Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee takes due note of the comments provided by the Government in response to the 2017 observations of the International Trade Union Confederation (ITUC), as well as to the 2014 observations made by Education International. In this regard, the Committee notes that the Government indicates that: (i) section 16(e) and (j) of the Education Act, 1971 (7th amendment), allows teachers of public and private schools to form unions and to bargain collectively and provides for dispute settlement, and (ii) both formal and informal sectors are covered under the new Labour Act, 2017.

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous comments, the Committee had requested 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 (for example transfers, demotions, refusal of training, dismissals, etc.); and (ii) effective and sufficiently dissuasive sanctions in cases of violation of this prohibition. The Committee notes that the Government indicates that if any worker experiences discrimination while carrying out legitimate trade union activities, including discrimination based on ideology, religion, gender and other grounds, then he/she can file a complaint to the competent authorities as per sections 9 and 162 of the Labour Act, 2017. In addition, as per section 165 of the Labour Act, this worker has the right to appeal, against the decision. The Committee recalls that the prohibition of discrimination provided for under section 6 of the Labour Act, as well as section 24 of the Constitution of 2015, do not contain an explicit prohibition of discrimination against workers by reason of their trade union membership or participation in trade union activities. In view of the above, the Committee 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 (for example 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. Adequate protection against acts of interference. In its previous comments, the Committee requested the Government to provide information on the sanctions applied in cases of acts of interference as well as on statistics on the number of complaints examined, the duration of the procedures and the type of penalties and compensation ordered. The Committee notes that the Government indicates that the legal provisions introduced by the Labour Act under Chapter 14 have safeguarded the interest of employers and workers and have ensured the protection against interference from each other. The Committee also notes that the Government indicates that during the reporting period no case of interference has been reported or brought to its attention. The Committee requests the Government to continue to provide information in this regard, with particular emphasis on the sanctions applied in cases of acts of interference.

Article 4. Promotion of collective bargaining. In order to fully evaluate the conformity of section 116.1 of the Labour Act with the Convention, the Committee in its previous comments requested the Government to specify the conditions under which trade unions are authorized to bargain collectively and to provide information on the number of direct agreements concluded with non-unionized workers in comparison with the number of collective agreements signed with trade unions. The Committee notes that the Government limits itself to indicating that section 116.1 of the Labour Act provides that any enterprise employing ten or more workers shall have a collective bargaining committee and that such a committee is comprised of: (a) a team of representatives appointed for negotiation on behalf of the elected authorized trade union of the enterprise; (b) where an election for the authorized trade union could not be held or the term of the elected authorized trade union has expired, a team of representatives nominated through a mutual agreement of all the unions in the enterprise; or (c) where an authorized trade union or a team of representatives could not be formed, a team of representatives supported with the signatures of more than 60 per cent of the workers working in the enterprise. The Committee wishes to recall that: (i) direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations, where they exist, may undermine the principle of the promotion of collective bargaining set out in the Convention; and (ii) where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other worker representatives to bargain collectively not only weakens the position of the trade union, but also undermines ILO rights and principles on collective bargaining. Therefore the Committee requests once again the Government to specify the conditions under which trade unions are authorized to bargain collectively. The Committee finally notes that the Government provided data on collective agreements registered in the Labour Office, for the period 2014–17, with the number of workers covered. The Committee requests the Government to continue to provide information in this respect and to specify the number of direct agreements concluded with non-unionized workers in comparison with the number of collective agreements signed with trade unions, and indicating the sectors and the number of workers covered.

In its previous comments the Committee requested the Government to take the necessary measures to amend section 123 of the Labour Act so that the principle of the autonomy of the parties is respected and that collective bargaining is possible at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry or the regional or national levels. Noting that the Government does not provide any information in this regard, the Committee wishes to reiterate that under the terms of Article 4 of the Convention, collective bargaining must be free and voluntary and respect the principle of the autonomy of the parties. The Committee also recalls the need to ensure that collective bargaining is possible at all levels and that legislation that unilaterally imposes a level of bargaining or makes it compulsory for bargaining to take place at a specific level raises problems of compatibility with the Convention (see 2012 General Survey on the fundamental Conventions, paragraphs 200 and 222). In view of the above, the Committee hopes that the necessary amendments to bring section 123 of the Labour Act into full conformity with the provisions of the Convention will be adopted in the very near future.

Compulsory arbitration. In its previous comments, the Committee requested the Government to bring the provisions under section 119 of the Labour Act relating to compulsory arbitration into full conformity with the Convention, recalling that compulsory arbitration to end a collective labour dispute is acceptable only: (i) in the public service involving public servants engaged in the administration of the State (Article 6 of the Convention); (ii) 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; or (iii) in case of acute national crisis. Noting that the Government did not provide any information on this respect, the Committee once again requests the Government to take the necessary measures to ensure that, in accordance with the Convention, compulsory arbitration can only take place in the situations mentioned above. The Committee requests the Government to provide information on any progress in this respect.

Composition of arbitration bodies. In its previous comments, the Committee requested the Government to provide detailed information with respect to the composition of the arbitration panel (under section 119(3) of the Labour Act) and tribunal (section 120) and specifically to indicate the procedure undertaken to select the worker and employer representatives to ensure the full independence of these arbitration bodies. It also requested the Government to clarify the difference between the arbitration panel and the arbitration tribunal. Noting that the Government did not provide information on these issues, the Committee reiterates its previous requests.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office with respect to all issues raised in its present comments.