It will explain norms and values associated with trade union.

1. Adv. Vijay Jayshwal
Kathmandu University School of Law
Trade Union and Collective
Bargaining
12/27/2019

2. Trade Union Right As Human
Rights
 It involves the perceived nature of this group of
entitlements, either as social entitlements or as
collective claims.
 Rights are not timeless, but can only be
understood in their context.
 A labour right that illustrates the issue, included in
both civil and political and socio-economic rights
documents, is freedom of association to join trade
union.
 This can be otherwise described as a conflict
between the individual character of human
rights and the collective interests of labour.
 Thus, it is essential to historicize the labour rights
to organize, to bargain collectively, and to strike, to
place them into the social and political context in
which they were claimed, contested, and
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3. 12/27/2019
 Industrial citizenship, which comprised the
freedom of association, the right to representation
and collective bargaining, and the right to strike,
was the crowning achievement of industrial each
nation, since how its key components are
institutionalized is shaped by the interaction of
economic, political, and social forces over time.
 In Canada, industrial citizenship took an industrial
pluralist form, and it was embodied in a particular
model of collective bargaining legislation, called
Wagner-style.
 This model, which was developed in the U.S. in the
1930s and adopted in Canada in the 1940s, has
three key components:
 Exclusive basis of a majority vote,
 The duty on employers to bargain in good faith with
the union that had won exclusive bargaining rights,
and

4. 12/27/2019
 There are two levels to consider the Trade
Union rights as human rights: National
Level and International Level.
 At the international level, since 1919 the
International Labour Organization has treated
workers’ freedom to associate in trade unions
as a fundamental component of social justice.
 After World War II, freedom of association
was also protected in the Universal
Declaration of Human Rights (1948).
 The rights contained in the Declaration were
divided into two covenants, the International
Covenant on Civil and Political Rights, (1966)
which contained individual rights against the
state, and the International Covenant for
Social, Economic and Cultural Rights, (1966)
whose rights require positive state action.

5. 12/27/2019
 In 1998, the International Labour Conference
issued the Declaration on Fundamental Principles
and Rights at Work, which identified freedom of
association and effective collective bargaining as
core of human rights.
 Freedom of association a composite of three
activities, organizing, bargaining, and striking—
each activity has different elements that can be
protected in different ways.

6.  The term trade union has a variety of meanings
depending on the perception of workers and the
definition imposed by legal frameworks in many
countries.
 The trade union is an association of worker’s formed
for the purpose of protection and improving the socio-
economic status of its members through collective
action.
 It is perceived as a democratic institution and ultimate
power lies with the membership as a whole.
 Trade unions are also considered as moral institution
aiming at making the worker’s better individuals and
responsible citizens.
 Trade union are considered to be a institution-
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7.  Trade union were born of necessity of
worker’s to protect and defend themselves
from encroachment, injustice and wrong to
protect the worker’s in their inalienable right
to higher better life;
 To protect not only as equals before the laws,
but also in their rights to the product of their
labour;
 To protect their lives, their limbs, their health,
their homes, their firesides, their liberties as
workers, as citizens;
 To overcome and conquer prejudice and
antagonism;
 To secure then the right to life and
opportunity to maintains that life, the right to
full-shares in the abundance which is the
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8. Approaches of Trade Unionism
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 These are some of established approaches to
deal with the jurisprudence and philosophy of
trade unionism in world
 Approaches are developed on the basis of few
assumptions ,some extensively justified,
developed in particulars period of time, tested
and verified.
 These approaches were developed in order to
understand the cordial relationship between
employer and employee in industrial setup or on
institutional basis.
 The approaches of trade unionism is not
exhaustive in nature and can be found easily in
labour legislation of respective nation.

9. Karl-Marxian Approach
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 As per him, Trade unionism is based on the concept
of the class struggle between the employers and
employees.
 With the development of industry, the proletariat not
only increases in number, it becomes concentrated in
greater masses; its strength grows and it feels that
strength more than collisions between individuals and
employers.
 Trade union’s against bourgeois they club together in
order to keep the rate of wages; they form permanent
association in order to make provision before hand for
those acquainted revolts.
 TU is viewed as a revolutionary and politically
organized group in order to acquire ownership of

10. 12/27/2019
 The revolutionary approach/theory of trade union is
developed by Karl Marx “This theory is also known
as “the theory of class war and dialectical
materialism”.
 According to Marx, trade union was the foremost
organising centre to provide locus for streamlining
the forces of working classes .
 The trade unions are, for Marx, the instruments to
overthrow capitalism.
 These are, thus, prime instruments of the class
struggle between proletarian workers and capitalist
businessmen.
 Marx advocated that the working class must not
divert itself from its revolutionary programme
because it is labour struggle only that can abolish
capitalism.
 To Marx, workers’ emancipation involves abolition

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 The entire discourse of Marx’s on Trade Union
law are divided into two parts:
 Early writings of Marx’s ( 1842-1848)
 Late/mature writing of Marx’s ( 1859-1875)

12. Early Writing
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 Debate on Law on Thefts of Wood (1842)-
Universal values of private property rights
 Marx’s Critique of Hegel's Philosophy of Right (
1843)- Question of Mystification and Alimentation
theory
 The Jewish Question ( 1844)- Materialistic
conception of historical events/history
 The Communist Manifesto (1848)- Nature of
Society and Politics

13. Late Writing
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 Preface to ‘A Contribution to the Critique of Political
Economy (1859)
 Grundrisee (1939)-notebooks was rough-drafted by
Marx, chiefly for purposes of self-clarification, during
the winter of 1857-8.
 “Das Kapital” (1867)-materialist philosophy,
economics and politics
 Critique of the Gotha program (1891)-programmatic
matters of revolutionary strategy

14. The Sydney and Webb’s
Approach
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 The TU as an extension of the principle of democracy
in the sphere of industry.
 TUs are considered as institutions for overcoming
managerial dictatorship to strengthen individual
laborers and to give them voice in determining the
working conditions.
 TUs provides a means which can create stronger
political and economical power to employers and
employees which can introduce democracy into
working relationship.
 It will replace industrial autocracy with industrial
democracy.
 TUs movement is a vital force for instrument of the
evolutionary process.

15. 12/27/2019
 This theory also known as “theory of
industrial democracy” was enunciated by
Sydney and Beatrice Webbs.
 To Webbs, trade unionism is an extension of
the principle of democracy in the industrial
sphere.
 In other words, trade unionism is not an
instrument to overthrow the capitalism, but a
means of equalizing the bargaining power of
labour and capital.
 Trade unionism provides a means by which
workers overcome managerial dictatorship, on
the one hand, and express their voice in the
determination of the conditions under which
they have to work, on the other.

16. Summer Slitcher’s Approach
12/27/2019
 Through unionism, members developed a whole
network of work rules and traditions as a system
of industrial jurisprudence.
 These rules become a means of protection to
employers in their work as such as the system of
public law protects citizens from arbitrary action
by the government.
 He favored collective action than the individuals
approach for the bargaining and control of
working hours.
 Individual bargaining is always weaker in
industrial relationship so promote collective
bargaining( collective identity).

17. Selig Perlman’s Approach
12/27/2019
 He says that the character of the labour movement
in a country must depend upon the particular
combination of these factors:
1. The resistance power of capitalism, determined
by its own historical development
2. The degree of dominance over the labour
movement by the intellectual’s mentality which
regularly undermines capitalism's resistance
power and over estimates labor's will to radical
changes.
3. The degree of maturity of a Trade –Union
mentality.
 Employees recognize the scarcity of
employment opportunities and the employer
possesses a high degree of bargaining
advantage.
 TU’s most create opportunity than revolutionary
setup. It may acquire increased power and

18. 12/27/2019
 According to S. H. Slitcher the propounder of
the “Theory of Industrial Jurisprudence”,
workers individually fail in bargaining with
employers for protecting their interests.
 In his view, trade unionism served as a
means for workers to protect them in work.
 Such an approach of trade unionism, Slitcher
termed as “a system of industrial
jurisprudence”.

19. Robert Hoxie’s Approach
12/27/2019
 Trade union have emerged due to group
psychology, social psychological environment
rather than economic reason.
 He gave a solid psychological interpretation of
Trade Union and believed that TUs have
emerged owing to a group psychology.
 TUs is to be a social philosophy an interpretation
of the social facts and relationships.
 TU has to take into account of environmental
conditions and temperamental features of the
workers concerned.

20. Frank Tannenbaum’s Approach
12/27/2019
 TUs are spontaneous and inheritant in the growth of
capitalism. It owes its origin to industrial revolution
which led to disruption of the older way of life and
creation of anew society, forged by shop factory, the
mine and the industry.
 TU is rebuilding industrial relationship and is not
merely an economic organization rather is equally a
social and ethical system.
 Its value is to re-establish the dignity of workers at
workplace.
 Trade Unionism is counter revolutionary. It will help to
bring changes through continuous engagement in
industrial relationship.
 TU is product of factors of production in specific group

21. 12/27/2019
 To Frank Tannenbaum, the propounder of
“Rebellion Theory”, trade unionism is a
spontaneous outcome in the growth of
mechanisation.
 He believes that the use of machines leads to
exploitation of workers. Thus, machine is the
cause and labour movement, i.e., trade unionism
is the result.
 In other words, trade unionism is a rebellion
approach against mechanisation automatization
of industrial society to protect workers’ interest in
the enterprise.

22. Gandhian Approach
12/27/2019
 Trade Union should be internally used for
reformation of worker’s as good citizen’s ad also
for their defense against assaults from outside.
 Trade union can be moral institution for the
improvement of behaviour and belief in the dignity
of the labour.
 Trade union require because they would have
more wealth and resources through labour than
the capitalists through their money.
 Trade union must adopt peaceful means, non-
violent way of approach and solve labour
disputes.

23. 12/27/2019
 John T. Addison Claus Schnabe (2005),
International Handbook of Trade Unions, Labour
and Industrial Law Review, Cornell University ILR
School. Vol 58, Number 4.

24. Principle of Trade Unionism
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 The Principles and Guidelines are in fact the result of
an extensive joint work and consultation process, which
started in the second half of 2009. It was coordinated
by the ITUC/TUDCN secretariat and completed by the
end of 2010. (INTERNATIONAL TRADE UNION
CONFEDERATION (ITUC), Trade Union Development
Cooperation Network (TUDCN)
 An “ad hoc” working group was created within the
network bringing together members of the ITUC from
the industrialized countries; the regional organisations
of the ITUC (Africa, Asia/Pacific, the Americas, and
Eastern Europe).
 The contents of the Principles refer to and articulate the
values and vision on trade union development
partnerships, North-South and South-South relations,
as well as, on cooperation/coordination features.
 They are meant to apply in all situations, whether trade
unions are using internal resources or external donor

25. 8 Principle’s
12/27/2019
1. Principle of Democratic ownership
2. Principle of Autonomy
3. Principle of Partnership
4. Principle of Transparency
5. Principle of Accountability
6. Principle of Coherence
7. Principle of Inclusiveness and Equality
8. Principle of Sustainability

26. Trade Union Effort to Develop Labour Law in
Nepal
12/27/2019
 In order to develop a strong labour legislation, a
Commission was formed in 1951 in order to inquire into the
labor problems.
 This Commission came up with report “ all the problems in
labor are due to absence of any regulating labour
management relations, suggested for the formulation of
the labour law including the provisions of grievance, strikes
and lockout provision of retrenchment and social security”.
 In June1959, Factory and Factory workers Act was
enacted in the country with a view to maintain peace and
tranquillity and ensure the economic welfare of the general
public by making suitable arrangements concerning the
proper management of factories, the safety and welfare of
factory workers and settlement of disputes between factory
employers and workers.
 But, this Act was enforced on December 1961 only with
retrospective effect.

27. 12/27/2019
 The first amendment of this Act was the result of the
political changes on December 1960, which banned
the political parties.
 In this amendment it has been defined the workers
as adult, minor, and child. This amendment bought a
big change in working hours by increasing it to 54
from 48 hours a week and 10 hours from 9 hours a
day.
 The clauses concerning the workers right to from
labour unions was dropped from this amendment and
left no room for any kind of labour organisation at any
level.
 In March 1973 second amendment had been taken
place and this amendment reduced working hours
from 54 to 33 hours a week and one and half days

28. 12/27/2019
 In the eve of popular movement of 1990 and then
after GEFONT leads the movement to protect
workers rights. By the time Nepal Factory and
Factory Workers' Act has become not only
uncontextual but was also as weapon of labour
suppression.
 GEFONT Chairperson and Parliament member
Mr. Mukunda Neupane tabled in the House of
Representative on August, 1991 three non
governmental bills viz. the Nepal Trade Union
Bill-2048, the Nepal Industrial Relations Bill-
2048 and the Labour Bill -2048.
 The government mixed two of GEFONT's bills--
Labour & Industrial relations and tabled through

29. Supplementary Laws in the field of
Labour
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 1957 - Essential Services Maintenance Act
 1974 - Bonus Act
 1981 - Bonus Rules
 1982 - Industrial Apprenticeship training Act
 1986 - Foreign Employment Act (2007)
 1992 - Industrial Enterprise Act
 1993 - Labour regulation concerning tea
estates
 1994 - Privatisation Act
 1995 - Children's Act (2075)

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1. Social Security Act 2018
2. Compulsory and Free Education Act 2018
3. Individual Privacy Act 2018
4. Racial Discrimination and Untouchability (offence and
punishment, First amendment) Act, 2018
5. Housing Right Act 2018
6. Employment Act, 2018
7.Food Right and Food Sovereignty Act 2018
8. Public Health Service Act 2018
9. Safe Motherhood and Reproductive Health Rights Act 2018
10. Protection of Consumer Act 2018
11. Protection of the Victims of Crime Act 2018
12. Children Act 2018
13. Environment Protection (First Amendment) Act 2018
14. Protection of Disabled People (First Amendment) Act 2018
15. Land (Seventh Amendment) Act 2018
16. Public Offence (Third Amendment) 2018
17. Labour Act 2017
18. Contributory Social Security Act 2017

31. 12/27/2019

32. Trade Union Act 2049
12/27/2019
 Preamble : Legal provision regarding
registration, operation of Trade Union and other
necessary provisions relating to it for the
protection and promotion of professional and
occupational rights of the persons engaging in
self-employment and the workers working in
various industry, trade, profession or service in
Enterprises or outside the Enterprises.

33. Key features of the Act
12/27/2019
 Section 3- Registered of Enterprise Level Trade Union
 Section 4- Registration of Trade Union Association
 Section 5- Registration of the Trade Union Federation
 Section 7- Refusal of Registration
 Section 7 A- Renewal of Trade Unions
 Section 8- Autonomous and Corporate Body (legal
status of TU)
 Section 9- Objectives of TU
 Section 9 A- Functions, Duties and Power of Trade
Union
 Section 9B- Functions, Duties and Powers of Trade
Union Association and Trade Union Federation
 Section 10- Statute of Trade Union
 Section 11- Recognition of the Authorized Trade
Union

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 Section 12- Presentation of Claim ( collective
bargaining)
 Section 13- Duration of Validity of the Recognition of
the Authorized Trade Union
 Section 14- Appointment of the Registrar
 Section 15- Function, Duties and Power of the
Registrar
 Section 16- Register Book
 Section 17- Fund
 Section 19- Merging of the Trade Union
 Section 25- cancellation of Trade Union
 Section 27 a- Limitation for Filing a case
 Section 18- Penalties

35. Labour Rules 2018
12/27/2019
 Provision of Labour Audit in every enterprise.
 Provision of payment of wage and other facilities through
banking system which will end up non payment and delay
payment of wages & benefits and control the tax evasion
as well.
 Provision for domestic workers to get paid leave of 12-
days yearly and one day weekly rest.
 Provision to regulate the labour suppliers through
compulsory registration and a deposit of at least NRs.1.5
Million.
 Provision for OSH (Occupational, Safety and Health)
matters including formation and operation of OSH
committee in workplace
 Formation of Collective Bargaining Committee and
procedure for industry wise collective demand.
 Formation and operation of Labour Relation committee
and use of welfare fund
 Equal treatment for migrant workers working in Nepal and

36. Five steps taken to formalize Informal Economy
Workers
12/27/2019
 Trade Union movement of Nepal argued that Basic
labour standard need to implement to all workers
irrespective of their employment status.
1. Removal of minimum threshold
2. Removal of discrimination based on employment
status
3. Protection for task based workers
4. Regulating outsourcing
5. Social Security extended to self-employed person
Note: Following the provision of new Labour Act and
formation of the new government, not only has
Central Labour Advisory Council been formed
but its meetings have also become regular. This
mechanism, which holds policy level discussion
about labour among workers, employers and the
government, has been revived.
Recently the Labour Act 2017 has been amended
and made it clear that Provincial government will

37. 12/27/2019
 See you on Collective Bargaining