ABCD खबर

Sagar Baral and Saugat Raj Baral

As per the section 121(1) of the act, the mandate to declare the strike is empowered to Collective Bargaining Committee. Section 116(2) mentions that collective bargaining committee is formed only in the entity where there are 10 or more than 10 laborers. By virtue of section 121(1) and 116(2), strike committed in the entity having less than 10 employees are ipso-facto outlawed.  Section 2(q) of Industrial Disputes Act, 1947 of India has mentioned stoppage of work by more than one person also amount to strike. It validated strike committed 2 or more person legal and valid. Nepalese provision seems to be inspired more by utilitarian philosophical tradition. Such tradition prima facia seems to be "minimal laborer friendly." Such Nepalese provision has defeated preamble of the Labor Act, 2074 which aims to end labor exploitation and promote the rights and interest of laborer. Similarly, in regards to length of strike time, it is not mentioned in prevailing labor act. If we observe Bangladesh legal tradition, it has provision that strike lasting over 30 days may be prohibited and declared illegal. However, Nepal do not have such provision
Unlike Previous Act the New Labor Act does not require secret ballot to go for strike. As per the section 121(1), laborers can go for strike simply giving 30 days prior notice to the employers, local administration and concerned labor office. Although, it has procedurally made easy to resort to strike but the fresh mandate of the workers is not taken into consideration. The section 121(1) provision has undemocratize "right to strike" provision concentrating more power on the trade union. ILO Committee on Freedom of Association, interpreting the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), has accepted "the obligation to take strike decisions by secret ballot"  as prerequisite for declaration of strike. In Bolivia and Guatemala, a majority of three-quarters of the workers vote is required to declare a strike.
Generally, there are "Tools Downs Strike" , "Go Slow Strike"  , "Sympathetic Strike"  and Hunger Strike etc. Although, strike has been defined in the Labor Act, 2074, such types of strikes have not been defined. Such categorization of strike is necessary because intensity of different nature of the strike differs. For instance, workers doing "Pen down Strike" for just a Half hours per day and giving half remuneration as per the section 127(3) treating it simply as strike would be unjustifiable to workers.
The labor act has not mention about legitimacy of national level general strike call by all trade union against the government labor policies. Prevailing labor act has defined the strike merely as tool to collective bargaining with the employers. In a tripartite labor framework, strike also need to be broadly defined as an action against the government labor policies effecting the worker's interest. Realizing this very fact, Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), article 10 mentions worker organizations as those that defend and promote worker’s interests. Elaborating it, Committee of Freedom of Association has stated that "strike is valid so far as it is utilized as a means of defending workers economic interests".   Therefore, it has validated both strike against the employer as well as state labor policy. In a bid to prevent possible protect against the labor policy, state cannot restrict application of right to strike against government policies. The provision for clear recognition for all nature of strike in existing labor legislation should be included so as to make it laborer friendly.
The outlawed Labor Act, 2048 in its Section 82 has mentioned that the remuneration for the period of lock-out declared illegal shall have to be paid to the workers or employees. However, act did not contain any provision relating to remuneration in case of unlawful as well as the lawful strike.  In contract, prevailing Labor Act, 2074 section 127(3) mentions that in event of legal strike, employee is entitled to half remuneration, except in the circumstances that collective agreement do not mention on remuneration. The act would be greater labor friendly had the the laborer engaged in the legal strike is entitled to full remuneration. Since the right to strike is rights of laborers, it should not be discouraged. Philosophically, when the act is right, the consequences of doing particular act should not do injustice. Such philosophical tradition is recognized in the case, "Syndicate Bank v. K.Umesh Nayak" , where Indian Supreme Court held that full wages during the strike period would be payable if strike is both legal and justified but not payable if the strike is legal but not justified or justified but illegal.
The present labor legislation and essential service operation act, 2014 has restricted the strike in entity providing essential service. In addition to Labor act, 2074, Essential Service Operation Act, 2014 section 2(a) has also defined the essential service as the service which has been listed by the Nepal government as essential service through publication in Nepal Gazette. Therefore, the provision has restricted the labor rights to strike as government may declare any strike as related to essential service by misusing its power. Ultimately, Judiciary, may also end up interpreting the notice made through misuse of power as legally valid. For instance, in 2060/11/5 government has issued a notice in Nepal Gazette that hotel and banking sector fall within the essential service going against ILO committee on Freedom of Association recommendation that "banking and Hotel services do not constitute essential service".  "Advocate Durga Bahadur Ale"  filed a writ petition against such notice but the full bench made a hyper literal interpretation of section 2(a) of Essential Service Operation Act, 2014 and validated such notice without looking the intent of government. Patan High court repeated same mistake stating "protest inside banks is against the Essential Service Operation Act 2014, which has kept banking sector as a sector that provides essential service to the public through publishment in Nepal Gazette."  In May 2019, government again listed the "tourism sector (motels, hotels, restaurants, resorts) as essential service" , but it was not followed. Post May 2019, going against the government notice, the Workers of Hyatt Regency staged one-week strike.  The laws on essential services also need to be reformed particularly on the definition of essential services in line with the ILO standard and limiting government discretionary power.
From the individualism perspective, participation in the strike should be merely governed by choice of workers. However, often the trade union issue a whip regarding compulsory participation of its member in the strike and refrain from doing work. Prevailing Labor legislation is silent on the such whip as well as coercion and duress in participation in strike. Concretely, there is no provision regarding freedom to work of non-strikers and protection of them from strike.
There is urgency to close these serious gaps in the legislations on the right to strike in order to protect and strengthen the legitimate interests of workers. In a nutshell, right to strike provision in the labor legislation of Nepal have many vacuum, gaps, defects, vagueness, double standard of provisions and inconsistent with ILO labor standard.  
 - Sagar is an advocate and Saugat is a law student
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