labour lawcollective barganning in nepalese prespective

INDUSTRIAL RELATIONS

Presented by: ASHMITA ACHARYA

LL.B 5th year

Industrial Relations

Industry

Industry refers to any act productive activityin which an individual ( or a group ofindividuals) is (are) engaged.

Relation

by relation we mean the relationship that existwith in the boundary wall of the industry betweenthe employer his workmen.

• The term Industrial Relations basically calledas the interactions between employers,employees and the government, and theinstitution and associations.

Definitions

• The term industrial relations explains therelationship between employees andmanagement which stem directly or indirectlyfrom union-employer relationship.

• Industrial relations are the relationshipbetween employees and employers with inthe organizational setting.

• 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.

Importance

• Uninterrupted production

• Reduction in Industrial Disputes

• High morale

• Mental Revolution

• Reduced Wastage

• Foster Industrial Peace

• Promote Industrial Democracy

Grievance• Grievance in general means a wrong or hardship

suffered, which is the ground of complaint.

• It is also said a formal complaint, especially incontext of a unionized workplace.

• According to Black’s Law Dictionary.. In context ofLabor Law , grievance is a complaint that is filedby an employee or the employee’s unionrepresentative and that usually concerns workingconditions, esp. an alleged violation of acollective – bargaining agreement.

Grievance can be divided into two types

Individual Grievance

Collective Grievance

Individual Grievance

• Individual grievances are filed by individualemployees. These grievances can address issuesrelated to the collective agreement, disciplineand human rights, as well as other mattersaffecting the individual employee concerned.

• Depending on the subject of the grievance,individual grievances can also be referred to anindependent third party (an adjudicator or anarbitrator) for a binding decision once theinternal grievance process has been exhausted.

Collective Grievance

• Collective grievances are filed by a “group ofemployees” rather than by an individualemployee. Grievances of this type are used insituations where a group of employees in thesame workplace or department face the sameproblem. The problem must relate to theinterpretation or application of the collectiveagreement. To proceed with a groupgrievance, the union must obtain the consentof each of the employees concerned.

• In many countries grievances contain the issueof human right violations, sexual harassmentsat work place also but in our country thesubject matter grievance at the industriesdon't cover these topic . Rather these topic orproblems are deal through different other actsor law provided in field of human right ,harassments and so on.

• Our Labor Act 2048 also don’t contain theword grievance but the term and motto ofGrievance is addressed by the term‘Procedures Relating to Personal Claims orComplaints’ in section 73 of Labor Act 2048and ‘Procedures Relating to Submission ofClaims of Collective Dispute’ in sec 74 ofsame Act.

• In accordance with our Labor Act 2048provision related to grievance are asmentioned….

• In relation to individual grievance:

If any one or more workers or employeeshave any personal claim or complaint againstProprietor relating to the service, theconcerned worker or employee may file it inwriting with the concerned Proprietor.

Proprietor shall have to discuss on it withthe concerned worker or employee andsettle the problem…

within a fifteen days (15 days)

If problem is not settled from discussion worker or employee may file a petition atthe concerned Labor Office specifyingclearly their claims.

Labor office must try to settle dispute bydiscussion between the Proprietor andthe worker or employees

within fifteen days of the receipt of aClaim in labor office.(15 days)

If the problem here again is not solved bydiscussion the Chief of concerned LaborOffice shall have to decide on the dispute

With in seven days(7 days)

in case not being satisfied with thedecision made by labor office any partycan appeal to the Labor Court

With in thirty five days. (35 days)

• In relation to collective grievance:

Claims relative to collective right, interest orprivilege should be presented to the concernedProprietors in written form signed by at least fiftyone percent of the concerned workers oremployees.

• That particular claim should be presented to theconcerned proprietors by representatives.. Forthis representatives should be nominated and theclaim shall be presented through suchrepresentatives.

Proprietor shall have to discuss on it withthe concerned representative and try tosettle the problem

With in 21 days and shall enter intoagreement.

If the problem is not solved by discussionin 21 days again Proprietor will organizebilateral discussion with therepresentatives in the presence of LaborOffice.

With in 15 days

If gain dispute is not solved by bilateraldiscussion there shall be appoint ofmediator with both party concern.

If appoint of mediator is not possible acommittee of government, employee andproprietor shall be made

The mediator or the committee appointed decide the dispute

within fifteen days.(15 days)

Any parties who are not satisfied with thedecision made by mediator or committeemay appeal to Government of Nepal.

With in 35 day from day of decision ofmediator or committee.

If the mediator or committee don't givetheir decision within the time-limit n ifthe Government of Nepal don't passdecision in six days limit

the workers or employees may strike byfollowing the procedures mentioned insec 76.

Sec 76

• In case the demands are not solved through theprocess mentioned in Sub-section (3) of Section 73 theworkers and employees wish to strike in the Enterprise,a notice in writing stating the claims and theirrationale, including with a resolution passed by at leastsixty percent of the total workers and employeesthrough secret ballot, shall have to be provided to theconcerned Proprietor thirty days in advance and aninformation thereof shall also be given to theDepartment of Labor, concerned Labor Office and thelocal administration and a strike may be startedthereafter only.

Case where the claim are not fulfilled (sec 75)

claims which is contrary to the Constitution of Nepal

claims which would affect other's interest due to beingbased on untestified or baseless allegation

Matter which is prejudicial to the personal conduct of anyworker or employee

Matters unrelated to the Enterprise

Where a period of two years has not elapsed( over or gone)since the date of last collective agreement.

Collective Bargaining

• “Collective Bargaining is a process in whichthe representatives of a labor organization &the representatives of business organizationmeet and attempt to negotiate a contract oragreement, which specifies the nature of

employee-employer union relationship”.

• Collective Bargaining is essentially meansnegotiations between the labor andmanagement.

• The parties have to adopt a flexible attitudethroughout the process of bargaining..

• It is based on give and take approach and takeor leave approach.

• Once both the parties know what they want,negotiations become easier and better.

• Obviously all the above mentioned conditionsare required successful for CollectiveBargaining but the most essential amongthem is the “good faith”.

• Collective Bargaining agreement is a writtenformat and it is essential because that acts asa legal framework and as a guide to theirrelationships on certain matters for a specifiedperiod of time.

Pre- requisites of Collective Bargaining

• Pre-requisites which mean requirements. The requirements of collective bargaining are:

Stake holder or public sentiments

Labor

Issued being discussed

Labor law

State and economy

Collective Bargaining Process

• Prepare

• Discuss

• Propose

• Bargain

• Settlement

Strike

• As mentioned in sec 76 of Labor Act 2048. ifthe dispute between representative andProprietor is not solved by mediation and iflabor court is fail to provide decision in 6 dayslimitation worker can go for strike bysubmitting a formal letter to Proprietor before30 days to notify the strike will b held.

• Letter must be signed by more than 60% ofworker.

Certain provision where employee cant go on strike are: (sec.78)

• If the worker has a duty of control, securityand guard of any Enterprise.

• These employees may claim their genuinedemands to proprietor.

• If such demands are not fulfilled and a dispute has been created then Government of Nepal shall constitute a tribunal for solving it.

• The decision of the Tribunal shall be final and binding upon both of the parties.

Lock Out (sec 77)

• Lock out means an event in which anemployer bars employees from working as atactic in negotiating terms of employment,particularly in strike or threat to strike.

• The provision of lock out in our labor law ismentioned in sec 77.

Lock out may held in certain conditions:

1. If a strike has been started or continued withoutgiving prior notice to the concerned proprietoror fulfilling the condition on sec 75.

2. if the collective dispute is not solved through theprocess mentioned in Sub-section (3) of Section73.

• In such case proprietor may declare lock out onthe Enterprise after submitting the justificationswith its rationale and obtaining the approval ofGovernment of Nepal.

• But….,

• Before announcing lock out Proprietor shallissue a notice for the information of workersand employees.

• This notice should be issued on seven days inadvance.

• It must specify the date of effecting the lock-out and should announce that the Enterpriseshall be locked-out if the strike is not calledoff.(77,2)

• Again incase,

• There is chance of damage or harm to theEnterprise through riot, violence, destruction,etc from the workers and employees duringthe strike Proprietor may call for lock outwithout notifying the employee.

• If a lockout is made in the Enterprise in suchsituation, the Labor office and theDepartment of Labor shall be informed aboutthe lock-out with reasons within threedays.(77(3))

• 77(4) says

• Government of Nepal may at any time declarethe lock-out of an enterprise as void, in case itappears irrational or it is likely to cause abreach in law and order conditions of thecountry or it is contrary to the economicinterests of country.

Termination of Lock-out Period:

• Sec 81 states about it that,

• Where any Enterprise has been locked-out, if theworkers or employees are present for work orhere the Proprietor has declared the ending oflock-out or where Government of Nepal hasdeclared such lock-out as illegal as per Section 76or has order to end the strike under Section 79,such lockout shall be deemed to have beenended from the date of the declaration making itillegal or from the date so ordered.

Remuneration for the Period of Lock-out

If the lock out is found to b illegalRemuneration for the Period of Lock-outshould be paid to the workers or employees.

Sec 82

Legal Validity of Collective Agreement:(sec 79)

• Any agreement entered into between theworkers or employees and the Proprietor inrespect solving the dispute shall be deemed tobe of status equal to law upon the concernedparties and such agreement shall have to beregistered in the Labor Office.

• An agreement registered in labor office shall come to force from the date of mentioned in the agreement,

• If no such date is mentioned in theAgreement, it shall come into force from thedate in which it is registered in Labor Office.

• No demand in relation to the provisionsmentioned in such agreement shall bepermitted to put again for two years from thedate of its commencement.

Enforcement of Collective Agreementsec 79 A

• In case the collective agreement entered intopursuant to this Act is not implemented, theconcerned party may lodge a complaint in theLabor Office.

• If any complaint is lodged the Labor Office may implement the collective agreement by following, as required the procedures set-forth in Sub-section (5) of Section 25 as well.

Sec 25 sub sec 5

• This section is in relate to provision of Petitionto be Filed in cases a Deduction inRemuneration Made or Delay Caused inPayment or other Facilities not provided orDelay Caused in providing such Facilities in anUndue Manner.

Special Provisions for Settlement of Dispute(sec 83)

• It can be also said special way of agreement .• If Government of Nepal deems that a dispute

between workers or employers and theProprietor has arisen or there is possibility ofarising, Government of Nepal may constitute acommittee of one of more persons, or tripartitecommittee consisting of representatives of theProprietor, the workers or employees andGovernment of Nepal in order to resolve thedispute. Such committee may regulate its ownprocedures.

• In such case..

• Decision of Nepal Government shall be finaland binding to both parties.

• These committee shall have the powers ofexamining the evidence and witnesses, ofrequiring the presence of witnesses andrequiring the production of documents as perprevailing laws similar to a court, in relation tothe dispute.

In conclusion

• IR is the relation of labor - management, employeeemployers relations.

• Its is very important….1. To safeguard the interest of labor and

management by securing the highest level ofmutual understanding and good-will among allthose sections in the industry which participatein the process of production.

2. To avoid industrial conflict or strife and developharmonious relations,.

1. To raise productivity to a higher level inan era of full employment by lesseningthe tendency to high turnover andfrequency absenteeism.

2. To improve the economic conditions of workersin the existing state of industrial managementsand political government

3. To Protect management and labor interests by securing mutual relations between the two groups.

Praties involve in IR