Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (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.