Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee takes note of the observations provided by Education International (EI) in a communication received on 31 August 2014 and requests the Government to provide its comments in this regard. The Committee notes that the Government has not responded to the points raised by the International Trade Union Confederation (ITUC) in previous years in relation to anti-union dismissals, threats against trade union members and the weakness of collective bargaining since collective agreements only cover a very small percentage of workers in the formal economy. The Committee requests the Government to conduct an investigation in relation to these matters and to communicate its findings as well as information on the eventual remedies adopted.

The Committee recalls that in its previous observation, it had noted that the Government was in the process of drafting a new Constitution and that it would strive to ensure that the laws and regulations were compatible with the Convention. The Committee takes note that in its report, the Government indicates that tripartite consultations are under way to amend the Labour Act, 1992. The Committee requests the Government to provide information on any developments on the drafting of the new Constitution as well as on the amendment of the Labour Act, 1992, indicating any impact on the issues raised below.

Article 1 of the Convention. Anti-union discrimination. In its previous report the Government had indicated that maximum protection against acts of anti-union discrimination will be explicitly ensured through the upcoming labour market reform and the revision of the related laws by the tripartite task force. The Committee notes that the Government reiterates in its report that the constitutional provision concerning discrimination, together with section 23(a) of the Trade Union Act and section 53(6) of the Civil Service Act concerning transfers, are the sole provisions regarding this matter. The Committee underlines that this protection does not fulfil the requirements of Article 1 of the Convention. The Committee recalls, as it has done so previously, that Article 1 of the Convention guarantees workers adequate protection against all acts of anti-union discrimination and that legislation prohibiting acts of discrimination is inadequate if it is not coupled with effective, expeditious procedures and sufficiently dissuasive sanctions to ensure their application (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 223 and 224). The Committee therefore, once again, requests the Government to take the necessary measures to introduce in the legislation: (i) an explicit prohibition of all prejudicial acts committed against workers by reason of their trade union membership or participation in trade union activities at the time of recruitment, during employment or at the time of dismissal (e.g. transfers, demotions, refusal of training, dismissals, etc.); and (ii) effective and sufficiently dissuasive sanctions in cases of violation of this prohibition. The Committee requests the Government to provide information on any progress made thereon in its next report.

Article 2. Acts of interference. The Committee had noted that the Government had indicated that the issue of anti-union interference was an issue to be addressed in the course of the labour market reform. The Committee notes that the Government indicates in its report that there are about 286 trade unions registered at the Department of Labour which are affiliated to 12 trade union federations and seven trade unions of civil employees; that a total of 86 new unions have been added over the last eight years demonstrates, in its view, the Government’s non-interference in the establishment of trade unions and its adherence to the principle of not placing such organizations under the control of employers or employers’ organizations. The Committee reiterates its previous comments and requests the Government to indicate the measures taken or contemplated to introduce in the legislation a prohibition of acts of interference contemplated in Article 2 of the Convention, as well as rapid appeal procedures and dissuasive sanctions against such acts. The Committee requests the Government to provide information on any progress made thereon in its next report.

Article 4. Collective bargaining. Compulsory arbitration. The Committee had previously noted that, according to section 9(4) of the draft National Labour Commission Act, the National Labour Commission will have the power, in applying the Essential Services Act, 1957, and section 30 of the Trade Union Act, to arbitrate interests disputes in the hotel and transportation sectors as well as in cases where the authorities consider that the economic development of the country so requires. The Committee had recalled that compulsory arbitration to end a collective labour dispute is acceptable only if it is at the request of both parties involved in a dispute or in the case of disputes in the public service involving public servants engaged in the administration of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee reiterates its previous comments and requests the Government to take the necessary measures to ensure that compulsory arbitration can only take place in accordance with the abovementioned principles and to provide a copy of the National Labour Commission Act once adopted.

Composition of arbitration bodies. In its previous comments, the Committee noted that section 6 of the draft National Labour Commission Act provides that the Appointment Committee responsible for determining the composition of the National Labour Commission shall consist, inter alia, of two persons duly nominated by the Federation of Nepal Chamber of Commerce and Industry. The Committee had requested the Government to avoid any reference to the Federation of Nepal Chamber of Commerce and Industry or to any other organization in the draft National Labour Commission Act, and to refer rather to the “most representative” employers’ organization. The Committee had noted that the Government indicated in its previous report that it welcomed this suggestion. The Committee requests the Government to provide information on any progress made thereon in its next report.

Measures to promote collective bargaining. The Committee notes that in its report, the Government highlights its efforts to ensure collective bargaining and indicates that it finalized in August 2013 an agreement on the new minimum wage for industrial workers and workers at tea estates after necessary tripartite consultations. The Committee requests the Government to provide, in its next report, detailed information on the measures taken or contemplated to promote collective bargaining as well as statistical data on the scope of the collective agreements that have already been concluded, and the number and categories of workers covered.

The Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the Office to address the legal issues raised above.