TyroCity: Labour Law Notes

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 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.

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).

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

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.

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 ।

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.

Completion of Recruitment Process

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

The recruitment process deemed to have been completed fulfilling the following process:

Defining the role,
Person specification/job profile,
Attracting applications,
Application forms,
CVs,
Dealing with applications,
The ‘candidate experience,
Selecting candidates,
Making appointments,
References,
Medical examinations,
Employment offer,
Joining the Organization,
Documentation.

Disciplinary action, Misconducts and Punishments

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

The New Labor Act 2075 has redefined the punishment as it removed suspension as punishment and included salary deduction or withholding promotion as one of the forms of disciplinary action. The list of misconducts and disciplinary action will be as follows:

Chapter 20 Section 130 to 145
Reprimand/Warning (Section 131(1))

absence from the work without obtaining permission,
leaving the workplace without obtaining permission from the Managerial level,
coming late frequently without obtaining permission,
not abiding the order of the senior or employer with regard to work,
other misconducts as prescribed in Bylaws.

Deduction of one day’s remuneration (Section 131(2))

not accepting the letter or notice of punishment,
participation or compelling to participate in an illegal strike,
collectively delaying in the work,
causing loss to the entity by reducing the production or service recklessly or negligently,
trying to take facilities by submitting false details,
not using the security instruments provided by the employer,
Other similar misconducts as prescribed in Bylaws.

Withholding Annual Grade of Remuneration or Promotion (Section 131(3))

taking the entity’s property outside the entity or allowing an unauthorized person to use such without the permission of the competent person,
embezzlement with the entity’s transactions,
destroying the entity’s property due to negligence or recklessness,
preventing the supply of food and water in entity or obstructing movement in the entity,
abusing any items kept or arrangements made for interest, health and safety of the workers or employees or causing damage to them intentionally,
Other misconducts as prescribed in Bylaws.

Termination upon Misconduct (Section 131(4))

causing bodily harm or injury to Proprietor, Manager or Employee of the entity,
accepting or offering a bribe,
stealing the property of anyone in the entity,
embezzlement of property of the entity,
causing damage to the entity’s property knowingly
absence from entity for more than a consecutive period of 30 days without getting the leave approved
causing damage to secrecy relating to special technology of the Entity

Termination upon Misconduct (Section 131(4))

convicted on a criminal offense involving the moral turpitude,
presenting false documents for the appointment,
consuming psychotropic drugs or alcoholic drinks,
Having been punished twice for other misconducts within 3 years,
Other similar misconducts as prescribed in prevailing Nepal laws.

Procedure for Disciplinary Action

Seek an explanation from the employee: -give a letter stating the misconduct and punishment that is likely to be awarded, - provide 7 days time to submit the explanation
Time limitation for seeking explanation: within 2 months from the date of having obtained the knowledge of the occurrence of misconduct
Time limitation for Punishment: within 3 months from the date of requiring explanation. (Previously, within 2 months)
Authority to issue Punishment: Chief Executive Officer or the managerial level employee authorized by the Employee Bylaws.

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.

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?

Welfare and Social security

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

Social security means security against any unfavorable condition. Social security primarily refers to a social insurance program providing social protection, or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others.

Primarily social security means the security of income up to a minimum. Social security may provide for the welfare of person who became incapable of working by reason of old age sickness and invalidity and are unable to earn anything for their livelihood. It has been considered essential for workers, though with the development of the idea of welfare state, its scope should be widened to cover all sectors of society.

With the introduction of the industrialization and growth of society, it has been increasingly felt that the institution of social security should be established. Today, social insurance has spread throughout the world. It is an integral feature of social democracy.

According to Beveridge, social security means the security of an income to take the place of earning when they are interrupted by unemployment, sickness or accident to provide for retirement through age, to provide against loss of support by the death of another person and to meet exceptional expenditure such as these connected with birth’s death and marriage.

Meaning of Social Security

Social security is the security which the society as whole provides to its individual against the commons risks of life such as employment injury occupational disease invalidity or disablement ill health or sickness maternity or childbirth old age burial or funeral, widowhood orphans and unemployment etc which leads to income and their earning capacity without security, an average citizen can never live rather die peacefully because such risks are not only numerous but their incident is also fairly high in modern complex society.

The formal definition of ILO on social security read like this: basically, it can be taken to mean the protection which society provides for its members through a series of public measures, against the economic and social distress that otherwise would be caused by the stoppage or substantial reduction of earning resulting from (1) sickness, (2) maternity, (3) employment injury, (4) unemployment, (5) invalidity, (6) old age and (7) death; (8) the provision of medical care; and (9) the provision for families with children (ILO 1984).

Social Security Provided By
LABOR ACT, 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 : 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 up to 60 days.

Paternity Leave – 15 days.

Leave is not a right! Under the Labour Rules, no employee can claim a leave as a matter of right. It should only be treated as a facility, which could be permitted by an employer. However, the court has by interpretation established that some kind of leave can be taken by an employee even if it is not authorized by the employer.

Change by collective bargaining: An employee working in the organization has the right to union. Ten or more employees working in an organization can form a Plant Level union. The Plant Level union has the right to submit a charter of demand and bargain collectively with the management. The collective agreement may change social security provisions of a particular organization. This can be settlement shall be valid for up to two year.

BENEFITS
LABOR ACT, 2074

Provident Fund Section: 52

– Employers Contribution: 10% of basic remuneration.

– Employees Contribution: 10% of basic remuneration. – Deposited to Social Security Fund. – Eligible since the first day of employment.

Gratuity Section: 53
– There is no such restriction for the duration of service in the entity for the calculation of the amount of Gratuity as per the new act.

– Rate: 8.33% of basic remuneration every month – Eligible from the first day of employment. – Amount to be deposited to the Social security Fund.

Leave Encashment Section:49

– Accumulated annual leave up to 90 days and sick leave up to 45 days can be encashedat the time of discontinuation of service

Severance Compensation Section: 145

– Rate: 1 month salary for every year of service – Eligible on a proportionate basis. – Not entitled to severance compensation if he/she is entitled to unemployment allowance under Social Security Act

OTHER BENEFITS
LABOR ACT, 2074

Festival Expenses Section: 37

– Amount equivalent to the monthly remuneration once a year. The employee not completing one year is entitled to the expenses on a proportional basis.

Compensation against injury

– Compensation is to be provided from the insurance amount.

Disability Compensation
– Employee or worker shall be paid from an insurance amount on the basis of the degree of disability.

Death Compensation

– The nearest successor is entitled to the amount of accident insurance as per the act.

Medical Insurance

– Coverage: At least 1 Lakh per year for every worker. Premium to be paid equally by the employer and worker. Accident Insurance

– Coverage: At least 7 Lakh for every worker. Premium to be paid fully by the employer.

Bonus – 10% of Net Profit.