Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

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

The Committee notes the observations provided by the General Federation of Nepalese Trade Unions (GEFONT) received on 1 September 2024, which refer to matters examined by the Committee below.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee previously requested the Government to take the necessary measures to introduce in the legislation an explicit prohibition of all acts of anti-union discrimination as well as effective and sufficiently dissuasive sanctions in case of violation of this prohibition. While taking due note of the indications provided by the Government concerning sections 8, 163(1)(c) and (f) of the Labour Act, 2017, and emphasizing the general nature of these provisions, the Committee notes that the Government acknowledges the absence of an explicit prohibition of anti-union discrimination. The Committee welcomes the Government’s indication that a tripartite task force to revise the Labour Act was recently created, in which this subject matter could be discussed. The Committee further notes that the Government expresses willingness to conduct different types of activities with respect to anti-union discrimination, such as adopting an awareness programme. In view of the above, the Committee firmly hopes that an explicit prohibition of all acts of discrimination based on trade union membership or participation in trade union activities (such as transfers, demotions or refusal of training) at all stages of employment (including recruitment), as well as effective and sufficiently dissuasive sanctions in case of violation of this prohibition, will be introduced into the legislation in the near future. The Committee requests the Government to provide information on any progress made in this respect.

The Committee also requested 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 outcome. The Committee notes the Government’s indications that no case was registered on this matter during the reporting period and that there is a need for more awareness in this regard among workers. The Committee requests the Government to keep providing information on anti-union discrimination cases brought before the competent authorities and recalls the importance of such information in order to assess the effectiveness of the protection afforded by the Convention. The Committee also requests the Government to provide detailed information on the measures carried out to raise awareness among workers in this respect.

Article 2. Adequate protection against acts of interference. The Committee previously requested the Government to provide information on the number of complaints of acts of interference examined, the duration of the procedures and the sanctions applied. The Committee notes that no case of interference has been reported. The Committee further notes the observations made by the GEFONT in this regard, namely: (i) the absence of complaints may reflect a lack of awareness among workers or underreporting due to fear of reprisals; and (ii) the Government should implement awareness programmes in this respect, as well as proactively monitor and investigate potential acts of interference by establishing a confidential and independent body. The Committee notes in this respect that the Government emphasizes the need for improving the complaint registration process and recording system, and indicates that updates are currently under development with the ILO’s technical assistance in order to have a transparent and accessible complaint mechanism and to collect information on claims related to interference. The Committee requests the Government to keep providing information on complaints related to acts of interference, as well as on any development regarding the complaint registration process and recording system.

Article 4. Promotion of collective bargaining. Negotiation with trade unions versus negotiation with non-union actors. The Committee had requested the Government to provide information on the practical application of section 116(1) of the Labour Act, concerning the composition of collective bargaining committees. In particular, the Committee had requested the Government to clarify which circumstances might impede the election of the trade union authorized to bargain collectively in an enterprise and, therefore, its participation in the collective bargaining committee. The Government indicates that the trade union elections could not be held on time due to the COVID-19 pandemic, and that pursuant to sections 10 to 12 of the Trade Union Rules, 1993, it is currently discussing and coordinating the new election with the stakeholders. The Committee expects that the Government will conduct the election of trade unions authorized to bargain collectively without further delay and requests to be informed in this respect. Recalling once again that negotiation with non-union actors should only be possible in the absence of trade unions at the relevant level, the Committee also requests the Government to provide information on the number of collective agreements concluded with trade unions in comparison with non-union actors, the sectors and the number of workers concerned.

Different levels of collective bargaining. The Committee previously requested the Government to amend section 123 of the Labour Act (which provides a special regulatory regime for collective bargaining in specific sectors) in order to ensure its compatibility with the principles of collective bargaining, which must be promoted at all levels while being free and voluntary. The Committee recalls in particular that it requested the Government to clarify how section 123(3) would allow for sectoral collective bargaining to be compatible with collective bargaining at any level whatsoever. The Committee understands, from the Government’s indication, that section 123(3) allows negotiation at all levels, except on matters where sectoral level agreements are already in force. The Committee takes note of the example provided by the Government concerning the tea production sector, where a minimum wage agreement was concluded at the sectoral level, which does not prevent collective bargaining at another level in areas that are not covered by the sectoral agreement. The Committee further notes that the Government will engage in consultations with the relevant stakeholders to ensure the effective implementation and promotion of collective bargaining at all levels. Finally, the Committee notes the observations of the GEFONT that section 123 should be amended to ensure that collective bargaining is not restricted to specific sectors or levels. Emphasizing that, in accordance with the principle of free and voluntary collective bargaining enshrined in Article 4 of the Convention, the parties should be free to negotiate, at the enterprise level, collective agreements that improve the working conditions set in sectoral agreements, the Committee requests the Government, in consultation with the social partners, to take the necessary measures to bring section 123 of the Labour Act into full conformity with the Convention. It requests the Government to provide information on any progress made in this respect.

The Committee had also requested the Government to provide information on the rationale behind the selection of sectors enlisted in section 123 of the Labour Act, as well as the number of collective agreements concluded at the sectoral level in these sectors and in sectors other than those mentioned therein, so to assess the breadth of sectoral collective bargaining in the country. The Government indicates that sectoral collective bargaining was carried out in the sectors mentioned in section 123 before the incorporation of this provision in the Labour Act, hence the existence of this special regime. The Committee regrets however that the Government does not provide any information concerning the number of sectoral collective agreements in force. Recalling that collective bargaining at sectoral level should be possible in all sectors of activity covered by the Convention, the Committee is compelled to repeat its request to the Government to provide information on the number of collective agreements concluded at the sectoral level and the sectors concerned.

Compulsory arbitration. The Committee had requested the Government to take the necessary measures to ensure that compulsory arbitration can only take place in the situations compatible with the Convention, namely: (i) in the public service involving public servants engaged in the administration of the State; (ii) in essential services in the strict sense of the term; or (iii) in case of acute national crisis. The Committee notes the Government’ s indication that the aforementioned tripartite task force will discuss the issue of compulsory arbitration as part of the revision of the Labour Act. The Committee firmly hopes that the legislation will be amended so that compulsory arbitration can only take place in the situations mentioned above. It requests the Government to provide information on any progress made in this respect.

Composition of arbitration bodies. The Committee had requested the Government to clarify how the arbitration panel and tribunal differ from one another, as well as to indicate the procedure undertaken to select the worker and employer representatives to ensure the full independence of these bodies. The Government indicates that an arbitration panel is a temporary body formed to resolve a specific case, whereas an arbitration tribunal is a permanent body (however not yet established) competent to resolve several cases of a similar nature. Concerning the selection procedure of an arbitration panel’s members, the Committee notes that: (i) the Joint Trade Union Coordination Center (JTUCC) and the Federation of Nepalese Chambers of Commerce and Industry (FNCCI) nominate one representative each; and (ii) the Ministry nominates an official as coordinator. The Committee also notes that a specific procedure on arbitration is currently under development, including a procedure for the selection of members to ensure that the arbitration process involves independent representatives. The Committee notes that the GEFONT emphasizes the importance of transparency of this process. The Committee requests the Government to provide information concerning the development of the aforementioned procedure on arbitration, and firmly hopes that it will take the necessary measures so that the selection procedure of the members of the arbitration bodies is transparent and guarantees their full independence.

ILO’s technical assistance. The Committee notes that the Government expresses interest in receiving the ILO’s technical assistance concerning anti-union discrimination and collective bargaining. It hopes that such assistance will contribute to the full implementation of the Convention in the country.