parties reach a settlement on the issues discussed, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded by the employer to the Government, the Director of Labour and the Conciliator.
(4) If-
(a) The party receiving a communication under sub-section (1) fails to arrange a meeting with the representatives of the other party for collective bargaining within the time specified in sub-section (2), the other party, or
(5) The Government shall, for the purposes of this chapter, by notification in the official Gazette,
Appoint such number of persons as it considers necessary, as conciliator for such specific area or
any industrial establishment or industry, and the conciliator shall take up the conciliation to whom
the request shall be made for conciliation under sub-section (4),
(6) The conciliator, upon receipt of the request as aforesaid, shall star conciliation and shall call a meeting of the parties to the dispute for the purpose of bringing about a settlement.
(7) The parties to the dispute shall appear before the conciliator in person or shall be represented before him by person nominated by them and authorized to negotiate and enter into an agreement binding on the parties.
(8) If any settlement of the dispute is arrived at in the course of the proceedings before him, the conciliator shall send a report thereof to the Government together with a memorandum of settlement signed by the parties to the dispute.
(9) If no settlement is arrived at within the period of thirty days of receipt of request under subsection
(4) by the conciliator, the conciliation proceedings shall fail or the conciliation may be continued for such further period as may be agreed upon in writing by the parties.
(10) If the conciliation proceeding fails, the conciliator shall try to persuade the parties to agree to refer the dispute to an Arbitrator.
(11) If the parties do not agree to refer the dispute to an Arbitrator, the conciliator shall, within three days of failure of the conciliation proceedings, issue a certificate to the parties to the dispute to the effect that such proceedings have failed.
(12) If the parties agree to refer the dispute to an arbitrator, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them. ETC

The Contract Law

(ACT NO. IX OF 1872).
[25th April, 1872]
Preamble Whereas it is expedient to define and amend certain parts of the law
relating to contracts; It is enacted as follows:-
Short title 1. This Act may be called the Contract Act, 1872.
It extends to the whole of Bangladesh; and it shall come into
force on the first day of September, 1872.
Nothing herein contained shall affect the provisions of any
Statute, Act or Regulation not hereby expressly repealed, nor
any usage or custom of trade, nor any incident of any
contract, not inconsistent with the provisions of this Act.
Interpretation clause
2. In this Act the following words and expressions are used in
the following senses, unless a contrary intention appears from
the context:-
(a) When one person signifies to another his willingness to do
or to abstain from doing anything, with a view to obtaining
the assent of that other to such act or abstinence, he is said to
make a proposal:
(b) When the person to whom the proposal is made signifies
his assent thereto, the proposal is said to be accepted. A
proposal, when accepted becomes a promise:
(c) The person making the proposal is called the "promisor"
and the person accepting the proposal is called the
(d) When, at the desire of the promisor, the promisee or any
other person has done or abstained from doing, or does or
abstains from doing, or promises to do or to abstain from
doing, something, such act or abstinence or promise is called
a consideration for the promise:
(e) Every promise and every set of promises, forming the
consideration for each other, is an agreement:
(f) Promises which form the consideration or part of the
consideration for each other are called reciprocal promises:
(g) An agreement not enforceable by law is said to be void:
(h) An agreement enforceable by law is a contract:
(i) An agreement which is enforceable by law at the option of
one or more of the parties thereto, but not at the option of the
other or others, is a voidable contract:
(j) A contract which ceases to be enforceable by law becomes
void when it ceases to be enforceable.

Semester Final Examination.
Subject: The Contract Law

1. What is consent? What are elements of free consent?

The law requires consent to a contract should be free and voluntary.
A party's genuine consent is an essential element of a legally binding contract. Genuine consent to enter into a contract can be affected by a number of issues. For example, during the contractual negotiations, there may have been:
• undue influence;
• mistake as to the terms and identity of the person;
• misrepresentation;
• unconscionable conduct; or
• Duress.
Each of these factors or events may mean that consent was not freely given by one of the parties and that party may therefore be able to avoid their contractual obligations.
Free Consent of Contract Act:
The contract, to be valid must contain some ingredients. One of the most important elements is the free consent of parties. The contract is the agreement between two or more persons. So there must be meeting of minds in similar manner. So the meeting must be voluntary. It must be free from any compulsion or pressure. A contract without free consent is not proper.

Section 13: "Consent” defined-
Two or more persons are said to consent when they agree upon the same thing in the same sense.

Section 14: "Free consent" defined-
Consent is said to be free when it is not caused by -
(1) Coercion, as defined in section 15, or
(2) Undue influence, as defined in section 16, or
(3) Fraud, as defined in section 17, or
(4) Misrepresentation, as defined in section 18, or
(5) Mistake, subject to the provisions of sections 20, 21, and 22.

Consent is said to be so caused when it would not have been given but for existence of such coercion, undue influence, fraud, misrepresentation or mistake.

2. Define mistake? Discuses typological mistake of contract?

An error committed in relation to some matter of fact affecting the rights of one of the parties to a contract.
Mistakes in making a contract are distinguished ordinarily into, first, mistakes as to the motive; secondly, mistakes as to the person, with whom the contract is made; thirdly, as to the subject matter of the contract; and, lastly, mistakes of fact and of law. In general, courts of equity will correct and rectify all mistakes in deeds and contracts founded on good consideration.

Mistake of contract:
Section 20: Agreement void where both parties are under mistake as to matter of fact.- Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.
Explanation: An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement is not to be deemed a mistake as to a matter of fact.

Section 21: Effect of mistakes as to law .– A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in [India] has the same effect as a mistake of fact.
A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation: the contract is not voidable.

Section 22: Contract caused by mistake of one party as to matter of fact. – A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.

Section 72: Liability of person to whom money is paid or thing delivered by mistake or under coercion .– A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.
(a) A and B jointly owe 100 rupees to C. A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B.
(b) A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive.

3. What is mean by consideration? What are assent of consideration?

Definition of consideration:
Section 2 (d) of the contract act defines as follows:
• Consideration is what a promisor demands as the price for his promise. In simple words, it means 'something in return.'
• Consideration has been defined as
"When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or promises to abstain from doing some¬thing, such act or abstinence or promise is called a consideration for the promise."

Assent of consideration:
Consideration must also be present for a legal contract to be formed. The essence of consideration is that a party receives some kind of benefit in return for his promise. Consideration may consist of money, goods, or a promise to do or not do something. The statement "I'll give you my guitar" is not a contract because the giver would receive no specified consideration in return.
When the mutual assent of legally capable parties, which includes an offer and an acceptance, accompanied by consideration, to a specific exchange or set of promises occur, a valid contract has been formed.

4. What is element contingent of contract?

Contingent contact:
A contingent contact is contracting to do or not to do something if some event collateral to such contract does or does not happen (Section 31).
Illustration: A contacts to pay B Tk. 5,000.00 if B’s house is burnt. This contingent contract.

Essential elements of a contingent contract:
The essential elements of a contingent contract are following:-
1. There must be a contract to do or not to do smoothing,
2. If some event does or does not happen,
3. That event must be collateral to the contract.

5. Which contract are specific enforceable? Which contract is not unenforceable?

Enforceable of Contract:
An enforceable contract is one for which a legal remedy is offered in the event that the contract is not fulfilled. For example, an oral contract to buy land would not be enforceable because the Statute of Frauds requires such an agreement to be in writing. Similarly, statutes of limitations, which limit the length of time available for legal action, may apply to contracts of certain types.

Unenforceable of Contract:
An unenforceable contract is a legal contract that a court cannot or will not enforce due to a technical defect. An unenforceable contract is valid, but gives the court system reason to refuse to offer remedy to either party. As there are many different types of contracts, there are many different reasons that a contract may be voidable, such as statute of limitations, omitted provisions, and ambiguity.
In essence, a contract is the exchange of promises for which the law provides remedy in case of breach by one or both parties. An example of a simple contract would be the promise by a homeowner to pay a contractor a specific sum of money to paint interior walls. If the painter finishes painting the walls, the homeowner is then bound to pay for the job as promised.