WORK PERMIT Whose Whims?

The Department of Labor has violated the Social Welfare Act forcing some dozen heads of INGOs in Nepal to take their work permit as a worker

July 8, 2016, 5:45 p.m. Published in Magazine Issue: Vol.09,No. 24, July 08,2016, Ashad 24,2073)

Is social work an act of labor? Nepalese laws itself say no. Clause 2 of Social Welfare Act 1992 interprets social welfare activity means the welfare activity oriented towards the economic and social upliftment and self-reliance to the weak, helpless and disabled individuals. The act further says social service means the social welfare activity done, personally or collectively, without the purpose of profit.

The law defines social organization and institution as an organization and institution established under the prevailing laws in order to carry out various social welfare activities.

The Social Welfare Act and Social Welfare Regulation have made it clear that Social Welfare Council is solely responsible to handle all the affairs of INGOs and NGOs. According to Social Welfare Act 1992 and Social Welfare Regulations 1993, INGOs and NGOs need to sign the general agreement with Social Welfare Council to work in Nepal. The act also gives Social Welfare Council mandate to issue recommendation and permission for foreigners.

Undermining the clear provisions of Social Welfare Act and Regulations, the Department of Labor has issued another order asking all the persons permitted by Social Welfare Council to get another permission of another status.

“This is a clear violation of law. By applying labor act in the affairs of INGOs and NGOs, the Department of Labor is violating other acts,” said advocate Gandhi Pandit. "This shows a lack of governance and lack of coordination among the government offices. When two government institutions are encroaching each other’s sphere of work, either the cabinet or court can settle the matter."

As Nepal is a party to many international conventions, which direct the concerned state to allow civil society organizations as a partner of development, the Department of Labor’s move will likely damage the reputation of Nepal at international level as a violator of the international convention.

The main focus of INGOs is to provide relief and developmental aid. In relation to states, the purpose of INGOs is to provide services that the state is unable or unwilling to provide for their people. In the last earthquake, International Non-governmental Organizations were also some of the first responders to natural disasters that need emergency relief.

Many international projects and advocacy initiatives promoted by INGOs encourage sustainable development via a human rights approach and capabilities enhancing approach.

The status of INGOs and NGOs are completely different in nature than those labor organizations and workers working in the industries and industrial houses. “If the government does not want INGOs and NGOs, it must say so clearly about its need. It cannot adopt a double standard,” said advocate Pandit.  

What Labor Law Says

The Labor Act, 2048 (1991) defines a worker means a person employed on the basis of obtaining remuneration to work in connection with production process or providing service or to work in any building, premises, machinery or any part thereof used for the purpose of same works or any act relating to such works or any work incidental to such works and this work shall also include any worker working at a piece-rate, contract or agreement.

The act says enterprise means any factory, company, organization, association, firm or group thereof established under the prevalent law for the purpose of operating any industry, profession or service whereon ten or more workers or employees are engaged.

As per the Labor Act, the government issued a Guideline for Work Permit Management of Non-Nepali Employees 2070. Although INGOs and head of INGOs are not covered by two above provisions, the government directs foreigners heading INGOs to receive work permit.

“Both are special laws dealing with two specific issues. They cannot supersede each other. The Act of Interpretation says constitution is highest and any law contravening with constitution is declared null and void. The Acts are of a superior status than regulations, guidelines and directives. This is a simple jurispidence theory law," said advocate Pandit.  

However, the Labor Department is encroaching upon the jurisdiction of Social Welfare Council, which has a special provision to treat the foreigners under INGOs. "During my tenure as a member secretary, I have made several efforts to end this overlapping. Social Welfare Council should be allowed to work under the law,” said former member secretary Rabindra Kumar.

As the two government institutions battle on jurisdiction, foreigners working in INGOs are facing an undue pressure. Since Social Welfare Council is under a weak leadership, no one is there to defend the provisions of their own act.

Association of International Non-Governmental Organization (AIN), a consortium of INGOs working in Nepal, has already met high government officials and expressed its concern on the provision. AIN, which encouraged its members to follow directive, is now taking the stand.

The Department of Labor has its own interpretations. “As per the labor act, regulations and recent Guidance, all the foreigners who are working in Nepal need to take the work permit. This is a mandatory provision of Labor Act 1992,” said the Director General of Department of Labor. “Every foreigner needs to come to us and head of INGOs are no exception,” said the Director General.

Although the exact data of foreigners working in Nepal is not available, the DoL estimates there are around 550,000 foreigners working in Nepal, of which 500,000 are from India. Only a small number of foreigners working in Nepal have acquired work permit.

“With the guidelines in place, foreign workers have to get their work permit from the department, no matter which sector they work in, be it formal, informal, social or self employment. The guideline says it is mandatory for foreigners visiting Nepal for paid or unpaid jobs to apply for the permit within one month,” said Kedar Bahadur Bogati, Director General of Department of Labor.

Nepal has seen emergence of new trends superseding laws by various institutions where the direction, order and guidelines are superseding the law, constitution and international law as well. In this state of affairs, every institution can be helpless and even the court which has power to intervene is helpless.

“Clause 19 of Social Welfare Council Regulations said as per the clause 12 (2) and 3 following the signing of the general agreement, International Nongovernmental Organizations and foreign NGOs should apply for the visa. Following the examination on the application, member secretary of council recommends to the concerned official for visa permission,” said spokesperson of Social Welfare Council.

The law is clear about its role on the issue of INGOs and NGOs. “The council shall not recommend for visa for more than the tenure of project agreement. If the person who secured the visa under the recommendation violates the agreement, the council can write the concerned ministry to revoke the visa. The person who applies for visa, needs to submit all necessary documents as demanded by the council,” said sources.  

Even the Commission of Investigation of Abuse of Authority (CIAA) has sought information on how the auditing of NGOs and INGOs is done and what legal provisions are in place to deduct taxes from their employees and their registration two years ago. 

The social welfare council has been established for effective co-ordination, co-operation, mobilization and promotion of the social organizations.

Although there are many other sectors where foreigners are employed, officials at the Labor Department are focusing on INGOs and hydropower projects as they have comparatively higher number of foreign workers.

 

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