Report in which the committee requests to be kept informed of development - Report No 392, October 2020

Case No 3343 (Myanmar) - Complaint date: 07-DEC-18 - Follow-up

Allegations: The complainant organization alleges anti-union practices, including discrimination and dismissals of trade union members and officials by hotel management, as well as interference in union activities, police violence against peaceful demonstrations

1. 789. The complaint is contained in communications from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) dated 7 and 14 December 2018, and 4 March 2019.
2. 790. The Government forwarded its response to the allegations in communications dated 5 March and 8 June 2019, and 22 January 2020.
3. 791. Myanmar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 792. In a communication dated 7 December 2018, the IUF alleges anti-union practices, including harassment, discrimination and dismissals of trade union members and officials, as well as interference in union activities, denial of access to workplace and attempts to dismantle the union of workers at the Tharabar Gate Hotel, carried out by the management of the Tharabar Gate Hotel (hereinafter, the hotel).
2. 793. At the outset, the complainant organization recalls that, in November 2015, it already presented a complaint against the Government of Myanmar concerning its failure to adequately protect the rights of union members at another hotel (Case No. 3171). The IUF recalls in particular that, in June 2016, the Committee noted, inter alia, that “the Government is responsible for preventing all acts of anti-union discrimination” and that “the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed”. Subsequently, the IUF informed the Committee of progress in resolving the dispute in that case, however it regretted the ongoing absence of effective machinery to ensure the general application of measures to prevent anti-union discrimination. It appears that such acts of discrimination continue in the Bagan area as a consequence of the continued absence of effective legal machinery.
3. 794. The complainant organization alleges that, in February 2014, a majority of staff at the hotel in the present case formed and legally registered a trade union and elected Mr Nay Myo Win Chairperson of the union. In January 2015, Mr Nay Myo Win was informed that his employment was terminated after the union raised issues concerning the distribution of service charges. His termination was only rescinded following a protest by union and non-union hotel staff. According to the IUF, it is significant that non-union staff who did not take part in the protest at the hotel were given a special bonus cash payment and a certificate of appreciation and award thanking them for their “faithfulness” and encouraging them to continue working as “family”. The IUF denounces this type of measure as clearly intended to discourage membership in the union.
4. 795. Furthermore, the IUF indicates that the union then joined other local hotel unions to form an area-wide union organization, the Hotel Chitthu Township Level Labour Organization Bagan-Nyaung-U (HLOB), which elected Mr Nay Myo Win as its secretary. The HLOB is a legally registered organization, which is affiliated to the Myanmar Industries Craft and Services Trade Unions Federation (MICS) and to the IUF.
5. 796. According to the IUF, on 24 August 2018, the hotel management again terminated the union chairperson, along with 11 other workers, including two executive members of the union and seven active union members. The formal justification given for the discriminatory dismissals was that management was merely executing an order by the board of directors to reduce employment by a specified percentage, given the downturn in occupancy. The IUF alleges that, at a meeting with management the day before the termination, the union had indicated to the management its willingness to negotiate alternative work arrangements which would safeguard employment. The management response was however to target union officers and activists for dismissal, violating their rights and the rights of all union members, including those of the members of the HLOB, who elected Mr Nay Myo Win as their Secretary. The IUF adds that these dismissals directly contravene the principles of the Committee on Freedom of Association, which has emphasized that acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity and that the application of staff reduction programmes must not be used to carry out acts of anti-union discrimination.
6. 797. The complainant organization indicates that, on 18 September 2018, the hotel union wrote to the Mandalay Division Government Office to inform them of the anti-union dismissals and to solicit assistance in securing a solution. To date, the union has not received any response. On 9 October 2018, a meeting was convened under the auspices of the Township Conciliation Body, with the participation of Members of Parliament, the HLOB and the MICS. That meeting, at which the hotel management proposed only adjustments to the number of dismissed employees, ended with no agreement on reinstatement of the dismissed union members and officers. A further conciliation attempt under government auspices at a 22 October 2018 meeting at the Labour Office in Nyaung-U Township, with the participation of the Deputy Director-General of the Labour Relations Department from the national Ministry of Labour, Immigration and Population, also failed to secure reinstatement of the union members. The IUF alleges that, rather than insisting on the obligation to protect union members and officers from anti-union dismissals, the government representative merely stated that, as no result had been achieved, the union could consider suing the employer. Additionally, the IUF indicates that when the union embarked on a series of peaceful protests, workers were pressured by the hotel management not to join the actions and offered improvements to the mid-year bonus (Thidingyut).
7. 798. The IUF indicates that it wrote to the Minister of Labour, Immigration and Population, copied to the Minister of Hotels and Tourism on 26 November 2018. It has not received any reply to its communications.
8. 799. Additionally, a conciliation meeting was held on 27 November 2018 at the hotel, with the Director of the Labour Directive Department, Mandalay Region, the Regional Officer of the Labour Relations Department, Mandalay Region, and the Township Administrator, as government representatives, representatives from the hotel union, the HLOB and the MICS, the hotel management and a representative of the employers. During the meeting, the government representatives urged the hotel management to reinstate the nine workers and respect labour legislation if it needed to reduce the workforce. The hotel management however indicated that although they could reinstate the dismissed workers it would not do so. The IUF denounces the fact that, although the hotel management openly expressed its continued refusal to comply with the law, there has been no further attempt from the government authorities to resolve the dispute since the meeting failed, or to ensure meaningful protection to the union’s members and officers and secure a workplace environment which would allow the workers to effectively exercise their trade union rights.
9. 800. In its communication of 14 December 2018, the IUF denounces the destruction – on 11 December 2018 – by the police, acting on the orders of local authorities, of the peaceful solidarity camp maintained on public space since 12 October by union members together with family members and supporters. According to the IUF, around 100 people, only a few of them in police uniform, assaulted the camp and tore down the workers’ banners. When the workers attempted to regroup, they were forcibly dispersed. The peaceful encampment was established in the course of the public protest actions organized by hotel unions in the Bagan area following the 24 August anti-union dismissals by the hotel management targeting the hotel union members, including the chairperson. The union protests, which have all proceeded peacefully, were organized out of a sense of deep frustration with the local and national authorities’ repeated failures to bring the hotel management to comply with relevant labour law and international standards.
10. 801. Furthermore, the IUF alleges that, on 13 December 2018, the HLOB attempted to hold a peaceful march from the hotel to the Mandalay Region Government Office to protest against the attack on the solidarity camp. However, armed police dispersed the rally and arrested 13 people, including seven members of the hotel union. The 13 have been charged with offences under article 19 of the Peaceful Assembly and Peaceful Procession Act and could face further charges. The IUF recalls that the right of trade unions to public assembly and public protest is a right which the Committee on Freedom of Association has confirmed as a right protected under the right to freedom of association. The IUF considers the police attack on the workers’ solidarity camp, ordered by the Nyaung-U Township administrator and carried out by the Nyaung-U District Police Department, and the dispersal of the protest march to the Mandalay Region Government Office by armed police, and the arrests and charges against the 13 trade union members to be a violation of Conventions Nos 87 and 98.
11. 802. In its communication dated March 2019, the IUF alleges that, on 1 March 2019, the Nyaung U Court found six HLOB union members and leaders, including Mr Nay Myo Win, who had been arrested earlier but was charged and sentenced together with the other HLOB members, guilty of violating article 19 of the Peaceful Assembly and Peaceful Procession Act and sentenced them to one-month imprisonment. The six were placed under immediate arrest, an unnecessary and overt act of intimidation. The IUF further notes the ongoing failure of the local and national authorities to undertake meaningful action to bring the hotel management to comply with relevant labour law and international standards. Therefore, the IUF calls on the Committee on Freedom of Association to recall to the Government its responsibilities and to take prompt corrective measures to ensure the reinstatement of workers victimized for their union membership and engagement and good faith negotiations with the union at the establishment.

B. The Government’s reply

1. 803. In a communication dated 5 March 2019, the Government provided the following information in relation to the case: (i) the hotel management reported to the Nyaung-U Township Conciliation Body on the reduction of 12 workers in the workforce of the hotel and their wages, including notice fees and termination fees (based on service term), were paid to their bank accounts on 24 August 2018; (ii) the conciliation process was first conducted on 9 October 2018 between the employer and the workers by members of the House of Representatives and members of the Township Conciliation Body. During the process, representatives of the HLOB informed that nine workers wanted to work at the hotel again. In case the hotel would not reinstate them, a strike would be organized under the Labour Organization Law. The hotel management indicated that the reduction in the workforce is due to the financial and economic conditions of the hotel, and the hotel would provide skills training for the workers to get a job in another workplace. No settlement was reached out of the meeting; (iii) on 11 October 2018, representatives of the hotel and the union negotiated again within the Nyaung-U Township Conciliation Body. The hotel management proposed to reinstate three workers out of the nine workers who expressed willingness to work again at the hotel. The remaining workers would be provided with training and could get another job at a restaurant. No agreement was reached as the workers requested reinstatement for all nine; (iv) another conciliation meeting, led by the Deputy Director-General of the Department of Labour Relations, was held on 22 October 2018 at the Department of Labour Relations with members of the Township Conciliation Body and representatives of the MICS; (v) on 27 November 2018, a new conciliation meeting was held in the premises of the hotel. It was attended by officers from the Regional Combination Group and Hotel and Tourism Department, representatives of the hotel, representatives from the MICS, the Chairperson of the Township Labour Organization and nine workers, including Mr Nay Myo Win. During the meeting, the vice-chairperson of the MICS proposed to reinstate the nine workers in their original posts with original pay. The issue could not be solved as the representatives of the hotel refused to reinstate the workers; (vi) on 14 December 2018, another meeting was held at the Mandalay Region Government. The meeting was attended by the Chief Minister and ministers of the Mandalay Region, members of the Nyaung-U Township Conciliation Body and employer representatives. Worker representatives did not participate in the meeting; and (vii) on 8 January 2019, the Minister of Planning and Finance of the Mandalay Region headed a meeting at the Nyaung-U Township General Administration Department with members of the House of Representatives and the Nyaung-U Division Management Committee. Representatives of the Myanmar Hotelier Associations (Bagan zone), the Agriculture and Farmer Federation (affiliated to the IUF), Solidarity for Trade Union Myanmar (STM) and the HLOB attended the meeting. The workers demanded eight points from the employer, including the following points: (a) to reinstate them in original posts with original pay; (b) to pay full wages for interval period; (c) to give full wages and services fees for the other 23 workers who joined them; (d) to pay bonuses to the nine dismissed workers and the 23 workers, like other workers; and (e) to repeal the legal suit during period of strike.
2. 804. With regard to the dismissed workers, the hotel management indicated that they had already received the termination fees, thus reinstatement was not possible. Therefore, the hotel management proposed to pay an additional amount of one month’s salary for their grievances. However, no settlement could be reached as the workers did not accept the proposed additional amount and reaffirmed their interest to be re-employed at the hotel. On 13 January 2019, the management of the hotel informed the Minister of Planning and Finance of Mandalay Region that the hotel was ready to pay the equal amount of two months’ salary.
3. 805. With regard to the demand of the union to withdraw the legal suit during the strike, the government authorities indicate that the legal action was taken against them under the Peaceful Assembly and Peaceful Procession Law. Section 4 of the Peaceful Assembly and Peaceful Procession Law provides that the citizens or organizations desired to enjoy and exercise the rights to peaceful assembly and peaceful procession, in order to express their opinion and desire, shall submit a notification in writing to the commander of the respective township police force at least 48 hours prior to the day of such activity. Under section 19 of the law, any person who holds assembly or procession without notification in accordance with the provisions in section 4 shall, on conviction, be punished by imprisonment for a term not exceeding three months or by a fine not exceeding 30,000 Myanmar kyats (MMK) or by both. In the Government’s view, the workers involved in the labour issue at the hotel held the procession without reporting the information to the respective township police commander. Therefore, they were prosecuted under section 19 of the Peaceful Assembly and Peaceful Procession Law.
4. 806. In its communication of 8 June 2019, the Government provides information on three public gatherings led by Mr Nay Myo Win which took place in the Nyaung-U and Bagan Townships without getting permission from the police and were considered in violation of section 19 of the Peaceful Assembly and Peaceful Procession Law: (i) 20 people conducted a peaceful assembly and procession on 4 December 2018 (at 9.15 a.m.) at Sone Kone Ward, Nyaung-U Township, to protest against the dismissal of 12 workers from the hotel; (ii) the same day, from 5.05 p.m. to 5.20 p.m., 20 people conducted a peaceful assembly and procession at Nyaung Lafat lake sunset view point hill, Minnanthu village, Bagan Township; and (iii) on 5 December 2018 (from 9.40 a.m. to 9.55 a.m.), 20 people made a peaceful assembly and procession at the Bore Zin market, Nyaung-U Township. On each occasion, the police commander complained at the police station for violation of section 19 of the Peaceful Assembly and Peaceful Procession Law. Mr Nay Myo Win was considered the offender in the three cases and was interrogated by the Court (Code of Conduct Nos 811/2018, 812/2018 and 813/2018). He was sentenced to one month’s imprisonment without labour under section 19 of the Peaceful Assembly and Peaceful Procession Law. He served his sentence starting from 1 March 2019 and was released on 29 March 2019.
5. 807. Furthermore, on 1 April 2019, the hotel management indicated that the nine dismissed workers persuaded the staff to go on strike, 11 workers among 34 strikers went back to work after about one week on strike and the 23 remaining workers were absent without leave for more than three months. While 22 workers requested to return to the workplace, the management cannot appoint them, as they were absent without leave for more than five months. Following a request from the Government authorities, the hotel representatives agreed to re-employ seven workers who, in their view, complied with the rules and regulations. The re-employed workers would also have access to allowances and skills training.
6. 808. On 7 April 2019, at the request of the workers, a meeting was convened with the participation of the Minister of Mandalay Division, Ministry of Natural Resources and Environmental Conservation and Labour Affairs, the Minister of Planning and Finance, the Deputy Director-General of the Department of Labour Relations, the Deputy Director-General of the Ministry of Hotel and Tourism, Members of Parliament of the Mandalay Region, the District Administrator of the Department of General Administration, Mandalay region officers and Nyaung-U township officers under the Ministry, members of the Nyaung-U Township Conciliation Body, ten employers and six workers (a total of 41 persons). During the meeting the hotel management offered that three out of six workers be re-employed, one worker among the seven workers previously identified had found work. The three remaining workers (out of the six) would benefit from advance training for three to four months with adequate support for accommodation and arrangement for meals. Their blacklisting would be cancelled, and the employer could arrange for jobs in two other hotels. In this regard, their last positions and salaries would be duly taken into account. The workers however indicated that they could not accept the proposal for re-employment of only six workers out of 22 workers who requested to return to work. Consequently, considering that the conciliation did not lead to agreement, the authorities decided that the aggrieved persons should resort to relevant court in accordance with a civil suit. In its communication dated 22 January 2020, the Government specifies that, to date, there has been no prosecution before any court related to this case.

C. The Committee’s conclusions

1. 809. The Committee notes that, in the present case, the complainant organization alleges anti-union practices, including discrimination and dismissals of trade union members and officials on the part of the management of the hotel, as well as interference in union activities, police violence against peaceful demonstrations, and the inability of the Government authorities to settle the labour dispute.
2. 810. The Committee notes the complainant’s allegation that its affiliate, a hotel union, has been facing management hostility ever since its formation in 2014. An attempt to dismiss the union’s Chairperson, Mr Nay Myo Win, right from 2015, was defeated by the resistance from union members and the hotel staff. The union then joined other local hotel unions to form an area-wide union named the Hotel Chitthu Township Level Labour Organization Bagan-Nyaung-U (HLOB) electing Mr Nay Myo Win as its Chairperson. The HLOB is a legally registered organization, which is affiliated to the the MICS and to the IUF.
3. 811. The Committee notes the allegation that, in August 2018, the hotel management again terminated the union chairperson, along with 11 other workers, including two members of the union executive and seven active union members. According to the IUF, the formal justification given for the discriminatory dismissals was that management was merely executing an order by the board of directors to reduce employment by a specified percentage, given the downturn in occupancy. However, the complainant stresses that at a meeting with management the day before the termination, the union had indicated to the management its willingness to negotiate alternative work arrangements which would safeguard employment. Still, the management response was to target union officers and activists for dismissal, therefore violating their trade union rights and the rights of all union members, including those of the members of the HLOB, who elected Mr Nay Myo Win as their Secretary. The Committee notes the indication that, on 18 September 2018, the hotel union wrote to the Mandalay Division Government Office to inform them of the anti-union dismissals and to solicit assistance in securing a solution, to no avail. The Committee also notes, from the submission of the Government referring to the conciliation processes which took place after the dismissals, that the hotel management merely indicated that the reduction in the workforce was due to the financial and economic conditions of the hotel, and that the hotel was ready to provide skills training for the dismissed workers to get a job in another workplace.
4. 812. With regard to the specific allegation of anti-union dismissal, the Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. The Committee has always considered that it is not within its purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference. The application of staff reduction programmes must not be used to carry out acts of anti-union discrimination [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1075, 1114 and 1112]. In the present case, the Committee observes that the collective dismissal has affected mostly members of the hotel union, as the 12 dismissed workers comprise three union leaders, including the chairperson, and seven active members of the union. In this regard, the Committee recalls that it has emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Compilation, op. cit., para. 1157].
5. 813. In light of the information available, the Committee regrets that the Government does not provide any comments on the allegations of anti-union dismissals in this case and merely referred to the grounds for dismissal cited by the hotel management. Moreover, the Committee observes with concern that the Government authorities seemingly never addressed directly the allegations of anti-union discrimination in themselves. The Committee recalls that the role of the Government in relation to acts of anti-union discrimination and interference is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement in order to ensure effective protection against acts of anti-union discrimination and interference and, in particular, ensure that such acts are identified and remedied, that guilty parties are punished and that such acts do not reoccur in the future [see Compilation, para. 1161]. Consequently, the Committee urges the Government to carry out an independent investigation on the allegations of anti-union dismissal against Mr Nay Myo Win and the other nine trade unionists and, should it be found that their dismissals were motivated by the exercise of their legitimate trade union activities, to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts do not recur. The Committee recalls that reinstatement should be available as a primary remedy to those who are victims of anti-union discrimination. If reinstatement is not possible, the government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Compilation, para. 1174]. The Committee requests the Government to keep it informed of any developments in this regard. With reference to the recommendation it made in a similar case concerning Myanmar [see Case No. 3171, 378th Report, June 2016, para. 493] to review the relevant legislation, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions, the Committee invites the Government to continue to avail itself of ILO technical assistance in this respect.
6. 814. The Committee notes that, in the following weeks, the union launched a protest campaign, including peaceful gatherings, protest marches and the maintenance of a workers’ solidarity camp in a public space. According to the IUF, it is noteworthy that non-union workers were pressured by the management not to join the actions and those who did not take part in the protest action received a special bonus cash payment and a certificate of appreciation and award thanking them for their “faithfulness” and encouraging them to continue working as “family”. The Committee considers that this is a serious allegation, which, if true, would be likely to have a grave effect on the freedom of association rights of the workers at the hotel. The Committee recalls that on various occasions concerning measures applied to compensate workers who do not participate in a strike by bonuses, it considered that such discriminatory practices constitute a major obstacle to the right of trade unionists to organize their activities [see Compilation, para. 976]. The Committee trusts that the Government will review these allegations and, if they are found to be true, will take the necessary measures to prevent such discriminatory practice affecting the exercise of trade union rights.
7. 815. From the information available, the Committee understands that, on 11 December 2018, the police, acting on the orders of local authorities, intervened to shut down the workers’ solidarity camp maintained since 12 October by union members and their supporters. According to the IUF, around 100 people, only a few of them in police uniform, assaulted the camp and tore down the workers’ banners. When the workers attempted to regroup, they were forcibly dispersed. Furthermore, the IUF alleges that, on 13 December 2018, the HLOB attempted to hold a peaceful march from the hotel to the Mandalay Region Government Office to protest against the attack on the solidarity camp, however, armed police dispersed the rally and arrested 13 people, including seven union members. The 13 arrested protesters were charged with offences under article 19 of the Peaceful Assembly and Peaceful Procession Act. The Committee observes that the Government does not provide any information in relation to these serious allegations. In this regard, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Compilation, paras 208 and 217]. In light of the above, the Committee urges the Government to investigate and report in detail on the circumstances of police intervention in the shutting down of the solidarity camp on 11 December 2018 and during the peaceful protest march of 13 December 2018, leading allegedly to the arrest of 13 protesters, including seven union members. The Committee further requests the Government to give precise instructions to the police authorities so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a peaceful demonstration.
8. 816. The Committee notes that, in its communication, the Government refers to three specific peaceful processions of about 20 people led by Mr Nay Myo Win on 4 and 5 December 2018 in the Nyaung-U and Bagan Townships, allegedly without getting the permission from the police. On each occasion, the police commander made a complaint at the police station for violation of section 19 of the Peaceful Assembly and Peaceful Procession Law. Mr Nay Myo Win was considered the offender in the three cases and was interrogated by court. He was sentenced to one month’s imprisonment without labour under section 19 of the Peaceful Assembly and Peaceful Procession Law. According to the Government, he served his sentence starting from 1 March 2019 and was released on 29 March 2019. The Committee notes from the complainant’s submission that, on 1 March 2019, the Nyaung-U Court found six HLOB union members and leaders, including Mr Nay Myo Win, guilty of violating article 19 of the Peaceful Assembly and Peaceful Procession Act and sentenced them to one month’s imprisonment. The six were placed under immediate arrest. The Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike, public meetings or processions [see Compilation, para. 156]. In this regard, the Committee expresses its concern as to the restrictions the Law on the Right of Peaceful Assembly and Peaceful Procession may have on the right of organizations to carry out their activities without interference. In the present case, the Committee is of the view that the punishment of one month’s imprisonment for the mere violation of rules concerning issuance of police permission for a peaceful procession is excessive and is not conducive to a constructive industrial relations climate. The Committee therefore invites the Government to review the Law on the Right of Peaceful Assembly and Peaceful Procession, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure its conformity with freedom of association.
9. 817. The Committee notes the Government’s indication that, during the protest campaign initiated by the union, the nine dismissed workers persuaded the hotel staff to go on strike. Some 34 workers went on strike, among them 11 returned to work after about one week on strike and the 23 remaining workers were absent without leave for more than three months. According to the Government, 22 workers requested to return to the workplace, however the management refused to appoint them, as they had been absent without leave for more than five months.
10. 818. The Committee notes that the workers’ demands concern the reinstatement of nine dismissed workers in their original posts with full payment of wages, services fees and bonuses; the re-employment with full wages, services fees and bonuses for the 23 other workers who joined the protest action; and the withdrawal of the legal suit. The Committee notes from the submission of the Government that the hotel management indicated that it was unable to reinstate the nine dismissed workers as they had already been paid their termination fees. In January 2019, the hotel management indicated its readiness to pay to each worker two months’ salary to remedy the grievances. With regard to the 22 workers requesting to return to work at the hotel, the hotel management agreed to re-employ six workers.
11. 819. The Committee notes from the information provided by both the complainant and the Government, that the case was examined through conciliation processes on numerous occasions: (i) a meeting under the auspices of the Township Conciliation Body, with the participation of Members of Parliament, the HLOB and the MICS (8 October 2018); (ii) a meeting at the Labour Office in Nyaung-U Township, with the participation of the Deputy Director-General of Labour Relations Department from the national Ministry of Labour, Immigration and Population (22 October 2018); (iii) a conciliation meeting organized at the hotel with the Director of Labour Directive Department, Mandalay Region, the Regional Officer of Labour Relations Department, Mandalay Region, and the Township Administrator, as Government representatives, representatives from the hotel union, the HLOB and the MICS, the hotel management and a representative of the employers (27 November 2018); (iv) a meeting at the Mandalay Region Government Office attended by the Chief Minister and ministers of the Mandalay Region, members of the Nyaung-U Township Conciliation Body and employer representatives, but without the participation of the workers’ representatives (14 December 2018); (v) a meeting at the Nyaung-U Township General Administration Department attended by members of the House of Representatives and the Nyaung-U Division Management Committee, representatives of the Myanmar Hotelier Associations (Bagan zone), the HLOB, the MICS and Solidarity for Trade Union Myanmar (STM) and headed by the Minister of Planning and Finance of Mandalay Region; and (vi) a meeting with the participation of the Minister of Mandalay Division, Ministry of Natural Resources and Environmental Conservation and Labour Affairs, the Minister of Planning and Finance, the Deputy Director-General of the Department of Labour Relations, the Deputy Director-General of the Ministry of Hotel and Tourism, Members of Parliament of Mandalay Region, the District Administrator of the Department of General Administration, Mandalay Region officers and Nyaung-U Township officers under the Ministry, members of the Nyaung-U Township Conciliation Body, ten employers and six workers (a total of 41 persons) (7 April 2019).
12. 820. The Committee observes that despite the reported conciliation meetings that took place between October 2018 and April 2019, the process did not lead to agreement. It further notes that the Government decided that the aggrieved party should resort to the relevant court in accordance with a civil suit. Finally, the Committee notes from the Government’s communication of January 2020 that, to date, there has been no prosecution before any Court related to this case. The Committee welcomes the attempts by the Government authorities at the highest regional level to resolve the labour dispute. The Committee requests the Government to indicate any referral of the labour dispute to the relevant arbitration body under the law. It also requests the Government and the complainant to keep it informed of any development in the appeal procedures available, in particular to indicate whether any aggrieved party has filed a judicial appeal, and if so, to provide the corresponding ruling.

The Committee’s recommendations

1. 821. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to carry out an independent investigation on the allegations of anti-union dismissal against Mr Nay Myo Win and the other nine trade unionists and, should it be found that their dismissals were motivated by the exercise of their legitimate trade union activities, to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts do not recur. The Committee recalls that reinstatement should be available as a primary remedy to those who are victims of anti-union discrimination. If reinstatement is not possible, the government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals. The Committee requests the Government to keep it informed of any developments in this regard.
   • (b) The Committee urges the Government to investigate and report in detail on the circumstances of the police intervention in the shutting down of the solidarity camp on 11 December 2018 and during the peaceful protest march of 13 December 2018 leading allegedly to the arrest of 13 protesters, including seven union members. The Committee further requests the Government to give precise instructions to the police authorities so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a demonstration.
   • (c) The Committee invites the Government to review the Law on the Right of Peaceful Assembly and Peaceful Procession, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure its conformity with freedom of association.
   • (d) The Committee requests the Government to indicate any referral of the labour dispute to the relevant arbitration body under the law. It also requests the Government and the complainant to keep it informed of any development in the appeal procedures available, in particular to indicate whether any aggrieved party has filed a judicial appeal and, if so, to provide the corresponding ruling.
   • (e) The Committee invites the Government to continue to avail itself of ILO technical assistance to review the relevant legislation, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions.