Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Myanmar (Ratification: 1927)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Previous comments: C. 017 observation; C. 019 observation; C. 042 direct request

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on workers’ compensation, the Committee considers it appropriate to examine Conventions Nos 17 (Workmen’s Compensation (Accidents)), 18 (Workmen’s Compensation (Occupational Diseases)), 19 (Equality of Treatment (Accident Compensation)), and 42 (Workmen’s Compensation (Occupational Diseases) (Revised)) together.

Article 2 of Convention No. 17. Scope of coverage.The Committee takes note of the information provided by the military authorities in their report that all insured persons covered by the Social Security Law, 2012, have the right to enjoy social security benefits, including employment injury compensation.The Committee notes, however, that section 12 of the Social Security Law, 2012, excludes several categories of workers from compulsory coverage under the Social Security System and related benefits, notably: domestic workers, and certain public employees, part-time and piece workers, and workers engaged in non-profit establishments on a full time basis and whose work does not have temporary or casual nature, as well as underaged workers and workers who have attained the age required to apply for superannuation benefits. On the other hand, the Committee observes that the Workmen’s Compensation Act, 1923, as amended in 2005, has a wider scope of coverage than the Social Security Law, which includes the above-mentioned categories of workers excluded from the Social Security Law. The military authorities also indicate that a new legislation on Employment Injury compensation is currently being drafted.

The Committee recalls that, in accordance with Article 2 of the Convention, the laws and regulations as to workers’ compensation for industrial accidents shall apply to workers, employees and apprentices employed by any enterprise, undertaking or establishment of whatsoever nature, whether public or private. It also recalls that the possible exclusions set out in Article 2(2) of the Convention are limitative and that the Convention does not allow excluding other categories of workers, such as those listed in section 12 of the Social Security Law, mentioned above, from coverage for industrial accident compensation. On this basis, the Committee urges the military authorities to specify the measures and legal provisions currently in place to ensure that the above-mentioned categories of workers excluded from coverage under the Social Security Law are duly compensated in case of industrial accident, and whether the provisions of the Workmen’s Compensation Act continue to apply for this purpose.

The Committee encourages the military authorities to take advantage of the new legislation on Employment Injury compensation which is being drafted to ensure that all workers victims of industrial accidents, or their dependants, are duly compensated on terms at least equal as those provided by Convention No. 17, and to provide information measures taken in this regard.

Article 5 of Convention No. 17. Periodical payments.The Committee notes that section 58 (a), (b), and (c) of the Social Security Law, 2012, provides that employment injury compensation can be paid either in the form of periodical instalments or as a lump sum, depending on the worker’s or his/her dependents’ preference, if the injury resulted in permanent incapacity or death. In addition, the Committee notes that section 58 imposes a ceiling of five years of payments for loss of capacity at a limit of 20 per cent, to be paid in a lump sum, and nine years for a loss of capacity between 20 and 100 per cent, which can also be paid in a lump sum if the beneficiary wishes so. The Committee recalls that Article 5 of the Convention authorizes the conversion of periodical cash benefits into a lump sum only when the competent authority is satisfied that it will be properly utilized. The Committee requests the military authorities to provide information on measures in place to guarantee that lump-sum payments are properly utilized. The Committee further requests the military authorities to provide statistics on the number of workers who have received employment injury compensation in the form of a lump sum and in periodical payments in the period under review.

Article 7 of Convention No. 17. Additional compensation for the constant help of another person.The Committee takes note of the information provided by the military authorities that section 58 (d) of the Social Security Law, 2012, in case of permanent incapacity for work over 75 per cent, provides for the entitlement of injured workers to an allowance of 10 per cent of the benefit in addition to the monthly pension, equal to 75 per cent of their average wage.The Committee recalls, however, that Article 7 of the Convention requires the payment of additional compensation in all cases where the injury results in incapacity of such a nature that the injured workers must have the constant help of another person. The Committee therefore requests the military authorities to ensure that all injured workers, including those with partial permanent or temporary incapacity, are provided with additional compensation when the constant help of another person is required and to provide information on the measures taken or envisaged to give full effect to Article 7 of Convention No. 17.

Article 8 of Convention No. 17. Supervision of the employment injury system and review of claims.The Committee observes, from the information available in the ILO Social Protection Platform, that the management of the Social Security Board has been improved, with the technical assistance of the ILO between 2018–19. This concerns, in particular, the monitoring and evaluation of the social security system and the Social Protection Management Information System, which have facilitated the process of supervision and revision of payments made to victims of employment injuries. The Committee also notes that section 5 of the Social Security Law, 2012, establishes the functions of the Social Security Board, which include “carrying out necessary management and supervision for enabling to implement the provisions contained in this Law.” The Committee requests the military authorities to indicate the specific measures taken or envisaged to ensure the proper supervision of the employment injury compensation system and the review of claims, as part of the functions of the Social Security Board.

Article 2 of Convention No. 18 and Article 2 of Convention No. 42. List of occupational diseases.The Committee notes the indication by the military authorities, that “The Social Security Law (2012) came into force on 1-4-2014, and that section 107 of its Rules provides that the Ministry of Labour shall, in coordination with the Ministry of Health and Sport, and with the approval of the Union Government, determine the list of occupational disease by regulation.” The Committee notes that the report sent by the military authorities was not accompanied by such a list. The Committee requests the military authorities to provide the list of occupational diseases and the relevant applicable legal provisions, particularly the regulations referred to in sections 5 and 107 of the Social Security Rules, 2014, and in the military authorities’ report.

Article 1(2) of Convention No. 19. Provision of work accident compensation abroad. As regards its previous request concerning the provision of workmen’s compensation abroad, in application of Article 1(2) of the Convention, the Committee observes that the legislation regulating these matters, namely the Social Security Law, 2012, and the Social Security Rules, 2014, do not specify the manner in which the provision of employment injury compensation to beneficiaries residing abroad is guaranteed. The Committee urges the military authorities to provide information on the measures taken and on the mechanisms in place to ensure the provision of compensation to victims of an employment injury that has occurred in Myanmar, or to their dependents, in case of death of the worker, who reside abroad. The Committee hopes that the military authorities will take the requirements of Article 1(2) in consideration when formulating the new employment injury benefits legislation with a view to ensuring the full application of Convention No. 19.

Article 4 of Convention No. 19.Situation of Myanmar migrant workers in other Member States. In its previous comments, the Committee noted that more than 2 million Myanmar migrant workers were irregularly employed in Thailand and did not have access to compensation in case of employment injury. The Committee notes the information provided by Myanmar, in its 2016 report, indicating that temporary work permits and ordinary passports were issued to Myanmar migrant workers in Thailand, and that a Memorandum of Understanding between Myanmar and Thailand on Labour Cooperation and the Agreement on the Employment of Workers had been concluded in 2016. The Committee further notes the information provided by the military authorities concerning the development of a cooperation agreement between Myanmar and Malaysia to ensure the social security coverage of Myanmar migrant workers working in Malaysia. The Committee welcomes these developments and requests the military authorities to continue providing information on the means taken to improve the employment injury coverage of its nationals abroad, in cooperation with other member States parties to the Convention. In addition, the Committee requests the military authorities to provide a copy of the agreement concluded with Malaysia, and of any other similar agreements concluded with other States parties to the Convention.

Application in practice of Conventions Nos 17, 18, 19 and 42. Inspection services and statistics. The Committee requests the military authorities to provide information (statistical and other data) in their next report so as to enable it to assess the manner in which national laws and regulations respecting employment injuries, both due accidents and diseases, are applied in practice, including the number and amounts of periodical payments for employment injury compensation made to foreign and nationals who are victims of employment injuries, and (ii) any agreement that has been concluded with other Member States which have ratified the Convention, providing copies of such agreements. The Committee also requests the military authorities to provide information on the number of labour inspection visits and violations detected and provide the extracts from the reports of the inspection service.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October-November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 4 of the Convention. Situation of Myanmar migrant workers in Thailand. The Committee has been following with concern for many years the situation of more than 2 million migrant workers in an irregular situation employed in Thailand. In reply to the issues raised previously by the Committee, the Government report, received in September 2012, indicates that five newly established Temporary Passport Issuance Centers have been opened in Thailand to issue documents to undocumented Myanmar workers. A labour attaché has also been assigned to Myanmar’s Embassy to address labour affairs issues. The Myanmar and Thailand Governments have held 11 bilateral meetings aimed, inter alia, at: guaranteeing the implementation of the registration process for undocumented workers in Thailand; extending the validity of work permits pending the registration process; ensuring equal remuneration between the nationals of both countries; reducing visa costs; and facilitating the administrative collaboration between the two countries regarding residence requirements, including in respect of children and dependants.

The Committee notes with interest these developments, which are in line with the objective of Article 4 of the Convention calling all ratifying Members to provide mutual assistance with a view to facilitating the execution of their respective laws and regulations on workmen’s compensation. The Committee wishes to stress in this respect that active collaboration between Members party to the Convention with a view to solving the challenges related to its practical implementation constitutes the best way to address the problems and seek constructive and prompt solutions. The Committee hopes that the measures taken by the Government in cooperation with the Government of Thailand will help to improve the situation of Myanmar migrant workers in Thailand and their access to workmen’s compensation insurance. The Committee requests the Government to indicate further progress in this respect in its next report including statistics on the number of migrant workers in an irregular situation employed in Thailand who are receiving equal treatment under this Convention pursuant to the welcome developments described by the Government, as well as any problems still to be addressed.

Review of the national legislation on social security. The Government indicates that the Social Security Bill amending the 1954 Social Security Act is currently before the Pyihtaungsu Hluttaw (Parliament) and is to be enacted in the very near future. Following the adoption of the new legislation, the Social Security Board will provide new benefits such as free medical care and cash benefits to all insured workers, both national and foreign (section 102 of the Bill). The Committee requests the Government to supply a copy of the new Social Security Act once adopted.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that under the Social Security Act of 1954 under which both national and foreign workers are receiving the same medical care and cash benefits is in the process of being reviewed. The Committee requests the Government to provide a copy of the revised Act indicating the provisions which guarantee the principle of equality of treatment in case of industrial accident.

[The Government is asked to reply in detail to the present comments in 2012.]

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 4 of the Convention. Situation of Myanmar migrant workers in Thailand. The Committee notes the Government’s report, received in August 2011, describing the legislative provisions on accident compensation and including statistics related to workmen’s compensation cases in Myanmar. The Committee has been following with concern for a number of years, the situation of more than 2 million irregular migrant workers employed in Thailand, who are denied the right to affiliate to the Thai Workmen’s Compensation Fund (WCF). The humanitarian problems raised by this situation have also been under the continued scrutiny of UN Human Rights bodies and have been a matter of serious concern among Thai trade unions and human rights NGOs. In order to be authorized to affiliate to the WCF in Thailand, a circular No. RS0711/W751 of the Thai Social Security Office requires migrant workers to engage in a nationality verification process with a view to obtaining temporary passports or migrant identification documents. Recently, the Government of Thailand, in cooperation with the Governments of Cambodia and Lao People’s Democratic Republic, authorized state officials from these countries to proceed to nationality verifications of their nationals in centres located in Thailand in order to facilitate the completion of the verification process by migrants from these countries. The Memorandum of Understanding concluded between Myanmar and Thailand to facilitate the delivery of migrant identification documents has, for its part, been inoperative for a number of years with the consequence that migrant workers were required to return to Myanmar in order to obtain the documents required by Thai authorities. The bilateral cooperation between Thailand and Myanmar was recently reactivated on the occasion of a ministerial meeting which took place in June 2011, with the Government of Myanmar having committed itself to give all needed assistance through its diplomatic and consular representations and to issue in the near future the remaining temporary passports necessary for the completion of the nationality verification process by Myanmar migrants working in Thailand.

The Committee takes due note of these developments and underlines the need to protect the rights of migrant workers from Myanmar returning from other countries and to assist them effectively. It also recalls that, in accordance with Article 4 of the Convention, all ratifying members undertake to afford each other mutual assistance with a view to facilitating the application of the Convention and the execution of their respective laws and regulations on workmen’s compensation. The Committee further notes, in this context, that the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, also invites States receiving and sending migrants to closely cooperate, in particular, to resolve the cases of undocumented migrant workers. In view of the fact that Myanmar and Thailand both have ratified the present Convention, the Committee hopes that they will actively pursue cooperation with a view to overcoming the administrative difficulties in the application of the Convention. The Committee asks the Government to indicate the measures taken to afford the authorities of Thailand the assistance necessary in this respect, in accordance with Article 4 of the Convention.

[The Government is asked to reply in detail to the present comments in 2012.]