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

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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 an explicit prohibition of all acts of anti-union discrimination and effective and sufficiently dissuasive sanctions in cases of violation of this prohibition. The Committee notes that the Government indicates that workers are protected against anti-union discrimination as per section 6 of the Labour Act, 2017 and section 6 of the Right to Employment Act, 2018, respectively prohibiting discriminatory treatment during employment and in relation to hiring on the grounds of religion, colour, sex, caste, tribe, origin, language or other similar grounds and that the list should be considered as non-exhaustive hence indirectly encompassing also trade union activities as one of the grounds. In addition, as per section 23(A) of the Trade Union Act, 1992, office-bearers of the working committee of trade unions at the enterprise level shall not be transferred or promoted without their consent, except in special situations. While taking due note of the elements provided by the Government, the Committee recalls that the prohibition of discrimination provided for under section 6 of the Labour Act, as well as section 6 of the Right to Employment Act and 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. It further requests the Government to provide information on the number of cases of anti-union discrimination dealt with by the competent authorities, the length of the proceedings and their final outcome.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee requested the Government to continue to provide statistics on the number of complaints on acts of interference examined and the duration of the procedures with a particular emphasis on the sanctions applied. The Committee notes that the Government, after having recalled the provisions of the Labour Act prohibiting acts of interference, 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 on the number of complaints, with particular emphasis on the sanctions applied in cases of acts of interference.

Article 4. Promotion of collective bargaining. Negotiation with trade unions versus negotiation with workers’ representatives. In order to fully evaluate the conformity of section 116.1 of the Labour Act with the Convention, the Committee had 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 indicates 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: (i) a team of representatives appointed for negotiation on behalf of the elected authorized trade union of the enterprise (paragraph a); (ii) 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 (paragraph b); or (iii) 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 (paragraph c). Recalling that negotiation with non-union actors should only be possible in the absence of trade union organizations at the relevant level, the Committee requests the Government to provide information on how paragraphs (a), (b) and (c) of section 116.1 find application in practice. In particular, the Committee requests the Government to clarify which circumstances might impede the election of the authorized trade union and as a result the exercise of its functions to appoint the team of negotiating representatives.

Furthermore, the Committee notes that the Government failed to provide data on collective agreements registered in the Labour Office, for the period 2018–22, with the number of workers covered. The Committee therefore requests the Government 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, indicating the sectors and the number of workers covered.

Different levels of collective bargaining. In its previous comments the Committee requested the Government to take the necessary measures to amend section 123 of the Labour Act, providing a special regulatory regime for collective bargaining in a range of specific sectors. The Committee recalls that section 123 states that “trade union associations which are active in the tea estate, carpet sector, construction business, labour provider, transportation sector or any other group of manufacturers producing similar nature of goods or service providers providing similar nature of service or business” may form a collective bargaining committee and “submit collective bargaining claims, demands to the employers' association of the concerned group of industries”. Section 123(3) additionally states that “In the case of the enterprise to which the collective agreement referred to in this section is applicable, no collective claims, Demands and agreement may be submitted and made pursuant to this Chapter”. The Committee notes that no information has been provided by the Government in this respect. The Committee wishes to remind that collective bargaining should be promoted at all levels, including both at company and sectoral levels, and that, at the same time, according to the principle of free and voluntary collective bargaining, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law. While welcoming the fact that the different provisions of the Labour Act envisage both collective bargaining at the enterprise and sectoral levels, the Committee invites the Government to provide information on how section 123(3) would allow for sectoral collective bargaining to be compatible with collective bargaining at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry or the regional or national levels. Furthermore, as no other reference to sectoral collective bargaining is found in the Labour Act other than the one made in section 123(1), the Committee requests the Government to provide information on the rationale behind the selection of sectors enlisted in section 123 as well as on the number of sectoral collective bargaining agreements concluded in the series of targeted sectors and in sectors others than those mentioned therein, so to assess the breadth of sectoral collective bargaining in the country.

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 in this respect, the Committee once again requests that the Government 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. The Committee notes that, in its report, the Government uses interchangeably the names of the two arbitration bodies and does not provide further information regarding the procedure undertaken to ensure their full independence. The Committee therefore requests the Government to provide information clarifying how the arbitration panel and tribunal differ from one another and how the procedure for selection of the members of the arbitration tribunal will be determined so as to ensure its full independence.

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

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

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.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes that the Government’s report has not been received.

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2017 as well as the Government’s reply thereon. With respect to the ITUC’s allegations of a brutal attack by police to health workers during a demonstration outside the Parsa District Public Health Office in Birgunj, the Committee notes that the Government states that police intervention was necessary in order to ensure the supply of essential medicines. In this respect the Committee recalls that police intervention should be limited to cases where there is a genuine threat to public order and that governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order. The Committee also recalls that it had previously requested the Government to conduct an investigation in relation to issues highlighted by the ITUC in previous years concerning anti-union dismissals, threats against trade union members and the weakness of collective bargaining given that collective agreements only cover a very small percentage of workers in the formal economy. The Committee requests the Government to communicate the findings of such investigation as well as information on the eventual remedies adopted. It also requests the Government to provide its comments with respect to the observations made by Education International in 2014.

Legislative reforms. The Committee notes that a new Constitution was adopted in 2015 and that a new Labour Act (Labour Act 2074), adopted on 4 September 2017, has repealed the Labour Act 1992. The Committee notes with interest that sections 17(2)(d) and 34(3) of the new Constitution provide that the rights to form a trade union, to participate in it, and to organize collective bargaining are fundamental rights. It also observes that section 8 of the new Labour Act recognizes the right to form a trade union, to participate in its activities and to acquire its membership or get affiliated with or involved in other union activities.

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous comments, the Committee had requested the Government to take measures to introduce in the legislation provisions that would explicitly prohibit all acts of anti-union discrimination covered by the Convention. The Committee notes with regret that while section 24 of the new Constitution as well as section 6 of the new Labour Act prohibit discrimination, none of them contains an explicit prohibition of discrimination against workers by reason of their trade union membership or participation in trade union activities. The Committee recalls, as it has done previously, that Article 1 of the Convention guarantees workers’ adequate protection against all acts of anti-union discrimination and that the existence of legal provisions prohibiting acts of discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see the 2012 General Survey on the fundamental Conventions, paragraph 190). The Committee is therefore compelled to repeat its request to 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. Reminding the persistence of allegations of acts of anti-union discrimination, 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. The Committee had previously requested the Government to indicate the measures taken or contemplated to introduce in the legislation a prohibition of acts of interference as well as rapid appeal procedures and dissuasive sanctions against such acts. The Committee notes that section 92(1) of the new Labour Act provides that employers and trade unions shall not perform or cause to perform any unfair labour practice and welcomes that section 92(2)(e) provides that, any act by the employer regarding intervention or cause to intervene in the activities relating to the formation, operation and administrative functions of trade unions, shall be deemed to be unfair labour practice. The Committee also notes that section 162 of the said Act, provides that where any person, employer, worker or officer acts in violation of the Act, the person affected by such act or the concerned trade union, with written consent of the affected person, may file a complaint to the competent authority having the power to decide within six months from the date of such act. Emphasizing the importance of ensuring effective protection against acts of interference and sufficiently dissuasive sanctions against such acts, the Committee requests the Government to provide further 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.

Article 4. Promotion of collective bargaining. The Committee notes that section 116.1 of the new Labour Act provides that any enterprise employing ten or more workers shall have a collective bargaining committee that may submit collective claims or demands in writing to the employer on issues relating to the interest of workers. It notes 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 recalls that 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. In addition, it has noted in practice that 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. In order to fully evaluate the conformity of section 116.1 of the new Labour Act with the Convention, the Committee requests 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 new Labour Act contains special provisions with respect to collective bargaining for trade union associations which are active in the tea estate, carpet sector, construction business, labour provider, transportation sector or any other group of manufacturers or service providers with similar or related activities. Section 123 of the Act stipulates that those trade union associations may, by forming a collective bargaining committee, submit collective bargaining claims or demands to the employers’ association of concerned group of industries. Section 123(3) provides that in those enterprises it is prohibited to submit collective claims or demands and entering into agreement pursuant to the abovementioned sections of the Chapter on Settlement of Collective Disputes of the Labour Act. The Committee also notes that, as stipulated in section 123(4), in cases concerning such enterprises, the Ministry may issue an order to submit collective claims or demands and negotiate within a specified time. The Committee recalls 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 General Survey, op. cit., paragraphs 200 and 222). Highlighting that when collective bargaining takes place at different levels, coordination mechanisms can be put in place, the Committee requests the Government to take the necessary measures to amend section 123 of the new 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.

Compulsory arbitration. The Committee recalls that its previous comments concerned provisions from the draft National Labour Commission Act, a draft that has not been adopted, as well as 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. With respect to the latter, the Committee had requested the Government to indicate the measures taken so as to ensure that compulsory arbitration is not imposed at the initiative of the authorities where they consider that the country’s economic development so requires. The Committee observes that the new Labour Act contains provisions relating to compulsory arbitration. As provided for in section 117, the Collective Bargaining Committee shall hold consultations on the claims submitted and that, if an agreement is reached, it shall be binding for both parties. For its part, sections 118 and 119(1) provide that, if no agreement is reached and where the dispute is not resolved through mediation, it shall be settled through arbitration as follows: (i) if the parties agree to settle the dispute through arbitration; (ii) if it concerns an enterprise providing essential services; (iii) if it concerns an enterprise located inside the special economic zone; or (iv) if it concerns a situation where strike is prohibited because there is a state of emergency declared as per the Constitution. For its part, section 119(2) also provides that, where the Ministry has a ground to believe that a financial crisis may take place in the country as a result of ongoing or possible strike or lockout or believes that the dispute needs to be settled by arbitration, the Ministry, irrespective of the state of the collective dispute, may issue an order for the settlement of the dispute through arbitration. In this regard, the Committee recalls that, pursuant to the promotion of free and voluntary negotiation established by Article 4 of the Convention, 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 (Article 6 of the Convention), 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 in case of acute national crisis. The Committee regrets that the newly adopted Labour Act is not in line with this principle. It therefore 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.

Composition of arbitration bodies. The Committee notes that section 119(3) of the new Labour Act provides that, for all cases in which arbitration takes place, the Ministry of Labour and Employment may form an arbitration panel ensuring representations from workers, employers and the Government. The Committee also notes that section 120 provides that, for the purpose of settling collective disputes though mediation and arbitration, the Government may form an independent labour arbitration tribunal and that provisions in relation to such tribunal shall be prescribed. Recalling that arbitration bodies shall be fully independent, the Committee requests the Government to provide detailed information with respect to the composition of the said arbitration panel and tribunal and specifically to indicate the procedure undertaken to select the worker and employer representatives. It also requests the Government to clarify the difference between the arbitration panel (section 119(3)) and the arbitration tribunal (section 120).

Measures to promote collective bargaining. 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 on the impact of the recently adopted Labour Act on collective bargaining and agreements reached. In this respect, the Committee requests the Government to provide data on the number of collective agreements concluded, their scope and sectors concerned and the number of workers covered.

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

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.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 concerning 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 provide its observations thereon in its next report.

In its previous comments, the Committee had noted that articles 12 and 30 of the Interim Constitution, which entered into force in 2007, guarantee the right to organize and engage in collective bargaining. Noting also that the Civil Service Ordinance Act had been amended by the Civil Service Act, so as to restore the right of public employees (up to Gazetted Third Class) to organize and bargain collectively, the Committee had requested the Government to specify which categories of public employees included in the gazetted and non-gazetted classes were covered by the legislative recognition of the right to organize and engage in collective bargaining. The Committee notes that the Government indicates in its report that civil servants from the lowest level up to the highest level (i.e. gazetted third class) can exercise the right to organize and collective bargaining. The Committee also notes that the Government indicates that it is in the process of drafting a new Constitution and that it will strive to ensure that the laws and regulations are compatible with the Convention. The Committee requests the Government to provide, in its next report, examples of collective agreements concluded by civil servants as well as information on any progress made in that respect in the framework of the legislative reform.

Furthermore, the Committee notes that pursuant to article 53(1) of the Civil Service Act, civil employees have the right to form a trade union at the national level and that pursuant to article 53(3), the “authentic trade union of civil employees shall have the right to submit own professional demands and conduct social dialogue and collective bargaining at the concerned institution at the district, departmental and national levels”. The Committee notes that this section further indicates that in the case of not forming the “authentic trade union of civil employees”, the “trade union of civil employees” formed pursuant to paragraph (1) may conduct collective bargaining with mutual consent of each other. The Committee requests the Government to clarify in its next report the distinction between “authentic trade unions of civil employees” and other trade unions of civil employees, and to provide information on the procedure established to determine the most representative organization of civil employees entitled to collective bargaining, if any.

Finally, in its previous observation, the Committee had raised certain issues in relation to the Draft National Labour Commission Act, in the following way.

Article 1 of the Convention. Anti-union discrimination. In its previous observation, the Committee had noted from the Government’s report that based on the constitutional provision concerning discrimination and article 23(a) of the Trade Union Act 1992, which explicitly discourages anti-union discrimination in respect of employment, there have hardly been any acts of anti-union discrimination brought to the notice of the authorities. The Committee had also noted that 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 indicates in its report that the provision of the Constitution on discrimination, together with article 23(a) of the Trade Union Act are the sole provisions regarding this matter. The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against 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 of 1994 on freedom of association and collective bargaining, 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. In its previous comments, the Committee had raised the need to ensure the enactment of a provision providing protection to workers’ and employers’ organizations against acts of interference by one another, including effective and sufficiently dissuasive sanctions guaranteeing adequate protection of trade unions against acts of interference in their establishment, functioning or administration and, in particular, against acts that 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 objective of placing such organizations under the control of employers or employers’ organizations. The Committee had noted from the Government’s report that although there is no explicit provision against such activities in the legislation, interference is hardly practised; and that the issue shall be addressed in the course of the labour market reform. The Committee notes that the Government indicates in its report that the labour market reform has not been completed but that it is fully aware of the concerns of the Committee in this respect. The Committee once again requests the Government to indicate the measures taken or contemplated to introduce in the legislation a prohibition of acts of interference, 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. In its previous comments, the Committee had noted that, according to article 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 article 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 notes that the Government does not provide information in this respect in its report. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only if it is at the request of both parties involved in a dispute or if the strike in question may be restricted – i.e. in the case of disputes in the public service involving public servants exercising authority in the name 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 (General Survey of 1994 on freedom of association and collective bargaining, paragraphs 256–258). The Committee 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 information on any progress made thereon in its next report.

Composition of arbitration bodies. In its previous observation, the Committee had noted that Article 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 recalled that any decision concerning the participation of workers’ and employers’ organizations in a tripartite body – especially one entrusted with mediation, conciliation and arbitration proceedings – should be taken in full consultation with all the organizations whose representativity has been objectively proven, with a view to ensure that the tripartite body enjoys the confidence of these organizations. 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 notes that the Government indicates in its report that it welcomes this suggestion. The Committee requests the Government to provide information on any progress made thereon in its next report.

The Committee requests the Government to take the necessary measures to ensure the conformity of the National Labour Commission Act with the abovementioned principles as regards all the abovementioned issues and to provide a copy of the Act once adopted.

Measures to promote collective bargaining. In its previous observation, the Committee had noted from the Government’s report that Strategy No. 3.2.6 of the Labour and Employment Policy 2062 states that collective bargaining – which included at that time 155 collective agreements at the level of plants and eight at national level – will be encouraged through legal and institutional provisions and by building an environment conducive to the organization of workers and employers in the informal economy. The Committee notes that the Government does not provide any further information in this respect in its report. The Committee therefore, once again, requests the Government to provide, in its next report, 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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest from the Government’s report and the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, that the Interim Constitution which entered into force in 2007 guarantees in Articles 12 and 30 the right to organize and engage in collective bargaining. Moreover, the Civil Service Ordinance Act which previously revoked the right of public servants to form and belong to trade unions, has been amended by the Civil Service Act thus restoring the right of public employees (up to Gazetted Third Class) to organize and bargain collectively. The Committee requests the Government to specify the categories of public employees included in the gazetted and non-gazetted classes and which ones are covered by the legislative recognition of the right to organize and engage in collective bargaining.

The Committee also takes note of the National Directive Act, 1962 and the Civil Service Act communicated by the Government. The Committee will comment on them once a translation is available. Finally, the Committee takes note of the draft National Labour Commission Act drafted by a national tripartite task force on the basis of widespread consultations, in order to address shortcomings in the system of grievance and dispute resolution. The Committee raises certain issues in relation to this draft Act below.

Article 1 of the Convention. Anti-union discrimination. The Committee’s previous comments concerned the need for provisions providing explicit protection against acts of anti-union discrimination, accompanied by effective and sufficiently dissuasive sanctions. The Committee notes from the Government’s report that based on the constitutional provision concerning discrimination and section 23(a) of the Trade Union Act, 1992, which explicitly discourages anti-union discrimination in respect of employment, there have hardly been any acts of anti-union discrimination brought to the notice of the authorities. However, maximum protection will be explicitly ensured through the upcoming labour market reform and the revision of the related laws by the tripartite task force. The Committee requests the Government to indicate in its next report the measures taken or contemplated in order to introduce in 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.

Article 2. Acts of interference. The Committee’s previous comments concerned the need 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’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the objective of placing such organizations under the control of employers or employers’ organizations. The Committee notes from the Government’s report that interference is hardly practised in Nepal although there is no explicit provision against such activities in the legislation. The issue shall be addressed in the course of the labour market reform. The Committee requests the Government to indicate in its next report the measures taken or contemplated in order to introduce in the legislation a prohibition of acts of interference as well as rapid appeal procedures and dissuasive sanctions against such acts.

Article 4. Collective bargaining. 1. Compulsory arbitration. The Committee notes that according to section 9(4) of the draft National Labour Commission Act, this 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 recalls that compulsory arbitration imposed either at the request of one party to a dispute or by the authorities at their own initiative, raises problems with regard to the application of Article 4 of the Convention (General Survey of 1994 on freedom of association and collective bargaining, paragraphs 256–258). The Committee therefore requests the Government to indicate in its next report the measures taken to address the set of provisions noted above in the context of labour market reform so as to ensure that compulsory arbitration is not imposed at the initiative of one party to an interests dispute in the hotel and transportation sectors or at the initiative of the authorities where they consider that the country’s economic development so requires; compulsory arbitration would only be acceptable in essential services in the strict sense of the term and for public servants exercising authority in the name of the State.

2. Composition of arbitration bodies. The Committee notes 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 considers that any decisions concerning the participation of workers’ and employers’ organizations in a tripartite body – especially one entrusted with mediation, conciliation and arbitration proceedings – should be taken in full consultation with all the organizations whose representativity has been objectively proved. The Committee considers, thus, that the members of the Appointment Committee should not be determined by reference to a specific organization by name, but rather to the “most representative” organization. The Committee therefore requests the Government to avoid any reference to the Federation of Nepal Chamber of Commerce and Industry or any other organization in the draft National Labour Commission Act, and to refer rather to the “most representative” employers’ organization.

3. Measures to promote collective bargaining. In its previous comments, the Committee had noted that according to the ITUC, although the Labour Act provides for collective bargaining, the necessary structure for the implementation of the provisions is not in place. The Committee notes that in its latest comments of August 2008, the ITUC indicates that owing to a combination of worker inexperience and employer reluctance, there is, in fact, little collective bargaining and the related agreements only cover around 10 per cent of workers in the formal economy. The Committee notes from the Government’s report that strategy No. 3.2.6 of the Labour and Employment Policy 2062 states that collective bargaining (which now includes 155 collective agreements at the level of plants and eight at national level) will be encouraged through legal and institutional provisions and by building an environment conducive to the organization of workers and employers in the informal economy. The Committee requests the Government to indicate in its next report the impact of these measures as well as any further measures taken to promote collective bargaining and to provide statistical data on the scope of the collective agreements which have already been concluded.

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

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.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information contained in the Government’s report.

Article 1 of the Convention. The Committee notes that the issue of legislative protection against anti-union discrimination will be addressed by law reform committees and once again expresses the firm hope that the Government will take the necessary steps, in the near future, to ensure the enactment of a provision providing explicit protection against anti-union discrimination, accompanied by effective and sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed of further developments in this regard and in particular the progress of work of the labour law review committee considering the issue.

Article 2. The Committee had asked the Government to ensure the enactment of provisions providing protection to workers’ and employers’ organizations against acts of interference by one another. The Committee notes that the Government states that this issue will be discussed in various tripartite forums to reach a consensus and that the advice of the Committee of Experts will be taken into account during the next legislative amendment. The Committee once again requests 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’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the objective of placing such organizations under the control of employers or employers’ organizations. The Committee requests to be kept informed of developments in this regard.

Article 4. The Committee notes the Government’s statements that 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, is an emergency preventive measure that has never been invoked or put into practice, is not meant to restrict trade union rights and will not be invoked against their interests. The Committee notes the Government’s intention to discuss this issue with its social partners during legislative reforms. Recalling that the section confers broad powers which could impair the guarantees set out in the Convention, the Committee once again requests 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.

In its previous comments the Committee had requested a copy of the Essential Service Act, 1957, which seems to impose restrictions on the right to organize and bargain collectively. The Committee notes the information provided by the Government that the main intent of the Essential Service Act is to safeguard the rights of the public to essential services and not to curtail the rights of unions, and that the Government’s opinion is that some provisions should be in place to safeguard larger public interests and save the country in times of crisis and emergency. Noting the Government’s indication that it would ensure that the application of this in practice yields merit for the workers and employers as well as the nation as a whole, the Committee once again requests the Government to provide it with a copy of the Essential Service Act, 1957.

Article 6. In its previous comments, the Committee had noted the information provided by the Government that civil servants who discharge their duties in the name of the Government do not have the right to organize and had recalled 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. The Committee notes the clarification provided by the Government that employees of public enterprises and teachers at public schools, although government employees, are employed under Acts separate from the Civil Service Act and so are entitled to exercise their rights to organize and bargain collectively, and that civil servants at the non-gazetted level enjoy the same rights. The Committee once again requests the Government to provide copies of the National Directive Act, 1962, the Civil Service Act and examples of collective agreements concerning employees of the public enterprises or public institutions employing civil servants not engaged in the administration of the state. The Committee further requests the Government to provide copies of the Acts concerning the rights to organize and bargain collectively of teachers and other civil servants who do not fall within the ambit of the Civil Service Act.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

1. Article 1 of the Convention. The Committee had pointed out that section 23(a) of the Trade Union Act of 1999 limits the protection against anti-union discrimination to cases of transfer of trade union representatives and had considered that the legislation does not cover the following situations: (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 notes that the Government intends to send these observations to a committee duly formed to review the labour legislation and indicates that an explicit provision as a result of this review would be inserted in the 1992 Trade Union Act.

The Committee expresses the firm hope that the Government will take the necessary steps to ensure that the provision is accompanied by effective and sufficiently dissuasive sanctions against acts of anti-union discrimination. It reminds the Government that it may seek technical assistance from the ILO in this process if it so wishes. The Committee requests the Government to keep it informed of any further developments in this regard.

2. Article 2. The Committee had pointed out that neither the 1992 Trade Union Act as amended in 1999 nor the 1992 Labour Act contain provisions providing protection to workers’ organizations against acts of interference by employers or their organizations. The Committee notes that according to the Government it will send the Committee’s observation on this issue to the labour law review committee mentioned above and that a specific provision would be inserted in the next amendment of the 1992 Trade Union Act.

The Committee requests the Government to ensure that the provision is accompanied by effective and sufficiently dissuasive sanctions, to guarantee 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’ 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 keep it informed, in its next report, of any progress made in this respect.

3. Article 4. In its previous comments, the Committee had requested the abrogation of 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 and which has never been put into practice. In its report, the Government reiterates the arguments of its previous report and states that this provision is a safeguard necessary for a developing country like Nepal and that it would never be invoked against the interest of the workers. The Committee considers that this legislation confers broad powers, which could impair guarantees set out in the Convention. The Committee requests, once again, the Government to take measures for the abrogation of section 30 of the Trade Union Act in the near future.

The Committee requests the Government once again to forward a copy of the Essential Service Act, 1957, which seems to impose restrictions on the right to organize and bargain collectively.

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 notes that according to the Government employees of the public enterprises have the right to organize and form unions under the National Directive Act, 1962, while civil servants who discharge their duties in the name of the Government, do not have that right (Civil Service Act 1993). 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 requests the Government to forward examples of collective agreements that concern employees of the public enterprises or public institutions employing civil servants not engaged in the administration of the State. The Committee also requests the Government to provide a copy of the 1962 National Directive Act and the Civil Service Act.

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.

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

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.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the information contained in the Government’s report.

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 notes 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 notes 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 takes note of 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. The Committee takes note of the Government’s indication in its report 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 also informs 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 takes note of this information and asks the Government to forward a copy of the Essential Service Act. It again requests the Government to indicate in its next reports cases in which section 30 of the Trade Union Act has been invoked to restrict collective bargaining rights as well as the circumstances of these cases.

4.  Article 6.  The Committee takes note of the information provided by the Government in its report 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 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, and requests it to provide information in its next report on all measures adopted in this regard.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report has not been received. As it is aware that the Trade Union Act has been amended, the Committee hopes that the Government will send a full report to the Committee for its next session.

1. Article 1 of the Convention. The Committee notes that the new 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 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. Furthermore, there are no sanctions for violation of this provision. The Committee therefore requests the Government to 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 the Government to keep it informed of developments in this regard.

2. Article 2. The Committee notes 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. The Committee recalls that governments 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 (see 1994 General Survey on freedom of association and collective bargaining, paragraph 230). The Committee therefore requests the Government to ensure that provisions accompanied by effective and sufficiently dissuasive sanctions are adopted which guarantee the adequate protection of workers' organizations 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 keep it informed of any progress made in this regard.

3. Article 4. The Committee had requested the Government to indicate whether federations and confederations have the right to bargain collectively. The Committee takes due note of the fact that the new section 9(B)(e) of the Trade Union Act allows trade union associations and federations to negotiate with the concerned enterprises and management on behalf of the enterprise-level trade union.

4. The Committee notes that section 30 of the Trade Union Act gives special powers to the Government to restrict trade union activities. The Committee asks the Government whether section 30 has ever been invoked to restrict collective bargaining rights and, if so, to indicate the circumstances of these cases.

5. Article 6. The Committee requests the Government to indicate if its legislation grants public servants, with the sole possible exception of those engaged in the administration of the State, the right to conclude collective agreements with their employers.

6. The Committee takes note of the comments made by the GEFONT (General Federation of Nepalese Trade Unions) in a communication dated 29 August 1998, regarding the application of this Convention. The GEFONT refers to various instances where, after signing a collective agreement, the employers refuse to implement it and the Minister of Labour and the concerned authorities fail to intervene. The GEFONT refers specifically to the collective agreements signed by the Independent Transport Workers' Association of Nepal (ATWAN), by the Cotton Development Board of Khajura-Western Nepal, by Rolly Garment and the Rolly Garment Independent Textile-Garment Workers' Union, by Giri Bandhu Tea Estate and New Giri Bandhu Tea Estate of Jhapa-Eastern Nepal, by the Kathmandu Metropolitan Corporation and finally by Bagmati Textile of Kathmandu. In view of the fact that the Government has not responded to these comments, the Committee can only assume that GEFONT's observations are correct. The Committee urges the Government to take the necessary means to ensure that the terms of these collective agreements are respected, and to keep it informed of any progress made in this regard.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied by the Government in its first report. The Committee also notes the comments made by the General Federation of Nepalese Trade Unions (GEFONT) in a communication dated 29 August 1998.

1. Article 1 of the Convention. The Committee notes that neither the Trade Union Act of 1992 nor the Labour Act of 1992 contain provisions which guarantee the protection of workers against acts of anti-union discrimination by employers. The Committee therefore would request the Government to ensure that specific provisions, accompanied by effective and sufficiently dissuasive sanctions, are adopted to guarantee explicitly the protection of workers against any act of anti-union discrimination by employers, both at the time of recruitment and during employment, so as to bring its legislation into conformity with Article 1. The Committee requests the Government to keep it informed of developments in this regard.

2. Article 2. The Committee notes that neither the 1992 Trade Union Act nor the 1992 Labour Act contain provisions providing protection to workers' organizations against acts of interference by employers or their organizations. The Committee recalls that governments 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 (see 1994 General Survey on Freedom of Association and Collective Bargaining, para. 230). The Committee therefore requests the Government to ensure that provisions accompanied by effective and sufficiently dissuasive sanctions, are adopted which guarantee the adequate protection of workers' organizations 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 keep it informed of any progress made in this regard.

3. Article 4. The Committee requests the Government to indicate whether federations and confederations have the right to bargain collectively.

4. Article 6. The Committee requests the Government to indicate if its legislation grants public servants, with the sole possible exception of those engaged in the administration of the State, the right to conclude collective agreements with their employers.

5. The Committee requests the Government to reply to the comments made by the GEFONT, regarding the application of this Convention in a communication dated 29 August 1998.