It will explain the basics of labour law.

1. Adv. Vijay Jayshwal
Kathmandu University School of Law
Labour and Indutrial Law (LIND
565)
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2. Overall Objectives of Course
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 There are total six units in the course and contact
hours is 48 excluding the class presentation,
assignment and group discussion.
 Each unit of LIND 565 has different learning
objectives in line with overall objectives of the course.
 This course is focused on various aspects of
jurisprudence related to labour and industrial
relations, their growth, sources, concept, values,
principles, theories, development, multilateral
institutions, regional institutions, global framework,
regional framework, national framework and others.
 This course is further developed in order to know
about the various dispute settlement mechanism,
bodies, institutional settings both at the national and
international levels.
 This course also focuses on wages, wage policies,
compensation, social security, retirement benefits,

3. Unit 1- Learning Objectives
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 This unit has aimed to deal with the basic concept of
trade union, their values, philosophy, norms,
international practices, case law, development/growth
of trade union, unionism as human rights, basic
framework of trade unionism and others,
 This unit has also aimed to deal with the basics of
collective bargaining, rational , development,
jurisprudence of collective bargaining, case law,
international laws on collective bargaining, Nepal’s
development on collective bargaining.
 This unit will also help to understand the legal
provision in order to deal with registration of trade
union, authorized trade union, unauthorized trade
union, their election procedure and others.
 The contact hour is 8.

4. Unit 2- Learning Objectives
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 It will explain about the various institutional and
non-institutional arrangement for solving the
labour disputes, legal mechanisms, labour court,
tribunal, power of government, case law,
jurisprudence of labour disputes and others.
 This unit will further help to understand the global
framework for solving conflict between employer
and employee, factories worker, international
standards, ILO bench mark, regional institutional
arrangements and others.
 This unit will also deal about the standards of
labour practices, unfair labour practices, ILO
Convention on fair recruitment , OECD model on
labour practices and others.

5. Unit 3- Learning Objectives
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 This unit will help to understand the basic concept
of key subject under labour jurisprudence such as
right to strike, rational for strike, kinds of strike,
lock-outs, lay-off, disciplinary action and domestic
inquiry.
 This unit will further help to understand the
international jurisprudence related to instruments
of economic coercion, case law, legal provision,
institutional and non-institutional benefits,
approaches to strike and developing ideas.
 This unit will further help to understand the
current practices relating to strike and industrial
relationship.

6. Unit 4- Learning Objectives
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 This unit will explain about the philosophy of
minimum wage practices, international standards,
rational, features, global framework, regional
initiatives, ILO framework on Minimum wage,
determinant on minimum wages and others.
 This unit will further help to understand the
national mechanism in order to fix the minimum
wages, fixation of wage period, constitutional
validity of minimum wages, case law and issues
under it.
 This unit will further talk about the basic
international practices of wages, case law,
development from ILO, institutional and non-
institutional initiatives for uniform wages etc.

7. Unit 5 –Learning Objectives
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 This unit will help to understand the values of
factories law (industries law), rational for
development of factories law, case law,
international law on industrial relationship,
concept of factories law.
 This unit will also help to understand the case law
decided by labour court on factories disputes,
developing jurisprudence, comparative factories
law of Asian countries (Nepal, India, Pakistan,
Bangladesh and China).
 This unit will also help to know about the
relationship between the different factors for the
factories disputes, ILO framework on factories
law, non-institutional and institutional initiative for

8. Unit 6- Learning Objectives
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 This unit will talk about the jurisprudence of
compensation, rational, features, modes,
approaches of compensation law, developing
cases on it.
 This unit will also talk about the social protection
scheme such as contribution based social
security scheme, welfare legislation , key initiative
under tripartite framework on labour law, case
law, conflict over compensation scheme and
others.
 This unit will also deal about the employee’s
provident fund, informal sector, unorganized
labour practices, doctrine of notional extension

9. References
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 Surya Narayan Misra, An Introduction to Labour
and Industrial Law” ( Allahabad Law Agency,
1978).
 S.C. Srivastva, Industrial Relations and Labour
Law (Vikas Publishing House, New Delhi,2012).
 Other as prescribed by subject teacher. THAT’S
ME.

10. AGENCIES WORKING IN LABOUR SECTOR
(INTERNATIONAL)
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RESEARCH……

11. Labour Law as Such…
 The term "labor law" does not mean what it seems to.
It seems to mean all of the law that applies to
workers and employers.
 In fact, "labor law" refers to only a part of the law that
applies to unions and private employers.
 Labour law- employment, remuneration, conditions of
work, trade unions, and industrial relations.
 In the last seventy-five years, the law has grown to
include topics such as minimum wages, health and
safety on the job, unemployment insurance, pension
plans, race and sex discrimination, and so forth.
 A new term, "employment law," has been coined for
these laws.
 But "labor law" still means the law of unions and
private employers. (Similarly, the term "labor relations"
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12.  “There is no comprehensive and conceptionally
coherent definition of labour law”
 It is not always helpful to view labour law as being
primarily a set of laws issued by a State. Such as,
federal statutory law and state statutory law,
Equal Employment Opportunity Commission
(EEOC), USA.
 In many jurisdictions, much of what governs
conduct at the workplace is the content of
agreements, informal understandings, and formal
instructions that originate within the workplace.
Such as, MoU and Bilateral Agreement.
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13. 12/27/2019

14.  In the early phases of development the scope of
labour law is often limited to the most developed
and important industries.
 A body of law originally intended for the protection
of manual workers in industrial enterprises is
gradually transformed into a broader body of legal
principles and standards, which have basically
two functions:
The protection of the worker as the weaker party
in the employment relationship,
The regulation of the relations between organized
interest groups (industrial relations).
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15.  People's Union for Democratic Rights v Union of
India (1982) 2 LLJ 454 (SC);
 M.C. Mehta v Union of India AIR 1987 SC 965;
 Bandhua Mukti Marcha v Union of India AIR 1984 SC
802;
 Neeraja Choudhary v State of MP AIR 1984 SC 1099.
 “The Supreme Court has played significant role in the
evolution of industrial juris-prudence during the last fifty
years. It has not only made a distinct contribution to the
law relating to industrial relations, social security
and minimum, standards of employment but has
innovated new methods and devised new strategies for
providing access to justice to weaker sections of
society.”
 SC of India has played key role in order to make
amendment in most of the labor related legislation.
 SC stood as protector of rights of weaker section in
industrial relations.
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16.  People's Union for Democratic Rights v Union of India
is an epoch-making judgment, which gave a new
dimension to minimum wage, employment of children,
enforcement of labour laws and public interest
litigation.
 In the case, the court ruled that nonobservance of the
provisions of the Equal Remuneration Act, 1976, is, in
effect and substance, breach of the principle of
equality before the law, enshrined in article 14 of the
Constitution,1950.
 Likewise, non-observance of the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970 and the Inter-
State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 are violative of article 21
of Indian Constitution.
 Labor legislation is not as an independent law,. Its
provision can be linked with the constitutional Articles. It’s
called, principle of interdependent and interrelated. 12/27/2019

17. Purpose of Labour Law
 To correct the imbalance of power between the
worker and the employer: by protecting workers’
right to organize in trade unions and to bargain
collectively, and to putting in place safeguards
which prevent the employer from dismissing the
worker without good cause, labour law sets up and
preserves the processes by which workers are
empowered to negotiate from a position of
“equality” (or, at least, of less inequality).
 To prevent working conditions being pushed
below levels society deems acceptable: by
placing restrictions on the contracting partners’
freedom to contract on whatever terms they wish,
and setting minimum standards over issues such
as working time, health and safety, and pay, the
law limits the degree to which the more powerful
party can exploit the weaker.
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18.  To regulate the labour market: a State may choose to implement
legislation to place either maximum or minimum limits on wages,
either nationally or in particular sectors or industries.
 An example of such legislation from 1349 is frequently cited as the
first example of labour law.
 The Statute of Labourers placed restrictions on wage increases
when, in the aftermath of the plague in England, workers – greatly
reduced in numbers – found that they were able to agitate to
command higher wages.
 The 1349 Statute criminalized these actions as a means to keep
wages down.
 To limit trade union freedom: labour law is also used as an
instrument to limit and control trade unions.
 It is in considering this aspect that trade unionists will be inclined to
ask whether they really need labour legislation at all.
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19. Dimension of Labour Law
 Labour law has three dimensions:
(1) empirical (has the real world changed so much
as to leave traditional labour law beside the point,
inoperable, fading from view?);
(2) conceptual (are our basic concepts of
‘employee’, ‘employer’, employment contracts,
and so on, still viable and capable of organizing
our thinking in a useful way?); and
(3) normative (are the moral ideas which motivate
our enterprise still salient, robust, and capable of
rallying us to the continued defence of our
subject?). 12/27/2019

20.  Labor law has traditionally encompassed the
relationships among unions, employers, and
employees.
 Labor laws grant employees in certain sectors the right
to unionize and allow employers and employees to
engage in certain workplace-related activities (for
example, strikes and lockouts) in order to further their
demands for changes in the employer-employee
relationship.
 Employment law, on the other hand, is defined more
broadly as the negotiated relationships between
employers and employees.
 Although employment lawyers deal with many of the
same parties as labor lawyers (i.e., workers and
companies), they conventionally address issues that
fall outside the framework of union-management
relations and collective bargaining.
 As a result, the extent to which statutes or regulations
pertain to unions and union-workers usually
determines whether or not they are regarded as
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21. Scope of Labour Law
 Employees and employers are broadly covered by labour
legislation in each of the GMS countries (The Greater
Mekong Subregion (GMS) is a natural economic area bound
together by the Mekong River, covering 2.6 million square
kilometers and a combined population of around 326 million.
The GMS countries are Cambodia, the People's Republic
of China (PRC, specifically Yunnan Province and Guangxi
Zhuang Autonomous Region), Lao People's Democratic
Republic (Lao PDR), Myanmar, Thailand, and Viet Nam),
with certain exceptions:
 In Cambodia, labour legislation does not apply to judges of
the judiciary and those employed in permanent positions in
the public service.
 Lao labour legislation does not apply to civil servants,
military and police personnel employed in Party or State
organisations, the Lao Front for National Construction and
mass organisations.
 In Thailand, labour legislation does not apply to Central
Administration, Provincial Administration, Local
Administration including Bangkok Metropolitan and Pattaya
City or State Enterprises.
 Vietnamese labour legislation does not apply to State
employees and officials, elected and appointed officials,
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22.  Labor Laws apply to a factory, company,
organization, institution, firm or its group:
 Having established as per the existing law,
 With the object of undertaking an industry,
business or providing service,
 Where ten or more worker/employees work.
 It also applies to Tea Estates and any industry
established in the Industrial Estate even if less
than 10 workers/ employees work there.
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23. Sources of Labour Law
 National and Supranational Sources are cited for
Labour law.
 In the French system, for example, it is generally not
the rule closest to the top of the hierarchy which
dominates, but the rule “most favourable to the worker”.
1. National Constitution- Article 17 (1) (d)- freedom to
form unions and associations, Article 34 (Right to
Labour)
 Article 34 (1)-Every laborer shall have the right to fair
labour practice .(?), what are indicators of fair labour
practices? What is concept and definition of it?
 Article 34(2)- Every labourer shall have the right to
appropriate remuneration, facilities and
contributory social security.
 Article 34(3)- Every labourer shall have the right to
form and join trade unions and to engage in
collective bargaining, in accordance with law.
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24. Collective Agreements
 Collective agreements are a central pillar of labour
regulation throughout the world.
 Agreements might be negotiated at national, sectoral,
regional, branch or enterprise level and, depending on
the general legal framework, the terms of the
agreements may be legally binding or not.
 One possibility is for collective agreements to be
given a legal status by a statutory bargaining system.
 In continental Europe the collective bargaining
process, or “social dialogue”, is used widely to make
and to implement law.
 In Belgium, collective agreements gain their legal
status not under principles of private contract law but
under a labour law statute.
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25. Labour legislation
 Many jurisdictions have, over the past 30 years or so,
seen a rise in the number of labour law statutes.
 In part this can be explained by the growth of the neo-
liberal agenda and the desire to “rein in” the trade
unions with legislation that tightened up control of
union elections, political spending, and industrial
action.
 Labour law statutes other than a single “code” exist in
both common law and civil law traditions. In some civil
law systems statutes provide more detailed regulation
of particular labour issues and are applied alongside
the basic labour code.
 In the common law systems (and some civil
jurisdictions) there is no single labour code but rather
a body of statutes that regulate different aspects of
labour law
 Labor Act 2074 B.S. and Rules 2075.
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26. Part-4, Directive Principles, Policies and
Obligations of the State
(i) Policies relating to labour and employment:
(1) to make competent and professional the labour force that
has remained as the main socio-economic strength of the
country and enhance employment within the country, while
ensuring a situation enabling all to work,
(2) to guarantee social security, while ensuring the basic
rights of all labours, in consonance with the concept of
decent labour,
(3) to abolish all forms of labour exploitation including child
labour,
(4) to encourage participation of labours in management,
while maintain cordial relations between the labours and
entrepreneurs,
(5) to regulate and manage the sector in order to make
foreign employment free from exploitation, safe and
systematic and to guarantee employment and rights of the
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27. The contract of employment
 Prior to 1875, workers throughout a large part of
the world then under British rule were not treated
as equals before the law. The legal position,
formally described as “master and servant” was
such an “open and visible legal relationship of
subordination” that “large sections of the working
class had revolutionary, anti-capitalist views”.
 The reinterpretation of this relationship into a
contractual partnership between equal parties
demonstrates an attempt to mask the power
relationship that is at the heart of the employment
dynamic. Otto Kahn Freund wrote in 1972:
“The relation between an employer and an isolated
employee or worker is typically a relation between
a bearer of power and one who is not a bearer of
power. In its inception it is an act of submission, in
its operation it is a condition of subordination and
the subordination may be concealed by that
indispensable figment of the legal mind known as
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28. Supranational sources of law
 Labour law also originates from a number of
international sources. The sources referenced
constitute forms of “hard law”.
 Whether or not international laws can be enforced is
largely determined by the question of whether the
state in question operates a “monist” or “dualist” legal
system.
 In a monist system, international legal rules ratified
by the state become part of the national legal system,
enforceable in national courts.
 In a dualist system international legal rules are
generally considered to be unenforceable within the
national context, although these ideas have frequent
exceptions.
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29.  The main sources of supranational law include:
 International treaties, such as the UN covenants
and the ILO Conventions;
 Jurisprudence of international bodies, such as the
Freedom of Association Committee of the ILO;
 International customary law, which includes, for
example, prohibitions on forced labour;
 Bilateral trade agreements, into which labour law
principles may be written; Labour law frameworks
emanating from regional trading blocs, such as the
EU;
 Regional human rights treaties, such as the
human rights instruments of the Council of
Europe, the Organization of American States and
the African Union, all of which contain a
commitment to basic trade union rights.
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30. Soft laws
 Formal soft law and material soft law :- In the case
of standards with an indeterminate injunctive
structure, containing phrases such as “if States see
fit” or “as may be deemed appropriate”, the softness
is in the substance of the proposition.
 In such cases, soft law is material and refers to the
standard-setting density of the written formulation of
the obligations provided for in an instrument which, on
the other hand, may itself be hard.
 Flexible provisions are extremely frequent in treaties,
and notably in international labour Conventions.
 Despite their softness, their obligatory nature should
not be called into question, as they are contained in
an instrument of hard law.
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31.  Formal soft law, for its part, plays the role of a
subsidiary category. It consists of the standard-setting
instruments that are not listed in Article 38 of the
Statute of the International Court of Justice (ICJ).
 The softness of the resolutions of international
organizations, declarations, concerted acts between
States by gentleman’s agreement only, of the ICJ’s
advisory opinions, the Recommendations of quasi-
judicial monitoring mechanisms or the codes of
conduct adopted by multinational corporations derives
more from the juridical underpinning than from the
substance of the standard-setting proposal, which
may be very detailed.
 Formal soft law opens up the legal system to the
presence and standard-setting activity of international
organizations and atypical actors.
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32.  Codes of conduct:-The International Labor Rights Fund is
currently using a corporate code of conduct as the basis
for a legally complex action against Wal-Mart in a national
court, arguing that the code has been incorporated into
contractual agreements.
 Global Framework Agreements:-The agreements
between Global Union Federations and multinational
employers has been interpreted by some as an early
development towards global collective bargaining. As yet
the legal status of these agreements is unknown.
 OECD guidelines:- These quasi-legal rules provide a
complaint mechanism which leads to an administrative
decision by a government department. At present many
complaints fail but it may be that a more legalistic
approach to the guidelines would result in better case
selection and preparation 12/27/2019

33. Development of Labour Law
 The history of labour law has been told very often.
 In the 19th century it became evident that the competition
between individual employees at the labour market was a
race to the bottom and that only collectivization of employees
combined with protective legislation could prevent this
destiny.
 Therefore, the interplay between collective self-regulation
and legislative intervention from the very beginning
characterized labour law.
 The main goal always has been to compensate the
inequality of the bargaining power.
 Paul Davies and Mark Freedland’s KahnFreund’s Labour
and the Law the point is forcefully expressed as follows:
 The relationship between an employer and an isolated
employee is typically a relationship between a bearer of
power and one who is not a bearer of power . . . The
main object of labour law has always been, and we
venture to say always will be, to be a countervailing
force to counteract the inequality of bargaining power
which is inherent and must be inherent in the
employment relationship. 12/27/2019

34.  In recent years there has been a rapid expansion
of quasi-legal labour rules emerging at the
international level, or “soft law”.
 Typically, these rules cannot be enforced in any
court, but they may have alternative forums that
may be petitioned to encourage compliance.
 It is becoming increasingly important for lawyers,
academics and trade unionists to make use of
them in securing justice in the workplace.
 The leading academic commentator Harry Arthurs
observed that “the significance of non-state labour
law is likely to grow proportionately”.
 The result of this change is that labour lawyers are
“more and more … likely to be preoccupied with
the significant corpus of labour law which
originates from sources other than the state.
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35.  Harry Arthurs, “that the law of the workplace is
still largely generated from within”. The rules of
workplace culture, custom and practice, the
employment contract, the works rule-book or
employee handbook, and collective agreements
often form the core of the rules governing the
employment relationship. Legislation becomes
relevant only to fill gaps or ensure minimum
standards.
 Brian Langille refers to the collision of concepts,
legal frameworks and diverse points of reference
that make up the subject we know as labour law
as “a slice of life” rather than a unified legal12/27/2019

36.  The origins of labour law can be traced back to the remote
past and the most varied parts of the world. While
European writers often attach importance to
the guilds and apprenticeship systems of the medieval
world, some Asian scholars have identified labour
standards as far back as the Babylonian Code of
Hammurabi (18th century BCE) and the rules
for labour-management relations in the Hindu Laws of
Manu (Manu-smriti; c. 100 CE); Latin American authors
point to the Laws of the Indies promulgated by Spain in
the 17th century for its New World territories.
 Labour law as it is known today is essentially the child of
successive industrial revolutions from the 18th century
onward.
 Similarly at the time when the 18th-century Enlightenment,
the French Revolution (1789-1799), and the political forces
that they set in motion were creating the elements of the
modern social conscience for need of labor law.
 It developed more in industrialized countries of western
12/27/2019

37.  The first landmark of modern labour law was
the British Health and Morals of Apprentices
Act of 1802, sponsored by the elder Sir Robert
Peel.
 Similar legislation for the protection of the young
was adopted in Zürich in 1815 and in France in
1841.
 By 1848 the first legal limitation of the working
hours of adults was adopted by the
Landsgemeinde (citizens’ assembly) of
the Swiss canton of Glarus.
 Sickness insurance and workers’
compensation were pioneered by Germany in
1883 and 1884, and compulsory arbitration in
industrial disputes was introduced in New
Zealand in the 1890s.
12/27/2019

38.  The more-industrialized states of the United States began to enact such
legislation toward the end of the 19th century, but the bulk of the
present labour legislation of the United States was not adopted until
after the Great Depression of the 1930s.
 There was virtually no labour legislation in Russia prior to the October
Revolution of 1917.
 In India children between the ages of 7 and 12 were limited to nine
hours of work per day in 1881 and adult males in textile mills to 10
hours per day in 1911, but the first major advance was
the amendment of the Factory Act in 1922 to give effect to conventions
adopted at the first session of the International Labour Conference at
Washington, D.C., in 1919.
 In Japan rudimentary regulations on work in mines were introduced in
1890, but a proposed factory act was controversial for 30 years before it
was adopted in 1911, and the decisive step was the revision of this act
in 1923 to give effect to the Washington Convention on hours of work in
industry.
 Labour legislation in Latin America began in Argentina in the early years
of the century and received a powerful impetus from the Mexican
Revolution, which ended in 1917, but, as in North America, the trend
became general only with the impact of the Great Depression. I
12/27/2019

39.  The legal recognition of the right of association for trade
union purposes has a distinctive history.
 There is no other aspect of labour law in which
successive phases of progress and regression have
been more decisively influenced by political changes
and considerations.
 The legal prohibition of such association was repealed
in the United Kingdom in 1824 and in France in 1884;
there have been many subsequent changes in the law
and may well be further changes, but these have related
to matters of detail rather than to fundamental principles.
 In the United States freedom of association for trade
union purposes remained precarious and subject to the
unpredictable scope of the labour injunction, by means
of which the courts helped restrain trade union activity
until the 1930s.
 The breakthrough for trade unionism and collective
bargaining was achieved by the National Labor
Relations Act (the Wagner Act) of 1935,USA.
 This has certainly been the case with Germany, Italy,
Spain, Japan, and much of eastern Europe; there have
been many illustrations of it, and there may well be more
12/27/2019

40.  Labour codes or other forms of comprehensive
labour legislation and ministries of labour were
not introduced until the 20th century.
 The first labour code (which, like many of its
successors, was a consolidation rather than a
codification) was projected in France in 1901
and promulgated in stages from 1910 to
1927.
 Among the more advanced formulations
affecting the general condition of labour were
the Mexican Constitution of 1917 and
the Weimar Constitution of Germany of 1919,
both of which gave constitutional status to
certain general principles of social policy
regarding economic rights.
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41.  Departments or ministries of labour responsible
for the effective administration of labour
legislation and for promoting its future
development were established in Canada in
1900.
 In France in 1906, in the United States in 1913, in
the United Kingdom in 1916, and in Germany in
1918.
 They became general in Europe and were
established in India and Japan during the
following years and became common in Latin
America in the 1930s.
 A labour office was established in Egypt in 1930,
but only in the 1940s and ’50s did similar
arrangements begin to take root elsewhere in
Asia and Africa.
 Under differing political circumstances there
continue, of course, to be wide variations in the
authority and effectiveness of such administrative
12/27/2019

42.  Labor law is an offspring of the social and political
action of the working class movement.
 In England, Robert Owen inspired the foundation
of the Grand National Consolidated Trades
Union in 1834,
 Ferdinand Lassalle founded the General German
Workers’ Union in 1863, and the following year
Karl Marx was a chief actor in the creation of the
International Working Men’s Association,
usually called the First International. (It was an
international organisation which aimed at uniting a
variety of different left-wing socialist, communist
and anarchist groups and trade unions that were
based on the working class and class struggle)
 Governments conceded both democratic and labor
law reforms under the pressure of uprisings, and
toward the end of the century, when working class
parties and trade unions consolidated their power,
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43. 12/27/2019
NEPAL DEVELOPMENT….RESEARCH

44. How domestic jurisdictions use universal sources of
international labour law?
A. Direct application of an international provision in
settling a dispute :-
B. Direct application is possible only in monist
systems, in which ratified treaties are part of
domestic law, thus enabling the courts to base
themselves directly on their provisions.
C. Filling a gap in domestic law
D. “Setting aside” a domestic provision less favourable
to the worker
E. Striking down a domestic legal provision
F. The interpretative use of international labour law
G. International labour law as a source of inspiration in
the recognition of jurisprudential principles
H. The sources of international labour law used by
domestic courts and the judicial reference to non-
binding instruments
I. Use of unratified international Conventions
J. Reference to international labour Recommendations
K. Judicial reference to the findings and statements of
12/27/2019

45. Universal labour standards
 All ILO activities, in particular the production of labour
standards, are universal in scope.
 This derives from the ILO Constitution, which in principle
opens the Organization to all States worldwide.
 In the same way, the procedure by which international
labour Conventions are drafted involves all the Members
and their industrial associations.
 It is true that many ILO standards have their roots in
European history, they have nevertheless been expressly
adopted or accepted by the representatives of what is
often a large majority of countries in many international
institutions, including ILO.
 The Discrimination (Employment and Occupation)
Convention (No. 111), adopted by the Organization in
1958, covers discrimination against individuals in
employment and occupation. It deplores “any distinction,12/27/2019

46.  Looking beyond interstate relations, the
standards can serve as models for large
corporations – mainly multinationals –
drafting codes of conduct, for employers’ and
workers’ organizations engaged in a process
of national or supranational collective
bargaining, and for the campaigns waged by
activists from other social organizations.
 Labour law is not merely a exclusive subject
of national legislation such as issues of
Migrant workers in Qatar, GFC countries,
slavery in African continent, bonded labour,
Kafala system and others.
 (An employer is also prohibited by law to
confiscate an employee passport, force the
employee to pay for his residency visa fees,
or force the employee to work more than 8
hours a day or 45 hours a week without
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47. ILO- Guardian of Labour Law
 The adoption of labour laws and regulations is an
important means of implementing ILO standards,
promoting the ILO Declaration and the Fundamental
Principles and Rights at Work, and putting the
concept of Decent Work into practice.
 The only tripartite U.N. agency, since 1919 the ILO
brings together governments, employers and workers
of 187 member States , to set labour standards,
develop policies and devise programmes promoting
decent work for all women and men.
 The unique tripartite structure of the ILO gives an
equal voice to workers, employers and
governments to ensure that the views of the social
partners are closely reflected in labour standards and
in shaping policies and programmes.
 The main aims of the ILO are to promote rights at
work, encourage decent employment 12/27/2019

48.  The ILO was founded in 1919, in the wake of a
destructive war, to pursue a vision based on the
premise that universal, lasting peace can be
established only if it is based on social
justice. The ILO became the first specialized
agency of the UN in 1946.
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49. Problem in Labour Law
1. Rigidity
2. Lack of fair administration
3. Irrational Provisions
4. Unfavorable to the employer
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50. In summary
 Basically, labor law is a complex bundle of restraints on
freedom of contract in the labor markets.
 According to Henry Farnam’s classification, such legislative
measures fall into three different types: protective labor
legislation, distributive legislation, and permissive
legislation.
 Protective legislation includes compulsory regulation of the
labor contract such as child labor laws, maximum hours
laws, and health and safety laws. Today, this type of
legislation also encompasses the prohibition of sexual and
moral harassment at work and nondiscrimination in
recruitment and hiring.
 Distributive legislation seeks to affect the terms of
exchange; for example, compulsory payment in legal tender,
minimum wage laws, control of wages, and retirement
security. Compensation for arbitrary discharge is often
regarded as a distributive measure, but it can also be taken
as a piece of protective legislation if it seeks to guarantee fair
and humane treatment in the workplace.
 Finally, permissive legislation facilitates the creation of
institutions for concerted worker action, collective bargaining,
and labor arbitration.
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51. Nepal and UPR on Labour Law
12/27/2019
 Nepal had received 135 recommendations
including 5 recommendations focused on labor
rights and one included workers access to food
security and safety at the 10th session in first
cycle of Universal Periodic Review (UPR) in 2011.
 The Government of Nepal accepted all
recommendations related to workers’ rights.
 The Government adopted a plan of action to
implement the accepted recommendations. The
Government of Nepal presented a vague and
confusing timeline mentioning the term “Due
Course of Time” in the plan of action.
 Ministry of Labour, Employment and Social

52. Landmark Case Law on Labour Law
1. Employees cannot opt out of TUPE protection
 Foreningen af Arbejdsledere i Danmark v
Daddy’s Dance Hall A/S (10 February 1988)
2. “But for” test in direct discrimination cases
 James v Eastleigh Borough Council (14 June
1990)
3. No comparator needed in pregnancy
discrimination cases
 Dekker v Stichting Vormingscentrum voor
Jonge Volwassen (VJV-Centrum) Plus (8
November 1990)
4. No compensation limit in discrimination claims
 Marshall v Southampton and South-West12/27/2019

53. 5. Onus placed on employers to explain unequal
pay
 Enderby v Frenchay Health Authority and
Secretary of State for Health (27 October
1993)
6. Pregnant woman is not the same as a sick
man
 Webb v EMO Air Cargo (UK) Ltd (14 July
1994)
7. Dress codes put to the test
 Smith v Safeway plc (16 February 1996)
8. Unfair dismissal qualifying period justified
 R v Secretary of State for Employment ex
parte Seymour-Smith and Perez (No.2) (1712/27/2019

54. 10. Whistleblowing: public interest disclosure can be personal
 Parkins v Sodexho Ltd (22 June 2001)
11. Trade union rights given a boost
 Wilson and Palmer v United Kingdom (2 July 2002)
12. Level of compensation for injury to feelings
 Vento v Chief Constable of West Yorkshire Police (No.2) (20
December 2002)
13. Hypothetical comparator allowed in discrimination claim
 Shamoon v Chief Constable of the Royal Ulster
Constabulary (27 February 2003)
14. On-call working is “working time”
 Landeshauptstadt Kiel v Jaeger (9 September 2003)
15. House of Lords widens scope of duty to make reasonable
adjustments
 Archibald v Fife Council (1 July 2004)
16. Unfair dismissal: expired disciplinary warnings not decisive
 Diosynth Ltd v Thomson (1 February 2006)
17. Rolled-up holiday pay unlawful
 Robinson-Steele v RD Retail Services Ltd and other
cases (16 March 2006) 12/27/2019

55. 18. BNP candidate’s dismissal “on racial grounds”
 Redfearn v Serco Ltd t/a West Yorkshire Transport Service (25
May 2006)
19. Is it reasonable to adjust disabled workers’ sick pay?
 O’Hanlon v Commissioners for HM Revenue & Customs (30
March 2007)
20. Annual leave accrual continues during long-term sick leave
 Stringer and others v HM Revenue and Customs sub nom
Commissioners of Inland Revenue v Ainsworth and others;
 Schultz-Hoff v Deutsche Rentenversicherung Bund (21 March
2009)
21. Default retirement age abolished
 R (on the application of Age UK) v Secretary of State for
Business, Innovation and Skills (25 September 2009)
22. Associative disability discrimination against carers
 EBR Attridge Law LLP and another v Coleman (No.2) (30
October 2009)
23. Sexual orientation vs religious discrimination
 Ladele v London Borough of Islington (15 December 2009)
24. Right to be accompanied by a lawyer
 R (on the application of G) v Governors of X School and Y City
Council (29 June 2011)
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56. 25. Guidance on employment status
 Autoclenz Ltd v Belcher and others ( 27 July 2011)
26. ECJ holiday pay decision has major impact for UK
employers
 Williams v British Airways plc (15 September
2011)
27. Dress code requirement to cover up Christian cross
 Eweida and others v United Kingdom (15 January
2013)
28. Employer cannot veto choice of companion
 Toal and another v GB Oils Ltd (22 May 2013)
29. Regular overtime must be included in holiday pay
 Bear Scotland Ltd and others v Fulton and others
 Hertel (UK) Ltd v Woods and others 12/27/2019

57. 30. Supreme Court quashes tribunal fees regime
R (on the application of Unison) v Lord
Chancellor (26 July 2017)
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58. 12/27/2019
Thank you