Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

1. Article 1 of the Convention. The Committee had noted that section 23(a) of the Trade Union Act of 1999 limits protection against anti-union discrimination to cases of transfer of trade union representatives. It pointed out that the legislation does not cover: (i) anti-union discrimination against workers in general; (ii) anti-union discrimination at the time of recruitment; and (iii) dismissals on anti-union grounds. The Committee had noted that efforts are being made to discourage anti-union discrimination against workers in recruitment, dismissal or any other circumstances that may jeopardize union members solely due to their involvement in trade union activities and that the Government is considering the imposition of sanctions to curtail such anti-union discrimination. Recalling that the Government should ensure that provisions respecting anti-union discrimination in conformity with the Convention are adopted and are accompanied by effective and sufficiently dissuasive sanctions, the Committee requests that the Government specify in its next report which measures have been taken in this regard. The Committee hopes to be in a position to note progress in the near future.

2. Article 2. The Committee had noted once again that neither the 1992 Trade Union Act and the 1999 amendment nor the 1992 Labour Act contain provisions providing protection to workers’ organizations against acts of interference by employers or their organizations. It also noted the information provided by the Government in its report according to which it is fully committed to protect and safeguard rights and interests of workers involved in trade union activities. The Committee recalls that states which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2. The Committee therefore once again requests the Government to ensure that provisions accompanied by effective and sufficiently dissuasive sanctions are adopted which guarantee the adequate protection of 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’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations. The Committee requests the Government to take the necessary measures to guarantee the application of Article 2 and to keep it informed, in its next report, of any progress made in this regard.

3. Article 4. In its previous comments, the Committee noted that section 30 of the Trade Union Act gives special powers to the Government to restrict trade union activities considered against the  economic development of the country. The Committee had noted the Government’s indication that this section has never been invoked or put into practice as yet and that such restrictions can be made only in extraordinary or unusual situations, which may undermine peace and tranquillity or may hamper the socio-economic development process of the country. The Government had also informed the Committee that trade unions believe that some restrictions have been imposed on their right to organize and bargain collectively under the Essential Service Act, 1957. However, according to the Government, such restriction is essential to safeguard public interest and save the country from being economically sabotaged due to an unruly strike, especially in the essential service sector. The Committee took note of this information and asked the Government to forward a copy of the Essential Service Act. It also requests the Government to take measures for the abrogation of section 30 of the Trade Union Act.

4. Article 6. The Committee had noted the information provided by the Government according to which the Trade Union Act is not applicable in the case of public servants involved in the administration of state affairs or in essential services determined by the Government. The Committee recalls that only public servants who, by their functions, are directly employed in the administration of the State may be excluded from the scope of the Convention but that all other persons employed by the Government, by public enterprises or by autonomous public institutions should benefit from the guarantees provided for in the Convention. The Committee asks the Government to indicate in its next report whether the right to organize and to collective bargaining of public servants not employed in the administration of the State is guaranteed in the national legislation and, if so, to forward a copy of the relevant provisions.

5. The Committee recalls the comments made by the General Federation of Nepalese Trade Unions (GEFONT) in a communication dated 29 August 1998, regarding the application of this Convention. GEFONT had referred to various enterprises or corporations where, after signing a collective agreement, the employers refused to implement it and the Minister of Labour and the concerned authorities failed to intervene. In view of the fact that the Government has not responded to these comments, the Committee can only urge once again the Government to take the necessary measures to ensure that the terms of these collective agreements are respected.

The Committee once again expresses the firm hope that the Government will, as soon as possible, take the measures necessary to bring its legislation into full conformity with the provisions of the Convention.