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

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

Other comments on C098

Observation

Direct Request

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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.