Social dialogue in the Public Services in South Asia: A comparative overview of the laws, institutions and practices in India, Nepal and Sri Lanka

Smith, Alistair Working Paper Social dialogue in the Public Services in South Asia: A comparative overview of the laws, institutions and practices in India, Nepal and Sri Lanka ILO Working Paper, No. 73 Provided in Cooperation with: International Labour Organization (ILO), Geneva Suggested Citation: Smith, Alistair (2022) : Social dialogue in the Public Services in South Asia: A comparative overview of the laws, institutions and practices in India, Nepal and Sri Lanka, ILO Working Paper, No. 73, ISBN 978-92-2-037273-9, International Labour Organization (ILO), Geneva, https://doi.org/10.54394/CPFA1583 This Version is available at: https://hdl.handle.net/10419/265590 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by/3.0/igo/ XSocial dialogue in the Public Services in South Asia A comparative overview of the laws, institutions and practices in India, Nepal and Sri Lanka Author / Alistair Smith August / 2022 ILO Working Paper 73 Copyright © International Labour Organization 2022 This is an open access work distributed under the Creative Commons Attribution 3.0 IGO License (http:// creativecommons.org/licenses/by/3.0/igo). Users can reuse, share, adapt and build upon the original work, even for commercial purposes, as detailed in the License. The ILO must be clearly credited as the owner of the original work. The use of the emblem of the ILO is not permitted in connection with users’ work. 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ISBN: 9789220372722 (print) ISBN: 9789220372739 (web-pdf) ISBN: 9789220372746 (epub) ISBN: 9789220372753 (mobi) ISBN: 9789220372760 (html) ISSN: 2708-3446 https://doi.org/10.54394/CPFA1583 The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. The responsibility for opinions expressed in signed articles, studies and other contributions rests solely with their authors, and publication does not constitute an endorsement by the International Labour Office of the opinions expressed in them. Reference to names of firms and commercial products and processes does not imply their endorsement by the International Labour Office, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. ILO Working Papers summarize the results of ILO research in progress, and seek to stimulate discussion of a range of issues related to the world of work. Comments on this ILO Working Paper are welcome and can be sent to [email protected], [email protected]g. Authorization for publication: Alette van Leur, Director, SECTOR ILO Working Papers can be found at: www.ilo.org/global/publications/working-papers Suggested citation: Smith, A. 2022. Social dialogue in the Public Services in South Asia: A comparative overview of the laws, institutions and practices in India, Nepal and Sri Lanka, ILO Working Paper 73 (Geneva, ILO). 01 ILO Working Paper 73 Abstract While revealing new challenges for public services, the Covid-19 pandemic has also cast renewed light on the state of social dialogue and labour relations practices in many countries. But the rationale for this study also has an earlier genesis: following an ILO Governing Body decision, a Global Dialogue forum was convened in 2014 to address the impact of the financial crisis and other challenges confronting labour relations in the public services. It identified the need for further research to “enable improved responses to situations of crisis and to address obstacles in the ratification of Conventions Nos 151 and 154”. This report is mainly based on a qualitative desk top assessment of available secondary literature and primary legal texts to describe and contrast the state of freedom of association and the right to organize and collective bargaining in the public services in India, Sri Lanka and Nepal. Public service labour relations in these three south Asian countries are found to be in flux and prone to instability while operating with moderately effective to weak social dialogue mechanisms. Although freedom of association is constitutionally enshrined for public servants, it is restricted in law and practice. Trade Unions are well established but also highly fragmented and politicized. About the author Alistair Smith is a former New Delhi based ILO specialist for social dialogue and labour administration where he was part of the Decent Work Country Team for South Asia. He has extensive experience in labour market governance and industrial relations at the policy and practical level. At the time of this study he was working as an independent labour researcher and consultant. He holds an M.Phil. degree in Development Studies from the University of Sussex. 02 ILO Working Paper 73 Abstract 01 About the author 01 Acronyms 06 Executive Summary 07 XIntroduction 10 Background, purpose and structure 10 International labour standards: Definitions and principles of social dialogue and collective bargaining in the public services 10 X1 Particularities of labour relations in the public service in South Asia 14 India 14 Profile of public service employment 14 Freedom of association and the right to organise in the public services 15 Public service unions 17 Nepal 19 Freedom of association and the right to organize in the public services 19 Profile of public service unions 21 Sri Lanka 22 Profile of public service employment 22 Freedom of association and the right to organise in the public services 23 Profile of public service unions 24 X2 Forms of dialogue in the civil service: institutions and mechanisms 26 India 26 Central and State Pay Commissions 26 The Joint Consultation and Compulsory Arbitration Scheme 26 Employment protection – the doctrine of pleasure 28 Grievances related to recruitment and conditions of service 28 Nepal 29 Determination of terms and conditions of employment 29 Sri Lanka 30 XConclusion 33 Table of contents 03 ILO Working Paper 73 India 33 Nepal 33 Sri Lanka 34 Annex 35 References 36 Acknowledgements 39 04 ILO Working Paper 73 List of Tables Table 1. Summary of employees involved in administration of the Nepali State 21 Table 2. Main trade unions operating in the public services 22 Table 3. Total Public Sector Employment (2006-2016) 22 Table 4. The Joint Consultative Machinery: Structure & Composition 27 Annex Table 1. Registered trade unions and union membership in India 35 Annex Table 2. Top nine trade unions of India 35 05 ILO Working Paper 73 List of Boxes Box 1: Expansion of Public Administration 14 Box 2: Rising number of contract teachers 15 Box 3: The right to strike 30 06 ILO Working Paper 73 Acronyms CEACR The Committee of Experts on the Application of Conventions and Recommendations CFA Committee on the Freedom of Association CTUO Central Trade Union Organisations EI Education International ILC International Labour Conference JCM Joint Consultative Machinery MOLE Ministry of Labour and Employment NJCA National Joint Council of Action PSI Public Services International PSU Public Sector Undertakings 13 ILO Working Paper 73 taking into account the special dynamics in the public service, providing leeway for the establishment of other “appropriate modalities for determining terms and conditions of employment” with the proviso that it must involve representations by workers’ organisations. While acknowledging the flexibility inherent in Convention No. 151, the CFA ruled in relation to Convention No. 87, that “all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service” (ILO 2006). In its report to the 102nd session of the ILC, the CEACR emphasized the positive aspects of collective bargaining in the public services by observing that: “[C]ollective bargaining, far from damaging the quality of public services or being contrary to general interest, is in fact an instrument that can lead to a harmonious work environment, more effective and efficient services and, above all to decent working conditions in the public sector” (ILO 2013a). However, effective collective bargaining cannot thrive in an environment that restricts freedom of association and the right to organise. It also requires well-developed mechanisms of dispute resolution based on negotiation and the potential resort to industrial action as well as capable actors that are committed to good faith bargaining practices. “[Yet m]ore than 30 years after the adoption of Convention No. 151, there is still a large gap in terms of recognition of the rights it embodies: while some countries have instituted highly developed mechanisms to advance the goals embedded in Articles 7 and 8 of the Convention, other governments determine working conditions unilaterally or have not been able to implement consultation mechanisms. The lack of consultation mechanisms has played a major role in the occurrence of severe and very costly labour strife in some countries. …In addition, the economic crisis has acted as a “stress test” both for the ability of the national systems to facilitate change and for the maturity of the parties to embrace dialogue in a creative fashion” (ILO 2014). The Asia-Pacific region lags behind other regions in terms of ratification of fundamental Conventions. While good progress has been made in terms of ratification of Conventions Nos 151 and 154 in different parts of the world, the progress in the Asia-Pacific region has been slow. Four countries in the South Asian context have ratified both Conventions Nos 87 and 98 (Bangladesh, Maldives, Pakistan and Sri Lanka). India has not ratified either one, and Nepal has yet to ratify Convention No. 87. None of the South Asian countries have ratified either Conventions Nos 151 or 154. 14 ILO Working Paper 73 X1 Particularities of labour relations in the public service in South Asia India Profile of public service employment The role of the public sector in India’s economy and labour relations system remains strong despite many years of economic liberalization (Bhattacherjee and Ackers 2010; Hill 2009). As already indicated, India’s labour laws are primarily geared toward a small fraction (less than 10 per cent) of the labour force, found mainly in the organized sector which includes the totality of public sector employment. Public sector employment rose rapidly since the sixties from around 7 million persons in 1960/61 to close to around 22 million persons in 1999/2000. An estimated 18 million workers were employed in the public sector in 2014 (Nagaraj 2016).1 The railways, banking and insurance sectors dominate the share of employment in public sector undertakings/utilities at the central level. Marketing corporations and transportation utilities are significant providers of employment at the state level. XBox 1: Expansion of Public Administration ● Soon after independence the national/federal level of government had approximately 1.4 million employees and the administrative structure was comprised of 8 secretary level posts (administrative heads of ministries/departments) and 18 departments. ●In 2000 the central government employed around 4.2 million workers, including over 100 secretaries across 80 departments. In 2010, 9.7 million persons were employed in public administration, defense, and compulsory social security: this figure dropped sharply to 7.8 million by 2019. However, the employment of women has increased consistently since 2012, although in 2019 it remained 16 per cent lower than in 2010). ●In 2010, 9.7 million persons were employed in public administration, defense, and compulsory social security: this figure dropped sharply to 7.8 million by 2019. However, the employment of women has increased consistently since 2012, although in 2019 it remained 16 per cent lower than in 2010). Source: Venkata Ratnam 2001; ILOSTAT 2021 Over half of this workforce was employed at the State/local government level where the bulk of social service provision is delivered. The larger State government employment share also reflects a widening of the social safety and gains in social welfare related rights and entitlement. Public Sector Undertakings (PSU) and utilities employ about 25 per cent of overall public sector employment. In 2014 close to 20 per cent of government employees were estimated to be in the employ of the central government. About 4.7 million approved posts were recorded in central government in 2014. The number of vacant posts increased by almost 80 per cent during the period between 2006 and 2014 from around 550,000 in 2006 to 750,000 in 2014 (Ghosh and Chandrasekhar 2020). They further demonstrate that India has one of 1Estimates for public sector employment can vary significantly depending on which official sources are used (Nagaraj 2016). 15 ILO Working Paper 73 the lowest public service employment rates in the world, employing 16 people per 1,000 population compared to countries like China (57 per 1,000 population) and Brazil (111 per 1,000 population); Norway has the highest ratio at 159 per 1,000. The rise in the number of vacant posts may have negative implications for service delivery and labour relations. Ghosh (2020) has highlighted the overall employment loss in PSU, while noting its disproportionate impact on the lower/non-executive categories of employment. She further notes that this trend is accompanied by an increase in the number of casual and contract workers – estimated to be more than a third of the PSU employment in 2017/18. Outsourcing has risen sharply in the public services in general, especially in auxiliary activities like canteens, transport, and cleaning. Large scale precarious contract work is also evident in the welfare distribution and bus transportation sectors (Smith 2021a). Driven by an expansion in social rights and welfare provision, the health, education and social welfare services have become heavily reliant on contract and volunteer workers. XBox 2: Rising number of contract teachers India’s drive to expand access to education, especially primary education, has also been associated with marked increases in the number of contract teachers. Close to 15 per cent of primary school teachers were estimated to be contract teachers in 2014-15. This was almost 24 per cent in government schools in the Delhi Metropolitan District. Contract teachers have tenuous job security and earn less than the norms prescribed by the Pay Commission for their permanent counterparts. Source: Kumari 2018 Volunteer workers have no job security or benefits and are paid an “honorarium” instead of a wage although they perform a critical public service. The scale of the reliance on “scheme workers” to deliver important primary social services is usefully illustrated by Ghosh (2021), using the example of the Integrated Child Development Scheme, involving over two million Anganwadi workers and helpers. She observes that this scheme alone constitutes more than 60 per cent of the total central government approved posts. An important component of India’s National Rural Health Mission aims to “provide every village in the country with a trained female community health activist” commonly known as an ASHA (India, National Health Mission 2021). These are woman volunteer workers chosen to be the primary interface between the village and the public health system. ASHA’s promote universal immunization, they provide “first contact health care” and referral/escort services for reproductive and child healthcare. In 2020 there were approximately 900,000 volunteer workers providing services under this scheme, receiving performance-based incentives instead of a fixed salary. The scheme has been criticized for normalising gender-based occupational segregation and systematic pay inequity (Jain 2021). Freedom of association and the right to organise in the public services Although India is a founding member of the ILO, it has not ratified Conventions Nos 87 or 98. The guiding principles in these instruments have nonetheless had an important bearing on the Indian Constitution and the evolution of the statutory framework governing industrial relations (Aggarwal 1972). The right to freedom of association for all citizens is enshrined in the Indian Constitution as part of an enforceable bill of rights accorded to all citizens. This includes the right to freedom of speech and expression, freedom to assemble peaceably, freedom of movement and the right to form a union or associations (Constitution, art. 19(1)(c)). The Constitution (Part IV) further stipulates normative guidelines for state policy, including on the right to a humane workplace, the right to earn a livelihood without discrimination, and the right to a living wage. 16 ILO Working Paper 73 Section 33 of the Constitution empowers parliament to make laws determining the applicable extent of any of the fundamental rights to “Forces” including the following: a) the members of the Armed Forces; or b) the members of the Forces charged with the maintenance of public order; or c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter-intelligence; or d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. The armed forces and central police are covered by separate legislation which prohibits trade union membership. Individual States have also passed legislation prohibiting state level police personnel from joining trade unions.2 Notwithstanding its constitutional status, freedom of association is generally constrained in law and practice for workers in the public services. The recently enacted Industrial Relations Code 2020 is an amalgamation and partial amendment of the former Trade Unions Act 1926, the Industrial Employment (Standing Orders) Act 1946, and the Industrial Disputes Act 1947. The Trade Unions Act 1926 prescribed the basic requirements and procedures for registration of trade unions. The Industrial Disputes Act 1947 provided for individual grievance redressal mechanisms, and “works committees” for bipartite consultation.3 It also established government administered dispute handling mechanisms for “industry disputes” including strikes and lockouts based on conciliation and adjudication based on quasi-judicial processes.4 The Industrial Disputes Act 1947 scope applied to industry establishments and workmen, in the private sector as well as publicly owned industrial and commercial undertakings and public utility services.5 The Industrial Employment (Standing Orders) Act 1946 required all employers with 100 or more workers to publish “standing orders”6. The Industrial Relations Code 2020 has introduced a wider definition of “industry”; it has also substituted the term “worker” for “workmen”. The thresholds for the establishment of a grievance redressal mechanism and works committee has been increased to only apply to enterprises employing 300 or more workers. The adoption of the code by parliament in 2020 was widely criticized by trade unions for a lack of consultation and the implications of some of the amendments. Following a recommendation by the second pay commission, the Civil Service (Recognition of Association) Rules 1959, were established in terms of article 309 of the Constitution to regulate the recognition of associations of central government employees and All India Services (Aggarwal 1972). These rules were subsequently superseded by the Civil Service (Recognition of Association) Rules 1993. The following are noteworthy in this regard: ●Membership of a Service Association is restricted to a “distinct category of Government Servants having a common interest”. 2Prior to the enactment of the Police Forces (Restriction of Rights) Act 1966, the courts upheld the freedom of association for police personnel. 3Applies to industrial establishments with 20 or more workers for grievance handling redress mechanisms and 100 or more workers for works committees. 4Cases related to termination of employment of individual workers are deemed to be industry disputes. 5State-owned industrial and commercial establishment are commonly referred to as PSU. 6These are basic terms of employment related to the employment status, hours of work, leave conditions, attendance, procedures for termination, and grievance procedures. The Industrial Relations Code has also changed the threshold for standing orders to only apply to enterprises with 300 or more workers. 17 ILO Working Paper 73 ●A Service Association must represent at least 35 per cent of employees in a category; if only one association meets these criteria, then a second association may be recognised provided its membership is at least 15 per cent. ●Staff associations may not have outsiders on its executive or as office bearers. ●Once recognised, prior government approval is required for any amendments of the association’s rules. ●Approval is required to publish any “periodical, magazine or bulletin”. The Central Civil Services (Conduct) Rules 1964 stipulates the individual and collective behaviour required of civil servants.7 In addition to prescribing the ethical conduct of civil servants, these rules also prohibit civil servants from resorting to strike action.8 Since their inception these service rules have provoked criticism regarding their constitutional validity and flouting of the guiding principles enunciated in Conventions Nos 87 and 98 (Aggarwal 1972). Similar rules have been established for state level civil administration workers, including other public servants like teachers who are not involved in administration of the State. It is beyond the scope of this study to provide an overview of the applicable state level regulations in this regard. Public service unions The complexity of the trade union picture in India reflects the societal complexity and the peculiarities of the country’s political and economic development. Historically, a close relationship has evolved between trade unions and different political parties based on ideological orientation. Trade unions were also mainly concentrated in PSU given this sector’s dominant role in the Indian economy. Although the character of Indian trade unions is gradually changing, partially evidenced by a reorientation towards the unorganised sector and the emergence of independent unions, political unionism remains a dominant feature (Sinha 2005). Trade union membership still remains largely skewed towards PSU. Union density in India has hovered around 10 per cent since the early nineties. This is low compared to emerging economies like South Africa and Brazil. There are no reliable estimates of collective bargaining coverage available although it is assumed to be less than the estimated union density (ILO 2018). Collective bargaining has historically been concentrated at a centralized sectoral level in large state-owned undertakings (steel, coal, railways, banks/insurance) and a few large private companies. A shift towards more decentralized bargaining in the private sector has become evident following the liberalization of the economy since the early nineties. However, this seems in the main a feature of the manufacturing sector, especially in automotive enterprises. India has 12 central trade union organisations (CTUO’s) officially recognised by the Ministry of Labour and Employment (MOLE). These central unions have affiliates operating across different economic sectors and states. According to the latest MOLE (2014) data about 11,556 unions were registered but of these only 2,534 were submitting membership returns. The total union membership was estimated to be just over 9 million workers. The number of registered unions has been on a downward trend since 2000 while the overall membership level appears more volatile. These figures do not correspond with the higher membership claimed by the central trade unions with estimates closer to 60 million (Annex). The central trade unions have established a joint trade union platform of central unions and independent federations to coordinate national level actions. 7This includes devotion to duty, refraining from unbecoming behaviour and sexual harassment, promptness and courtesy, observance of policies, age of marriage, preservation of environment and wildlife and cultural heritage, crime prevention against women. 8Clause 7(ii) specifically prevents civil servants from resorting to strike action, including go slows, mass absence or concerted casual leave and gherao. It applies to every person appointed to a central civil service post (including civilians in the Defence Service). 18 ILO Working Paper 73 Employment in India’s public administration reflects a pyramidal occupational structure with over 93 per cent of employees in the lower category posts (group C and group D) (Nagaraj 2016).9 These workers are the main source of union/association membership and also form a key voting constituency, especially at State government level. Local political dynamics and labour relations are closely inter-related especially given the restrictions on union organisation and collective bargaining in the public services as a whole. There are no reliable figures on the number of employee associations and their membership in the public services. The global union federation Public Services International (PSI) estimates that the number of employee associations is over 11,000 (Smith 2021b). Although these associations are not required to register with the department of labour many are affiliated to one or the other of the main central trade unions. Their membership is thus very likely reflected in the overall membership statistics declared to MOLE by the CTUO’s. The Department of Personnel falls under the Ministry of Personnel, Public Grievances and Pensions, it is the lead ministry responsible for administration and coordination of the relationship with staff service associations at central government level. It oversees policy formulation and provides oversight on matters related to the recruitment, regulation of service condition, transfers and related matters. When the Civil Service (Recognition of Association) Rules were first introduced, nine central service associations were recognised. When these rules were superseded in 1993, the new provisions allowed inter-alia for a check off system. The implementation of the service rules has not been without its challenges, even receiving parliamentary attention in a case involving the public broadcaster. 10 Despite the check off system, it has been difficult to obtain data on the number and membership of recognised associations throughout the country. Anecdotal evidence suggests that the number of recognised associations at state and national level runs into the thousands. The Confederation of Central Government Employees and Workers Association is one of the major umbrella bodies representing central government employee associations at an apex level. It participates in the National Joint Council of Action (NJCA), a loose coordinating body that speaks on behalf of central government employees. According to one news report, the NJCA represents more than 3.3 million central government employees (NDTV 2016). The Government Employees National Confederation is another important apex body, it represents both central and state level member associations. The following associations are affiliated to the global union federations Public Service International (PSI) and the Education International (EI): ●Indian National Municipal and Local Bodies Workers Federation (INMLBWF) - PSI; ●Karnataka State Government Employees Association (KSGEA) - PSI; ●Mumbai Mahanaga Karmarchari Mahasangh (MMKM) - PSI; ●Nagpur Municipal Corporation Employees Union (NMCEU) - PSI; ●National Organisation of Government Employees (NOGE) - PSI; ●Tamil Nadu Government Officials Union (TNGOU) - PSI; ●Tamil Nadu Secretariat Association - PSI; ●United Nurses Association (UNA) - PSI; 9There are four broad categories of public servant posts: Class I or Group A (gazetted senior civil servant); Class II or Group B (gazetted and non-gazetted); Class III or Group C (non-gazetted); Class IV or Group D (non-gazetted). 10 This case involved a loss in recognition status of previously recognised association at All India Radio. The associations’ recognition was eventually restored following a protracted legal battle and intercession by members of parliament in 2011 (AARTE). 19 ILO Working Paper 73 ●Central Government Employees Association - PSI; ●All India Primary Teachers’ Federation (AIPTF) - EI; ●All India Federation of Educational Associations (AIFEA) - EI; ●All India Federation of Teachers’ Organisations (AIFTO) - EI; ●All India Secondary Teachers' Federation (AISTF) - EI. Nepal Freedom of association and the right to organize in the public services The genesis of the trade union movement in Nepal is linked to the mass strikes for improved wages and working conditions by workers in the Jute Mills circa 1947. Over the following years, workers organizations operated mainly underground with many of them playing a prominent role in the struggle against authoritarian rule (Kyloh 2008). Sectoral and confederal level union organizations, operating clandestinely, began emerging during the late 80’s-early 90’s in both public and private sectors when the advent of multi-party democracy in 1990 ushered in a new era of labour relations. This period birthed the first tripartite Labour Advisory Council, the Labour Act 1992, and the Trade Union Act 1993. Nepal ratified Convention No. 98 in 1996. This “conducive” environment spurred a rapid expansion of enterprise unions and growth in union membership in different economic activities, but it was relatively short-lived. It deteriorated from 2000 onwards as political instability and civil conflict flared up again, eventually resulting in the election of a Constitutional Assembly and the abolition of the monarchy in 2008. According to Kyloh (2008), this period also coincided with a policy push by government towards deregulation and labour market flexibility supported amongst others by the World Bank. This attempted roll back of trade union rights in 2006 generated strong labour opposition, with public service unions playing a prominent role and culminating in a decade long labour law reform process.11 In 2015 the Constitutional Assembly promulgated a new constitution, enshrining the right of citizens to form unions and associations as a fundamental right. It also established a right to employment and social security for all citizens and gave “labourers” the right “to form and join trade unions and to engage in collective bargaining, in accordance with law”.12 Nepal has ratified seven of the ILO fundamental Conventions including Convention No. 98 but is yet to ratify Convention No. 87. An amended Labour Act was approved in 2017, as a result of a decade-long consultation process with significant ILO technical support. Its scope has been extended to include a wider spectrum of economic activities, including contract workers, domestic workers and tea plantation workers. Other significant changes include: ●Removal of the need for administrative approval prior to termination due to retrenchment or layoffs. ●Reducing the requirement to pay full salary for striking workers to 50 per cent payment; 11 This tripartite social dialogue process received strong ILO technical support – it aimed to review the main labour laws in conjunction with the Social Security Laws. The Trade Union Act has yet to be amended and the Social Security Act has not yet been approved. 12 Defined as “A labourer or worker who does physical or mental work for an employer in consideration for remuneration.” 20 ILO Working Paper 73 ●Streamlining the dispute resolution mechanisms to include shorter timeframes for resolving collective disputes; ●The promotion of bargaining at different levels including sectoral bargaining. Section 123(1) specifies that trade union associations may form bargaining committees and submit collective bargaining claims to employer associations in the tea plantation, construction, carpet, labour provider and transportation sectors. It also contemplates similar rights for associations of trade unions in respect of “other group[s] of manufacturers producing similar nature of goods or service providers providing similar nature of service or business as prescribed”. This provision does not draw a distinction based on the nature of ownership, and the government owned 43 enterprises in several sectors in March 2020, which contributed 13.9 per cent of total government income in 2018-19 (Ministry of Finance 2021, paras 3.68-3.69). The new law retains the ministerial discretion to impose compulsory arbitration on parties to resolve collective disputes if mediation fails. It also has a provision forbidding strikes while the collective bargaining process is underway (Rueda 2017). The armed forces, police, and civil employees are excluded from the provisions of the Labour Act. Article 180(b) of the Labour Act reads: “The prevailing law relating to civil service shall apply in the case of the civil service.” The Nepali Civil Service Act 1956 was the original legal foundation on which a modern public administration system in Nepal was first built. Following the transition to a constitutional monarchy, it was superseded by the Civil Service Act 1993. This Act applies to “civil employees”, it gives expression to their freedom of association and provides for the recognition of trade unions and collective bargaining for certain categories of civil employees. However, these rights seem to have come under sporadic threat: In 2005, a special Civil Ordinance directive sought to normalize contract-based posts and revoke the right of civil employees to join trade unions. This action met stiff resistance from public service unions as well as strong international criticism. In 2018, a proposed Federal Service Bill also sought to limit trade union activity in the public service, but it also met with strong opposition. Its adoption has been delayed until 2023 (Shrestha 2021). The Civil Service Act organizes the civil administration according to gazetted services including general administration, education, judicial, health, engineering, forest, agricultural, and miscellaneous services. Members of the civil service are recruited by the Public Service Commission and (more recently) the Provincial Service Commissions. Police and military officers are excluded from the jurisdiction of the Public Service Commission and the Civil Service Act. Civil administration posts are grouped into three broad categories across these services: ●Four classes of gazetted13 (executive/managerial level) posts (special; gazetted first; gazetted second; gazetted third); ●Four classes of non-gazetted (first; second; third; fourth); ●Classless posts. The total number of civil employees was estimated to be around 80,108 in 2014, compared to earlier estimates of around 102,000.14 The gender profile is roughly 85 per cent male and 15 per cent female. This is an improvement on the 7-8 per cent female representation which existed prior to the targets introduced by the second amendment to the Civil Service Act. About 46 per cent of civil administration employees are in the general administration cadre; roughly 2 per cent in education; and about 21 per cent in health (Bajracharya and Grace 2014). This excludes the police and armed forces as well as the broader categories of workers involved in the delivery of social services like health and education. 13 Appointments to gazetted posts are made through the Public Service Commission(s), and are publicly announced in the official government notice or “gazette”. 14 Administrative reform commission in 1991 – proposed a reduction of posts to around 77,000. 21 ILO Working Paper 73 XTable 1. Summary of employees involved in administration of the Nepali State Categories of Civil Administration Posts Males Females Total Gazetted 15,983 1,971 17,954 Non-Gazetted 32,687 8,774 41,461 Classless 19,175 1,518 20,693 Total 67,845 12,263 80,108 Source: Bajracharya and Grace, 2014 Like India, the Nepali civil service is “bottom heavy” with the bulk of posts in the lower-rated occupations, which also form the main union constituency. Section 53 of the Civil Service Act only allows employees who are in gazetted third class or lower posts to form national level trade unions. This excludes gazetted third-class employees who “work as the head of the office”. Trade unions of civil employees are further required to register with the Department of Labour and Employment Promotion. The new Ministry of Federal Affairs and General Administration is responsible for coordination and administration under the Civil Service Act and leading policy coordination on public administration matters as well as overseeing the coordination and regulation of conditions of service of civil administration employees. Profile of public service unions Overall union density in Nepal grew from an estimated 6.8 per cent in 2002 to an estimated 11.9 per cent in 2015 (Rueda and Shah 2018). There are currently 10 national centres (confederations/federations) in existence. The Joint Trade Union Coordinating Committee (JTUCC) was founded as the main forum for promoting cooperation and facilitating coordinated activities between the main national centres. The three major national centres have a combined membership of over one million workers: ●The All Nepal Trade Union Federation (ANTUF) is estimated to have a membership of 400,000. It has thirty affiliate unions operating in a variety of manufacturing and service-related activities. ●The General Federation of Nepalese Trade Unions (GEFONT) has twenty affiliates representing a membership of approximately 387,418 workers. It also operates in diverse economic activities mainly in the private sector. ●The Nepal Trade Union Congress (NTUC) is the oldest confederation in the country. It claims a combined membership of 400,000 drawn from 25 affiliates in different sectors. NTUC affiliates have a relatively strong presence in the health, education and government clerical services. According to the International Trade Union Confederation (ITUC), the Nepal Trade Union Congress (NTUC) has 425,014 members; the General Federation of Nepalese Trade Unions (GEFONT), 440,712; and the All Nepal Trade Union Federation (ANTUF), 410,317 (ITUC, 2021). The Confederation of Nepalese Professionals is the main national body representing 24 affiliate unions in the public sector with an estimated combined membership of roughly 200,000 (Smith 2021c). It is affiliated to the World Federation of Trade Unions (WFTU). The following table highlights some of the main unions operating in the public services/administration sector. 22 ILO Working Paper 73 XTable 2. Main trade unions operating in the public services Count Union Affiliations Confederation of Nepalese Professionals WFTU Nepal Government Employees Union None Nepal Civil Service Employee’s Association (NECSEA) NTUC /PSI Union of Public Services (UPSN) NTUC/PSI Nepal Customs and Airport Workers Union (NCAWU) PSI Health Professional Organization of Nepal (HEPON) GEFONT/PSI Nepal Health Volunteer Association (NHVA) PSI Nepal Health Workers and Employees Union (NHWEU) PSI Health Volunteer Organization of Nepal (HEVON) PSI All Nepal Government, Temporary, Daily Wage, Contract Worker Union ANTUF All Nepal Social Institution National Workers Forum ANTUF Nepal National Teachers Association(NNTA) EI National Teachers Organisation EI Source: Authors tabulation drawn from PSI/EI/WFTU websites Sri Lanka Profile of public service employment Historically, the public sector has played an integral role in the economic development of Sri Lanka. Despite episodic attempts at privatisation, state-owned enterprises and utilities remain a significant contemporary factor in the overall economy. The share of investment in state-owned enterprises as a percentage of total investment rose sharply from 5 percent in 2011 to 15 percent in 2015 and contributed a significant 12 per cent of total GDP in 2015 (Athukorala et al. 2017). Table 3 below shows that public sector employment has more than doubled over the period between 1968 and 2016. XTable 3. Total Public Sector Employment (2006-2016) Year Public sector Semi government sector1Total employees 1968 303,674 115,355 419,029 1972 323,718 145,81 469,528 1980 368,849 228,531 597,38 1985 406,359 322,617 728,976 1990 421,009 279,583 700,592 1994 512,494 227,023 739,517 1998 561,163 213,789 774,952 2002 587,805 247,845 835,65 2006 626,992 226,306 853,298 2016 865,669 243,806 1,109,475 1The semi government refers to employees in state-owned enterprises, utilities and various regulatory bodies including the National Ports Authority. Source: Sri Lanka Department of Census and Statistics, Public and semi government sector employees in census years 1968-2016. 29 ILO Working Paper 73 Anecdotal evidence suggests a high propensity for protest actions including strike action amongst government employees. The restrictions on collective bargaining and the right to strike does not only affect workers involved in central civil administration. Many state level service conduct rules also prohibit strike action, including for workers involved in the provision of social services (Smith 2021a). Furthermore, following a teachers strike in 2013 the Supreme Court issued a ground-breaking ruling that “government employees had no fundamental, legal, moral, or equitable right to strike”.21 It is apparent that the social dialogue mechanisms and dispute resolution machinery requires improvement. Simmering grievances in an environment of weak dialogue and mistrust is bad for employee motivation and increases the risk of labour conflict. In the absence of effective social dialogue mechanisms trade unions in the public services may tend to rely more on their political leverage to serve member interests, a situation that is very evident in India (Nagaraj 2016). The Committee on Freedom of Association (CFA) of the ILO urged the Government of India in 2004 to amend the Tamil Nadu Services rules, to grant government employees other than those involved in the administration of the state the right to collective bargaining and strike action (ILO 2004). In 2007, the government informed the CFA that the rules had been repealed but had not granted these rights to public servants (ILO 2007). The CFA later encouraged the Government of India to amend the CCS (Recognition of Service Association Rules) in line with freedom of association principles. It also reminded the government that the Office remained ready to provide technical assistance to it in its consideration of the ratification of Conventions Nos 87, 98 and 151. The GOI has defended the current rules on the basis that government employees enjoy a high level of job security and are able to join associations and that existing mechanisms for negotiation/consultation and grievance handling are adequate (ILO 2013b). Nepal Determination of terms and conditions of employment According to section 27 of the Civil Service Act, 2049 (1993), a three-person committee of senior officials is mandated to review the remuneration of all civil employees and make recommendations to the government.22 The committee reviews the “dear allowance” on an annual basis and undertakes a comprehensive review of salary and other conditions/ facilities every three years. Experts and concerned stakeholders may be invited to make suggestions and inputs. In addition, the Civil Service Act grants civil service trade unions the right to negotiate on behalf of employees in gazetted “class three” posts or below, specifically as follows: “The authentic trade union of civil employees shall have the right to submit own professional demands and conduct social dialogue and collective bargaining at the concerned institution at the district, departmental and national levels. In the case of not forming the authentic trade union of civil employees, the trade union of civil employees formed pursuant to Sub-section (1) may conduct collective bargaining with mutual consent of each other (Section 53 (3) (b)).” The role of the three-person salary review committee overlaps with the collective bargaining process contemplated in section 53, in respect of employees in and below gazetted “class three” posts. The implications of this in practice is unclear. The Act does not spell out which issues may be negotiated and at which level. 21 The Government of Tamil Nadu in 2013 invoked essential service regulations to dismiss 170,241 employees and teachers. 22 The committee is chaired by the Chief Secretary of the Government of Nepal, other members include the Secretary, Ministry of Finance, and the Secretary Ministry of General Administration. (Ministry of Federal Administration and provincial affairs). 30 ILO Working Paper 73 However, the prohibition on the right to strike suggests that a weak notion of collective bargaining, more akin to consultation is intended. Individual civil employees have the right to a hearing in case of a disciplinary action. The facts and grounds for a charge must be explained, and the employee must be given an opportunity to make representation against a sanction. The official may lodge an appeal against decision at the Administrative Court whose decision is final. The Act is, however, silent on a dispute resolution mechanism to handle collective disputes that may arise in the context of these negotiations. Civil employees are excluded from the Labour Act and so cannot access the dispute resolution mechanisms available to workers in the private sector. XBox 3: The right to strike Civil Service Act, 2049 (1993): Section 50. Restriction on agitation and strike: No civil employee shall perform an agitation, participate in a strike or entice anyone to perform such acts in a manner to undermine the sovereignty and integrity of the Kingdom of Nepal, the law and order situation of the country, external relations and public decency, make contempt of court, create hatred among the peoples of various castes, tribes, religions, classes, regions and communities or aid and abet any crime. Section 51. Restriction on staging strike, detention and Gherao ["encirclement"]: No civil employee shall stage any strike or pen-down action and exert any pressure inflicting physical or mental suffering or entice other persons to commit such acts in a manner to cause hindrance or obstruction to any office or officer in the performance of the duties required by law. As indicated in the previous section, political dynamics in Nepal cast a long shadow of labour instability on its public service labour relations. This situation is aggravated by the relatively underdeveloped structures for social dialogue, collective bargaining, and dispute resolution across the public services. The efforts to reform public services, including a strong decentralization emphasis is another significant driver of conflict. In addition, like in India there is a growing reliance on volunteer workers to deliver primary social services as illustrated by the following excerpt. “There are currently more than 52,000 Female Community Health Volunteers [(FCHVs)] working across Nepal in rural and semi urban areas to provide safe motherhood, child health, family planning and immunization services. FCHVs do not receive a salary and are only provided with limited incentives, such as yearly clothing allowance, refreshment allowance during training and a stipend during vaccination campaigns. In total, these allowances represent less than 10% of the legal minimum wage in Nepal of NPR 9,700 (€75)” (Smith 2021b). Sri Lanka Public service labour relations in Sri Lanka seem susceptible to high levels of conflict. In 2017, 1,500 public administration workers participated in industrial actions for a total 8,800 workdays (ILOSTAT 2021). This has been variously attributed to a high degree of union politicization and fragmentation and inadequate social dialogue and dispute resolution mechanisms (Amerasinghe 2009; Ranaraja 2020; Thompson et al. 2014). One of the major drawbacks in labour-management relations in the public service in Sri Lanka is [the] non-existence of an environment for social dialogue and appropriate mechanisms to prevent and settle disputes. There is no proper environment for the employees and the management to come together to learn and listen to each other in order to find mutually acceptable ways in dealing with common problems and issues (Athukorala et al. 2017; Thompson et al. 2014). 31 ILO Working Paper 73 Social dialogue in the public service occurs on an ad-hoc informal basis. Depending on the nature of the issues involved, representations may be directed to the relevant head of department, ministry secretary, or department responsible for public administration, while “from time to time” the Ministry of Public Administration may have a dialogue with the main federations and unions (Amerasinghe and Ranunge 2007). Ministerial/ departmental level consultations may vary depending on the leverage of the unions and or the political will of the Minister in charge. A study on the role of teacher unions in Sri Lanka found that nearly all of them continuously attempt to use political or personal connections in informal, semi-formal or formal meetings (Thomassen 2015). The terms and conditions of service of public officials are specified in the Establishment Code. This two-volume tome is regarded by some as an “antiquated rule book” implemented in conjunction with “often inconsistent, superseding government circulars” (Thompson et al. 2014). The Ministry of Public Services, Provincial Councils and Local Government oversees its ongoing revision and updating in consultation with other ministries subject to the final approval of the Cabinet of Ministers. The National Pay Commission (NPC) is a special agency appointed by the president to advise and support government in the formulation of a national wage policy taking into account salary and remuneration in the public and private sector. In addition to making recommendations on remuneration, it is mandated to fulfil an arbitrator role in resolving disputes related to salaries and wages as well as disputes in relation to Schemes of Recruitment/Promotion and Service Minutes. Government agencies are, however, not obliged to follow NPC recommendations (although they do in practice) (Thompson et al. 2014).23 Article 54(1) of the Constitution established the Public Service Commission (PSC) to deal with policy and implementation of matters related to the promotion, transfer and disciplinary control of public officers. Prior to the establishment of the PSC these matters formed part of the mandate of the ministry responsible for public administration. Policy related decisions of the PSC are also subject to the authority of the cabinet ministers. The respective Provincial Service Commissions perform this function in respect of provincial government employees.24 The PSC has nine members who are recommended by Parliament and appointed by the President. The PSC has a coordinating role to ensure uniformity and equity within the public services. This includes a role in developing Schemes of Recruitment and Service Minutes that may impact on conditions of employment. However, its “decision making licence” in this regard, especially in reviewing or revoking departmental Service Minutes” and or Schemes of Recruitment”, has been called into question. Trade unions have expressed dissatisfaction “over the lack of opportunities to input into PSC processes” (Thompson et al. 2014). As a result, patronage-based appointments, politically motivated transfers and salary and grading anomalies are persistent issues and major drivers of employee grievance and instability in public service labour relations (Amerasinghe and Ranunge 2007; McCourt 2001). The absence of expedited alternative dispute resolution mechanisms to deal with collective disputes is another major systemic weakness. Collective issues are not adequately ventilated and resolved timeously causing simmering tensions (Ranaraja 2020). Matters related to an individual employee’s discipline or grievance are first dealt with at departmental level while the National Police Commission deals with disciplinary matters for the police. A government employee may appeal a departmental decision to the PSC or Provincial Public Service Commission as the case may be. However, government employees don’t have the right to defend a case in person and they may also not be represented by a trade union. They may appeal decisions of the PSC and the National Police 23 The NPC is reluctant to act in its capacity as an arbitrator, preferring mediation. 24 Provincial Public Service Commissions were established following the constitutional amendment in 1983 whereby certain functions and public services were decentralised to the provinces. They oversee the recruitment and training of workers employed by the provincial councils. 32 ILO Working Paper 73 Commission to the Administrative Tribunals established under the Appeals Tribunal Act No. 44. This option is, however, not available to provincial public service employees, who have to lodge appeals to the district court and Supreme Court of Appeal. The denial of the right to be heard and representation is inconsistent with the laws of natural justice. The system also suffers from long delays partly due to the lack of set time frames for finalising matters (Amerasinghe 2009). The lack of effective social dialogue in relation to public sector reform was observed by McCourt (2001): “Previous efforts to reform – have not included consultation with unions by the Sri Lanka Administrative Service Association (SASA) (staff officers). They are assumed to be hostile to reform – ‘Delays may result if there will be greater resistance by trade unions ... for reforms and downsizing’ warned one project document (UNDP 1997) - and so they have not been formally consulted. The unions bitterly resent this: ‘They have had no meeting formally,’ said one of them. ‘We wrote to them on this, but they didn’t reply. Our information comes from the media. There is no programme for us to give our views’. In fact the union position was complex. Certainly ACGCU was unequivocally opposed to compulsory redundancies, but it was open to a reduction in the size of the civil service through natural wastage, blaming overstaffing on the inability of politicians to resist the temptation of finding jobs for their supporters.” In 2020, the CEACR requested the government to take the necessary measures to ensure the right to collective bargaining for public servants who are not directly involved in the administration of the state (ILO 2021). In its 2018 observation, the CEACR noted that the Industrial Disputes Act excludes public servants and that “a mechanism for dispute prevention and settlement in the public sector was being developed with technical assistance from the ILO.” 25 The committee also urged the government to amend the Trade Union Ordinance to allow government staff officers to join federations and confederation of their choosing and to allow first level organizations to organize to cover more than one ministry or department in the public service (ILO 2019). The need to strengthen social dialogue mechanisms in the Sri Lankan public service has been acknowledged at the highest official level. In 2006, a presidential directive urged all ministries, statutory bodies, and public corporation to establish special employee consultative mechanisms to, inter-alia, “improve employee relations and enhance productivity and efficiency”. Although progress in this regard has been very slow, there are some encouraging signs that this process is being resuscitated, like the current joint Ministry of Health/WHO/ILO alternative dispute resolution pilot project underway in the health sector (Smith 2021d). 25 A process to establish this mechanism was reinitiated in 2021. 33 ILO Working Paper 73 XConclusion The three countries share several commonalities: ●Freedom of association is constitutionally guaranteed for public service workers but curtailed in law and practice for certain categories of public servants; ●The right to join a trade union is legally prohibited in respect of the armed forces and police; ●The autonomy of public service trade unions is restricted in law and practice albeit in different ways; ●Anti–union discrimination is prevalent; ●The regulation of terms and conditions of employment are determined by legislation or executive authority with varying modes of consultation, but consultative mechanisms tend to lie dormant or function in an ad-hoc manner; ●For most public servants the right to strike is prohibited in law or by using essential service regulations, yet public services labour relations are adversarial and prone to strike action; ●Dispute resolution mechanisms are not effective and are based on costly time-consuming quasi-judicial processes; ●Trade unions rely heavily on political relationships to advance their members’ interests; ●Outsourcing and contract labour has increased significantly, especially in India and Nepal; ●The lack of effective social dialogue is an obstacle to cooperation on public administration reform and modernization/decentralization of service delivery; ●There are significant gaps in official labour market information systems. India Although India has not ratified Conventions Nos 87 and 98, the guiding principles of these instruments have some resonance in the legal-institutional framework governing its public service labour relations. The federal nature of governance places a huge responsibility on state level/local institutions in terms of public service delivery. Concerted efforts to promote the principles in Conventions Nos 87 and 98 as well as 151 and 154 are best undertaken at state level. The joint consultative mechanism plays an important role, but its role could be further enhanced. The role and impact of the Board of Arbitration needs further study as a possible model for dispute resolution. Further analysis and evaluation of the joint consultative mechanism and its state level equivalents may provide a useful starting point for further effort to enhance social dialogue in the public services at the national and state level. The rapid growth and reliance on “scheme workers” to deliver basic social services presents a challenge but also a significant opportunity for collaboration between trade unions and government. Nepal The restructuring of the federal public administration faces resistance and would benefit from more social dialogue on the preparation of the Federal Service Bill. There may be scope for technical cooperation to develop adequate machinery for dispute resolution mechanisms to deal with interest disputes in the public service. The current ratification priorities determined by the social partners do not include Conventions Nos 87, 151 or 154. The One-UN approach is vital to ensure integrated technical support. The UNDP has 34 ILO Working Paper 73 provided technical support for re-structuring the public administration and readying it for “federalized” service delivery. The role of worker organizations and social dialogue needs more attention in the problem assessment and theory of change (Bajracharya and Grace 2014). Sri Lanka The resuscitation of efforts to develop an effective dispute prevention and resolution mechanism in the public sector is encouraging and may open up scope for promotional activities on Convention No. 151. Further research into this area may help to illuminate further possibilities for promotional work and make a strong “policy case” for more structured social dialogue mechanisms in the public services. More precise mapping of the union membership, and surveys of employee perceptions and concerns may be a good starting point to improve consultative mechanisms. 35 ILO Working Paper 73 Annex XAnnex Table 1. Registered trade unions and union membership in India Year No. Registered No. Submitting returns Membership (Thousand) 2000 66056 7253 5420 2001 66624 6531 5873 2002 68544 7812 6973 2003 74649 7258 6277 2004 74403 5252 3397 2005 78465 8317 8719 2006 88440 8471 8960 2007 95783 7408 7877 2008 84642 9709 9574 2009 22284 3861 6480 2010 19376 2937 5097 2011 10264* 2769 7421 2012 16768* 4785 9182 2013 11556 2534 3231 2014 12486* 4359 7885 * : Data pertains to responding State/ UTs only. Source: India, Ministry of Labour and Employment, 2014. XAnnex Table 2. Top nine trade unions of India No. Trade Union Year Established H. Q. Political Affiliation Membership (Million) 1. All India Trade Union Congress (AITUC) 1920 New Delhi CPI 14.2 2. Indian National Trade Union Congress (INTUC) May 3, 1947 New Delhi Indian National Congress 33.3 3. Bhartiya Mazdoor Sangh (BMS) July 27, 1955 New Delhi BJP 17.1 4. Centre for Indian Trade Unions (CITU) 1970 New Delhi CPM 5.7 5. 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