TyroCity: Labour Law Notes

Industrial Dispute: Forms And Causes

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Industrial conflicts constitute organised protests against existing industrial conditions. They are symptoms of industrial unrest. The term ‘industrial dispute’ means any of the following features:

There should be a difference or dispute.
The dispute could be of Individual nature disputes or Collective nature
The dispute must pertain to some work-related issue.
The dispute must be raised by a group or class of workers. For example, the dispute between one or two workers and the respective employer is not an industrial dispute.

INDUSTRIAL DISPUTES
An industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the terms and conditions of employment of any person.

Forms of Industrial Disputes

Strike/ Lock outs: Closing down of an undertaking or the suspension of work or the refusal of an employer to continue to employ any number of persons employed by him is known as ‘lock out’.
Gherao: Gherao means to surround. In this method, a group of workers initiates collective action aimed at preventing members of the management from leaving the office.
Picketing and Boycott: When picketing workers often carry or display signs, banners and placards, prevent others from entering the place of work and persuade others to join the strike. Boycott aims at disrupting the normal functioning of an enterprise.

Causes of Industrial Disputes

Employment-related – Individual/Collective
Collective Demand related
Administration-related
Recognition as a bargaining agent
Psychological and social issues
Institutional causes
Political causes

Machinery For The Settlement of Industrial Disputes

Works committees: As per the Industrial Disputes Act, 1947, works committees have to be set up all those industrial units which employ 100 or more persons. It is basically a consultative body

Giving greater participation to workers.

Ensuring close interaction between labor and management.

Generating a cooperative atmosphere for negotiation between parties.

Opening the doors to unions to have a clear view of what is going on within the unit.

Strengthening the spirit of the voluntary settlement of disputes.

Standing orders: These are laws, the rules, and regulations that govern the conditions of employment of workers. The Labour Act 2074 provides for the framing of standing orders in all industrial undertakings.

Grievance Mechanism:
Code of discipline and company Personnel rules: It consists of a set of self-imposed obligations voluntarily formulated by the central organisation of workers and employers.

Occupational Health and Safety – Meaning, Rationale

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Occupational health and safety is a discipline with a broad scope involving many specialized fields. In its broadest sense, it should aim at:

the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations;
the prevention among workers of adverse effects on health caused by their working conditions;
the protection of workers in their employment from risks resulting from factors adverse to health;
the placing and maintenance of workers in an occupational environment adapted to physical and mental needs;
the adaptation of work to humans.
In other words, occupational health and safety encompass the social, mental and physical well-being of workers, which is the “whole person”.

Poor working conditions affect worker health and safety

Poor working conditions of any type have the potential to affect a worker’s health and safety.
Unhealthy or unsafe working conditions are not limited to factories — they can be found anywhere, whether the workplace is indoors or outdoors. For many workers, such as agricultural workers or miners, the workplace is “outdoors” and can pose many health and safety hazards.
Poor working conditions can also affect the environment workers live in, since the working and living environments are the same for many workers. This means that occupational hazards can have harmful effects on workers, their families, and other people in the community, as well as on the physical environment around the workplace.
A classic example is the use of pesticides in agricultural work. Workers can be exposed to toxic chemicals in a number of ways when spraying pesticides: they can inhale the chemicals during and after spraying, the chemicals can be absorbed through the skin, and the workers can ingest the chemicals if they eat, drink, or smoke without first washing their hands, or if drinking water has become contaminated with the chemicals. The workers’ families can also be exposed in a number of ways: they can inhale the pesticides which may linger in the air, they can drink contaminated water, or they can be exposed to residues which may be on the worker’s clothes. Other people in the community can all be exposed in the same ways as well. When the chemicals get absorbed into the soil or leach into groundwater supplies, the adverse effects on the natural environment can be permanent.

Benefits of Effective Safety and Health Program

Reduce work-related injuries and illnesses
Improve morale and productivity
Reduce workers’ compensation costs

*Why is occupational health and safety important? *

Work plays a central role in people’s lives, since most workers spend at least eight hours a day in the workplace, whether it is on a plantation, in an office, factory, etc. Therefore, work environments should be safe and healthy. Yet this is not the case for many workers.
Every day workers all over the world are faced with a multitude of health hazards, such as:
- dusts;
- gases;
- noise;
- vibration;
- extreme temperatures.

Costs of occupational injury/disease

For workers some of the direct costsof an injury or illness are:
- the pain and suffering of the injury or illness;
- the loss of income;
- the possible loss of a job;
- health-care costs.

The costs to employers

Occupational accidents or illnesses are also estimated to be enormous. For a small business, the cost of even one accident can be a financial disaster. For employers, some of the direct costs are:

payment for work not performed;
medical and compensation payments;
repair or replacement of damaged machinery and equipment;
reduction or a temporary halt in production;
increased training expenses and administration costs;
possible reduction in the quality of work;
negative effect on morale in other workers.

Some of the indirect costs for employers are:

the injured/ill worker has to be replaced;
a new worker has to be trained and given time to adjust;
it takes time before the new worker is producing at the rate of the original worker;
time must be devoted to obligatory investigations, to the writing of reports and filling out of forms;
accidents often arouse the concern of fellow workers and influence labour relations in a negative way;
poor health and safety conditions in the workplace can also result in poor public relations.
Overall, the costs of most work-related accidents or illnesses to workers and their families and to employers are very high.

Health and safety programs

For all of the reasons given above, it is crucial that employers, workers, and unions are committed to health and safety and that:
workplace hazards are controlled – at the source whenever possible;
records of any exposure are maintained for many years;
both workers and employers are informed about health and safety risks in the workplace;
there is an active and effective health and safety committee that includes both workers and management;
worker health and safety efforts are ongoing.
Occupational health and safety encompass the social, mental and physical well-being of workers in all occupations.
Poor working conditions have the potential to affect a worker’s health and safety.
Unhealthy or unsafe working conditions can be found anywhere, whether the workplace is indoors or outdoors.
Employers have a moral and often legal responsibility to protect workers.
Work-related accidents and diseases are common in all parts of the world and often have many direct and indirect negative consequences for workers and their families. A single accident or illness can mean enormous financial loss to both workers and employers.
Effective workplace health and safety programmes can help to save the lives of workers by reducing hazards and their consequences. Effective programmes can also have positive effects on both worker morale and productivity and can save employers a great deal of money.

The extent of the problem worldwide

1. Accidents

In general, health and safety in the workplace have improved in most industrialized countries over the past 20 to 30 years. However, the situation in developing countries is relatively unclear largely because of inadequate accident and disease recognition, record-keeping and reporting mechanisms.
It is estimated that at least 250 million occupational accidents occur every year worldwide. 335,000 of these accidents are fatal (result in death). (Since many countries do not have accurate record-keeping and reporting mechanisms, it can be assumed that the real figures are much higher than this.) The number of fatal accidents is much higher in developing countries than in industrialized ones.

2. Diseases

Some occupational diseases have been recognized for many years, and affect workers in different ways depending on the nature of the hazard, the route of exposure, the dose, etc. Some well known occupational diseases include:
asbestosis (caused by asbestos, which is common in insulation, automobile brake linings, etc.)
silicosis (caused by silica, which is common in mining, sandblasting, etc.);
lead poisoning (caused by lead, which is common in battery plants, paint factories, etc.);
and noise-induced hearing loss (caused by noise, which is common in many workplaces, including airports, and workplaces where noisy machines, such as presses or drills, etc. are used).
There are also a number of potentially crippling health problems that can be associated with poor working conditions, including:–heart disease;–musculoskeletal disorders such as permanent back injuries or muscle disorders;
- allergies;
- reproductive problems;
- stress-related disorders.
There are at least 250 million occupational accidents every year worldwide, at least 335,000 of which result in death.
Developing countries have more fatal accidents than industrialized nations, emphasizing the need for health and safety education programs that focus on prevention.
Some occupational diseases have been recognized for many years and affect workers in different ways. Such diseases are still problems in all parts of the world.
The numbers of work-related diseases in developing countries are much higher in reality than the numbers that are reported.
The number of cases and types of occupational diseases are increasing in both developing and industrialized countries.
It is often difficult to identify the cause of both occupational accidents and diseases.

Identifying the cause of occupational disease

The cause of work-related diseases is very often difficult to determine. One factor is the latency period (the fact that it may take years before the disease produces an obvious effect on the worker’s health).
By the time the disease is identified, it may be too late to do anything about it or to find out what hazards the worker was exposed to in the past. Other factors such as changing jobs, or personal behaviors (such as smoking tobacco or drinking alcohol) further increase the difficulty of linking workplace exposure to a disease outcome.
Although more is understood now about some occupational hazards than in the past, every year new chemicals and new technologies are being introduced which present new and often unknown hazards to both workers and the community. These new and unknown hazards present great challenges to workers, employers, educators, and scientists, that is to everyone concerned about workers’ health and the effects that hazardous agents have on the environment.

3. The range of hazards

There is an unlimited number of hazards that can be found in almost any workplace. There are obvious unsafe working conditions, such as unguarded machinery, slippery floors or inadequate fire precautions, but there are also a number of categories of insidious hazards (that is, those hazards that are dangerous but which may not be obvious) including:
chemical hazards, arising from liquids, solids, dusts, fumes, vapours and gases;
physical hazards, such as noise, vibration, unsatisfactory lighting, radiation and extreme temperatures;
biological hazards, such as bacteria, viruses, infectious waste and infestations;
psychological hazards resulting from stress and strain;
hazards associated with the non-application of ergonomic principles, for example badly designed machinery, mechanical devices and tools used by workers, improper seating and workstation design, or poorly designed work practices.

The Management of workplace Health and safety

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Importance of management commitment

In order to develop a successful health and safety programme, it is essential that there be strong management commitment and strong worker participation in the effort to create and maintain a safe and healthy workplace. Effective management addresses all work-related hazards, not only those covered by government standards.
All levels of management must make health and safety a priority. They must communicate this by going out into the worksite to talk with workers about their concerns and to observe work procedures and equipment. In each workplace, the lines of responsibility from top to bottom need to be clear, and workers should know who is responsible for different health and safety issues.

The importance of training

Workers often experience work-related health problems and do not realize that the problems are related to their work, particularly when an occupational disease, for example, is in the early stages.
Besides the other more obvious benefits of training, such as skills development, hazard recognition, etc., a comprehensive training program in each workplace will help workers to:
recognize early signs/symptoms of any potential occupational diseases before they become permanent conditions;
assess their work environment;
insist that management make changes before hazardous conditions can develop.

Specific Training Needs

Hazard recognition
Training required in standards
Emergency response
Accident investigation
Emergency

Role of the health and safety representative

As health and safety representative your role is to work proactively (this means taking action beforehazards become a problem) to prevent workers from being exposed to occupational hazards. You can do this by making sure management eliminates hazards or keeps them under control when they cannot be eliminated.

Steps to help you reach your goals are:

Be well informed about the various hazards in your workplace and the possible solutions for controlling those hazards.
Work together with the worker’s representatives/ union and the employer to identify and control hazards.
You may occasionally need to share some of this information with your supervisors and employer in the process of working towards a safe and healthy workplace.

Being a health and safety representative is not always easy, but helping to protect the lives of your fellow workers is worth all the time and effort you put into the job.

Hazards Prevention Planning

Maintain the facility and equipment
Emergency planning
- Training and drills, as needed
Medical program
- First aid on site
- Physician and emergency care nearby

Supervisors Responsibility

Analyze work to identify potential hazards in area of responsibility
Maintain physical protections in work areas
Reinforce employee training through performance feedback and, if needed, enforcement of safe work practices

Main Features of Foreign Employment Act 2064 , Gaps and Challenges

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

This act was enacted in order to make foreign employment business safe, managed and decent and protect the rights and interests of the workers who go for foreign employment and the foreign employment entrepreneurs, while promoting that business.

Specification of countries for carrying on foreign employment business
Power to make a bilateral agreement
Selection of institution
Power to send workers by making a treaty or an agreement
Prohibition on sending a minor for employment: Any minor who has not completed eighteen years of age shall not be sent for foreign employment.
Prohibition on gender
To provide special facility and reservation
Prohibition on carrying on foreign employment business without a license:
Prohibition on transfer of or change in ownership or liability:
Notwithstanding anything contained in the prevailing laws, no licensee shall, without the approval of the Department, transfer or change the ownership or liability of the institution.
Prior approval to be obtained
Power to specify minimum remuneration
Service charge and promotional costs specify the upper limit
Offense and Punishment –on several issues

Gaps and Challenges

How can the potential of remittances be maximized as a driver for economic growth and poverty reduction.
What should be the institutional response and structure for instigating workers to use the formal remittance service outreach,
making destinations countries comply with the relevant conventions, recommendations and protocols concerning the safe and decent employment of migrant workers?
IT application to maximize the effective flow of remittances through innovative payment systems, like cards, mobile telephones and branchless banking?
Should Nepal develop remittance-linked debt securities?
What policies, acts, regulations and investment environments are needed for remittance-based infrastructure and other development programmes and projects?
What options specific to development policy, plans, programmes and projects should be considered to minimize the remittance economy’s vulnerability to external economic crises and migration policies being adopted by destination countries?
What legal and administrative mechanisms should regulate overseas study and foreign employment, considering how intertwined they have become and considering the potential for fraudulent activities?
How can issues of foreign employment be incorporated into major sectors related to education, health, finance, women, children and social welfare (especially with respect to human trafficking), home affairs, tourism, agriculture and finance to ensure a coordinated and harmonized approach in policy, plans, programmes and projects?
What is the magnitude of health-related concerns and issues of migrant workers and what specific actions can be taken to remedy these problems, including among irregular workers?
Foreign employment, over the years, has become associated with social costs, such as family disintegration, children growing up without the benefit of parental care and senior citizens not receiving proper care. The increasing trend in suicide among migrants and returned workers is a concern. Family stress levels are often heightened by the absence of one or more members. What can be done to mitigate the social costs?
The agrarian economy is negatively impacted in the absence of human resources for agriculture. Nepal imports food grains and other agricultural products due to reduced agricultural activities. Can this be turned around?

Holiday and Leave

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Meaning of holidays:

A holiday is a day set aside by custom or by law on which normal activities, especially business or work, are suspended or reduced. Generally, holidays are intended to allow individuals to celebrate or commemorate an event or tradition of cultural or religious significance. Holidays may be designated by governments, religious institutions, or other groups or organizations. The degree to which normal activities are reduced by a holiday may depend on local laws, customs, the type of job being held or even personal choices.

Concept of holidays:

The concept of holidays often originated in connection with religious observances.
The intention of a holiday was typical to allow individuals to tend to religious duties associated with important dates on the calendar.
In many societies, there are important distinctions between holidays designated by governments and holidays designated by religious institutions. For example, in many predominantly Christian nations, Hindu nations, Buddhist Nations, etc. government-designed holidays may center on Christian holidays, Hinduism, Muslims, Buddhists observe religious holidays associated with their faith.

Eligibility:

The worker or employee is entitled to holidays as per the terms and conditions of his/her employment contract that was concluded with the employer. Generally, such types of holidays shall be as prescribed in the Laws and Regulations. Leave is not a matter of right; it is only a privilege.

The authority to sanction leave may, in the keeping of view the work of the Enterprise, refuse to sanction leave, postpone utilization thereof, make a deduction or cancel any sanctioned leave.

Prevailing legal provision about holidays (leave):

Generally, holidays are given to the worker or employees as per the laws and regulations of the concerned laws and regulations of services. Such as civil servants, security personnel and others are entitled to holidays as per their sector-wise laws and regulations. Worker or labor or employee working in enterprises or productive sectors shall be governed by labor laws and regulations and entitled holidays as per the laws and regulations.

NATURE OF LEAVE LABORACT, 2074

Weekly Holiday – 1 day every week
Public Holiday – 13 days including May day. Additional 1 day to female employees including Intl Women Labor Day. Annual Leave – 1 day for every 20 worked days.
Sick Leave – Half paid up to 15 days. Eligibility for the leave : Completion of 1 year of service.

Mourning Leave – 13 days

Leave in lieu For the laborers put in work on a public holiday or weekly off.

Maternity Leave – Fully paid – 98 days. Fully paid up to 60 days.

Paternity Leave – 15 days. Fully Paid

International standard of working hours:

The regulation of working time is one of the oldest concerns of labour legislation. Already in the early 19th century it was recognized that working excessive hours posed a danger to workers’ health and to their families. The very first ILO Convention, adopted in 1919 (see below), limited hours of work and provided for adequate rest periods for workers. Today, ILO standards on working time provide the framework for regulated hours of work, daily and weekly rest periods, and annual holidays. These instruments ensure high productivity while safeguarding workers’ physical and mental health. Standards on part-time work have become increasingly important instruments for addressing such issues as job creation and promoting equality between men and women.

Hours of Work

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Meaning of Hours of Work

ILO – Hours of Work (Commerce and Offices) Convention, 1930 (No. 30)

For the purpose of this Convention the term hours of work means

–the time during which the persons employed are at the disposal of the employer; it does not include rest periods during which the persons employed are not at the disposal of the employer.

The Working Time Regulation, 1998 (UK)

“working time”, in relation to a worker, means—

any period during which he is working, at his employer’s disposal and carrying out his activity or duties,
any period during which he is receiving relevant training, and
any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;

The rationale behind the standardizing working hours

“working excessive hours poses a danger to workers’ health and to their families” – ILO

-Individual health

physical

Mental

-Social capital

Time for family

Socio-cultural activity

-Industrial prosperity

direct – productivity (enhanced efficiency/industrial peace)

Indirect- employment generation

International Standards

Hours of Work (Industry) Convention, 1919 (No. 1)

Article 2 – The working hours of persons employed in any public or private industrial undertaking or in any branch thereof, other than an undertaking in which only members of the same family are employed, shall not exceed eight in the day and forty-eight in the week.

Hours of Work (Commerce and Offices) Convention, 1930 (No. 30)

Article 1 – This Convention shall apply to persons employed in the following establishments, whether public or private:

commercial or trading establishments, including postal, telegraph and telephone services and commercial or trading branches of any other establishments;
establishments and administrative services in which the persons employed are mainly engaged in office work;
mixed commercial and industrial establishments, unless they are deemed to be industrial establishments.

Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) ….

Article 3 – The hours of work of persons to whom this Convention applies shall not exceed forty-eight hours in the week and eight hours in the day

Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) ….

Article 3 – The hours of work of persons to whom this Convention applies shall not exceed forty-eight hours in the week and eight hours in the day.

Weekly Rest (Industry) Convention, 1921 (No. 14)

The whole of the staff employed in any industrial undertaking, public or private, or in any branch thereof shall … enjoy in every period of seven days a period of rest comprising at least twenty-four consecutive hours.
This period of rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking.
It shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district.

Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106)

All persons to whom this Convention applies shall be entitled to an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days.
The weekly rest period shall, wherever possible, be granted simultaneously to all the persons concerned in each establishment.
The weekly rest period shall wherever possible, coincide with the day of the week established as a day of rest by the traditions or customs of the country or district.
The traditions and customs of religious minorities shall, as far as possible, be respected.

As per section 28 of the labor act, 2074 Working hours shall be 8 hours a day and 48 hours a week.

As per sec 31, The overtime wages is to be one and half time of his/her ordinary rate of wages.

As per sec 30 of the new act, the maximum overtime has been increased to 24 hours a week.

श्रम ऐन, २०७४

दफा २९. बढी समय काम गर्न बाध्य गर्न नहुने :
(१) रोजगारदाताले दफा २८ को उपदफा (१) मा उल्लिखित समयभन्दा बढी समय हुने गरी श्रमिकलाई काम गर्न बाध्य पार्नु हँुदैन ।
(२) उपदफा (१) मा जुनसुकै कुरा लेखिएको भए तापनि कुनै काम सम्पन्न नहुँदा कसैको जीवन, सुरक्षा तथा स्वास्थ्यमा प्रतिकूल असर पर्न सक्ने वा रोजगारदातालाई गम्भीर हानी नोक्सानी हुने भएमा दफा ३० को उपदफा (१) को अधीनमा रही सम्बन्धित श्रमिकलाई अतिरिक्त समय काममा लगाउन सकिनेछ ।

दफा ३२. काम गर्ने समयको निर्धारण:
(१) श्रमिकको काम शुरु हुने र काम समाप्त हुने समय रोजगार सम्झौतामा उल्लेख भएकोमा सोही बमोजिम र नभएमा रोजगारदाताले निर्धारण गरे बमोजिम हुनेछ ।
(२) काम गर्ने समय सम्बन्धी अन्य व्यवस्था तोकिए बमोजिम हुनेछ ।
दफा ३३. यातायातको व्यवस्था मिलाउनु पर्नेः सूयासर््त भएपछि वा सूर्योदय हुनुभन्दा अघि कार्य समय प्रारम्भ वा समाप्त हुने गरी महिला श्रमिकलाई काममा लगाउँदा कार्यस्थलमा आउन तथा कार्यस्थलबाट फर्की जान रोजगारदाताले यातायातको आवश्यक व्यवस्था मिलाउनु पर्नेछ ।

दफा ३०. बढी समय काम लगाउने सम्बन्धी व्यवस्था:
(१) रोजगारदाताले कुनै श्रमिकलाई दफा २८ को अधीनमा रही निर्धारण गरेको कार्य समयभन्दा बढी समय काममा लगाउनु परेमा प्रतिदिन चार घण्टा र एक हप्तामा चौबीस घण्टाभन्दा बढी नहुने गरी लगाउन सकिनेछ ।
(२) रोजगारदाताले कुनै श्रमिकलाई दफा ४२ बमोजिम सट्टा बिदा नदिई लगाएको कामलाई बढी समय काम गरेको मानिनेछ ।

दफा ३१. अतिरिक्त पारिश्रमिक दिनु पर्ने:
(१) रोजगारदाताले श्रमिकलाई दफा ३० बमोजिम बढी समय काममा लगाउँदा नियमित रुपमा काम गर्दा पाउने आधारभूत पारिश्रमिकको डेढी पारिश्रमिक दिनु पर्नेछ ।
(२) उपदफा (१) मा जुनसुकै कुरा लेखिएको भए तापनि बढी समय काम गरेबापत पाउने अतिरिक्त पारिश्रमिकको सट्टामा सामूहिक सम्झौताले निश्चित सुविधा पाउने व्यवस्था गर्न वा व्यवस्थापकीय श्रेणीको श्रमिकको हकमा रोजगार सम्झौतामा उल्लेख भए बमोजिम सुविधा दिन यस दफामा लेखिएको कुराले बाधा पु¥याएको मानिने छैन ।

Labour Law Meaning

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Labour law is the term used to described the varied body of law applied to such matters as employment, remuneration, condition of work, trade unions, and labour management relations. In its most comprehensive sense it also included old age and disability insurance. Again unlike the laws of contract, tort, or property, the elements of labour laws are less homogeneous then the rule governing the particular legal relationship. Labour law, which is also a branch of sociological jurisprudence, is essentially an abridgement on the right of freedom of contract. It was to regulate the industrial sector and balance the labour and management relations.

Labour law is the term used to describe the varied body of law applied to such matter as employment, individual employment, wages and remuneration, conditions of work, trade unions, health safety and welfare, social security and labour management relation, the administration of labour law and special provision for particular occupational or other group.

However, there are two broad categories of labour law. First, collective labour law relates to the tripartite relationship between employee, employer and union. Second, individual labour law concerns employees’ rights at work and through the contract for work. The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the social and economic development since the Industrial Revolution. Employment standards are social norms for the minimum socially acceptable conditions under which employees or contractors will work.

The labour law helps to protect the weaker section of people in the employment contract so that no employees get exploited by the employer being subordinate in the contractual relationship. Labour law protects working environment, ensures rights of the employees, console the clashes between employees and employers.

In addition to individual contractual relations growing out of the traditional employment situation, labour laws deals with the statutory requirements and collective contractual relation that are increasingly important in mass- production societies, the legal relation between organized economic interests and the state, and the various rights and obligation relating to some type of social services.

Labour Law

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Introduction

Recruitment Process

Working Terms and Conditions

Disciplinary Action

Disciplinary action, Misconducts and Punishments

Welfare and Social Security

Occupational Health and Safety

Industrial Disputes

Trade Unions

Foreign Employment

Main Features of Foreign Employment Act 2064, Gaps and Challenges

INDUSTRIAL RELATIONS: Meaning and components

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

INDUSTRIAL RELATIONS:

“Industry” refers to “any productive activity in which an individual (or a group of individuals) is (are) engaged”.
“Relations” means “the relationships that exist within the industry between the employer and his workmen.”
Industrial relations are the relationships between employees and employers within organizational settings.
The field of industrial relations looks at the relationship between management and workers, particularly groups of workers represented by a union.
Industrial relations are basically the interactions between employers, employees and the government, and the institutions and associations through which such interactions are mediated.
The relationships which arise at and out of the workplace generally include the relationships between individual workers, the relationships between workers and their employer, the relationships between employers, the relationships employers and workers have with the organizations formed to promote their respective interests, and the relations between those organizations, at all levels.
Industrial relations also includes the processes through which these relationships are expressed (such as, collective bargaining, workers’ participation in decision-making, and grievance and dispute settlement), and the management of conflict between employers, workers and Trade unions, when it arises.

Meaning of Industrial Relations:

The simple meaning of the industrial relations is the ways in which business relate to and deal with workers, the government and the public.
The detail meaning of the industrial relation can be given as follows:
- ”The dealings or relationship of a usually large business or industrial enterprise with its own workers, with labour in general, with government agencies or with public.”—Merrian Webster Dictionary
- ”The term “industrial relation” refers to all types of relations that exists in an enterprises, the employer and employee.”———-Fillippos
- “Industrial relation include individual relation and joint consultation between employees and people at the work, the place of work. Collective relations between employer and their organizations and the Unions and the part played by State in regulating those relations.”——-Richardron (Note: (Industrial relation means each employer has relation with their management. Joint consultation means negotiation of whole union)
- Bearing in mind to the above meaning, we can say that industrial relations cover all aspects of the employment relationship, including human resource management, employee relations, and union-management (or labor) relations.

Top 4 Major Components of Industrial Relation

1. Employees:

Among the participants to IR, employees are considered as the most affected one by the IR system prevalent in an organization. Employees with their various characteristics such as their commitment to the work and the organization, their educational and social background, their attitudes towards the management and so on affect and are affected by the system of IR.
Generally, employees perceive IR as a means to improve their conditions of employment, voice against any grievances, exchange views and ideas with management and participate in organizational decision making processes.
Employees participate in the IR system through their associations, or say, trade unions. Past evidences indicate that trade unions play a crucial role in making an IR system as effective or otherwise. Trade unions with their strong political and emotional overtones are looked upon as a tool to wrest concessions from employers.
Employees achieve following objectives:
- To redress the bargaining advantage on one-on-one basis, i.e., individual worker vis-a-vis individual employer by way of joint or collective actions.
- To secure better terms and conditions of employment for their members.
- To obtain improved status for the worker in his/her work.
- To increase democratic mode of decision-making at various levels

2. Employer:

Employer is the second party to IR. In the corporate organization, employer is represented by the management. Hence, management becomes responsible to various stakeholders in an organization including employees.
According to Cole, management has to see IR in terms of the following employee-employer relationship:
- Creating and sustaining employee motivation.
- Ensuring commitment from employees.
- Achieving higher levels of efficiency.
- Negotiating terms and conditions of employment with the representatives of employees.
- Sharing decision making with employees.
- Like employees’ associations, employers also form their associations at the local, industry and national levels. Examples of employers’ associations at all Nepal level are Chambers of Commerce’s and Industry (CCI), Federation of Nepalese Chambers of Commerce and Industry (FNCCI), etc.

The said employers organization is constituted for the following purposes:

Represent employers in collective bargaining at the national or industry level.
Develop machinery for avoiding disputes.
Provide feedback on employee relations.
Advise member organizations on the issues relating to IR.

3. Government:

The role of government in the matter of industrial relations has been changing along with changes in an industrial environment and management perspective. For example, till the century, the governments everywhere in the world adopted a policy of laissez-faire.
The IR matters were left to be settled by the employees and employers. But, towards the end of the 19 century, the attitude of the government in the changed conditions of conflicts between employees and employers, changed to some kind of intervention in the matter of IR.
In due course of realization, government intervention became a reality. As of day, government intervention has become widespread in HR matters. In India and Nepal government tries to regulate the relationship of employees and employers, and also keeps an eye on both groups to keep each in line. This relationship is enforced and maintained through labour courts, industrial tribunals, wage boards, investigating and enquiry committees, etc.

4. Consumer:
Ultimately, the user of the commodity or product is consumer. Services to the consumer should be good quality, not sub-standard quality; there should be reasonable price of goods for consumer, not high what they pay for that product. The consumer has the right that can challenge employer for the product in the Court.

Stages of Recruitment

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

What is recruitment?

Recruitment is the process of having the right person, in the right place, at the right time.
Recruitment is a critical activity, not just for the HR team but also for line managers who are increasingly involved in the selection process.
All those involved in recruitment activities should be equipped with the appropriate knowledge and skills.
Recruitment is not only carried out to fulfill current needs. It should always be aware and refer to future plans that have implications for organizational resourcing. Recruiters also be fully aware of equal opportunities legislation and understand how discrimination can occur both directly and indirectly in the recruitment process

The recruitment process involves working through a series of stages such as:

Defining the role:

Job analysis :

Before recruiting for a new or existing position, it’s important to invest time in gathering information about making up the job, job’s purpose, the outputs required by the job holder and how it fits into the organization’s structure . The job analysis be made as follows.

Job description:

This explains the job to candidates and helps the recruitment process by providing a clear guide to all involved about the requirements of the job.

Latest thinking suggests that job descriptions should focus on the work someone needs to achieve rather than the skills and experience, as this is more likely to result in choosing someone with the right abilities.

Person specification/job profile:

A person specification or job profile states the necessary and desirable criteria for selection. Increasingly such specifications are based on a set of competencies identified as necessary for the performance of the job.

As per the Sub-sections (1) and (2) of Section 3 of the Labour Act, 2049, the Proprietor shall classify the job of the workers and employees of the Enterprise according to the nature of production process, service or functions of the Enterprise and shall provide the information thereof to the concerned Labour Office .

If the classification done pursuant to Sub-section (1) requires any amendment, the Labour Officer may, stating the reasons thereof, issue a directive to the Proprietor and it shall be the duty of the Proprietor to abide by such directive.

Attracting applications:

There are mostly two methods to generate interest from potential candidates those are as follows.

Internal methods:

It’s important not to forget the internal talent pool when recruiting. Providing opportunities for development and career progression increases employee engagement and retention and supports succession planning.

Employee referral schemes:

These schemes usually offer an incentive to existing employees to assist in the recruitment of friends or contacts. But employers should not rely on such schemes at the expense of attracting a diverse workforce and they should complement other methods.

External methods:

Survey indicates that the most popular methods for seeking candidates include employer’s corporate website, recruitment agencies, commercial job boards, mass media and professional networking sites such as LinkedIn. There is growing expectation from candidates to be able to search and apply for jobs online and via mobile devices. Advertisements should be clear and indicate:

requirements of the job
necessary and desirable criteria for job applicants (to limit the number of inappropriate applications received)
the organization’s activities
job location
reward package
job tenure (for example, contract length) details of how to apply and the deadline

External recruitment services:

Some organizations use external providers to assist with their recruitment such as recruitment agencies or consultants and they offer employers a range of services – attracting candidates, managing candidate responses, screening, and shortlisting, or running assessment centres on the employer’s behalf.

As per the Section 4 of the Labour Act, 2049 of Nepal in cases where it is required to appoint a worker or employee in any post classified pursuant to Section 3, the Manager Shall have to advertise in order to select such a worker or employee and the worker or employee so selected.

Managing the application and selection process: There are two main formats in which applications are likely to be received those are as follows.

Application forms:

Application forms allow for information to be presented in a consistent format, and therefore make it easier to collect information from job applicants in a systematic way and assess objectively the candidate’s suitability for the job.

CVs:

CVs make it possible for candidates to include lots of additional, irrelevant material which may make them harder to assess consistently.

Dealing with applications:

All applications should be treated confidentially and circulated only to those individuals involved in the recruitment process.

The ‘candidate experience’
The experience of candidates (both successful and unsuccessful) at each stage of the recruitment process will impact on their view of the organization. This could be both from the perspective of a potential employee and, depending on the nature of the business, as a customer.

Selecting candidates:

Selecting candidates involves two main processes: shortlisting and assessing applicants to decide who should be offered a job.

Selection decisions should be made having used appropriate tools, time and resources. Selection should be made on the basis of relevant to the job and the business objectives of the organization.

Making the appointment:
Before making an offer of employment, employers have responsibility for checking that applicants have the right to work in the country so advertised such as Nepal, India, UK etc. and are appropriate for the work.

References:

A recruitment policy should state clearly how references will be used, when in the recruitment process they will be taken up and what kind of references will be necessary (for example, from former employers).

Medical examinations:

It is unlawful to ask candidates to complete a medical questionnaire before being offered a job. Only essential medical issues should be discussed at this stage.

Employment offer:

Offers of employment should always be made in writing. But it is important to be aware that a verbal offer of employment made in an interview is as legally binding as a letter to the candidate.

Joining the organization:

Well-planned induction enables new employees to become fully operational quickly and should be integrated into the recruitment process.

Documentation:

The recruitment process should be documented accurately and access limited to recruitment staff for confidentiality reasons.

Labour welfare draft

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Social Welfare connotes the welfare of the entire Society.

Labour Welfare is a narrow concept concerned with welfare of workers.

Labour Welfare is an important dimension of industrial relation. It includes overall welfare facilities designed to take care of the well being of employees and in order to increase their living standards.

It can also be provided by government, non-government agencies, and trade unions.

Employee Welfare

To give expression to philanthropic and paternalistic feelings.
To win over employees loyalty and increase their morale.
To combat trade unionism and socialist ideas.
To build up stable labour force, to reduce labour turnover and absenteeism.
To develop efficiency and productivity among workers.
To save oneself from heavy taxes on surplus profits.
To earn goodwill and enhance public image.
To reduce the threat of further government intervention.
To make recruitment more effective (because these benefits add to job appeal).
The service should satisfy the real needs of the workers.

Scope of Labour Law

Work Environment
Health Facilities
General Welfare Programs
Economic Welfare Programs
Labour Welfare Programs

Security of Service - Retrenchment, Resignation, layoff and Compulsory Retirement

Labour Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Security of Service:

In an ILO report from 2001, and an earlier ILO report from 1995, uses the following definition of employment security for wage and salaried workers as follows:

Employment security generally refers to protection against unfair or unjustified dismissals. According to the most commonly used definition, “employment security means that workers have protection against arbitrary and short notice dismissal from employment, as well as having long-term contracts of employment and having employment relations that avoid casualization.”
Job Security is an assurance that an individual will keep his or her job without the risk of becoming unemploye- S/he will have continuity in employment and it may be from the terms of a contract of employment, collective bargaining agreement, or labor legislation that prevents arbitrary termination.
Job security may depend on economy, prevailing business conditions, and the individual’s personal capacity. Employees have more job security in times of economic expansion and less in times of a recession. Normally, government jobs and jobs in education, healthcare and law enforcement are considered very secure. Private sector jobs are generally believed to offer lower job security.
The service of any permanent worker or employee may not be terminated without following the procedures prescribed by this Act or the Rules or Bylaws made under this Act. (Section 10 of the Act)

Retrenchment

Retrenchment simply means the reduction or cutting back on expenditure to achieve financial stability. By retrenchment, means reducing the workforce to enable the company/organization to be financially viable and healthy. In other words, to be able to function as an entity, it is inevitable that the company/organization reduce its workforce by ‘retrenching’ (terminating) some of its employees. Hence, retrenchment means cutting off or cut down, reduce, or diminish; curtailment (expenses). According to labor law, retrenchment refers to the reduction or cutting off the employees.

Retrenchment (Section 145)

Reasons of Retrenchment: -Due to harsh economic conditions, -Due to increment in number of employees as a result of merger, -Due to other conditions.
Notice: 30 days prior notice specifying the reasons for retrenchment, possible date of retrenchment and likely number of employees to be retrenched should be provided to Labor Office and authorized trade union of the entity, if any or effective trade union or Labor Relation Committee.
Employees can be retrenched after reaching a consensus with the Trade Union or Labor Relation Committee.
Where such a trade union or Labor Relation Committee does not exist or where the consensus cannot be reached, the employees can be retrenched by giving information to the Labor Office.
These provisions of the New Labor Act on retrenchment are not applicable to entities in Special Economic Zone or when the entity is partially or fully closed by the order of Labor Court or Government of Nepal.
Priority in Retrenchment:

Retrenchment shall be generally done in the following order:

Foreign Nationals
Employee subjected to disciplinary action more often in comparison
Employee with poor work performance
Employees last appointed among employees engaged in similar nature of work. However, the employer may retrench an employee appointed earlier by providing reasons thereof.
- Unless otherwise agreed with the trade union, members of the Collective Bargaining Committee or authorized trade union shall be retrenched at last.

Case relating to retrenchment:

Section 12 of Labour Act has provided some grounds for retrenchment process in any enterprise. Supreme Court had clarified the retrenchment provision of the Act with its illustration in the landmark case of Purusottam Bhandari v. Ministry of Labour and Transportation and others[1] which was a certiorari writ.

Fact of the case:

An employee, Purusottam Bhandari, junior clerk, who had been made permanent after completion of the trial period, is curtailed by the Necon Air Limited as per approval of the application from the government authority for retrenchment of employees as the company is suffering from loss.

In this case there are three law in issue. Section 12 of the Labour Act, 2048 which deals with the process and manner of retrenchment under special circumstances with approval from government authority another is Article 11 of the Constitution of kingdom of Nepal, 2047 which states about right to equality as all are equal before law and the last one is Section 34 of the Evidence Act, 2031deals with provision of estoppels which restricts denial of already accepted fact.

Claim of petitioner:

Necon Air being a profitable private airline company has not suffered any loss that there is no any condition arouses as to curtail employees under special circumstances under section 12 of the Labour Act. The application provided to Labour Department and labour office dealt with number of planes which is not true. The decision of the government was executed after 4 months and under installment employees were curtaile- The company and the government authority ignored the rule of giving priority in curtailment for those who had joined lately. Further the labour department ignored right to information when the petitioner demanded the copy of the decision of application provided by the company. There is no situation of loss and the situation does not come under special circumstances under section 12 of the Act that the company cannot curtail its employees arbitrarily. The decision of the company as well as approbation by the government authority to execute the decision should be made invalid with issuance of mandamus and certiorari by the court.

Defendant’s submission:

The Company has suffered loss as its two airplanes were damaged by accident; three others were grounded in the airport, The Company is in no position to fulfill the administrative cost of all employees. So under the provision of section 12 of the Labour Act, company had applied for curtailment of its employees and the authority upon investigation had granted permission for the same. Further no any other employee who had curtailed filed a petition. The company had retrenched the employees putting in priority list where the late joined come first. Even Purusottam Bhandari in one hand accepted all his facilities provided by the company under curtailment. He could not claim for any kind of injustice in curtailment as per section 34 of the Evidence Act—the provision of estoppels.

The decision of the case:

For the purpose of Section 11 and 12 the “Special Circumstances” shall mean damage, break down or failure of machines of the enterprise and thereby causing stoppage in the production or failure in the supply of fuel, electricity, coal or similar energy or due to natural calamity or insufficient supply of raw materials or stockpiling of the produced goods due to decline in sale or other similar situations.

As the company’s two airplanes had already faced an accident, three were grounded; it is obvious that the company is suffering from loss. Further, the company is bound to fulfill all the administrative costs including remunerations to the employees, being in loss it could not manage its economic liabilities which s definitely a special circumstance. The court cannot issue an order to recruit a fixed number of employees in any industry.

It is observed that the Necon Air limited has fulfilled the condition as stated in law and it is found that through various documentary transactions between government and the Company, the governments had examined the situation and approve the curtailment of employees. Further, as per rule, the employees who had joined later were curtailed.

Again Purusottam Bhandari had already taken all the facilities provided by the company on curtailment which shows his acceptance to the decision made by the company.

There is no ground for granting the order as demanded by the petitioner rather the writ is quashed.

[1] Writ No. 3232/2058, Decision No. 7545, Nepal Law Journal 2062, pg. 626

RETIREMENT

Compulsory Retirement Before the Amendment:

As per the sec 15 of Labor act, 2048 the proprietor may compulsorily retire any worker or employee who has crossed the age of fifty-five years. Provided that he/she may extend the period of service of any worker or an employee by five years, in case the worker or employee is indispensable for the operation of the functions.

After the Amendment: As per sec 147 of the New Labor Act, it has increased the age of compulsory retirement and can be retired after the age of 58 years.

Time-Bound Employee-Sec 140: As per the new act, the employee can be terminated after the expiry of the time period provided in the employment agreement.

Work-Based Employee-Sec 140: According to the new act, the employee can be terminated after the completion of the work specified in the employment agreement.

Lack of Performance-Sec 142: The employment of a worker may be terminated by the employer if the performance of the employee is found unsatisfactory in the performance appraisal for three or more times.

On the ground of bad health-Sec 143: The employer may terminate the employment of an employee upon the recommendation of a medical practitioner if: – an employee is physically or mentally disabled or injured – rendering him/her unable to work – requiring a long period for medical treatment effecting in the work of the entity.

Termination by Notice-Sec 144: The employee or employer terminating the employment should provide the notice except in the situation of termination by dismissal.

Resignation:

If a worker or employee intends to resign his or her post voluntarily, he or she tender resignation in writing with the office or enterprises where he or she is serving.
The office with which resignation has been tendered as above has to be got identified by the concerned employee.
The employer or official having identified the resignation so tendered by a worker or employee approve the resignation.
The procedure and mode of approval of resignation of the resignation tender by a worker or employee shall be as prescribed in the laws and regulations so concerne-
Layoff and compulsory retirement: old provisions

The Proprietor may layoff or compulsorily retire any worker or employee who has crossed the age of fifty five years.

Provided that he/she may extend the period of service of any worker or an employee by five years, in case the worker or employee. (Section 12 of the Act)