Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Nepal (Ratification: 1996)

The Committee notes the Government’s report and in particular the Constitution of the Kingdom of Nepal, 1990 (now amended through the newly reinstated House of Representatives (HOR) declaration) which guarantees its citizens the right to freedom of association.

1. Comments of the International Confederation of Free Trade Union (ICFTU). The Committee notes the comments made by the ICFTU in a communication dated 10 August 2006 on the application of the Convention. The comments concern: (1) the restrictions on the trade union rights that were suspended by the state of emergency following the coup d’état on 1 February 2005; (2) the amendments made to the Civil Service Ordinance Act of 1992 on 14 July 2005 which would forbid the formation of any association or union of civil servants except for those specified by the Government and undercuts the ability of civil servants to collectively bargain by unilaterally determining conditions of employment in the civil service; and (3) the fact that although the Labour Act provides for collective bargaining, the structure to implement the necessary provisions are not in place. The Committee requests the Government to provide its observations on the comments made by the ICFTU.

2. Article 1 of the Convention. Anti-union discrimination. In its previous comments, the Committee had noted the issue of legislative protection against anti-union discrimination and had expressed the firm hope that the Government will take the necessary steps to ensure the enactment of a provision providing explicit protection against anti-union discriminations, accompanied by effective and sufficiently dissuasive sanctions. The Committee notes that the Government states that: (1) committees will be instituted for the revisions of the relevant legislation which will note the Committee’s comments; and (2) it will inform the Committee of any further developments. The Committee requests once again the Government to keep it informed of further developments in this regard and in particular the progress of the work of the Labour Law Review committee considering the issue.

3. Article 2. Acts of interference. In its previous comments, the Committee had asked the Government to ensure the enactment of a provision providing protection to workers’ and employers’ organizations against acts of interference by one another, and including effective and sufficiently dissuasive sanctions guaranteeing adequate protection to trade unions against acts of interference in their establishment, functioning or administration and, in particular, against acts which are designed to promote the establishment of workers’ organization under the domination of employer’s organizations, or to support workers’ organizations by financial or other means, with the objective of placing such organizations under the control of employers or employer’s organization. The Committee notes that the Government states that the advice of the Committee will be taken care of during the next amendment and in the meantime, the issue will be discussed in various tripartite forums to reach a consensus. The Committee requests once again the Government to keep it informed of developments in this regard.

4. Article 4. Collective bargaining. In its previous comments, the Committee had requested the Government to abrogate section 30 of the Trade Union Act, which gives special powers to the Government to restrict trade union activities considered against the economic development of the country. The Committee notes that the Government states that section 30 of the Trade Union Act is an emergency preventive measure, that this section has never been invoked and put into practice yet, that this provision is not meant to restrict trade union rights, that it will not be invoked against their interest and that this issue will be discussed with the social partners during subsequent legislative reform. However, the Committee recalls that the section confers without ambiguity broad powers to the authorities which could impair the guarantees set out in the Convention, and requests once again the Government to take the necessary measures to abrogate section 30 of the Trade Union Act in the near future and to keep the Committee informed of developments in this regard.

5. In its previous comments, the Committee had requested the Government to provide a copy of the Essential Services Act, 1957, which seemed to impose restrictions on the right to organize and bargain collectively. The Committee notes that the Government states that the main intent of the Essential Services Act is to safeguard the rights of the public to the essential services and not to curtail the rights of workers’ unions, that it becomes equally necessary to ensure that the rights of the other party are adequately taken care of and that some provisions should be in place to safeguard larger public interest and save the country in time of crisis and emergency. The Committee requests once again the Government to provide it with a copy of the Essential Services Act, 1957, even if the English version is not available.

6. Article 6. In its previous comments, the Committee had asked the Government to provide copies of the National Directive Act, 1962, the Civil Service Act, examples of collective agreements concerning employees of the public enterprise or public institution employing civil servants not engaged in the administration of the State and copies of Acts concerning the right to organize and bargain collectively of teachers and other civil servants who do not fall within the ambit of the Civil Service Act. The Committee notes that the Government states that: (1) employees of public enterprises are recruited according to their own respective laws and regulations and are not staffed by civil servants; (2) the Civil Service Act does not apply to them, therefore they can exercise their rights to organize and collective bargaining; and (3) the teachers of the public schools, though they are government employees, can exercise the right to collective bargaining. The Committee notes that the reinstated Parliament has declared that up to gazetted civil servants up to the second class will be allowed trade union rights, that the Government has already presented the amended civil service act bill in Parliament to this effect and that the civil servants at the non-gazetted level (now proposed up to second-class level) are enjoying these rights with their own separate union. The Committee requests once again the Government to provide copies of the mentioned Acts, even if a translation in English is not available, and to indicate the civil servants categories included in the first-class level.