Effect given to the recommendations of the committee and the Governing Body - Report No 356, March 2010

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

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

1. 95. The Committee last examined this case at its June 2009 meeting [see 354th Report, paras 154–163] 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.
   • (b) The Committee strongly urges the Government to take the necessary steps to ensure the immediate release of Myo Aung Thant from prison and to keep it informed in this respect.
   • (c) The Committee once again requests the Government 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.
   • (d) 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.
   • (e) 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.
   • (f) 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.
   • (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-shift workers 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.
2. 96. In communications dated 1 June 2009 and 5 October 2009, the Government repeats its previous statement that workers already enjoy their rights under existing labour laws, and that legislation in line with Convention No. 87 would be submitted once the new Constitution is in force. The Government also reiterates information previously submitted on dispute settlement mechanisms, and adds that from January to August 2009, supervisory committees successfully settled 1,444 cases. In a communication dated 26 February 2010, the Government indicates that the basic principles of the draft laws were discussed with ILO experts during the ILO mission to Myanmar, undertaken from 17 to 24 January 2010, and that the experts’ advice would be included in the preparation of the said draft legislation. The ILO furthermore would be informed of the progress made in this respect.
3. 97. The Committee recalls that for a number of years it has emphasized the need to both elaborate legislation guaranteeing freedom of association and ensure that existing legislation which impedes freedom of association would not be applied. The Committee therefore deeply regrets that the Government merely repeats its previous indication that new laws on freedom of association would only be submitted once the new Constitution enters 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. Noting the Government’s indication that the draft legislation had been discussed with members of the ILO mission to Myanmar that took place from 17 to 24 January 2010, and that the advice of the mission would be included in the preparation of the draft laws to ensure freedom of association, 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.
4. 98. The Committee notes with deep regret that, apart from the information on the number of cases disposed of by the supervisory committees in 2009, the Government provides no information respecting its previous comments on dispute settlement mechanisms. In these circumstances the Committee must once again recall 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 once again 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 Township Workers’ Supervisory Committee (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.
5. 99. Finally, the Committee must once again express its deep regret that the Government provides no new information on the other recommendations and therefore once again urges it to provide information on all measures taken for their implementation, in particular as regards:
   • – The issuance of instructions to 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 and the need to ensure that all those working for such organizations can exercise trade union activities free from harassment and intimidation.
   • – The institution of 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 steps taken for the immediate release from prison of Myo Aung Thant.
   • – The issuance of appropriate instructions 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 the revision of 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 steps taken to investigate the dismissals of Min Than Win and Aung Myo Win from the Motorcar Tyre Factory.
   • – The measures taken 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-shift workers who were retrenched.
   • – The provision of 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.
   • – The measures taken to investigate the allegations relating to the Yes Garment Factory.
6. 100. The Committee once again urges the Government immediately to undertake real and concrete steps to ensure respect for freedom of association in law and in practice in Myanmar so as to ensure that the incipient steps on the roadmap towards democracy are carried out within a framework that respects the necessary prerequisites thereto.