TyroCity: Labour Law Notes

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.

Nepalese Legal System and International Standards regarding Trade Unions

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

Definition of workers? Under the Trade Union Act 2049

A person working in the establishment or outside, In any Industry, Business, services, and shops as permanent temporary, contractual, daily-waged, piece rate, or under contractor including agricultural workers, self employees, Under new labor law, workers under all type of employment.

Labour Act 2074 Section 15(3)

Consultation with Authorized Trade Union or Labor Relation Committee for keeping the employees in reserve for more than 15 days.

Section 111 Formation of Labor Relation Committee.

Section 116 Formation of Collective Bargaining Committee.

International instruments relating to trade union:

At the end of World War I a new agreement appears, namely that the injustice in the social field endangers peace in the world, and that action against such injustice, therefore, serves the cause of this.

Freedom of association and protection of the rights to organize the convention, 1948(No.87)

Establishes the right of all workers and employers to form and join organizations of their own choosing without prior authorization, and lays down a series of guarantees and for the free function of the organization without interference by the public authorities.

Right to organize collective bargaining convention, 1949 (no.98)

Provides for protection against anti-union discrimination, for protection of workers’ and employers’ organizations against acts of interference by each other, and for measures to promote collective bargaining.

The ILO Declaration on Fundamental Principles and Rights at work (1998)

The 86th international Labor conference adopted ILO Declaration on Fundamental Principles and Rights at work, committing the organization’s member states to respect, to promote and to realize in good faith the right of workers and employers to freedom of association and the effective right to collective bargaining, and to wok towards the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and elimination of discrimination in respect of employment and occupation. The declaration underlines that all member countries have an obligation to respect of employment and occupation. The declaration underlines that all member countries have an obligation to respect the fundamental principles involved, whether or not they have ratified the relevant conventions.

UN instruments:

“Everyone has the right to form and to join trade unions for the protection of his interests”

The state parties to the present Covenant undertake to ensure:
The right of everyone to form trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restriction may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interest of national security or public order or for the protection of rights and freedoms of others;
The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organization;
The right of trade unions to function freely subject to no limitation other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
The right to strike provided that it is exercised in conformity with the laws of the particular country.

Remuneration

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

Merriam-Webster’s Learner’s Dictionary

“An amount of money paid to someone for the work that person has done .”

As per the Clause(r) of Section 2 of the Labour Act ” Remuneration” means the remuneration or wage to be received in cash or kind from the Enterprise by the worker or employee for the works performed in the Enterprise and this expression also includes any amount to be received in cash or kind for the works done under piece-rate or contract. Provided that, this expression does not include any kind of allowance or facility.

Standard-setting of remuneration:
It was found that the standard-setting of wages or remuneration was based on the following principles

1. Subsistence theory of wages:

Labour Economist named Ricardo propounded this theory.
The main theme is wages or remuneration be provided to a worker or an employee only that is required for their living.
More wages or remuneration, increase there more interest and demand.
More population be burden to the State.
Lassele states this principle as Iron Low Wages.

2. Standard living theory of wages:

The subsistence theory of wages failed within the 19th Century and emerged this theory.
While determining the wages or remuneration of a worker or an employee, it should be determined on the basis of the requirement that is required or adequate for their livelihood.
It accepts the principle that the standard of living of a worker or employee directly helps to increase production.

3. The wages fund theory:

Stuart Mill propounded this theory.
The main theory is that the management has to establish a fund by allocating the separate amounts to wages or remuneration to a worker or an employee and the average wages or remuneration to be given to an employee or a worker can be determined by dividing the amount so allocated to the fund.
This concept is based on the remuneration fund and the number of workers or employees and wages or remuneration supplied.

4. Demand and supply theory:

The main theme is that in which center there will be demand and supply becomes equal, the wages or remuneration of worker or employee should be fixed or determined bearing in mind to same center.

5. The residual claim and theory of wages:

This theory was propounded by American economist Walker.
The main them of this theory is that the wages or remuneration should be determined from an amount that is due to having deducted the expenses incurred to the total production.
The concept of this principle is that increase incapacity of a worker or employees increase wages or remuneration.

6. Marginal productivity theory:

The main theme of this principle is that the manufacturer has to give wages or remuneration to workers or employees equally to the margin of the production. It is found that most enterprises have accepted this principle.

Presently, it has been found that the following principle has been practiced bearing in mind the above principles as regards wages or remuneration.

1. Concept of minimum wages:

The main theme of this principle is that the minimum wages or remuneration that is required for the living of workers or employees in the present society shall be required to be given by the employer. It states the lodging, food, clothing, educational, medical and other facilities that are required to worker or employee to be given.
This concept believes that have not (Poverty) breaches peace in the enterprises so to maintain peace, minimum wages or remuneration be given to worker or enterprises.

2. Concept of fair wages or remuneration:

The main theme of this principle is that the wages or remuneration should be determined differently or more wages than the minimum wages or remuneration to be given to worker or employee.

3. Living wages system:

The main theme of this theory is that wages or remuneration be determined on the basis of the needs of a family of workers or employees.

Such need includes food, shelter, clothes, education to children, health care, social security, etc.
This theory refers the standard of living that is obtaining by worker or employee of the developed countries and this one is best wages or remuneration obtaining by worker or employee.

Wages or remuneration in Nepal:

Labour Act 2074
पारिश्रमिक सम्बन्धी व्यवस्था

३४. श्रमिकले पारिश्रमिक पाउने:

(१) प्रत्येक श्रमिकले काम शुरु गरेको मितिदेखि पारिश्रमिक तथा सुविधा पाउनेछ ।

(२) श्रमिकले पाउने पारिश्रमिक तथा सुविधा यो ऐन तथा यस ऐन अन्तर्गत बनेको नियममा तोकिएभन्दा कम नहुने गरी रोजगार सम्झौतामा उल्लेख भए बमोजिम हुनेछ ।

(३) रोजगारदाता र श्रमिकबीचको सामूहिक सम्झौतामा उल्लेख गरिएको अवस्थामा बाहेक श्रमिकले खाईपाई आएको पारिश्रमिक तथा सुविधा घटाउन पाइने छैन ।

३५. पारिश्रमिक भुक्तानी:

(१) रोजगारदाताले श्रमिकलाई पारिश्रमिक भुक्तानी गर्दा रोजगार सम्झौतामा उल्लेख भएकोमा सोही बमोजिम र उल्लेख नभएकोमा रोजगारदाताले निर्धारण गरेको समयमा गर्नु पर्नेछ । तर देहायको श्रमिकलाई देहाय बमोजिम पारिश्रमिक भुक्तानी गर्नु पर्र्नेछ ः–

(क) एक महिनाभन्दा कम अवधि काम गर्ने श्रमिकलाई काम समाप्त भएको मितिले तीन दिनभित्र, र (ख) आकस्मिक काम गर्ने श्रमिकलाई काम समाप्त हुनासाथ ।

(२) उपदफा (१) मा जुनसुकै कुरा लेखिएको भए तापनि पारिश्रमिक भुक्तानी गर्ने समयको बीचको अन्तर एक महिनाभन्दा बढी हुने छैन ।

३६. वार्षिक तलब वृद्धि (ग्रेड) पाउने: एक वर्षको सेवा अवधि पूरा गरेको श्रमिकले मासिकरुपमा पाउने आधारभूत पारिश्रमिकको कम्तीमा आधा दिनकोे पारिश्रमिक बराबरको रकम प्रत्येक वर्ष वार्षिक तलब वृद्धि (ग्रेड) पाउनेछ ।

३७. चार्डपर्व खर्च पाउने:

(१) आफ्नो धर्म, संस्कृति तथा परम्परा अनुसार मनाइने चाडपर्वको लागि प्रत्येक श्रमिकले खाईपाई आएको एक महिनाको आधारभूत पारिश्रमिक बराबरको रकम प्रत्येक वर्ष चाडपर्व खर्चको रूपमा पाउनेछ ।

(२) उपदफा (१) बमोजिमको चाडपर्व खर्च श्रमिकले एक आर्थिक वर्षमा एकपटक आफ्नो धर्म, संस्कृति, परम्परा अनुसार मनाइने मुख्य चाडपर्वको अवसरमा भुक्तानी लिन रोजगारदाता समक्ष लिखित अनुरोध गर्न सक्नेछ । त्यस्तो अनुरोध नगरेको अवस्थामा प्रत्येक वर्षको बडादशंैमा चाडपर्व खर्च भुक्तानी दिनु पर्नेछ ।

(३) चाडपर्व खर्च भुक्तानी दिइने दिनसम्ममा एक वर्ष सेवा अवधि पूरा नभएको श्रमिकले निजले गरेको सेवा अवधिको अनुपातमा चाडपर्व खर्च पाउनेछ ।

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.

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.

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

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

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.

Trade Unions - Meaning, Objectives and Establishment

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

A trade union is a collective organization of workers/employees which aim at promoting the welfare of their members, especially through securing higher wages and shorter working hours. As a rule, they developed in industrializing nations first among skilled workers, who were in relatively short supply and thus had greater bargaining power.

Trade unions are voluntary organizations of workers or employers formed to promote and protect their interest through collective action. The Trade Unions Act, 1926 defines a trade union as a combination, whether temporary of permanent, formed (i) primarily for the purpose of regulating the relation between (a) workmen and employers or (b) between workmen and workmen, or (c) between employer and employer, or (ii) for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more trade unions

Trade Unions are the organization established to protect the professional right and interests of wage earners.

To the workers

By the workers

Organization of the workers

Objectives of Trade Unions

1. Empowerment of workers:

welfare work= may collect fun for the benefit and welfare of the members for instance: ill health, old age, and funeral expenses, etc.
developing capacity: providing professional, paralegal training etc.

2. Collective bargaining:

The ongoing process of negotiation between representatives of workers and employers to establish the condition of employment. The collectively determined agreements may cover not only wages but hiring practices, layoffs, promotions job functions, working conditions and hours, worker discipline and termination, and benefit programs.

3. Advocacy: Building awareness on issues concerning workers right

4: Campaign and Action:

industrial action: trade unions may enforce strikes or resistance to lockout in furtherance of particular goals.
mass demonstration: formally against government policy

5. Lobbying: An effort for policy changing through technical dialogues.

6. Other political activities:

Trade unions may promote legislation favorable to the interest of their member or workers as a whole. To this end they may pursue campaign, undertake lobbying or, financially support individual candidates or parties (such as the labor party in Britain) for public office.

The legal framework of Union

To be the party of ILO, union rights should be provided and secure.

Trade Union Act 2049 made to regulate unions.

2051 - GEFONT and NTUC recognized as confederation.

Till 2061 - Unions are divided but after that unions united and on 2065 JTUCC established, now recognized.

Hierarchy of Trade Union

Authorized TU – Enterprises level T Us – Trade Union Federation- Trade Union Con-Federation

Trade Union as a legal personality

Be an autonomous and Corporate body having perpetual succession.

It shall have a seal of its own to carry out its activities.

May acquire, possess, dispose or manage its movable or immovable property.

It may sue or be sued under its name.

Work, Duty, and Function

Organizing
Policy intervention
involve in Law Making process
Collective Negotiation with employer and government
Call industrial action, if Necessary
Implementation of Labour laws
Protection of members and workers in general
Networking Nationally/internationally

Unions are involved in

Central Level Labour Advisory Council
Minimum Wage Fixation Board
Social Security Board
National Welfare Fund
Foreign Employment Promotion Board
Skill Development and training program of CTEVT
ILO Governing Body
National Development Council
Policy related other board and committee

Politics and Union

Union is the political organization to intervein policy of the state.
Union created party vs party created Union.
Nepalese Union is registered based on the bottom-up approach but closely working with the political party.
Strong union movement may change the society and living standards of the working-class.

Probation Meaning and Legal Provisions

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

Meaning:
“A probationary period is a stretch of time during which a new or existing employee receives extra supervision and coaching, either to learn a new job or to turn around a performance problem. The probationary period can be as short as a month or as long as a year, depending on the situation.“

Employers may require probationary periods for:

new employees (in this situation, it might be called an “introductory” period)
current employees who are promoted to a new position (particularly if it’s the employee’s first time serving in a supervisory or managerial position), or current employees with significant performance problems.

The process under prevailing legal provision:

Probation period as per the Section 16 of the Civil Service Act, 2049, While making fresh appointment to any permanent post of the civil service, such appointment shall be made on probation for a period of Six months in the case of a female civil employee, and one year, in the case of a male civil employee.

If his/her performance is not satisfactory during the probation period, his/her appointment may be canceled. The appointment of a civil employee whose appointment has not been so canceled shall be deemed to have ipso facto been confirmed on the expiration of the probation period.

Provided that, any employee who has already completed the probation period upon being once appointed permanently to a post in the civil service is appointed to another post and obtains the dispatch letters shall not be required to undergo the probation period again.

Under the Labor Act 2074, the Probationary period is Six months.

An appointment letter shall be provided with the name of the post of the worker or employee and his/her remuneration and conditions of service while making such an appointment. Information thereof shall also be provided to the Labour Office.

How long probation period of an employing entity will be -see the Writ No. 2866 of Sambat 2062 (Certiorari) decided by Joint Bench of Supreme court comprising of Hon. Justices Balaram K. C and Pawan Kumar Ojha. (Decision No. 7849. Ne.Ka.Pa. 2064).

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?

Collective Bargaining and Legal Provisions

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

It is a process in which employers and duly appointed representatives of the employees negotiate an agreement, pertaining to wages, hours, and other terms and conditions of employment.

Scope of Collective Bargaining:

Wages, hours, and other terms and conditions of employment

Three subjects

Mandatory
Permissive
Prohibited

Good-Faith Bargaining

Active participation in deliberations

Intention to find a basis for agreement

Sincere effort to reach common ground

Does not require either party to make a concession

Strikes

Any concerted stoppage, slowdown, or interruption of work.

Includes sick-outs and organized refusals to work.

Common law prohibited strikes by public utility employees.

Types of Strike

Economic Strikes
- Strikes over economic issues (e.g., wages)
Unfair labor practice strikes
- Strikes over illegal employer actions (e.g., refusal to bargain)
Wildcat strikes
- Strikes not approved by the union
Jurisdictional strikes
- Strikes in a dispute over the ownership of work
Sympathy strikes
- Expressions of support for other unions

Collective Bargaining in Nepal

Formation of Collective Bargaining Committee

The collective bargaining committee is formed by an authorized trade union or by the signature of 60 percent of workers in the absence of any trade union.

Excluded matters from Collective Demand

contrary to the Constitution of Nepal,
against the interest of others due to being baseless allegation,
prejudicial to the personal conduct of any worker or employee;
unrelated to the entity,
without expiry of the time of the collective bargaining agreement,
about the rate and benefit prescribed for social security.

Strike
If the dispute is not settled through mediation within 21 days the employees can go to strike giving seven (30) day notice if they do not agree for arbitration. Even the matter is referred to arbitration the employee may go to strike in certain situations as defined in the Labor Act.

Labor Act does not require a secret ballot to go for a strike. They can go for strike simply giving notice to the management and other security agencies.

Mandatory Arbitration for Collective Disputes

The Labor Act requires the disputed parties to settle the dispute by arbitration in certain situations or for certain entities depending upon their nature.

providing essential service, or
established in Special Economic Zone,
state of Emergency declared as per the Constitution.

The Arbitration Tribunal is composed of the Ministry constituting representatives of workers, employers and the Nepal Government. Any agreement between the Collective Bargaining Committee and Employer in regard to collective dispute or award of the arbitration tribunal is binding upon both the parties.

Lock Out

The requirement of Lock Out is mostly similar to that of the Previous Act that the management can lock out the entity in the case of an illegal strike or violent activities in the strike.

Remuneration during Strike and Lock Out

The employees are entitled to half remuneration during lawful strike or lawful Lock-Out. The employees are not entitled to any remuneration for an unlawful strike. Conversely, the employees are entitled to full remuneration during unlawful Lock-Out.

Special Provisions on Collective Dispute

Collective bargaining may be placed and settled not in each individual entity but jointly for all the industries in the same sector at the association level. In the situation, the individual industry is not required to deal with collective demand separately.

Government Intervention

The government has the authority to require the parties to settle any collective disputes at any stage through arbitration if it potentially triggers a financial crisis in the country or the government believes that the dispute should be settled through arbitration.

Composition of Labor Court

As per the Act, the Labor Court shall consist of a chairperson and two members. The jurisdiction of the Labor Court is exercised collectively where the majority opinion prevails.

Appeal

Any decision or order of the Department of Labor Office can be appealed at Labor Court within 35 days of such order or decision. Any decision of the entity terminating the employment or on disciplinary action can be appealed at Labor Court within 35 days of having obtained the notice of such decision.

Settlement of Dispute: Individual Claim (Section 113-115)

Submit a written application to the employer
The employer should settle the dispute by negotiating with the employee within 15 days of receipt of application
Such time period can be extended on mutual consent or agreement
Upon failure to settle the dispute or if the employer does not provide notice for negotiation, an application should be filed to Labor Office.
Labor Office should settle the dispute through discussion between the parties within 21 days.

Upon failure to settle the dispute through discussion, Labor Office issues the decision within 15 days of Dispute:

Collective Settlement Dispute

Authority to Submit the Collective Claim (Section 116):

Collective Bargaining Committee in an entity with 10 or more employees v- Group of representatives nominated by the authorized trade union of the entity v- Group of representatives nominated in consensus by all trade unions of the entity, where there is no authorized trade union v- Group of representatives supported by 60% or more employees by signing, where there is no group as provided above.

Submission of collective claim in writing to the employer
Upon the receipt of the collective claim, the employer must provide a notice in writing within 7 days specifying the place and time for discussion.
If the employer does not call for discussion or if the dispute is not settled through discussion within 21 days, an application can be submitted to the concerned Labor Office for mediation.
The dispute should be settled within 30 days by mediation by Labor Office.
Arbitration: Where cannot be settled through mediation, the dispute it is referred to arbitration in following conditions: - if an agreement is done between the collective bargaining committee and employer to settle the collective dispute through arbitration or - in case the collective dispute arises in an entity operating essential services or - in case the collective dispute arises in an entity operating in the Special Economic Zone or -- at the time strike has been prohibited during the time of emergency as per the Constitution.
The new Labor Act provides recognition to institutional level collective bargaining which had been in practice before. The trade union federations of the entrepreneurs, service sector, tea estate, travel, tourism, labor suppliers, construction entrepreneurs or industries of similar nature may from an institutional level present collective bargaining demands to the employers’ federation.

Collective Bargaining Agreement

Following arrangements may be done through Collective Agreement:

To reduce the remuneration of the employee (Section 34(3))
Arrangement for Interim Management during the transfer of ownership (Section 14(2))
To agree on certain facilities in lieu of overtime payment (Section 31(2))
To determine facilities for which the employer may deduct the remuneration (Section 38)
To determine the grounds of transfer of employees (Section 109(1))
Determination of rate of remuneration during the period of a legal strike or lockout (Section 127(3))
To add the grounds of termination upon misconduct (Section 133(2)
To determine the alternative option of retrenchment, and criteria and terms of retrenchment (Section 145(3))

Other Means: Collective Dispute

For Employees: Strike
For Employer: Lock Out

Strike (Section 121)

The Collective Bargaining Committee can strike for the settlement of collective dispute only in the following conditions:

– in the absence of compulsory requirement for arbitration,

failure of arbitrators to arbitrate,
failure to constitute arbitral tribunal within 21 days after the submission of application to the Ministry for settlement of collective dispute,
failure to arbitrate within the prescribed time,
– rejection to implement the arbitral award by the employer or legally challenging the arbitral award, and
disagreement of either of the parties to the arbitral award except where the arbitration is compulsory.

Notice of Strike:
outlining the claims and specifying the date to effect the strike:

30 days in prior
Information to Local Administration Bodies & Labor Office
Worker appointed or deputed on the duty of control, security and guard of the entity are not entitled to go in a strike during their duty hours.

Lock Out (Section 124)

The entity may declare a lock out after submitting justifications with its rationale and obtaining the approval of the Department when:

a strike has been started or continued without giving prior notice, or
if the collective dispute is not settled through the process provided in the New Labor Act

Notice of Lock Out:

a notice for the information of workers and employees specifying the date of seven days in advance effecting the lock-out and announcing that the entity shall be locked-out if the strike is not called off.
If there is a situation with possibility of damage destruction, to the Entity through riot, etc. from the workers and violence, employees during the strike, the lock-out may be declared.
In such a situation, the Labor Office or the Department and the Local Administration should be informed about the lock-out with reasons within three days.
The Local Administration should arrange for the necessary security arrangement immediately upon the receipt of such information.

Government Intervention (Section 124(5))

The Department can declare lockout as illegal at any time if:
the lockout appears irrational, or
it is likely to cause a breach in peace and security conditions of the country, or
it is contrary to the economic interests of country.

Payment of Remuneration during strike or lock out (Section 127)

Where the workers go in a strike contrary to the provisions of the prevailing laws, such workers are not entitled to any payment of remuneration.
Where the lockout is declared against the provision of the law, the workers are entitled to the full payment of remuneration for the period of such lockout.
In legal strike or lockout, the workers are entitled to half the remuneration, unless otherwise agreed in the collective agreement.

Regulating & Adjudicating Authority

Labor Office
Department of Labor
Labor Court

Composition of Labor Court

Member: 1 Chairperson and 2 members
Qualification of Chairperson & Members:
Judge of the High Court, or - Person qualified to be the judge of High Court
Tenure: 4 years except when the judge of the High Court are appointed
Functions, Duties, and Facilities of Chairperson and Members: Similar to those available to judges of High Court
Sanctions: Labor Office or Department
Supplying Labor without a license and engaging labor in work from such supplier: Fine up to NPR. 200,000
Engaging a foreign national in work without a work permit: Fine up to NPR. 200,000 depending upon the number of workers; repetition even after being punished shall be fined with an additional fine of NPR. 5,000 per person per month.
Discriminating among the workers: Fine up to NPR. 100,000 and the order to maintain the equality may be given.