Effect given to the recommendations of the committee and the Governing Body - Report No 354, June 2009

Case No 2268 (Myanmar) - Complaint date: 28-MAY-03 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 154. The Committee last examined this case at its November 2008 meeting [see 351st Report, paras 1016–1050] and made the following recommendations:
   • (a) The Committee once again urges the Government in the strongest of terms to enact legislation guaranteeing freedom of association to all workers, including seafarers and employers; to abolish existing legislation, including Orders Nos 2/88 and 6/88 so as not to undermine the guarantees relating to freedom of association and collective bargaining; to explicitly protect workers’ and employers’ organizations from any interference by the authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee once again urges the Government to take advantage in good faith of the technical assistance of the Office so as to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. It requests the Government to keep it informed of all developments in this respect.
   • (b) The Committee once again urges the Government to issue instructions to its civil and military agents as a matter of urgency so as to ensure that the authorities fully refrain from any act preventing the free operation of all forms of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. It further requests the Government to ensure that all those working for such organizations can exercise trade union activities free from harassment and intimidation. The Committee requests the Government to keep it informed of all measures taken in this regard.
   • (c) The Committee once again urges the Government to institute an independent inquiry into the alleged murder of Saw Mya Than, to be carried out by a panel of experts considered to be impartial by all the parties concerned. The Committee requests the Government to keep it informed of measures taken in this respect.
   • (d) The Committee once again deeply deplores the Government’s refusal to consider the release of Myo Aung Thant and strongly urges the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect.
   • (e) The Committee once again requests the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requests the Government to issue appropriate instructions without delay so as to ensure that the SECD authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action, and immediately revise the text of the model agreement concerning Myanmar seafarers so as to bring it into conformity with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in this respect.
   • (f) The Committee once again recalls that a disputes resolution process that exists within a system with a total absence of freedom of association in law and practice, cannot possibly fulfil the requirements of Convention No. 87 and urges the Government to take all necessary measures so as to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country, and to keep it informed in this respect.
   • (g) The Committee once again requests the Government to further investigate the dismissals of Min Than Win and Aung Myo Win from the Motorcar Tyre Factory and if it is found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (h) The Committee once again requests the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to ensuring the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (i) The Committee requests the Government to provide full information, including official company documents where available, on the Myanmar Texcamp Industrial Ltd’s decision to retain skilled and service workers over unskilled and non-service workers in undertaking its retrenchment of 340 employees.
   • (j) With regard to the filing of complaints against the Yes Garment Factory on the same day by both Maung Zin Min Thu and Min Min Htwe along with five other workers, the Committee requests the Government once again to establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Maung Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Maung Zin Min Thu was dismissed; if it is found that the dismissal of Maung Zin Min Thu was due to legitimate trade union activities, the Committee requests the Government to take appropriate steps with a view to his reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (k) The Committee once again urges the Government in the strongest terms to undertake real and concrete steps towards ensuring respect for freedom of association in law and in practice in Myanmar in the very near future.
   • (l) The Committee calls the Governing Body’s attention to this serious and urgent case.
2. 155. In its communication of 6 March 2009 the Government states, with respect to the Committee’s previous recommendation on legislative reform, that the legislation will be brought in line with Convention No. 87 in the very near future and that the concerned ministries were drafting laws in this respect, which would be submitted for approval once the new Constitution is in force. Additionally Chapter VIII, paragraph 354 of the draft State Constitution provides, among other things, for the right of citizens to form associations and unions. As concerns the Committee’s previous recommendation for technical assistance in the reform of the legislative framework, the Government indicates that it was closely cooperating with the ILO Liaison Office in order to send a tripartite delegation to the 2009 International Labour Conference.
3. 156. As concerns the Committee’s previous recommendation on Myo Aung Thant, the Government reiterates that it is not possible to secure his release.
4. 157. As concerns the Committee’s request relating to disputes resolution mechanisms, the Government states that from January to December 2008 there were 38 cases before the Workmen’s Compensation Committee, all of which concerned either death or injury, and that the amount of 3,732,330 kyats had been paid to those workers. Additionally in 2007 the Township Workers’ Supervisory Committee (TWSC) heard 411 cases from 3,557 workers in 376 factories. In 2008 (up to June of that year) 190 cases had been heard, involving 3,475 workers from 178 factories; the cases concerned matters relating to wages and salaries, overtime, holiday benefits, bonuses, and arrangement of transportation. The remainder of the Government’s reply, is a repetition of information previously sent to the Committee.
5. 158. The Committee recalls that this case concerns the absence of freedom of association both in law and in practice in Myanmar. It includes allegations regarding legislative issues, in particular, the absence of a legislative basis for freedom of association in Myanmar, as well as factual allegations concerning the total absence of recognized workers’ organizations, opposition by the authorities to the organized collective representation of seafarers and to the exiled Federation of Trade Unions of Burma (FTUB), the arrest, imprisonment and death of trade unionists, and threats against, and dismissals and arrests of, workers who pursue labour grievances.
6. 159. The Committee recalls that for a number of years it has emphasized the need to both elaborate legislation guaranteeing freedom of association, and to ensure that existing legislation which impedes freedom of association would not be applied. It further recalls that considerable concern over the lack of conformity of Myanmar legislation with Convention No. 87 had been expressed, for a number of years, by the Committee of Experts and the Conference Committee on the Application of Standards, and that the right to organize remained subject to severe measures of repression in both law and practice [see e.g. 350th Report, para. 1033]. The Committee therefore deeply regrets that the Government, while indicating that the draft Constitution provides for the right of citizens to form associations and unions, once again indicates that new laws on freedom of association would only be submitted once the Constitution entered into force. The Committee is bound to deplore, once again, the fact that despite its previous detailed requests for legislative measures guaranteeing freedom of association to all workers in Myanmar, there has been no progress in this regard. The Committee must also, once again, recall that this persistent failure to take any measures to remedy the legislative situation constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of Convention No. 87. The Committee therefore once again urges the Government in the strongest of terms to enact legislation guaranteeing freedom of association to all workers, including seafarers, and employers; to abolish existing legislation, including Orders Nos 2/88 and 6/88 so as not to undermine the guarantees relating to freedom of association and collective bargaining; to explicitly protect workers’ and employers’ organizations from any interference by the authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. Furthermore, while noting the Government’s statement on cooperation with the ILO Liaison Office in Myanmar, the Committee once again urges the Government to take advantage in good faith of the technical assistance of the Office so as to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. It requests the Government to keep it informed of all developments in this respect.
7. 160. The Committee recalls that for several years now it has deplored the Government’s failure to take steps to ensure the release of Myo Aung Thant, who had allegedly been convicted to a heavy prison sentence for his trade union activities pursuant to a secret trial, without freely chosen representation and confessions obtained under torture [see 340th Report, para. 1092]. In this respect, the Committee is bound to deplore, once again, that the Government limits itself to reiterating that it is not possible to secure his release and strongly urges the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect.
8. 161. With respect to its previous recommendation on dispute settlement mechanisms, the Committee notes the Government’s information on the number of cases disposed of by the Workmen’s Compensation Committee in 2007 and the TWSC in 2008. It recalls, nevertheless, that a disputes resolution process that exists within a system with a total absence of freedom of association in law and practice, cannot fulfil the requirements of Convention No. 87. It also recalls its previous observation that, while it appears that the various committees referred to by the Government are all involved in some way in the conciliation and negotiation of disputes between employees and employers in Myanmar, their exact interaction and relative jurisdictions are unclear [see 337th Report, para. 1102]. The Committee further notes that, in the absence of relevant information from the Government, the composition of the TWSC, the procedure to be followed should no agreement be reached by the TWSC, and the nature of the representation of employees and employers before the committees remains equally unclear. In these circumstances, the Committee once again requests the Government, pending the adoption in Myanmar of legislation that protects and promotes freedom of association, to take measures to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country and to keep it informed of the measures taken in this regard.
9. 162. Finally, the Committee deeply regrets that the Government provides no new information respecting its other previous recommendations. It therefore repeats those recommendations, and urges the Government to take all necessary measures to ensure that they are given full effect to:
   • – The Committee once again urges the Government to issue instructions to its civil and military agents as a matter of urgency, so as to ensure that the authorities fully refrain from any act preventing the free operation of all forms of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. It further requests the Government to ensure that all those working for such organizations can exercise trade union activities free from harassment and intimidation. The Committee requests the Government to keep it informed of all measures taken in this regard.
   • – The Committee once again urges the Government to institute an independent inquiry into the alleged murder of Saw Mya Than, to be carried out by a panel of experts considered to be impartial by all the parties concerned. The Committee requests the Government to keep it informed of measures taken in this respect.
   • – The Committee once again requests the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requests the Government to issue appropriate instructions, without delay, so as to ensure that the SECD authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action, and immediately revise the text of the model agreement concerning Myanmar seafarers so as to bring it into conformity with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in this respect.
   • – The Committee once again requests the Government to further investigate the dismissals of Min Than Win and Aung Myo Win from the Motorcar Tyre Factory and if it is found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • – The Committee once again requests the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to ensuring the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • – The Committee requests the Government to provide full information, including official company documents, where available, on the Myanmar Texcamp Industrial Ltd’s decision to retain skilled and service workers over unskilled and non-service workers in undertaking its retrenchment of 340 employees.
   • – With regard to the filing of complaints against the Yes Garment Factory on the same day by both Maung Zin Min Thu and Min Min Htwe along with five other workers, the Committee requests the Government, once again, to establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Maung Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Maung Zin Min Thu was dismissed; if it is found that the dismissal of Maung Zin Min Thu was due to legitimate trade union activities, the Committee requests the Government to take appropriate steps with a view to his reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
10. 163. The Committee once again urges the Government in the strongest terms to undertake real and concrete steps towards ensuring respect for freedom of association in law and in practice in Myanmar in the very near future.