2007 Annual Survey of violations of trade union rights - Nepal
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Nepal, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca18c.html [accessed 29 April 2016]|
ILO Core Conventions Ratified: 29 – 98 – 100 – 111 – 138 – 182
Trade unions were the target of heavy-handed repression by the security forces in January and April because of their close involvement with the struggle for the restoration of human rights and labour rights. Hundreds were arrested and detained, many were severely injured, and three were shot dead. However, the restoration of the Parliament in late April heralded a significant decline in restrictions on trade union rights.
Trade union rights in law
Trade union rights severely restricted during King's government: The government used the Essential Services Act to bar any trade union activity or industrial action. The order also banned any meeting of five or more persons.
Holding of protests, assemblies, and rallies brought swift and sure repression from the Nepal Army and police during the period up until the removal of the King from absolute power on 27 April.
Following the assumption of power by the SPA coalition, restrictions against trade union rights and freedom of association declined significantly.
Associational rights severely restricted: Under orders issued by the palace on 7 February 2005, no workshops, meetings, conferences or interaction programmes could be held outside a union office unless without prior approval from the Regional Administrator or Chief District Officer or designated officer, and "without undermining the Kingdom's sovereignty and integrity, without disturbing the law and order of the country and without causing any adverse effect on the current State of Emergency". Without this approval, such meetings were considered illegal and participants subject to arrest.
In November 2005, the government promulgated a "Code of Conduct for Social Organisations" that prohibited any action the government deemed to undermine "social harmony". The Code also directly attacked the associational rights of NGOs, including those which are allies of workers in Nepal, by banning all "politically active" persons from working for NGOs, and prohibiting existing NGO staff from having any sort of political affiliation.
Widespread use of the Public Security Act for preventive detention: The Public Security Act authorises preventive detention for a period of up to six months for anyone the authorities deem a threat to domestic security and peace, amicable relations between with other countries, or relations between Nepali citizens of different classes or religions. No charge needs be filed against the accused, and the detention period can be extended by simply filing notice with the Ministry of Home Affairs.
Trade unionists and other opponents of the government have frequently been jailed under the authority of the PSA. According to international observers, the government arrested over 1,000 persons under the provisions of the PSA during the April 2006 uprising.
Labour rights in law: The right to form and join trade unions is recognised in both the Constitution and labour legislation. There are two main laws relating to trade unions: the 1992 Labour Law, which lays down the legal framework and regulations for any enterprise employing ten or more people; and the associated 1993 Trade Union Act, which defines the procedures for establishing a trade union, as well as a union's role and responsibilities. The Trade Union Act prohibits anti-union discrimination and protects union officials from lawsuits which may arise as a result of performing union duties. However, the government has not yet implemented all the provisions of these laws.
Since 1996, Nepal has had a Labour Court to deal with industrial disputes.
Forming trade unions: At enterprise level, the formation of a union requires 25 per cent of the workforce and a minimum of ten people. A maximum of four unions are allowed per enterprise. The collective bargaining agent should be determined via elections within the enterprise.
Trade union federations can be formed through the association of 50 enterprise-level unions, or of 5,000 individuals working in enterprises of the same nature. This is a barrier high enough to be considered restrictive by international labour standards. A confederation requires ten federations to join together, of which six must be from the organised sector.
Rights recognised in the informal economy: An amendment to the Labour Act in 1999 brought the informal economy and agricultural sector under the scope of the law, although the thresholds are high. In the informal economy, 500 people in similar work are required in order to create a federation, whilst in agriculture a minimum of 5,000 workers are needed, covering at least 20 districts and with at least 100 people from each district.
Government revokes public servants' right to belong to unions: In a surprise move without consultation with workers or their representatives, on 14 July 2005 the government issued a Civil Service Ordinance which revokes the rights of public servants to form and belong to unions of their own choosing. The amendment made to the Civil Service Act of 1992 forbids the formation of any association or union of civil servants except for those specified by the government. The ordinance also undercuts the ability of civil servants to collectively bargain, by unilaterally determining conditions of employment in the civil service. In the Bajhang district of remote Western Nepal, the offices of the Nepal Government Employees Union were forcibly closed down and various union properties were confiscated.
Specifically, the ordinance increases workers' vulnerability to intimidation through a plan to start hiring based on contracts (rather than permanent status) and to create a permanent reserve pool of civil servants. The Nepal Government Employees' Organisation (NGEO) announced strong opposition to these changes and filed a legal challenge with the Supreme Court.
Strike restrictions: Although strikes are permitted, there are a series of restrictions. A strike must be authorised by a vote of 60 per cent of the union's membership – an excessively high level according to international standards. The government may stop a strike or suspend a trade union's activities if it disturbs the peace or is deemed to adversely affect the economic interests of the nation.
Strike bans – Essential Services Act: Over the last few years, the government has also had recourse to the 1957 Essential Services Maintenance Act, which allows it to ban strikes for up to six months. This has been used in many sectors, including banking, telecommunications, electricity, water supply, road, air and sea transport, the print industry, the government, press, and hotels and restaurants. This far exceeds the ILO definition of essential services.
Collective bargaining: The Labour Act provides for collective bargaining, but the structures to implement the necessary provisions are not in place.
Trade union rights in practice
Almost 90 per cent of the workforce is engaged in the informal sector, where few workers are unionised.
Women workers: Discrimination against women and girls, notably in education, has meant that 76 per cent of the female population is still illiterate. Few are aware of their trade union rights, and many are confined to low-skilled, low-paid jobs. Every year, thousands more women find themselves in domestic service, where there are no trade unions.
Strikes restricted: Both the authorities and employers have sought court injunctions to prevent workers from going on strike.
Collective bargaining weak: Owing to a combination of worker inexperience and employer reluctance, there is, in practice, little collective bargaining. The large number of unions aggravates workers' weak bargaining power. Collective bargaining agreements cover some ten per cent of the workforce in the organised sector.
Violations in 2006
Background: A mass uprising in April which was spearheaded by the Seven Party Alliance (SPA) coalition and supported by their trade union and civil society allies, succeeded in overcoming the totalitarian rule of King Gyanendra Bir Bikram Shah Dev. On 27 April, the King restored Parliament, and handed over power to an interim government headed by Prime Minister Girija Prasad Koirala. A comprehensive ceasefire agreement was signed between the SPA coalition government and the Maoists, calling for the formation of an interim government with participation by the Maoists. A new political dynamic, moving away from the protracted civil war, was taking hold as the year ended.
Trade unionists arrested for role in January protests against King's regime: Arrests of trade unionists and members of the SPA peaked during rallies and protests against the government. The three national trade union confederations, the National Trade Union Congress (NTUC), the General Federation of Trade Unions (GEFONT), and the Democratic Confederation of Nepalese Trade Unions (DECONT) all allied themselves with the SPA and therefore became targets for arrests.
Often detentions were preventive, as the King's regime tried to remove key agitators from the streets by detaining them under the PSA for periods of 90 days. Between 19 January and 4 February, there were at least 18 GEFONT leaders arrested by the government. Most were held for between one to four days, but senior leaders were invariably detained longer.
Major protests set for 20 January were prevented by the government's declaration of a city-wide dawn to dusk curfew, restrictions on assembly, cutting off the mobile phone and TV networks, and arrests. GEFONT Chairman Makunda Neupane and Secretary Binod Shrestha were both arrested 19 January. On 20 January, they were joined in detention by Mohan Basnet, NTUC Executive Member, Shyam Bahadur Khatri, President of Nepal Building and Construction Workers' Union, Manju Bhattarai, NTUC Executive Member, and Radheshyam Pathak, NTUC Nawalparasi District President. On 21 January, Lekh Nath Pokhrel, Central Secretary of the Casino Workers Union (CWU) of Nepal and also a Vice-President of the UNI-APRO Youth Committee was detained by the security forces and were delivered into police custody. Deepak Tamang, NTUC Jhapa District Committee President and Nepal Tea Garden Workers' Union President, and Buddha Tamang, Nepal Yatayat Mazdoor Sangh, Kakarbhitta Union, were also detained by the military.
When the major rally was launched on 22 January, the government security forces met it head-on in a major crackdown. The result was that more than 200 leaders and activists were arrested.
Bhakata Bahadur Karki, an adviser to the national committee of the Nepal Yatayat Mazdoor Sangh (Nepal Transport Labour Association) and Far
Western Regional President of the Nepal Trade Union Congress, was arrested on 26 January. On 1 February, Ramjee Kunwar, the NTUC Vice-President as well as President of the NTUC Western Region was arrested.
From the DECONT trade union congress, a number of key union leaders were still in detention in early February. Among them were Sudarshan Sigdel, the President of the DECONT Kathmandu District and the Regional Vice-President of the Central Region for the Nepal Transport Workers' Sabha; and Lakshmi Rai, Vice-President for Udayapur District; Aatma Ram Poudel, General Secretary, Construction and Allied Workers' Union of Nepal (CAWUN).
Between 3 and 5 February, security officials detained Nepal University Teachers Association President Bhupati Dhakal; NUTA General Secretary Rameshwar Upadhyaya; President of Nepal Medical Association Dr. Sudha Sharma; President of Nepal Engineers Association Saroj Devkota; President of Teachers Union of Nepal Keshav Bhattarai and President of Progressive Writers Association Anand Dev Bhatta. Three Central Committee Members of the NUTA – Indira Sapkota, Muraridhar Koirala, and Keshav Kumar Sharma – were also detained at this time. Finally, Surendra Timsina, General Secretary, Nepal Kalakarmi Sangh, was also captured at this time. The NUTA reported that a group of three dozen other university teachers, doctors, engineers, school teachers, journalists and authors were also detained at this time.
Arrests and deaths during the April uprising: During 19 days of the April uprising, there were massive crackdowns by Nepal Army troops and police, and continuous protests and actions on the street by the trade unions, civil society, and the seven political parties opposed to the King's Government. The uprising started when a general strike was called by the SPA and its allies, in agreement and cooperation with the Maoists, from 6 to 9 April, and the government reacted by banning all public gatherings and rallies. The Nepal Army repeatedly opened fire on lines of protesters, killing and maiming many people. Arrests were made of protest leaders, especially trade union leaders.
On 4 April, Surya Mohan Subedi, Nar Bahadur and Gyanendra Kunwar, all from the General Federation of Trade Unions (GEFONT), were arrested. More arrests following on 6 April, when at least eight trade union officials were arrested: Lalit Basnet, GEFONT Vice-Chairperson and Member of Parliament; Rajendra Bastakoti, GEFONT Hetauda District President, and Mohan Sing Moktan, Vice-President of the Federation of Agriculture Workers (FAWN); Lila Bahadur Dahal and Raj Kumar Lama from the Nepal Street Vendors' Union (NEST); Narayan Adhilkary from the Nepal Independent Chemical and Iron Workers' Union (NICWU); Raju Acharya from the National Federation of Informal Sector Workers (CUPPEC); and Purna Shrestha from the GEFONT Zonal Office.
The next day, 8 April, Devi Prasad Phuyal from NEST was severely beaten by local police and had to be taken to hospital.
The attacks and raids on GEFONT offices by security personnel was made apparent on 9 April when Chet Badur Magar, a security guard at the GEFONT Headquarters, was badly beaten by the police, and had to be hospitalised.
Also on 9 April, there were numerous other arrests of trade unionists involved in the protest. Among those detained were Hari Raj Poudel, Ex-President of the Nepal Teachers' Union (NTU), Chitwan District, together with five other district officials; Dilla Ram Bhusal, Kathmandu District Secretary of the Nepal Tourism and Hotel Workers' Union (NTHWU); Umesh Mishra, NTUC member; and Uttam Tiwari, Sunsari District Secretary of the Nepal Factory Labour Congress (NFLC), who suffered a head injury from a beating inflicted by soldiers while he was arrested. On 10 April, Radheshyam Pathak, the President for the NTUC Nawalparasi District, was arrested. The next day, one of the leading GEFONT activists Paruram Thapa – the Central Secretary of Nepal Independent Hotel Workers Union (NIHWU-GEFONT) and one of the National Council Member of GEFONT – was shot in the head while protesting. Fortunately, he was able to quickly get medical care and an operation at a nearby hospital, and survived.
Other union activists who were attacked by the security forces, injured, and then arrested were: Anjan Shrestha, a NTUC member who suffered an eye injury from a beating while he was being arrested; Ganesh Pandey, Hem Bahadur Banjara, Kaski District President of the Agricultural Workers' Union (AWU), who was ill-treated and severely injured by the police upon his arrest, and then was later transferred to a hospital; Tikaram Kandel, Nepal Financial Institute Employees' Union (NFIEU) member; Nara Bahadur Khatri, President of the Nepal Independent Food & Beverage Workers' Union (NIFBWU); and Baikuntha Humangain, NEST member.
Two NTUC members were shot dead by the Nepalese Army security forces. Both were active members of the transportation union. First Suraj Biswas [from the Nepal Yatayat Mazdoor Sangh (NYMS)] who was shot dead in Jhapa District by security personnel on 19 April, and then the next day, Pradhumna Khadka, a member of the Nepal Taxi Drivers' Union, was shot dead in Kathmandu
GEFONT recorded that 74 of their leaders were arrested and detained during the April uprising. Following the restoration of Parliamentary rule, all these unionists were released. Another 49 GEFONT members were injured during the April protests.
Maoist attack on GEFONT union members: As local leaders of the Independent Transport Workers Association of Nepal (ITWAN-GEFONT) were collecting dues from members on 16 October, they were suddenly and viciously attacked by more than 90 members of the Maoist All-Nepal Trade Union Congress (Revolutionary) – with the result that several GEFONT members were badly injured or kidnapped. Bidur Karki, Secretary of the Department of Education of GEFONT and the Central Committee General Secretary of ITWAN was one of those who were seriously injured, and he was hospitalised. Others suffering from injuries and/or abduction by the Maoists were Deepak Poudel, NEC member and Bagmati Zonal chief, Naran Nath Luintel Bagmati NEC member & CUPPEC secretary, Thakur Shrestha Zonal Committee member, Balgopal Thapa Joint Secretary of Central Committee of the Independent Press Union (IPWUN-GEFONT), Ms. Kripa Karki Central Committee member, Ms. Sunita Bidhathoki Central Committee member of Nepal Independent Hotel Workers Union, and finally Gayatri Niroula, Rameshwar Dhungana, Khem Dahal and Govinda Magar who are all NEST-GEFONT members.
GEFONT reported an attack on the GEFONT chair of the Koshi Zone on 14 October, and the kidnapping of Nimesh Chhetri from the Nepal Rickshaw Pullers' Union in the district of Morang. Sanjib Tamang and Bhupendra Rai of ITWAN-GEFONT in the district of Dhankuta were also reported kidnapped. The Democratic Confederation of Nepalese Trade Unions (DECONT) has also reported that it has had problems with Maoist unions.
On 18 November, the attacks by the Maoists continued against GEFONT at the Bhrikuti Pulp and Paper Nepal Ltd. plant in Gaindakot, Nawalparasi district of Western Nepal, where Mr. Tika Ram Paudel, the Central Treasurer of the Nepal Independent Chemical & Iron Workers' Union (NICIWU) and Mr. Shree Mahato, NICIWU Vice-president of the Bhrikuti Pulp and Paper Nepal Limited, were brutally attacked by a group of Maoists.
Overcoming an anti-union campaign at Group 4 Securicor (G4S): GEFONT reported that it faced an extensive anti-union campaign run by G4S in Nepal when it moved to organise the multi-national firm's operations in the country. During the organising campaign for the union, management moved identified union activists to remote and difficult postings, and discriminated in terms of promotions against workers seen to be sympathetic to the union. When GEFONT sought to negotiate with management, they received a hostile response – with G4S threatening to close operations in the country if the union went forward. Union activists were threatened with physical violence, and two workers leading the unionisation effort were terminated. Nevertheless, the workers finally formally agreed to representation by GEFONT, and in August, the union signed a collective agreement with the company.