Report in which the committee requests to be kept informed of development - Report No 328, June 2002

Case No 2120 (Nepal) - Complaint date: 19-MAR-01 - Closed

Allegations: Violations of the right to strike in the hotel sector

1. 530. In a communication dated 19 March 2001, the All Nepal Trade Union Congress (ANTUC) submitted a complaint of violations of freedom of association against the Government of Nepal. The Nepal Independent Hotel Workers’ Union (NIHWU) and the Nepal Tourism & Hotel Workers’ Union (NT&HWU) submitted additional information in respect of this complaint in a communication also dated 19 March 2001, and the ANTUC further supported its complaint with documentation submitted on 20 April 2001. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) also submitted a complaint concerning these same matters in a communication dated 20 April 2001.
2. 531. The Committee has already been obliged to postpone its examination of this case on three occasions, since no reply had been received from the Government. At its meeting in March 2002 [see 327th Report, para. 9), the Committee issued an urgent appeal and drew the Government’s attention to the fact that, in accordance with the procedural rules set forth in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case, even if the Government’s observations or information have not been received in due time. No reply has yet been received from the Government.
3. 532. Nepal has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainants’ allegations

1. 533. In its communication dated 19 March 2001, the All Nepal Trade Union Congress (ANTUC) stated that, after having completed all necessary legal requirements, hotel employees went on a nationwide strike on 15 March 2001 demanding a 10 per cent service charge in the hotel sector. Before going on strike, the unions had engaged in numerous tripartite discussions on the matter. Halfway through the first day of the strike action, the Government applied the Essential Services Act No. 2014, banning strikes in nine other service sectors and the hotel sector.
2. 534. By a communication of the same date, the Nepal Independent Hotel Workers’ Union (NIHWU), affiliated to the General Federation of Nepalese Trade Unions (GEFONT), and the Nepal Tourism & Hotel Workers’ Union (NT&HWU), affiliated to the Nepal Trade Union Congress (NTUC), submitted additional information concerning this complaint. These two hotel unions have indicated that the inclusion of a 10 per cent service charge into collective bargaining agreements in the hotel, restaurant and catering services has been a demand of the unions for almost 21 years. The demand came recently into the forefront with the unified force of the workers in the hotel sector with the joining of these two unions into a Central Joint Struggle Committee. Workers were ready to go on strike in November 2000 with all legal procedures for carrying out a general strike being completed, but the Cabinet and the Deputy Prime Minister had requested them in writing to wait for two months for the implementation of the service charge. After three months, however, no results could yet be seen and the Central Joint Struggle Committee decided to launch the general strike on 15 March 2001. As soon as the Hotel Association of Nepal had been notified of the strike action, it filed an injunction petition in the Appellate Court, but the court decided in favour of the workers and recognized the strike as lawful. At the end of the first day of the strike, the Home Ministry issued a notice in the Official Gazette of 15 March declaring that the services related to hotel, motel, restaurant and tourist accommodation fall under essential services and that strikes are therefore prohibited in these services by virtue of the Essential Services Act of 1957. Thus, just within 24 hours of the court verdict, the Government directly contradicted the spirit of the court judgement by declaring these services as essential services. The complainants find this position of the Government all the more perplexing given that the hotels had staged a lock-out on 11 December 2000 without any intervention on the part of the Government. The complainants conclude that this step on the part of the Government is clearly against fundamental human rights, the spirit of the Nepalese Constitution and laws and ratified and unratified core ILO Conventions.
3. 535. Finally, the International Union of Food, Agricultural, Hotel, Restaurant, Catering Tobacco and Allied Workers’ Associations (IUF) recalls that the hotel workers’ unions had submitted its demands concerning the 10 per cent service charge in autumn 2000. Mass actions demonstrated the support of the 200,000 hotel and tourism workers for this demand. The hotel owners refused to open negotiations on this issue, however, and closed their hotels for one day on 11 December 2000 to show their opposition to workers’ demands. The IUF then reiterates the events of 15 March 2001 and concludes that the Government’s action to ban strikes in these sectors is a clear violation of Article 3 of Convention No. 87.

B. The Committee’s conclusions

1. 536. The Committee notes that the allegations in this case concern violations of the right to strike for workers in the hotel industry and other related sectors through the application of the Essential Services Act of 1957 to these sectors.
2. 537. In the first instance, the Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not responded to any of the allegations made by the complainants, even though it has been urged to do so on a number of occasions, including by means of an urgent appeal.
3. 538. In these circumstances, and in accordance with the applicable procedural rule [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without being able to take into account the information it had hoped to receive from the Government.
4. 539. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union freedoms in law and in fact. The Committee is convinced that, if the procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating for objective examination detailed factual replies to the allegations made against them [see First Report, para. 31].
5. 540. As concerns the substance of the case, the Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The right to strike may be restricted or prohibited for public servants exercizing authority in the name of the State or in essential services in the strict sense of the term. The principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an "essential service" in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, 1994, paras. 475, 526 and 542]. In this regard, the Committee has indicated on previous occasions that hotel services do not constitute essential services in the strict sense of the term [see Digest, op. cit., para. 545]. The Committee therefore requests the Government to take the necessary measures to repeal its notification in the Official Gazette of 15 March 2001 declaring hotel, motel, restaurant and tourist accommodation as falling within the scope of essential services and thus prohibiting strikes in these services by virtue of the Essential Services Act of 1957. The Committee requests the Government to keep it informed of all developments in this respect.

The Committee's recommendations

1. 541. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take the necessary measures to repeal its notification in the Official Gazette of 15 March 2001 declaring hotel, motel, restaurant and tourist accommodation as falling within the scope of essential services and thus prohibiting strikes in these services by virtue of the Essential Services Act of 1957. The Committee requests the Government to keep it informed of all developments in this respect.