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Comments adopted by the CEACR: Myanmar

Adopted by the CEACR in 2021

C063 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1(c) of the Convention. Communication to the ILO of the statistics covered by the Convention. Impact of COVID-19. In response to the Committee’s previous comments, the Government provides information in relation to the most recent Labour Force, Child Labour and School-to-Work Transition Survey, carried out with financial and technical assistance of the ILO in 2015. The Government also provides information on the annual Labour Force Surveys (LFS) that it has been conducting twice a year since 2017. The most recent LFS was carried out in 2020 (the first semi-annual LFS), but was not attached to the Government’s report. The Government indicates that the surveys are published and disseminated to statistical organizations, as well as being uploaded on the website of the Ministry of Labour, making them available to the public. The Committee notes that data from the LFS has been made available to the ILO on a regular basis, with the latest statistics on hours of work by occupation and wages by economic activity communicated to the ILO in 2019. The Government reports that, due to the COVID-19 pandemic, the LFS has been postponed since the second semi-annual survey was conducted in 2020 and has not been carried out in 2021. In this respect, the Committee notes that, with the support of the ILO, a Comprehensive LFS is being prepared and it is anticipated that it will be carried out in 2022, together with the Labour Force, Child Labour and School-to-Work Transition Survey.   The Committee welcomes the developments with respect to the data collection efforts made by the Government under the Labour Force, Child Labour and School-to-Work Transition Survey, and the semi-annual Labour Force Surveys, which are regularly supplied to the Office. It requests the Government to continue to communicate updated statistical information on average earnings and hours of work available for the economy as a whole and disaggregated by main economic activity for the most recent time periods possible. In addition, it reiterates its request that the Government provide a copy of the most recent Statistical Yearbook available.
The Committee once again draws the Government’s attention to the recommendations of the Standards Review Mechanism Tripartite Working Group and the corresponding decision of the Governing Body at its 328th Session in October–November 2016 (GB.328/LILS/2/1), in which it called upon the Office to commence follow-up with Member States still bound by the Convention, encouraging them to ratify the Labour Statistics Convention, 1985 (No. 160), as the most up-to-date instrument in this area. Ratification of Convention No. 160 would result in the automatic denunciation of Convention No. 63, which has been classified as an outdated instrument. The Committee urges the Government to consider ratifying Convention No. 160 and encourages the Government to avail itself of ILO technical assistance in this regard.

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes with the deepest concern the observations made by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2021 referring to the systemic violence against workers and harsh suppression of civil liberties carried out by the military junta after it seized power on 1 February, relentlessly cracking down on the crowds of protesters calling for the return of democracy. While the reply provided on 19 November 2021 contends that the peaceful protests had evolved into riots and ultimately reached a stage of insurrection and terrorism, retaliating against members of security forces with all available weapons and forcing them to respond, the Committee cannot but deplore the allegations that ever since the junta’s seizure of power, daily demonstrations have been met with increasing brutality with hundreds killed, many more wounded and over 2,700 arrested and charged, with some already sentenced.
Civil liberties. The Committee deeply regrets to note the information provided by the ITUC that trade unionists have been specifically targeted with numerous cases of arrests and killings of trade union leaders and unionists and the wholesale violation of their civil liberties. The ITUC refers in particular to: the shooting of Chan Myae Kyaw, a truck driver at a copper mine and a member of IndustriALL’s affiliate Mining Workers’ Federation of Myanmar (MWFM), who was killed by soldiers on 27 March 2021 during a demonstration in Monywa; a military ambush of protesters on March 28 and 29 in South Dagon Industrial Zone, killing Nay Lin Zaw, a union leader in the wood processing sector and a member of Myanmar Industry Craft Service-Trade Unions Federation (MICS-TUF); and the shooting in the head of 21 year old Zaw Htwe, a garment worker and a member of Solidarity Trade Union of Myanmar (STUM).
The Committee notes the reply to the ITUC comments that any deaths due to security forces acts were in limited response to terrorist acts, the relevant police have these death cases on files in accord with the legal procedures and systematically registered the case records of all deaths as well as assisted their funeral affairs. According to the lists of Myanmar Police Force, 361 civilians were killed during the reporting period, of which only 193 were due to members of the security forces with Riot Control Agents (RCA) while clearing barricades and defending themselves from the terrorist acts. The remaining 168 were dead by other causes e.g., assassinated by others with arms, fell from buildings and disease, not relevant to the members of security forces. It is added that exaggerated and falser reports in this regard are aimed at discrediting the Government and the military. As to the specific deaths raised by the ITUC, it is indicated that no casualties were found after the protest at the copper mine where Chan Myae Kyaw is said to have been shot, there were no events of a crackdown by security guards in Dagon township where Nay Lin Zaw is said to have died, and an inquest has been filed at Shwepyithar Township Police Station concerning the death of Zaw Htwe.
The Committee is bound to recall that the mobilization of the Civil Disobedience Movement was due in the first instance to the military seizure of power and destitution of the civilian government. In these circumstances, it must refer to the examination by the Committee on Freedom of Association of the grave allegations of numerous attacks by the military authorities following the coup d’état on 1 February 2021 in Case No. 3405 (see 395th Report, June 2021, paragraphs 284–358). The Committee further observes that the ILO Governing Body had on its agenda an update on the situation in Myanmar and on additional measures to promote the restoration of workers’ rights at its 341st, 342nd and 343rd Sessions (March, June and November 2021), at which it, inter alia: expressed profound concern about developments since 1 February and called on the military authorities to respect the will of the people, respect democratic institutions and processes and restore the democratically elected Government (GB.341/INS/17(Add.1) (March)); expressed profound concern that the situation had deteriorated and that no progress had been made in this regard (GB.342/INS/5 (June)); and expressed profound concern that the military authorities have continued with the large-scale use of lethal violence and with the harassment, ongoing intimidation, arrests and detentions of trade unionists (GB.343/INS/8 (November)). Finally, the Committee takes note of the Resolution for a return to democracy and respect for fundamental rights in Myanmar adopted by the International Labour Conference at its 109th Session (2021) which calls upon Myanmar to cease all attacks, threats and intimidation by the military against workers, employers and their respective organizations, and the general population, including in relation to their peaceful participation in protest activities (ILC.109/Resolution II).
The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights are fully respected and guaranteed, and in particular those rights relating to human life and personal safety, due process and the protection of premises and property belonging to workers’ and employers’ organizations. The killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. While noting the cursory information provided in respect of the deaths noted above, the Committee calls for a full and independent investigation into the circumstances of the killings of Chan Myae Kyaw, Nay Lin Zaw and Zaw Htwe and requests to receive a full report of the outcome and the measures taken to prosecute and punish the guilty parties.
The ITUC further refers to the arrest on 18 February 2021 of a union leader from the MICS-TUF who has been sent to Insein Prison and the arrest on 15 April 2021 of the director of STUM, who was charged under section 505-A of the Penal Code, which means she is not eligible for bail and faces up to 3 years in prison. Also in May, forces were deployed to arrest another 22 unionists, including seven members of Myanmar Transport Federation with another 11 warrants pending against national leaders of the Confederation of Trade Unions of Myanmar (CTUM) and other trade unions. On 4 June 2021, the passports of 28 CTUM members were cancelled. Finally, the ITUC recalls a number of arrests, detentions and attacks against trade unionists exercising their right to peaceful industrial action in 2019 and 2020.
In reply it is stated that tens of thousands of prisoners were pardoned on 12 February and 17 April respectively, while pending cases for 4,320 defendants were closed on 18 October with amnesty granted to 1,316 prisoners. As for the cancellation of the passports of 28 CTUM members, it is stated that false news had been perpetrated by the leaders of the organization to discredit the State Administration Council and the military giving rise to charges against the CTUM Chairperson for violation of section 505 of the Penal Code, while he and 28 CTUM members were also charged under section 124-A. The Government cancelled their passports as they were fleeing the arrest warrants due to be issued. As regards the serious allegations of a number of arrests, detention and attacks against trade unionists for exercising their right to peaceful industrial action and participating in the civil disobedience movement for the restoration of democracy, as well as the cancellation of their passports, the Committee calls for all measures to be taken to ensure full respect for the basic civil liberties necessary for the exercise of freedom of association, including freedom of opinion and expression, freedom of assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal, so that workers’ and employers’ organizations can carry out their activities and functions without threat of intimidation or harm and in a climate of complete security.
In this regard, the Committee further notes the ITUC’s indication that some of the arrested trade unionists were charged under section 505-A of the Penal Code which sets forth a broad and vague definition of the term “treason” to include attempts “to hinder, disturb, damage the motivation, discipline, health and conduct of the military personnel and government employees and cause hatred, disobedience, or disloyalty toward the military and the government.” The Committee further notes that section 124 A of the Penal Code was amended by the military authorities in February using similarly broad wording to make it a criminal act “to sabotage or hinder the success of performance of the Defence Services and law enforcement organizations” under a penalty of up to 20 years’ imprisonment. While having been informed that the director of STUM has been released, the Committee observes that the far-reaching nature of the drafting of this section can favour the categorization as treason of any exercise of dissent in a manner so as to compromise the exercise of basic civil liberties necessary to the full exercise of trade union rights. The Committee therefore calls specifically for the immediate release of the leader of MICS-TUF and any other trade unionists still being detained or imprisoned for having exercised their trade union rights protected under the Convention, including their engagement in the civil disobedience movement. Just as the Committee on Freedom of Association, the Committee further calls for the repeal of section 505-A of the Penal Code and also calls for the amendment of section 124 A in light of its similar nature.
As regards the ITUC comments concerning the announcement of a new cyber security law which criminalizes any statement against any law with sanctions of imprisonment and heavy fines, the Committee notes the reply that the Cyber Law has not yet been promulgated but observes that elements of this draft law were introduced into the Electronic Transaction Act (ETA), adopted on 15 February 2021, which provides in section 38(c) that any person that is convicted of making fake news or false news (not defined) in a cyberspace with the aim of alarming the public, making someone lose his or her faith, disrespecting someone or dividing unity, shall be imprisoned for a minimum of one year to a maximum of three years or fined not more than 5 million in kyat or both. The Committee observes with deep concern that this provision is vaguely worded and likely to undermine freedom of expression and other basic civil liberties under the threat of heavy penalties, including imprisonment. The Committee therefore urges that section 38(c) be revised with a view to ensuring full respect for the basic civil liberties necessary for the exercise of freedom of association so that workers’ and employers’ organizations can carry out their activities and functions without threat of intimidation or harm and in a climate of complete security.
Additionally, the Committee recalls that, in its previous comments, it had taken note of the new Law on the Right to Peaceful Assembly and Peaceful Procession, adopted on 4 October 2016, and observed that the Chapter on Rules and the corresponding Chapter on Offences and Penalties could give rise to serious restrictions of the right of organizations to carry out their activities without interference. The Committee requested the Government to ensure that workers and employers are able to carry out and support their activities without threat of imprisonment, violence or other violations of their civil liberties by police or private security and to inform of any sanctions imposed on workers’ or employers’ organizations under the Law. The Committee observes in this regard that the ITUC refers to a number of incidents in 2019 and 2020 where workers and union leaders engaged in peaceful protests had been prosecuted and convicted under this Law, but who have since been released. The Committee deeply regrets that Myanmar’s report this year simply states that the Law on the Right to Peaceful Assembly and Peaceful Procession, 2016, was enacted to ensure every citizen has the right to carry out activities in line with the law, without providing any information in reply to the detailed examples of prosecution and conviction provided by the ITUC. The Committee must therefore urge that all steps be taken to ensure that workers and employers are able to carry out and support their activities without threat of imprisonment, violence or other violations of their civil liberties by police or private security and that the Law on the Right to Peaceful Assembly and Peaceful Procession not be used in any way to restrict these rights.
Labour law reform process. Despite the deeply concerning deterioration of the situation in the country and the Committee’s strong conviction that priority must be given to the restoration of democratic and civilian rule, it wishes to recall its previous comments concerning the labour law reform process in the country for further action once the democratic institutions and processes and democratically elected government are restored.
Article 2 of the Convention. As regards the membership requirements and pyramidal structure set out in the Labour Organization Law (LOL), the Committee recalls that it had encouraged the Government to pursue consultations within the framework of the National Tripartite Dialogue Forum (NTDF) so as to ensure that all workers and employers, without distinction whatsoever, are able, not only in law but also in practice, to fully exercise their rights under the Convention, bearing in mind key difficulties faced by parts of the population, such as those in remote areas.
The Committee notes from this year’s report the information that, since the law’s entry into force, 2,887 basic labour organizations, 161 township labour organizations, 25 region or state labour organizations, nine labour federations, one labour confederation and 27 basic employer organizations, one township employer organization and one employer federation have been registered under the law.
As regards the possible denial of registration, the Committee once again requests information on any denials of registration, including reasons for such decisions and procedures for review and appeal of such denials.
Article 3. The Committee further noted the restrictions for eligibility to trade union office set out in the Rules to the LOL, including the obligation to have been working in the same trade or activity for at least six months (no initial time period should be required) and the obligation for foreign workers to have met a residency requirement of five years (this period should be reduced to a reasonable level such as three years), as well as the requirement to obtain permission from the relevant labour federation under section 40(b) of the LOL in order to go on strike.
The Committee once again expresses its expectation that, as soon as conditions permit, all of the above matters will be reviewed within the framework of the legislative reform process in consultation with the social partners so as to ensure fully the rights of workers and employers under the Convention.
The Committee further notes from the report that the Settlement of Labour Disputes Law was amended in 2019 and requests the final adopted text, as well as the Settlement of Labour Disputes Rules to implement the law, to be transmitted for its consideration.
Special economic zones (SEZs). The Committee notes the information provided in relation to the settlement of labour disputes in SEZs and the setting up of Workplace Coordinating Committees (WCCs) both inside and outside of the zones. It notes further that labour disputes occurring in SEZs have been settled by the Special Economic Zone Management Committee and all disputes have been settled by agreement up to now. If no agreement is reached, such disputes shall be dealt with under the Settlement of Labour Disputes Law. The Committee expects that all necessary measures will be taken to guarantee fully the rights under the Convention to workers in SEZs, including by ensuring that the SEZ Law does not contradict the application of the LOL and the Settlement of Labour Disputes Law in the SEZs, and suggests that this matter be followed up within the framework of the NTDF as soon as conditions permit.
The allegations and issues raised in this comment relating to numerous deaths, massive detentions and arrest of trade unionists and a momentous attack on basic civil liberties have given rise to the Committee’s deepest concern. The Committee deeply regrets that despite several decisions by the ILO Governing Body in March, June and November of this year and the Committee on Freedom of Association’s recommendations and the International Labour Conference’s Resolution in June, no steps have been taken to address these grave concerns or to rectify the serious infringements on fundamental rights introduced this year in the Penal Code and the Electronic Transaction Act and the ongoing concerns with respect to the Law on the Right to Peaceful Assembly and Peaceful Procession of 2016.
In these circumstances, and given the urgency of addressing these matters affecting the fundamental rights of workers and employers, their physical integrity and freedom, and the likelihood of irreversible harm, the Committee considers that this case meets the criteria it has developed to be asked to come before the Conference.
[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]

Adopted by the CEACR in 2020

C002 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee therefore examines the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.
Articles 1 and 2 of the Convention. Measures to combat unemployment. Public employment agencies. In its 2014 comments, the Committee requested the Government to provide information on the impact of measures taken to combat unemployment in the country, including bilateral labour agreements with neighbouring countries. The Committee also invited the Government to indicate the steps taken to coordinate the operation of public and private employment services at the national scale (Article 2(2)). The Committee notes the Government’s indication that, to lower the national unemployment rate and increase GDP, the Ministry of Labour, Immigration and Population is systematically sending Myanmar workers to Thailand, Singapore, Malaysia, the Republic of Korea, and Japan through 293 registered overseas employment agencies, including one government overseas employment agency, in accordance with the 1999 Law Relating to Overseas Employment. The Ministry of Labour, Immigration and Population seeks to reutilize the workers’ skills, techniques and experiences acquired abroad. The Government adds that the Ministry is implementing the Five-Year National Plan of Action for the Management of International Labour Migration (2018 22). The Plan’s objectives include the empowerment and protection of Myanmar migrant workers, enhancement of the benefits of labour migration and improvement of labour migration governance and administration. The Committee notes that, from 1990 to July 2020, a total of 1,318,012 Myanmar workers were deployed abroad: 314,502 workers to Malaysia, 15,045 workers to Singapore, 915,980 workers to Thailand, 21,166 workers to Japan, and 46,604 workers to the Republic of Korea. The Government has signed Memoranda of Understanding with Thailand, the Republic of Korea and Japan and has appointed Labour Attachés in Thailand, Malaysia and the Republic of Korea to protect the rights of Myanmar migrant workers. The Committee further notes that in 2016, the Myanmar Overseas Employment Agencies Federation (MOEAF) developed a Code of Conduct, in collaboration with the ILO, establishing a Code Compliance and Monitoring Committee (CCMC) to monitor and review compliance with the Code. With respect to the public employment services, the Government indicates that, from April 2019 to July 2020, 1,771,944 jobseekers were registered with their respective Township Labour Exchange Offices around the country (these are public employment offices providing free services to job seekers and employers). A total of 373,654 job offers were notified by employers and 374,292 jobseekers obtained employment through the labour exchange offices. For jobseekers who live in areas where Labour Exchange Offices (LEOs) are not available, mobile teams from the LEOs visit these areas, register jobseekers, receive job offers from employers and organise job fairs throughout the country to enhance employment opportunities. The Committee notes that 23,499 job placements were made by these mobile teams. With respect to private employment agencies, the Government indicates that the Department of Labour is responsible for issuing licenses to private employment companies who provide free employment services to jobseekers. There are 102 licensed local employment agencies in Myanmar, which have placed 21,480 jobseekers in employment. In addition, the Department of Labour conducts job fairs across the country to promote access to employment opportunities. The Committee requests the Government to communicate detailed, updated information on the nature and impact of measures taken to combat unemployment, particularly with respect to measures targeting persons belonging to disadvantaged groups, such as young persons, older workers, persons with disabilities and women. It further requests the Government to provide information with respect to skills, techniques and experiences contributed by returning Myanmar migrant workers. The Committee once again recalls its 2010 General Survey concerning the employment instruments and invites the Government to contemplate the possibility of ratifying more recent instruments regarding the issues covered by this Convention, namely the Employment Service Convention, 1948 (No. 88), the Employment Policy Convention, 1964 (No. 122), and the Private Employment Agencies Convention, 1997 (No. 181). The Government is requested to keep the Office informed of any developments in this regard.
COVID-19. In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. In this regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for developing and implementing effective, consensus-based and inclusive responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on the impact of the global COVID-19 pandemic on the implementation of the measures taken or contemplated to combat unemployment.

C029 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.
Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Institutional framework and law enforcement. The Committee previously noted that according to sections 24 and 25 of the Anti-Trafficking in Persons Act of 2005, persons found guilty of trafficking women, children and youth shall be punished with imprisonment from a minimum of ten years to life imprisonment and a fine, while those who are found guilty of trafficking other persons shall be punished with imprisonment from a minimum term of five years to a maximum term of ten years, and may also be liable to a fine. It also noted that a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it and an Anti-Trafficking in Persons Division was created under the CBTIP. The Committee requested the Government to provide information on the activities undertaken by the three working groups and the Anti-Trafficking in Persons Division under the CBTIP.
The Committee notes the Government’s information in its report that in 2018 the CBTIP conducted: 67 awareness-raising talks on trafficking in persons in the various regions and states; 273 awareness-raising talks in various departments attended by over 25,000 participants; 1,081 such talks in schools which were attended by over 375,000 participants; 3,386 such talks for the public which were attended by over 411, 000 participants; and disseminated over 888,000 pamphlets on trafficking in persons. In addition, from April 2019 to July 2020, the Myanmar police and the Anti Trafficking in Persons Division conducted awareness-raising programmes on trafficking in persons for an estimated 523,444 people and distributed 568,591 pamphlets. The Government indicates that in 2019, capacity-building workshops and training were conducted for officials from the Anti-Trafficking in Persons Division and the State/regional police force in cooperation with the ILO, the International Organisation for Migration (IOM), the Japan International Cooperation Agency, the United Nations Office on Drugs and Crime, UNICEF and the EU. Moreover, a basic investigation course on trafficking in persons was provided to 88 trainees in the Anti-Trafficking in Persons Division and several talks were delivered to over 19,000 participants of the civil service department, police training schools and other relevant departments and states.
According to the statistical information provided by the Government, from 2018 to 2019, 46 persons were arrested in 29 cases involving 67 victims of trafficking in persons for forced labour, of which 17 persons were victims of trafficking on fishing boats. Of these, 13 cases were related to trafficking of persons to Malaysia (2), Thailand (3) and to China (8). In 20 cases action was taken under the Anti-Trafficking Law. From 2018 to July 2019, 2,615 reports of trafficking of persons were received by the hotline telephone and in seven cases action was taken under the Anti-Trafficking Law. Furthermore, from April 2019 to July 2020, 248 cases of trafficking in persons were reported and action was taken against 751 perpetrators, including 244 men and 507 women. In this regard, the Committee notes the information contained in a report on the official website of the President of Myanmar, that the country’s human trafficking cases were found to be 75.24 per cent in forced marriages and 13.59 per cent for forced prostitution and 8.74 per cent for forced labour. By countries of destination, 79.61 per cent were related to China, 1.46 per cent to Thailand and 18.93 per cent within Myanmar. The Committee requests the Government to continue providing information on the application of sections 24 and 25 of the Anti-Trafficking Law in practice, including the number of investigations, prosecutions and convictions, as well as the specific sanctions imposed. It also requests the Government to continue providing information on the measures taken to strengthen the capacities of the law enforcement officials as well as to provide information on the activities undertaken, including by the Anti-Trafficking in Persons Division under the CBTIP to combat trafficking in persons.
2. Programmes of action and bilateral cooperation. In its previous comments the Committee noted that bilateral cooperation on cross-border trafficking was concluded with Thailand and China and a third five-year National Plan of Action (NPA) to combat human trafficking for 2017–2021 was adopted. The Committee requested the Government to provide information on the concrete measures taken within the framework of the NPA 2017–2021 to combat trafficking in persons as well as the actions carried out through its bilateral cooperation with neighbouring countries.
The Committee notes the Government’s information that within the framework of the NPA, the National Task Force secretary, the Police Brigadier and the Head of the Anti-Trafficking in Persons Division drafted an annual work plan 2019, for combating trafficking of persons. Following the implementation of this work plan, the Department of Fishery established and implemented a pilot project for preventing trafficking in persons in the fishing industry; carried out awareness-raising measures for fishing business men, private factories, and fishing boat and factory owners; and took measures to cancel the business licences of business men who committed labour exploitation in domestic fishing industries. The Committee also notes the detailed information provided by the Government on the various activities undertaken by the Government in cooperation with other countries in its fight against trafficking in persons, in particular various training courses and workshops on strengthening the capacity and coordination on prevention and investigation of trafficking in persons for law enforcement officials conducted in India, China, Lao People’s Democratic Republic, Philippines, Thailand, Singapore, Indonesia, Malaysia and Viet Nam. It also notes the Government’s information that the seventh Myanmar Anti-Trafficking in Persons Day was observed on 13 November 2019. The Committee encourages the Government to continue its efforts to combat trafficking in persons, including through the implementation of the NPA 2017-2021 and through actions carried out within the bilateral cooperation agreements with its neighbouring countries. It requests the Government to continue to provide information on the measures taken and the results achieved in this regard.
3. Protection and assistance. The Committee notes the Government’s information that in 2019, a total of 172 victims of trafficking were provided with assistance, including financial assistance for small scale businesses to 102 victims and for livestock breeding to 53 victims; vocational assistance to six; assistance in the agricultural sector to eight; education assistance to two and health assistance to one victim. Moreover, in 2019, 312 victims (308 female victims and four boys), and from January to July 2020, 113 victims of trafficking (93 women and 19 girls) were repatriated from China and reintegrated with their families. The Government also indicates that shelter, care, legal and psycho-social support was provided to 17 victims of internal trafficking and 68 victims of trafficking who were to testify before the courts in China. The Government further indicates that during the period from January to July 2020, MMK 2.6 million from the State budget was provided to 26 victims of trafficking. The Government further notes the information from a 2018 report of the International Organisation for Migration (IOM) the Myanmar’s Ministry of Social Welfare, Relief and Resettlement, with the support of the IOM launched a manual of standard operating procedures for case management, repatriation and reintegration of victims of trafficking from Thailand. To date, Myanmar and Thailand have coordinated for the safe and dignified return of 500 victims of trafficking from Thailand to Myanmar.  The Committee strongly encourages the Government to continue taking effective measures to ensure that victims of trafficking are provided with appropriate protection and services, and to provide information on the number of persons benefiting from these services.

C029 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Myanmar (ratification: 1955)
The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.
The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. It also notes the detailed discussion which took place at the 108th Session of the Conference Committee on the Application of Standards in June 2019, concerning the application by Myanmar of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

Articles 1(1), 2(1) and 25 of the Convention. Elimination of all forms of forced labour. 1. Engagement of the ILO regarding the elimination of forced labour. (a) Historical background. In March 1997, a Commission of Inquiry was established under article 26 of the ILO Constitution to address the forced labour situation in Myanmar. As reported to the ILO Governing Body, forced labour had taken various forms in the country over the years, including forced labour in conflict zones, as well as for public and private undertakings. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that: (i) the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention; (ii) in practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and (iii) the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.
Since then, the issue has been the focus of cooperation between the Government and the ILO for more than a decade. In 2002, an Understanding was agreed between the Government and the ILO, which permitted the appointment of an ILO liaison officer. Later in 2007, the Supplementary Understanding (SU) was signed, in particular, to set out a complaints mechanism with the objective “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. In addition, in 2012, the ILO concluded a Memorandum of Understanding (MoU) on a Joint Strategy for the Elimination of Forced Labour by 2015, which provided a basis for seven interrelated action plans. The ILO also participated in the Country Task Force on Monitoring and Reporting on underage recruitment issues.
(b) Recent developments. The Action Plan for the elimination of all forms of forced labour, 2018 and the SU, which provided for a complaints mechanism, expired in December 2018. On 21 September 2018, the Government, the workers’ and employers’ organizations and the ILO signed the MoU on Decent Work Country Programme (DWCP) (2018–21). The significant implementation outputs, as indicated in the DWCP document, include institutionalization of national forced labour complaints mechanisms and strengthened protection against unacceptable forms of work, in particular forced and child labour by 2021. The Committee notes that in the course of the discussion in October–November 2019, the Governing Body noted, in respect of progress in the elimination of the use of forced labour that the number of complaints received had continued to decrease since 2016 suggesting progress towards elimination of underage recruitment, which generally accounted for the highest proportion of complaints received. It noted that in 2019 the ILO received 108 forced labour complaints, 48 of which have been assessed as being within the definition of forced labour while there were no complaints received of forced labour related to the involuntary use of civilians as guides and porters from conflict areas. Very few reports of forced labour in the private sector have been received since March 2019. The Governing Body also noted that the proposal for the establishment of a National Complaints Mechanism (NCM) was approved by the Government by a letter dated 7 August 2019 (GB.337/INS/9). The Governing Body noted that the ILO stressed on the following elements as necessary for a credible and effective complaints mechanism: (a) impartiality in the assessment and investigation of complaints; (b) guaranteed protection of victims; (c) credible accountability; (d) decentralization of responsibility to eliminate forced labour; and (e) awareness-raising programmes, particularly for those living in remote and conflict-affected areas. Although the Government had publicly advertised its intention to establish an NCM, no reference had been made to complainants being able to continue to submit complaints to the ILO. The GB also noted that while the Government had made efforts to develop interim procedures for dealing with complaints, a framework for the development of the NCM and an action plan for the elimination of forced labour under the DWCP, the victim protection measures remained unclear and the decentralization responsibility to state and regional governments to eliminate forced labour still needed to be addressed.
2. Application of the Convention in law and in practice. In its previous comments, the Committee noted that the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). It noted that no action had been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. It also noted that the developments within the peace process, such as the National Ceasefire Agreement of 2015 as well as the ILO initiation with the Government and the Ethnic Armed groups which resulted in two non-state armed groups committing to end forced labour, led to a significant decrease in the numbers of reported cases of forced recruitment for military purposes by both the security forces and armed groups. The Committee, however, noted from the Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar of 17 September 2018 (A/HRC/39/CRP.2) that the use of forced labour by the Tatmadaw (the armed forces of Myanmar) persisted, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It noted that in many instances, the Tatmadaw arrived in a village and took villagers directly from their homes or from the areas surrounding their village while they were fishing, farming, running errands or travelling while in some cases, this was done in an organized way, such as house by house, on the basis of a quota for each family, through a list, or with the cooperation of village leaders. Persons subjected to forced labour were required to perform a variety of tasks and the duration varied from a few days to months. Many of them were required to act as porters, carrying heavy packages including food, clothes and in some cases weapons. Other common types of work included digging trenches, cleaning, cooking, collecting firewood, cutting trees, and constructing roads or buildings in military compounds. Victims were also sometimes required to fight or participate in hostilities. Often, victims were given insufficient food of poor quality or were not able to eat at all. They did not have access to water and were kept in inadequate accommodation, including in the open air without bedding and without adequate sanitary facilities. Victims were subjected to violence if they resisted, worked slowly or rested. Particularly, female victims also faced sexual violence (paragraphs 258–273, 412–424 and 614–615). The Committee noted with deep concern the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It urged the Government to strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice, particularly the forced labour imposed by the Tatmadaw; to take the necessary measures to ensure the strict application of the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code; as well as to provide information on any progress made regarding the amendment to article 359 of the Constitution.
The Committee notes that, in its observations, the ITUC stated that forced labour is exacted in a systematic and continuous manner and that this practice is also persistent in the private sector, especially in the agricultural sector (fisheries, sugarcane, beans) and in the jade industry. The ITUC further highlights the plight of the Rohingya population, nearly 700,000 of them, who were expelled from the Rakhine State following the so-called clearance operations, commenced in 2017, and who are at an increased risk of falling victims to forced labour by both state and non-state actors.
The Committee notes the statement made by the Government representative of Myanmar to the Conference Committee that a total of ten ethnic armed forces have already signed the National Ceasefire Agreement and a unilateral ceasefire has been announced in the States of Kachin and Shan from December 2018 to April 2019. The Government representative further indicated that interim procedures for continuously receiving complaints are in place and that a Joint Parliamentary Committee was established to amend the Constitution. The Worker members, in their statement to the Conference Committee, alleged that the Government failed to implement most of the activities designed under the 2012 and 2018 action plans. The Committee notes that the Conference Committee, in its concluding observations, while welcoming the efforts in eliminating forced labour, expressed concern over the persistent use of forced labour and therefore urged the Government to take all necessary measures to ensure that forced labour is not imposed in practice by the military or civilian authorities; to ensure that victims of forced labour have access to effective remedies and comprehensive victim support without fear of retaliation; to increase the visibility of awareness-building and capacity-building activities for the general public and administrative authorities to deter the use of forced labour; to provide detailed information on the progress made within the DWCP; and to intensify its cooperation with the ILO through the development of a time-bound action plan for the establishment of, and transition to, an effective complaints handling procedure.
The Committee notes the Government’s information in its report that within the framework of the DWCP, in January 2019, a Training of Trainers on the Elimination of Forced Labour was conducted with representatives from the High Level Working Group (HLWG), members of the Technical Working Group (TWG) and representatives of the ILO. Moreover, a knowledge-sharing workshop was held during the same period with 50 representatives, including members from the HLWG, TWG, representatives of ILO, Government, and employers’ and workers’ organizations to share good practices of other countries on developing the National Complaints Mechanism (NCM). The Government indicates that the interim procedures for receiving and resolving forced labour complaints are, and will be, carried out by the HLWG until the establishment of the NCM.
In this regard, the Committee takes due note of the Government’s indication in its supplementary information that the NCM has been established and operational since February 2020. A national committee was set up in order to effectively implement the NCM, comprising representatives from 16 ministries and the Myanmar Human Rights Commission, as well as representatives from the Union of the Myanmar Federation of Chambers of Commerce and Industry (UMFCCI), the Confederation of Trade Unions Myanmar (CTUM), the Agriculture and Farmers Federation of Myanmar (Food Allied Workers) (AFFM-IUF) and the Myanmar Industries Craft and Services Trade Unions Federation (MICS-TUsF). An orientation session, facilitated by the ILO, was conducted for the members of the national committee for the NCM. Moreover, training on identifying and investigating forced labour cases, as well as on the international definition of forced labour and international humanitarian law was provided to 38 officials and staff from the various ministries and departments that receive complaints on forced labour. The Committee also notes the Government’s information that the NCM resolved 20 cases out of the 38 cases received in 2020, including the 24 cases received during the operation of the interim complaints mechanism.
The Committee also notes the Government’s information that from July 2018 to August 2019, a total of 6,423 awareness-raising workshops on forced labour were conducted for an estimated 507,935 people in related townships across the country and 115,113 posters were distributed. Moreover, to prevent the use of forced labour in the private sector, from January 2018 to July 2019, 1,903 knowledge-sharing workshops were conducted with 92,698 participants from 4,252 factories, shops, establishments and training centres.
Regarding the amendment to article 359 of the Constitution which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”, the Committee notes the Government’s information that the proposal was brought before the Pyidaungsu Hluttaw (Assembly of the Union) on 19 March 2020. However, the Committee notes with regret the Government’s statement that although 409 of the 654 representatives voted in favour of it, the article could not be amended as the required vote of more than 75 per cent of all the representatives of the Assembly was not received.
The Government further indicates that up until July 2020, 1,105 cases concerning underage recruitment were received under the SU complaints mechanism, of which 707 cases have been resolved. The Committee notes that from April 2019 to July 2020, ten military officers and eight military personnel were punished for the irregular recruitment of children. Moreover, 23 underage children who were irregularly recruited were released. The Committee, however, notes an absence of information on the concrete penalties applied to the ten military officers and eight military personnel for the irregular recruitment of children.
It further notes the Government’s information that no one was punished under the Ward or Village Tract Administration Act and the Penal Code from July 2018 to July 2019. While taking note of the measures taken by the Government towards the elimination of all forms of forced labour, the Committee once again reminds the Government that, by virtue of Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and strictly enforced.
The Committee therefore strongly urges the Government to take the necessary measures to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code, so that sufficiently dissuasive penalties of imprisonment are imposed and enforced against perpetrators in all cases. In this regard, the Committee requests the Government to provide information on the application in practice of the above-mentioned legislation to ensure accountability, including the statistical data on cases of forced labour detected, legal proceedings initiated, convictions handed down and the nature of the penalties imposed on convicted persons. It also requests the Government to continue providing detailed information on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities, as well as the private sector, such as awareness-raising and capacity-building activities for local administrators, military personnel, other stakeholders and the general public. The Committee further requests the Government to continue to provide information on the number of complaints on forced labour received and resolved by the NCM. Furthermore, while acknowledging the efforts made by the Government in respect to the proceedings to amend article 359 of the Constitution, the Committee firmly hopes that the Government will continue to take the necessary measures to ensure that article 359 of the Constitution is amended so as to bring it into conformity with the Convention and to provide information on any progress made in this regard. It once again reiterates the firm hope that all the necessary measures will be taken, in law and in practice, without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.
The Committee is raising other matters in a request addressed directly to the Government.

C185 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report on the application of the Convention and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th session (June 2020). It also notes that the 2016 amendments to the annexes of the Convention entered into force for the Republic of the Union of Myanmar on 8 June 2017. The Committee recalls that these amendments aim at aligning the technical requirements of the Convention with the latest standards adopted by the International Civil Aviation Organization (ICAO) with respect to the technology for seafarers’ identity documents (SIDs) provided for in the Convention. In particular, they intend to change the biometric template in SIDs from a fingerprint template in a two-dimensional barcode to a facial image stored in a contactless chip as required by ICAO document 9303. The Committee notes that, according to the information provided by the Government, the laws and regulations required to give effect to the Convention are still being developed. The Committee recalls in this regard the Resolution adopted by the third meeting of the Special Tripartite Committee of the Maritime Labour Convention, as amended (MLC, 2006), whereby it expressed concern about the difficulties seafarers continue to have in accessing shore leave and transiting in certain ports and terminals around the world and recognized that although an increased number of member States have ratified Convention No. 185, there still appear to be problems in ensuring that the Convention works in the way that it was originally intended. The Committee notes that these problems have dramatically increased as a result of the restrictions imposed by governments around the world to contain the spread of the COVID-19 pandemic. The Committee hopes that the Government in the near future will adopt the necessary measures to give full effect to the provisions of the Convention, as amended in 2016, taking into account the issues raised below. It requests the Government to provide detailed information on such measures, including a copy of the applicable national provisions. The Committee also requests the Government to supply a specimen of a SID compliant with the Convention as soon as it becomes available. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.
Article 1 of the Convention. Definition of the term “seafarer “. The Committee notes that section 9 of Guidance 2/2013 dated 14 August 2013 provides that seafarer means any person who is employed or engaged or works in any capacity on board a ship to which the MLC, 2006 applies. It notes however that section 2 of the Merchant Shipping Act (Myanmar (Burma) Merchant Shipping Act) [India Act XXI, 1923] excludes from the definition of “seaman” masters, pilots and apprentices duly indentured and registered. The Committee recalls that under Article 1(1) of the Convention the term “seafarer” means any person who is employed or is engaged or works in any capacity on board a vessel, other than a ship of war, ordinarily engaged in maritime navigation. Referring to its comments under Article II of the Maritime Labour Convention, 2006, as amended (MLC, 2006), the Committee requests the Government to ensure that masters and apprentices can benefit from the protection provided by Convention No. 185.
Article 1, paragraph 3 of the Convention. Application to fishers. The Committee notes the Government’s indication that it has decided not to apply the provisions of the Convention to commercial maritime fishing. The Committee takes not of this information.
Articles 2 to 5 and 7 of the Convention. Seafarers’ identity documents (SIDs). Implementation. The Committee notes the Government’s explanations concerning its plans to issue SIDs in conformity with the amended version of the Convention. It further notes that the Government organized in 2017 a tender to select a service provider to issue the new SIDs. It notes however that the Government has not provided up-dated information on the current status of the process. The Committee notes these initial efforts. Referring to its comments above, the Committee requests the Government to provide detailed and up-dated information on the concrete measures taken to give effect to Articles 2 to 5 and 7 of the Convention.
Article 6. Facilitation of shore leave and transit and transfer of seafarers. The Committee notes the Government’s indication that it allows the entry of seafarers during three days for the purpose of joining a ship or transit or transfer without providing information about the relevant laws or regulations. The Committee requests the Government to indicate the relevant national laws and regulations, which give effect to Article 6 of the Convention.
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