Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 336, Mars 2005

1. 631. The complaint in this case is contained in a communication from the General Federation of Nepalese Trade Unions (GEFONT), the Nepal Trade Union Congress (NTUC) and the Democratic Confederation of Nepalese Trade Unions (DECONT) dated 28 April 2004. The International Textile, Garment and Leather Workers’ Federation (ITGLWF) has supported the complaint in a communication dated 15 June 2004. The Government sent its observations in respect of the complaint on 1 June 2004 and 7 September 2004.
2. 632. Nepal has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and the Protection of the Right to Organize Convention, 1948 (No. 87).

A. The complainants’ allegations

1. 633. The complaint is brought in connection with the Essential Services Act, 1957. The complainants allege that the Government has curtailed the rights of workers by publishing a notification under the Act in the Official Gazette of 17 February 2004. The following 14 services are considered as essential in this notification: the postal service; all types of broadcasting, print media and telecommunication services; transport including road, air and marine transport, work related to civil aviation and maintenance of aircraft and security, service on railway station and government storage; mint and government print service, manufacturing equipments of defence and allied services, electricity supply service, drinking water supply service; hotel, motel, restaurant, resort and tourism and other related similar kinds of services; import and distribution of petroleum goods; hospital, health centres and manufacturing establishment of medicines and distributive services; banking services; garbage collection, transfer and recycling services; by notifying these services as essential services under the Act. According to the complainants, all of these services cannot be regarded as essential.
2. 634. According to the provisions of the Essential Services Act, 1957, a notification issued under the Act is applicable for six months. Therefore, the Government has repeatedly every six months been notifying some of these services as essential services under the Act with a view to prohibiting strikes in these services. This was the case for banking services on 17 August 2001, 14 February 2002, 17 August 2002, 18 August 2003 and 17 February 2004. A further notification after the earlier notification of 15 March 2001 in respect of hotel, motel, restaurant and tourist accommodation was issued on 18 September 2001 and then on 15 August 2003 and 17 February 2004. On 15 August 2003, the postal service, all types of broadcasting, print media and telecommunication service, transportation service including road, air and marine transport, work related to civil aviation and maintenance of aircraft and security, service on railway station and government storages, mint and government print service, manufacture of defence goods, electricity service, drinking water supply service, hotel, motel, restaurant, resort and tourist accommodation and other similar kinds of service, import and distribution of petroleum goods, hospital, health centres and manufacturing establishment of medicine and distribution, garbage collection, transfer and recycling services were notified as essential services under the Act. A similar notification was issued on 17 February 2004 with banking services being added to the list. The complainants allege that there is no alternative means of dispute settlement to resolve disputes in these services and that the Government has thus interfered with the collective bargaining rights of the workers in these sectors.
3. 635. According to the complainants, the judiciary and the international community have frowned upon the misuse of the Act and a case against the imposition of the Act is pending before the Supreme Court of Nepal. The same issue also was brought up for the consideration of this Committee in Case No. 2120 and the Committee had requested the Government to take the necessary measures to repeal its notification in the Official Gazette of 15 March 2001 declaring hotel, motel, restaurant and tourist accommodation as falling within the scope of essential services and thus prohibiting strikes in these services by virtue of the Essential Services Act of 1957.
4. 636. The complainants state that on 18 March 2004, they issued a letter requesting the Government to withdraw immediately the irrelevant imposition of the Act within a week. However, the Government ignored the request. The complainants also point out that the umbrella organization of the employers, the Federation of Nepalese Chamber of Commerce and Industries (FNCCI) had also opposed the government step through its press communiqué.
5. 637. The complainants allege that the Government has also ignored the collective voice of the workers raised through peaceful demonstrations organized by the three recognized trade union centres in the country which are the complainants in the present case, on different occasions after 25 March 2004. Moreover, the Government resorted to violent action and also arrested senior union leaders and activists. The complainant has annexed three lists containing the names of 45 detainees related to DECONT, the names of 45 leaders and activists of GEFONT arrested in April 2004 and the names of 42 arrested NTUC leaders including the chairpersons, vice-chairpersons and general secretaries of the organizations.
6. 638. The complainants further allege that their various national affiliates then put up banners stating their demands. However, the Government mobilized security personnel to pick out such banners from the different enterprises where they were put up.
7. 639. The complainants also allege that the Government has issued an unjustifiable order declaring the heart of the city of Kathmandu as a “riot-zone” and preventing five or more people from assembling there. The complainants allege that raising their concern and defying the order, hundreds of unionists took to the street. They have been physically assaulted by the police and have also been arrested many times.

B. The Government’s reply

1. 640. In its observations of 1 June 2004, the Government has pointed out the provisions of the Constitution, the Labour Act, 1991 and the Essential Services Act, 1957 that are relevant for the purpose of the present case. Section 76 of the Labour Act, 1991 provides that workers can strike when the management does not resolve their disputes through bilateral discussions within 15 days of their complaint to the management. According to section 3 of the Essential Services Act, 1957, the Government may prohibit strikes in any necessary service by issuing an order or notifying in the Official Gazette, any necessary services quoted/listed in the notice. The order or notification shall be applicable for a six month period.
2. 641. In its observations of 7 September 2004, the Government states that it is committed to ensuring that the international labour instruments ratified by it are observed and put into practice by all means. In respect of the Essential Services Act, the Government states that the Act is intended to ensure that the rights of the common people to basic amenities and services are protected and not to infringe on trade union rights. The Government further states that the addition of certain services mentioned in the complaint to the list of essential services should be viewed in the context of the larger political reality prevailing in the country. According to the Government, the notification of these services was a short-term temporary measure undertaken by the Government to defuse the immediate crisis brought about by the ongoing political agitation and as things have long been normalized, the Government has no intention of extending it. The Government also states it is thinking of working with the Ministry of Home Affairs to limit essential services to the very basic services and to improve the legal provisions so as to avoid discretionary practices.
3. 642. The Government states that the arrests made were intended to prevent violent conflagration and maintain law and order in the city. The Government further states that it was a general measure and in no way targeted at union leaders and activists. The leaders detained in the afternoon were released in the early evening. The order that prohibited more than five persons from assembling in the riot zone was also a short-term emergency measure which has long been revoked.
4. 643. The Government further states that it will always make efforts to protect the right to organize of workers and employers and their collective bargaining rights and that it is working with all social partners to forge greater understanding and cooperation in the future.

C. The Committee’s conclusions

1. 644. The Committee notes that the issues involved in this complaint are: (a) the notification of a wide range of services as essential services under the Essential Services Act, 1957 and the consequent prohibition on the right of the workers engaged in the services so notified, to resort to industrial action; (b) the right of workers to stage peaceful demonstrations and to put up banners, and (c) the arrest and detention of trade unionists.
2. 645. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests and that the right may be restricted or prohibited only in the case of public servants exercising authority in the name of the State or in the case of workers in essential services in the strict sense of the term, that is, services whose interruption could endanger the life, personal safety or health of the whole or part of the population or in the event of acute national emergency [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 475, 526 and 527]. The Committee further recalls that the principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an “essential service” in the strict sense of the term [see Digest, op. cit., para. 542].
3. 646. The Committee therefore considers that the list of 14 services notified as essential is too broad and contains services which cannot be considered as essential in the strict sense of the term. The Committee recalls that it had in Case No. 2120 concerning Nepal requested the Government to take the necessary measures to repeal its notification in the Official Gazette of 15 March 2001 declaring hotel, motel, restaurant and tourist accommodation as falling within the scope of essential services and thus prohibiting strikes in these services by virtue of the Essential Services Act of 1957 [see Committee on Freedom of Association, 328th Report, Case No. 2120 (Nepal), para. 540]. The Committee expresses its deep concern at the action of the Government in ignoring its recommendation and instead issuing further notifications under the Act in respect of hotel, motel, restaurant and tourist accommodation on 18 September 2001, 15 August 2003 and 17 February 2004.
4. 647. While noting the Government’s indication that it now has no intention of extending the notification under the Act in respect of the services mentioned in the complaint and also noting that it appears from the date when the notification in respect of the aforesaid 14 services were issued that it is no longer in force, the Committee requests the Government to confirm whether or not the notification continues to remain in force and in the event that it continues to remain in force, requests the Government to immediately take the necessary measures to repeal the notification or limit it to essential services in the strict sense of the term, that is services whose interruption could endanger the life, personal safety or health of the whole or part of the population and to keep it informed of the measures taken in this regard.
5. 648. The Committee also notes that the Government has now indicated that the Ministry of Labour and Transport Management plans to work with the Ministry of Home Affairs to limit “essential services” to the very basic services. The Committee requests the Government to expeditiously take the necessary measures to appropriately amend the Essential Services Act, 1957 by limiting the power under the Act to prohibit strikes only to essential services in the strict sense of the term and to keep it informed of any measures taken in this regard.
6. 649. The Committee recalls that even where the right to strike is restricted or prohibited in essential services in the strict sense of the term, adequate protection should be given to the concerned workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of appropriate guarantees to safeguard the interests of the workers, the Committee recalls that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation proceedings followed by arbitration proceedings in the event of failure of the conciliation proceedings, in which the parties concerned can take part at every stage and in which awards, once made, are fully and properly implemented [see Digest, op. cit., paras. 546, 547 and 551].
7. 650. As regards the prohibition on the assembly of more than five persons in the heart of Kathmandu, the Committee takes note of the Government’s statement that the relevant order has long been revoked. The Committee recalls, however, that workers should enjoy the right to peaceful demonstration to defend their occupational interests and that trade union rights include the right to organize public demonstrations. While the prohibition of demonstrations on a public highway or in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances [see Digest, op. cit., paras. 131, 133 and 136].
8. 651. In respect of the demonstrations that took place after 25 March 2004, according to the complainants, the demonstrations were peaceful but the Government had resorted to violent action and arrested senior union leaders and activists. The Government has not specifically responded to the allegation of violent action but has however indicated that the arrests were intended to maintain law and order in the city and prevent a violent conflagration and that the arrested persons had been released within a few hours. While noting that the arrested persons had been released within a few hours, the Committee recalls that the police authorities should be given precise instructions, in cases where public order is not seriously threatened, so that people are not arrested simply for having organized or participated in a demonstration. The Committee wishes to emphasize that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association and that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest, op. cit., paras. 70, 71 and 147]. With regard to the use of force, the Committee recalls that the authorities should resort to the use of force only in situations where law and order is seriously threatened and such intervention should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which may result in a disturbance of the peace [see Digest, op. cit., para. 137]. The Committee requests the Government to take appropriate measures to ensure due respect for these principles in practice and to keep it informed of the measures taken in this regard.
9. 652. The Committee further notes that according to the complainants, the Government mobilized security personnel to pick out the banners put by its affiliates mentioning their demands. The Committee also notes that the Government has not specifically responded to this allegation. In this context, the Committee wishes to recall that the full exercise of trade union rights calls for workers to enjoy the freedom of opinion and expression in the course of their trade union activities and that the prohibition on the placing of posters stating the point of view of a trade union organization is an unacceptable restriction on trade union activities [see Digest, op. cit., paras. 152 and 467]. The Committee requests the Government to therefore ensure that in practice, trade unions can enjoy the right to place banners stating their point of view.
10. 653. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.