Informe provisional - Informe núm. 337, Junio 2005

Caso núm. 2268 (Myanmar) - Fecha de presentación de la queja:: 28-MAY-03 - Cerrado

Allegations: (1) allegations relating to legislative issues: unclear legislative framework covering freedom of association; serious discrepancies between legislation and Convention No. 87; repressive texts, in particular military orders and decrees, detrimental to freedom of association and which contribute to a climate of denial of fundamental freedoms and to annihilate and destroy any form of labour organization; (2) allegations relating to factual issues: total lack of legally registered workers’ organizations; systematic practice of repression by public authorities of any form of labour organization; the Federation of Trade Unions of Burma (FTUB) cannot function freely and independently on the Myanmar territory and its General Secretary has to face criminal prosecution because of his legitimate trade union activities; murder, detention and torture of trade unionists; continuing repression of seafarers for the exercise of their trade union rights; arrest and dismissal of workers in connection with collective labour protests and claims, in particular at the Unique Garment Factory, the Myanmar Texcamp Industrial Ltd. and the Myanmar Yes Garment Factory; intervention of the army in labour disputes

1058. The Committee examined this case at its March 2004 meeting and submitted an interim report to the Governing Body [see 333rd Report, paras. 642-770, approved by the Governing Body at its 289th Session (March 2004)].

1. 1059. Following the publication of its interim report in this case, the Committee received a communication dated 14 April 2004 from the International Transport Workers’ Federation (ITF) in which it refuted the Government of Myanmar’s statement that the Myanmar Overseas Seafarers’ Association (MOSA) was affiliated to it. This statement had been recorded in paragraph 716 of the Committee’s interim report.
2. 1060. The Government sent new observations in communications dated 23 September 2004, and 7 and 28 January 2005.
3. 1061. 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. Previous examination of the case

1. 1062. At its March 2004 meeting, the Committee made the following recommendations in relation to this case [see 333rd Report, para. 770]:
2. (a) Noting the absence of a legal basis for freedom of association in Myanmar, the Committee requests the Government to:
3. (i) elaborate a legislation whereby the respect for, and the realization of, freedom of association will be guaranteed for all workers, including seafarers, and employers;
4. (ii) include in the aforementioned legislation specific measures whereby any other legislation, including Orders Nos. 2/88 and 6/88, will not apply in a manner which would undermine the guarantees relating to freedom of association and collective bargaining.
5. (b) Bearing in mind the serious implications of the lack of legal basis for freedom of association in Myanmar, the Committee is convinced that the Government should accept the technical assistance of the Office to remedy the situation.
6. (c) Noting that workers’ welfare associations are not substitutes for free and independent trade unions, and pending the outcome of the legislative process, the Committee requests the Government to refrain from any acts preventing the free operation of any form of organized collective representation of workers, including of seafarers, freely chosen by them to defend and promote their economic and social interests; this request includes workers’ organizations, which operate in exile as they cannot be recognized in the prevailing legislative context of Myanmar; the Committee requests the Government to issue clear instructions in this regard to its agents and to keep it informed of developments. The Committee recalls that the right of workers and employers to freely establish and join organizations of their own choosing cannot be said to exist unless such freedom is fully established and respected in law and practice.
7. (d) The Committee requests the Government to establish an independent panel of experts who could be considered impartial by all the parties concerned, to undertake an independent investigation into the murder of Saw Mya Than and to inform it of the decision in this regard.
8. (e) Concerning the General Secretary of FTUB, the Committee requests the Government to adduce evidence illustrating that the grounds on which the criminal charges were pressed against the General Secretary of FTUB had no connection with his trade union activities; it requests copies of the decision, referred to in the Government’s reply, by which he was found guilty under section 122 of the Penal Code, as well as any documents relating to the other case filed against him under the Public Protection Preservation Law, 1947.
9. (f) Concerning the interconnected cases of Myo Aung Thant and Khin Kyaw, and taking into account that they did not benefit from a fair trial with access to legal counsel of their choice and that the conviction of Myo Aung Thant allegedly rested on a confession obtained under torture, the Committee urges the Government to take the necessary steps to have both Myo Aung Thant and Khin Kyaw released from prison.
10. (g) The Committee regrets that the Government has not provided any replies to the allegations made in Thet Naing’s case and firmly requests the Government to submit a comprehensive reply together with the copies of any relevant documents, including any judicial decision under which Thet Naing might have been sentenced; if any sentence has been handed down, the Committee requests the Government to provide evidence to prove that it has no connection with any activity related to freedom of association and, in the absence of conclusive evidence, to take urgent steps to release Thet Naing from prison.
11. (h) The Committee requests the Government to submit a detailed reply on the allegations relating to Shwe Tun Aung’s case, including any relevant documents to support its comments; the Committee requests the Government to provide any contract or document signed or accepted by Shwe Tun Aung before he could take up his first assignment as seafarer, as well as any document on the basis of which seafarers can currently take up their first assignment.
12. (i) Concerning the various cases of alleged repression or threats towards factory workers for having pursued their labour grievances:
13. (i) the Committee requests the Government to provide copies of the relevant legal instruments governing the dispute-resolution mechanism and, in particular, details on the composition, the role and the functioning of the Township Workers’ Supervisory Committee and the Supervisory Committee of the Industrial Zones;
14. (ii) in the case of the Motorcar tyre factory, in view of the direct conflicting versions given by the complainant and the Government, the Committee requests the Government to provide copies of the company’s records of employees on 9 and 31 March 2001 with due explanations of any differences so as to resolve this issue;
15. (iii) the Committee requests the complainant to submit additional information in light of the comments made by the Government on labour disputes which occurred in the Unique Garment Factory, the Myanmar Texcamp Factory and the Myanmar Garment Factory;
16. (iv) the Committee requests the Government to provide copies of all agreements (or to detail the terms of the agreements if no formal document was signed by the parties) referred to in its reply and in particular: (1) the agreements relating to the disputes of 6 October 2000 and 15 December 2001 concerning the Unique Garment Factory; (2) the agreements relating to the disputes of 8 January, 2 December 2002 and 5 July 2003 concerning the Myanmar Texcamp Factory; and (3) the agreements relating to the dispute of 24 May 2002 concerning the Myanmar Yes Garment Factory; the Committee requests the Government to submit any other records of the process leading to the conclusion of the agreements and to detail by whom and the manner in which they have since been implemented;
17. (v) the Committee requests the Government to specify the grounds on which the following dismissals have occurred and to detail the agreements reached as to the conditions under which the dismissals were eventually settled: (1) the dismissal of the 77 night shift workers from the Unique Garment Factory; (2) the workers from the Myanmar Yes Garment Factory who disagreed on 16 September 2002 with the conditions under which they had previously been laid off; the Committee also requests the Government to submit further information on the dismissals which have occurred in the Myanmar Texcamp Factory due to the economic situation.
18. (vi) Noting that the Government denies any intervention of the army in labour conflicts, the Committee requests the Government to explicitly protect workers’ and employers’ organizations from any interference by the public authorities in the forthcoming legislation on freedom of association.
19. B. The Government’s new observations
20. 1063. The Government submitted further information in response to the Committee’s recommendations in communications dated 23 September 2004, and 7 and 28 January 2005.
21. Legislative issues
22. 1064. Referring to the Committee’s earlier conclusions concerning both the absence of a legal basis for freedom of association in Myanmar and the workers’ welfare associations, the Government stated, in its communication dated 23 September 2004, that since 1988, when the Constitution was suspended, there has been no trade union in Myanmar that conforms to the requirements of Convention No. 87 and that until a new Constitution is drawn up, no such trade union can be established. The Government referred to its “seven-step road map” and stated that it cannot be changed in any way. The Government indicated that, in any case, the legal rights of workers are well protected as it has mentioned previously. Workers’ welfare associations still function and the Government is striving to build a healthy industrial relations system that meets the country’s present requirements.
23. Factual issues
24. Responses concerning workers’ welfare associations
25. 1065. The Government indicated in its communication dated 7 January 2005 that it ensures that the associations are involved in workers’ economic and social interests, and that the Government does not interfere in their affairs. The Government stated that representatives are freely chosen and that there are many associations in both the public and private sectors.
26. Response concerning the death of Saw Mya Than
27. 1066. In its communication dated 23 September 2004, the Government repeated its earlier statements that Saw Mya Than had not been murdered, that a thorough investigation had been carried out, and that compensation had been given to his family.
28. Response concerning the General Secretary of the FTUB
29. 1067. Regarding the matter of the General Secretary of the FTUB – known as either Maung Maung or Pyithit Nyunt Wai – the Government informed the Committee in its communication dated 23 September 2004 that a press conference had been held on 26 June 2004 in connection with the explosion of mines planted by expatriate groups in the environs of the Yangon railway station. Maung Maung’s involvement in that incident was published in the newspaper on that date and the Government attached a copy of an article from a newspaper.
30. Response concerning the imprisonment of Myo Aung Thant, Khin Kyaw and Thet Naing
31. 1068. In its communication dated 28 January 2005, the Government indicated that Thet Naing was released from prison on 19 November 2004. In relation to Myo Aung Thant, the Government stated that he had been charged under section 122(1) of the Penal Code (High Treason) and sentenced to ten years’ imprisonment, in addition to seven years’ imprisonment for violation of sections 5(c) and (j) of the Emergency Provision Act and three years’ imprisonment for violation of the Unlawful Association Act. The Government indicated that there is no record of imprisonment of Khin Kyaw.
32. Response concerning Shwe Tun Aung
33. 1069. In relation to the case of Shwe Tun Aung, the Government stated in its communication dated 23 September 2004 that as he had a seafarer’s card, it recognized him as a Myanmar seaman. The Government indicated that because his contract with CTM Trading Co. Ltd. to work on the M/V Great Concert had been signed in Bangkok, it was not able to provide a copy of it as requested by the Committee. The Government only became aware of Shwe Tun Aung’s situation upon receipt of a fax dated 25 December 2000 from the ITF to the Director-General of the Department of Marine Administration, a copy of which it attached to its communication to the Committee. This fax advised that Shwe Tun Aung had been stranded in Venezuela for six months and, despite two telephone calls informing the Director-General of this and requesting the issuance of a passport for him, the Government of Myanmar had taken no positive action. The ITF indicated that if there was again no response within one week, it would internationally publicize the case.
34. 1070. The Government explained that the Seamen Employment Control Division (SECD) of the Department of Marine Administration, Ministry of Transport responded to that fax by a letter dated 26 December 2000, a copy of which was attached to the communication. In that letter, the SECD advised the ITF that it had requested a certificate of identity to be issued for Shwe Tun Aung, “which can be used as a passport in going back to Myanmar”. The SECD further indicated that the Ministry of Foreign Affairs had already instructed the Myanmar Embassy in Brasilia to issue Shwe Tun Aung with travel documents since October 2000. Finally, the SECD sought information from the ITF as to Shwe Tun Aung’s location, so that it might directly contact him, as he was required to attend an upgrading course in accordance with the “STCW 95 requirements”. The Government indicated that Shwe Tun Aung would be issued with a certificate of identity by the Brasilia Embassy if he should contact it and that to date it had not received any information as to his whereabouts.
35. Response concerning the Myanmar
36. Overseas Seafarers’ Association
37. 1071. In response to a letter from the ITF indicating that the statement of the Government that MOSA is affiliated to the ITF is a total fabrication and should be disregarded by the Governing Body, and adding that its executive board would not accept into affiliation an organization which is clearly the creation of the Burmese Government, the Government stated in its communication dated 23 September 2004 that MOSA had sent affiliation information to the ITF in a letter dated 23 July 2003, but since then there has been no formal letter from the ITF to either MOSA or the Department of Marine Administration. The Government attached a copy of the letter sent by MOSA to the ITF. The Government further indicated that MOSA had “inherited” the Burma Seamen’s Union which was a genuine seafarers’ association, that all its members were bona fide seamen, that its executive was composed of members with at least four years’ service as seamen, and that it uses the same building and logo, etc. of the Burma Seamens’ Union, which was already affiliated to the ITF. The Government stated that during the transitional period, because of the major political, economic and social change in Myanmar, there was a lack of communication between the ITF and the Burma Seamen’s Union.
38. 1072. For those reasons, the Government stated, it cannot understand the reaction of the ITF as MOSA is a genuine non-governmental organization with the right to affiliate with international federations and confederations in regard to matters relating to seafarers’ rights. The Government stated that the overtures made to the ITF for affiliation are an obligation of the party concerned. Further, the Government listed the following instances in which MOSA conciliated on the settlement of disputes in which benefits and compensation were paid to its members:
39. (a) Seaman Kyaw Zin Lat: 11 December 2002, complaint filed against CTM Trading Co. Ltd. for back payment of salary and compensation; 12 August 2003, MOSA coordinated and conciliated the dispute; 17 September 2003, compensation of Kyats 40 lakh paid and case closed;
40. (b) Seaman Aung Kyaw Htoo; 11 August 2003, complaint against H Brother Co. Ltd. for back payment of four months’ salary; 16 October 2003, MOSA coordinated and conciliated the dispute; 4 November 2003, four months’ salary (Kyats 12 lakh) paid and case closed;
41. (c) Seaman Aung Ko Oo: 11 August 2003, complaint against H Brother Co. Ltd. for back payment of four months’ salary; 16 October 2003, MOSA coordinated and conciliated the dispute; 4 November 2003, four months’ salary (Kyats 9 lakh) paid and case closed;
42. (d) Seaman Si Thu Win: 1 September 2003, complaint against H Brother Co. Ltd. for back payment of four months’ salary; 16 October 2003, MOSA coordinated and conciliated the dispute; 4 November 2003, four months’ salary (Kyats 9 lakh) paid and case closed;
43. (e) Seaman U Phone Kyaw: 17 October 2003, complaint against New Asia Shipping Co. Ltd. for medical benefits; MOSA coordinated and conciliated the dispute; 24 November 2003, medical benefits amounting to FEC 1,000 paid and case closed;
44. (f) Seaman Maung Hla Htwe: 31 October 2003, complaint against Richfield Ship Management Co. Ltd. for back payment of salary; 20 November 2003, MOSA coordinated and conciliated the dispute; 14 May 2004, documents concerning the receipt of the back pay were submitted, complainant submitted a letter of receipt, and the case was closed;
45. (g) Seaman Maung Tint Lwin: 31 October 2003, complaint against Richfield Ship Management Co. Ltd. for back payment of salary; 20 November 2003, MOSA coordinated and conciliated the dispute; 14 May 2004, documents concerning the receipt of the back pay were submitted, complainant submitted a letter of receipt, and the case was closed;
46. (h) Seaman Myo Set Oo: 31 October 2003, complaint against Richfield Ship Management Co. Ltd. for back payment of salary; 20 November 2003, MOSA coordinated and conciliated the dispute; 14 May 2004, documents concerning the receipt of the back pay were submitted, complainant submitted a letter of receipt, and the case was closed.
47. Response concerning alleged labour unrest
48. and dismissals of workers
49. (a) Disputes resolution
50. 1073. The Government stated, in its communication dated 23 September 2004, that on 25 May 2003, the Ministry of Labour reorganized the Central Trade Disputes Committee (CTDC), with the Minister for Labour as chairperson, the Director-General of the CTDC as secretary, and composed of eight other governmental members. The Government attached an untranslated announcement of the change and provided details of the relevant legal instruments governing the disputes resolution mechanism as follows.
51. 1074. The Government stated that the directive governing the CTDC was issued by the Office of the CTDC under section 6 of the Trade Disputes Rules, 1963, and includes measures on how to solve disputes. The duties and functions of the CTDC are:
52. (a) Duty of a “board” to bring about a settlement of a dispute referred to it and, for this purpose shall, in such manner as it thinks fit and without delay, investigate the dispute and all matters affecting its merits and settlement, and in so doing may do all things it thinks fit for the purpose of inducing the parties to reach a fair and amicable settlement, and may adjourn the proceedings for any period to allow the parties to agree upon terms.
53. (b) If a settlement is reached by the parties during the course of the board’s investigation, a memorandum of settlement shall be drawn up by the board and signed by the parties and the board shall send it together with a report to the authority by which it was appointed.
54. (c) If no settlement is reached during the investigation, the board shall, as soon as possible after the closure of the case, send a report to the authority by which it was appointed, setting out the proceedings and steps taken by the board to ascertain the relevant facts and attempt to reach a settlement, together with a statement of the facts and circumstances, its findings and recommendations for the determination of the dispute.
55. (d) The board’s recommendation shall deal with each item of the dispute and shall state the board’s opinion as to what ought to be done by the respective parties.
56. (e) If an agreement is reached as a result of negotiations conducted either by a board or a conciliation officer, it shall be legally binding on both parties to the dispute and failure to comply with or carry out any of the terms shall be punishable by simple imprisonment of a maximum of three years, or a fine, or both.
57. 1075. The Government stated that the role and functions of the Township Workers’ Supervisory Committee (TWSC) are set out in a guide entitled “the conciliation process of disputes between the employer and worker” issued by the Department of Labour. The Government indicated that the guide contains a detailed process of activities to conciliate the disputes between employers and workers. The TWSC were formed under section 2(A) of the Trade Disputes Act, 1929, and are empowered to handle conciliation and negotiation under sections 7 and 27 of the Act. The TWSC are invested with the responsibilities for negotiation and conciliation among employers and workers in “case with related disputes”. Their duties and functions are:
58. (a) to carry out conciliation and negotiation in order to solve disputes;
59. (b) to include the right to enter factories, establishments or enterprises, after having informed of their intention to do so, as well as to inspect papers and documents;
60. (c) to summon relevant persons or their representatives; should such a person not appear within the prescribed time, action will be taken against him or her according to existing law;
61. (d) to ensure confidentiality upon a request that a person’s papers and information remain confidential;
62. (e) a contract or memorandum signed under the TWSC’s authority is legally binding and if either party breach or fail to comply with it, action will be taken against them or their representatives under the existing labour law.
63. 1076. The Government attached additional information to its communication dated 23 September 2004 about cases of disputes conciliated by the TWSCs. This information indicated that between 2000 and 2004, 1,169 cases were conciliated and negotiated by the TWSC in various industrial zones, involving 19,186 workers.
64. 1077. The Government further indicated that Directive No. 1/97 of the Management of Industrial Zones is concerned with the Supervisory Committee of the Industrial Zones and was issued by the Department of Human Settlement and Housing Development, Ministry of Construction; and, moreover, that these mechanisms are also mentioned in the procedures to be followed by the Secretary of the Townships Trade Disputes Committees and States/Divisional Trade Disputes Appeal Committee.
65. (b) Motorcar tyre factory
66. 1078. Regarding the allegations concerning the Motorcar tyre factory, the Government attached to its communication dated 23 September 2004 a list setting out the attendance of workers on 9 March 2001 and 31 March 2001, as requested by the Committee in its last examination of this case. The list indicated that between 9 March and 31 March 2001, the total workforce at the factory in the payment category 5400-100-5900, increased by one; in the payment category 4800-100-5300, decreased by two; and in the payment category 3000-100-3500, decreased by one. In all other payment categories the total number of the workforce remained steady. The information was provided by way of a table prepared by the factory management.
67. (c) Unique Garment Factory, Myanmar Texcamp Industrial Ltd. and Myanmar Yes Garment Factory
68. 1079. Concerning the information requested by the Committee, the Government attached “unauthenticated translation” of contracts or memoranda of understanding between employers and workers of the Unique Garment Factory, the Myanmar Texcamp Industrial Ltd. and the Myanmar Yes Garment Factory, under the TWSC. The Government indicated that it would not be possible to undertake the translation of all the other records of the process leading to the conclusion of the agreements, as there are so many agreements, but further included some other agreements for the Committee’s information.
69. Unique Garment Factory
70. - The Government attached an agreement between Daw Khin Shwe Win and ten other employees and the owner of the Unique Garment Factory dated 6 October 2000 which concerned the reinstatement of the 11 workers, the involvement of expatriate personnel in the management of the factory and overtime.
71. - The Government attached an agreement between Thandar Win and Ma San San Oo (employees) and the owner of the Unique Garment Factory dated 15 December 2001. The agreement concerned working hours, pay increases, overtime, late arrival at the factory, administration of the factory in relation to the overall affairs of workers, medical leave, the role of the interpreter, the relationship between supervisors and workers, a guarantee that workers who submitted these claims would not be dismissed from work, transportation and information for workers concerning the price of the goods.
72. - In its communication dated 7 January 2005, concerning the dismissal of 77 night shift workers from the factory, the Government stated that due to economic sanctions imposed against the country, the factory closed on 31 August 2003. In fact, all workers employed by the Unique Garment Factory were laid off, with due compensation paid. The Government indicated that there were 30 male and 242 female workers at the factory at that time.
73. Myanmar Texcamp Industrial Ltd.
74. - The Government attached an agreement between Ma Aye San, Ma Thet Thet Aung, Ma Tin Win Myint, Ma Sein Sein, Ma Ohmar Win, Ma Win Win Thein and Na Thandar Oo (employees) and the owner of the Myanmar Texcamp Industrial Ltd. dated 8 January 2002 which concerned pay increases, transportation, time of payment of wages and salary, annual prize-giving ceremony and a guarantee of the full daily wage in the case of lack of work.
75. - The Government attached an agreement between Daw Khin Thida Win and U Aung Kyaw Soe (employees) and the owner of the Myanmar Texcamp Industrial Ltd. dated variously 5 July and 1 August 2002. The agreement concerned pay increases, transportation, date for payment of wages or salary, annual prize-giving ceremony, and a guarantee that workers will be paid the full daily wage in the case of lack of work.
76. - The Government stated in its communication dated 7 January 2005 that the factory employed 87 male and 494 female workers. Following the adoption of economic sanctions, the factory was affected by both reduction in orders and inability to source raw materials and, as a result, on 1 August 2003 some production was stopped. At that time, the factory informed the concerned departments, explained the situation, and advised that the operation of the factory would be stopped on 1 August 2003 and 340 workers would be laid off. The Government attached a list of compensation paid to those workers by the employer.
77. Myanmar Yes Garment Factory
78. - The Government attached an agreement between Min Min Htwe and Ma Shu Ti (employees) and the owner of the Myanmar Yes Garment Factory dated 24 May 2002 which concerned increases in basic salary, provision and storage of factory equipment, overtime and enforcement of working hours, provision of drinking water, the behaviour of supervisors and a guarantee not to dismiss workers unless they breach factory or workplace regulations.
79. - The Government stated that the case commenced on 15 September 2002, when Mg Zin Min Thu was absent from work without informing his superior. The following day, when the general manager sought a signed confession from him, he refused and was dismissed for not obeying work discipline requirements under the employment contract. Mg Zin Min Thu had been employed for five months; he refused to accept compensation of two months’ salary as offered by the employer. The Government indicates that his manager advised him to submit a complaint to the TWSC, but that Mg Zin Min Thu consulted with Mg Min Min Htwe who was a representative of the workers’ group that had reached the agreement with the employer in May 2002 described immediately above. The Government indicated that Mg Zin Min Thu made a verbal complaint to the TWSC but did not submit his complaint in writing, indicating that he did not wish to accept the compensation. On 16 September 2002, he “organized” the workers Min Min Htwe, Kyaw Min Oo, Win Zaw Oo, Kyaw Soe and Win Aung and submitted a complaint containing ten demands, including the manner of management of the factory, overtime and working hours, religious and cultural rights and grudges held against certain workers. The Government indicated that following negotiations, an agreement was reached with which all workers were satisfied. Mg Zin Min Thu however did not attend that meeting nor the factory and, to date, he has not attended to receive his two months’ salary as compensation.
80. Agreements in relation to other factories
81. - The Government attached three further agreements between the employees and owners of the Myanmar April Garment factory (dated 13 November 2002), Esquire Int’l. Co. Ltd. (dated variously 11 March and 8 January 2002) and the Kyone Li Leather Bag factory (dated 2 and 18 July 2001 concerning various matters).

C. The Committee’s conclusions

1. 1080. The Committee recalls that this case concerns both allegations relating to the lack of legislative basis for freedom of association in Myanmar, and factual allegations concerning the total absence of recognized workers’ organizations in Myanmar, including opposition by the authorities to the organized collective representation of seafarers and to the exiled FTUB; the arrest, imprisonment and death of trade unionists; and threats against, and dismissals and arrests of, workers who had pursued labour grievances.
2. Legislative issues
3. 1081. The Committee recalls that the legislative issues raised by the allegations concern, paradoxically, the absence of any legislative guarantees of freedom of association, as well as the existence of Order No. 6/88 that subjects the establishment of unions to previous authorization by the Ministry of Home and Religious Affairs and bans organizations on broad terms, giving rise to a situation which is clearly in breach of Convention No. 87. The Committee recalls that its previous recommendations in this regard concerned the need to both elaborate legislation guaranteeing freedom of association and to ensure that other legislation would not be applied so as to undermine that guarantee. The Committee regrets to note that the Government has limited its reply in relation to the legislative issues of this case to stating that trade unions conforming to the requirements of Convention No. 87 would not be possible until a new Constitution is adopted in the country and, in the meantime, the “seven-step road map” could not be deviated from. The Committee once again observes in this respect that the lack of a State constitution since 1974 has not prevented all legislative activities in Myanmar and, in fact, legislative instruments such as Order No. 6/88 have been enacted that directly contradict the Convention.
4. 1082. The Committee deplores the fact that, despite considerable concern being expressed about the lack of conformity of Myanmar legislation with Convention No. 87 for a number of years by the Committee of Experts and the Conference Committee on the Application of Standards, and despite this Committee’s previous request to the Government to elaborate legislation guaranteeing freedom of association for all workers in Myanmar, no concrete steps have been taken to begin this process.
5. 1083. The Committee deeply regrets moreover that the Government has not given any indication that suggests that it is considering, in good faith, steps to provide for a legal basis for freedom of association as requested by the Committee. The Committee must recall that this persistent failure to take any measures to remedy the lack of legislation in this regard constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of Convention No. 87.
6. 1084. Accordingly, the Committee strongly urges the Government to enact legislation whereby the respect for, and the realization of, freedom of association is guaranteed for all workers, including seafarers, and employers; to include in that legislation specific measures whereby other legislation, including Orders Nos. 2/88 and 6/88, will be abolished 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 public authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee further urges the Government, once again, to take advantage of the technical assistance of the Office to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in respect of legislation enacted or envisaged.
7. Factual issues
8. 1085. The Committee recalls that the factual issues considered in its previous examination of this case concerned the need: to ensure that the organized collective representation of workers, including seafarers and organizations in exile, was not prevented pending the adoption of legislation as requested by the Committee; to establish an impartial and independent panel of experts to investigate the death of Saw Mya Than; for evidence that the criminal charges against the General Secretary of the FTUB were unconnected with his trade union activities; to release Myo Aung Thant and Khin Kyaw from prison; for comprehensive replies regarding the cases of Thet Naing and Shwe Tun Aung; and for further detailed information on the disputes resolution mechanisms and the situations at the Motorcar tyre factory, the Unique Garment Factory, the Myanmar Texcamp Industrial Ltd. and the Myanmar Yes Garment Factory.
9. Workers’ welfare associations and Myanmar
10. Overseas Seafarers’ Association
11. 1086. Concerning the need to ensure that the organized collective representation of workers was not prevented, the Committee recalls that it had noted that the workers’ welfare associations to which the Government had referred were not substitutes for free and independent trade unions and had requested the Government to issue clear instructions to its agents to refrain from preventing the organized collective representation of workers, including seafarers and organizations operating in exile. The Committee notes the information provided by the Government in this regard that it ensures that the workers’ welfare associations are involved in workers’ economic and social interests, that the Government does not interfere in their affairs, and that representatives are freely chosen.
12. 1087. The Committee notes that the Government provided further information concerning the representation of seafarers, in response to the letter from the ITF advising that the Myanmar Overseas Seafarers’ Association (MOSA) was not an affiliated organization as had been suggested by the Government. The Committee notes that the Government indicated, in response, that MOSA had sent affiliation information but had not received any reply from the ITF, and that as MOSA was the inheritor of the Burma Seamen’s Union, an ITF affiliate and actively represented its members in negotiations and conciliations, the Government could not understand any obstacle to MOSA’s affiliation.
13. 1088. The Committee recalls in this regard its previous comments that workers’ welfare associations, of which MOSA is an example, are not substitutes for free and independent trade unions. This will be so for as long as they fail to present guarantees of independence in their composition and in their functioning and, at least as far as seafarers are concerned, for as long as these workers are prevented from establishing or joining the association of their own choosing. For workers’ welfare associations to truly be considered, as the Government submitted in its earlier observations, forerunners of trade unions, they must enjoy, at least, guarantees of independence and represent autonomous groupings of workers, free from Government interference, in order to constitute real preliminary steps towards the setting up of free and independent trade unions.
14. 1089. In addition, the Committee recalls that in its previous examination of the case it had noted that paragraph 5 of Chapter 4 of the rules of MOSA explicitly limits seafarers’ freedom of choice to establish and join associations, as MOSA is the sole association representing seafarers [see 333rd Report, para. 741]. In any event, by the Government’s own submission in its observations to the Committee, no trade unions exist in Myanmar that conform with the requirements of Convention No. 87.
15. 1090. The Committee is obliged to note, finally, that the Government has neither responded to the Committee’s request to refrain from any acts preventing the free operation of any form of freely chosen organized collective representation of workers, nor has it provided any information suggesting that it has issued instructions to its agents to ensure the unimpaired collective representation of workers, including seafarers and organizations operating in exile. The Committee once again requests the Government to refrain from any acts preventing the free operation of any form 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 as they cannot be recognized in the prevailing legislative context of Myanmar. The Committee further requests the Government to issue instructions to that effect to its civil and military agents as a matter of urgency and to keep it informed of all measures taken in this regard.
16. Death of Saw Mya Than
17. 1091. In relation to the need to establish an independent and impartial panel of experts to undertake an investigation into the death of Saw Mya Than, the Committee regrets to note that the Government has limited its observations to repeating its earlier comments that Saw Mya Than was not murdered, that a thorough investigation was carried out, and that compensation had been paid to his family. Emphasizing that serious cases such as the alleged murder of a trade unionist require 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 [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 51], the Committee once again firmly requests the Government to convene as a matter of urgency an independent and impartial panel of experts to investigate this death and to keep it informed in this regard.
18. Criminal charges against the
19. General Secretary of the FTUB
20. 1092. In relation to the need to ensure that the criminal charges brought against the General Secretary of the FTUB had no connection with his trade union activities, the Committee notes that the Government provided the Committee with a copy of a newspaper report based on a press conference held by various deputy ministers and the Vice-Chief of Military Intelligence on 26 June 2004 that indicated that the General Secretary had been involved in planting mines. Recalling that in cases involving the arrest, detention or sentencing of a trade union official, the Committee, taking the view that individuals have the right to be presumed innocent until found guilty, has considered that it was incumbent upon the Government to show that the measures it had taken were in no way occasioned by the trade union activities of the individual concerned [see Digest, op. cit., para. 65], the Committee considers that a newspaper report does not provide sufficient, or even admissible, proof that the criminal charges against the General Secretary of the FTUB were unconnected with his trade union activities.
21. 1093. The Committee must express its deep concern at the lack of evidence produced by the Government to prove that the charges brought against the General Secretary of the FTUB were unrelated to his trade union activities. The paucity and nature of the proof presented in such an important case leads the Committee to seriously query whether these charges were indeed unrelated to his trade union activities. It once again requests the Government to provide copies of the decision which found the General Secretary guilty of high treason under section 122 of the Penal Code, and any documentation relating to the case the Government explained had been filed against him under the Public Preservation Law, 1947.
22. Imprisonment of Myo Aung Thant, Khin Kyaw and Thet Naing
23. 1094. In relation to the imprisonment of Myo Aung Thant and Khin Kyaw, the Committee notes that the Government has indicated that Myo Aung Thant had been sentenced to a total of 20 years’ imprisonment under the Penal Code, the Emergency Provision Act and the Unlawful Association Act. The Committee further notes the information provided by the Government that there is no record of the imprisonment of Khin Kyaw.
24. 1095. The Committee notes that the Government has still not disputed the allegations of trade union involvement, the arrest of families, secret trials without freely chosen legal representation and torture in the case of these two trade unionists. In these circumstances, the Committee deeply deplores that the Government has not taken any steps to ensure the release of Myo Aung Thant and once again urges the Government to take the necessary steps to ensure his immediate release from prison.
25. 1096. As regards Khin Kyaw, the Committee further recalls that the Government’s previous reply had indicated that both Myo Aung Thant and Khin Kyaw, together with other accomplices, had decided on 4 June 1997 to instigate workers’ unrest in Yangon and to commit crimes; they were arrested on the same day, explosives and other evidence were seized in Kawthoung and both Myo Aung Thant and Khin Kyaw were sentenced for their crimes. In light of the clear contradiction between the Government’s earlier reply and its present observations in respect of Khin Kyaw, the Committee urges the Government to take the necessary steps to ensure his immediate release from prison and, in the event he has already been released, to provide precise information in this respect. The Committee requests the Government to keep it informed in respect of the cases of both Myo Aung Thant and Khin Kyaw.
26. 1097. In relation to the case of Thet Naing, the Committee notes that the Government indicated that Thet Naing was released from prison on 19 November 2004.
27. Seafarer Shwe Tun Aung
28. 1098. In relation to the case of Shwe Tun Aung, the Committee notes the information provided by the Government that it recognized Shwe Tun Aung as a Myanmar seafarer as he had a seafarer’s card, that it had instructed that a certificate of identity be issued for him that he could use to travel back to Myanmar, and that it had sought his whereabouts as he was required to attend an upgrading course.
29. 1099. Recalling that this case concerned serious allegations of anti-union discrimination, the Committee once again requests the Government to submit a detailed reply on the allegations of anti-union discrimination relating to Shwe Tun Aung’s case and, in particular, the allegations that before taking his first position as a seafarer, the Seaman Employment Control Division (SECD) obliged Shwe Tun Aung to sign a document warning against union membership; that other M/V Great Concert crew members who returned to Myanmar were forced by the SECD to refund wages increased by the union action, fined heavily, and forbidden to leave the country for three years; and that, following his trade union activities, Shwe Tun Aung’s name was on a government “blacklist”. The Committee further requests the Government to provide a copy of any contract or document that Myanmar seafarers in general are currently obliged to sign prior to taking up their first work assignment. If these allegations relating to anti-union harassment are found to be true, the Government is requested to take immediate measures so that Shwe Tun Aung and all Myanmar seafarers are free to join the trade union of their own choosing.
30. 1100. The Committee further notes the allegations that the passport eventually issued for Shwe Tun Aung contained a special instruction from the Ministry of Foreign Affairs and the Home Ministry, in charge of the special branch police who investigate all cases before passports are issued, informing authorities to whom the passport would be shown that the Government sought the return of Shwe Tun Aung to Myanmar. As regards this allegation relating to the seafarer’s freedom of movement, the Committee wishes to draw the Government’s attention to the importance which it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including his own, and to return to his country.
31. Disputes resolution mechanisms
32. 1101. The Committee notes that the Government has provided, as requested in the previous recommendations, certain information concerning the relevant legal instruments governing disputes resolution in the country. In particular, the Committee notes the information provided by the Government concerning the composition and functioning of the Central Trade Disputes Committee (CTDC), the functioning of the Township Workers’ Supervisory Committee (TWSC) and the legal provisions governing the Committee of Industrial Zones, Township Trade Disputes Committees and the States/Divisional Trade Disputes Appeal Committee.
33. 1102. As a preliminary point, the Committee must once again note 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. Further, the Committee notes that while it appears that these various committees are all involved in some way in conciliation and negotiation of disputes between employees and employers in Myanmar, their exact interaction and relative jurisdictions are unclear. The Committee notes that the composition of the TWSC, the procedure to be followed should agreement not be reached by the TWSC, and the nature of the representation of employees and employers before the committees is equally unclear. Pending the adoption in Myanmar of legislation that protects and promotes freedom of association, the Committee 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.
34. 1103. The Committee recalls that in the following four instances, factory workers had allegedly been dismissed, arrested or threatened for pursuing their labour grievances.
35. Motorcar tyre factory
36. 1104. Recalling that, in its previous comments, the Government had refuted the allegations that 19 workers at the Motorcar tyre factory were arrested on 9 and 10 March 2001 and that arrests at the factory continued on 11 March 2001. The Committee notes that the Government provided, as requested, a list indicating the number of employees employed by the factory on 9 and 31 March 2001. The Committee notes that this list shows that the total number of employees at the factory fell by three and increased by one during that period. In light of this information, the Committee requests the Government to provide due explanations of the differences in total workforce on these two dates and, in particular, to provide details concerning the cases of those three workers whose employment at the factory ceased during that period of time, as well as an indication as to whether any other workers left their employment at the factory during this period, but were replaced. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
37. Unique Garment Factory, Myanmar Texcamp Industrial Ltd.
38. and Myanmar Yes Garment Factory
39. 1105. The three other matters concerned garment factories in the Hlaing That Ya industrial zone. As a preliminary point, the Committee notes that the complainant has failed to provide it with the additional information in relation to the allegations concerning these three factories that the Committee had requested in its previous consideration of the case. In the absence of the clarifications requested, the Committee regrets that it only has before it the information provided by the Government.
40. 1106. In relation to the Unique Garment Factory, where the allegations concerned the alleged dismissal of workers involved in a workers’ movement in November 2001 in relation to overtime, the Committee notes that the Government provided copies of two agreements signed under the TWSC’s authority concerning employees at the factory, to which it had referred in its previous observations. The first of these was dated 6 October 2000 and concerned, inter alia, the reinstatement of 11 workers and overtime; the second was dated 15 December 2001 and concerned various matters, again including overtime. The Committee notes that both these agreements were apparently signed following conciliation and on the same date as that upon which the Government stated that the dispute arose.
41. 1107. The Committee recalls that in its previous observations the Government had raised the case of 77 night shift workers who were dismissed from the Unique Garment Factory following a dispute on 10 July 2001, during their probationary period and following a conciliation by the TWSC. The Committee notes that in its latest observations, the Government has stated in this regard that, due to the economic sanctions, the factory closed on 31 August 2003 at which point all 272 workers were laid off with due compensation paid. Noting that the closure of the factory occurred two years after the 77 workers were dismissed, the Committee regrets to note that no further information was provided in relation to this matter, which was first raised by the Government, and once again requests further details in relation to these earlier dismissals, including in particular a copy of the conciliation agreement reached under the authority of the TWSC to which the Government referred in its previous observations. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
42. 1108. In relation to the Myanmar Texcamp Industrial Ltd., the Committee recalls that the allegations concerned threats and the involvement of the military following the organized request by workers for higher wages and better working conditions in January 2002, and notes that the Government provided translations of two agreements. The first was dated 8 January 2002 and the second was dated both 5 July and 1 August 2002; both concern various matters including pay. The Committee notes that the information provided by the Government did not include a copy of an agreement to which it had referred in its previous observations concerning a dispute at the factory that apparently arose on 5 July 2003, involved 300 workers, and was conciliated by the Department of Labour. The Committee notes the further information provided by the Government that economic sanctions resulted in certain parts of Texcamp’s production being stopped and 340, out of a total of 581 workers, being laid off on 1 August 2003 with due compensation paid.
43. 1109. The Committee is concerned that the number of workers laid off for economic reasons at the Myanmar Texcamp Industrial Ltd. is approximately equal to the number that had been involved in a labour dispute to which the Government referred as having occurred three weeks earlier at the factory. For this reason, the Committee requests the Government to provide a copy of the agreement to which it referred in its previous observations concerning a dispute between 300 workers and the Myanmar Texcamp Industrial Ltd. which was conciliated by the Department of Labour, as well as information indicating the criteria upon which the 340 workers who were laid off for economic reasons were chosen from the total workforce of 581 workers. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
44. 1110. In relation to the Myanmar Yes Garment factory, the Committee recalls that the allegations concerned the involvement of the military and the arrest of workers following a protest in relation to wages on 5 October 2000. The Committee notes that the Government provided an agreement dated 24 May 2002, to which it had referred in its previous reply, concluded under the authority of the TWSC concerning a dispute at the factory. The Committee further notes the information provided by the Government concerning a dispute on 16 September 2002, also referred to previously, and which apparently resulted in an agreement concluded by the TWSC; this agreement was not, however, provided to the Committee. The Committee notes the Government’s reference in relation to this case that it commenced with the dismissal of Mg Zin Min Thu for disciplinary reasons on 16 September 2002, and that, apparently on the same day, he “organized” five other workers to submit a complaint about which an agreement was reached with which all workers were satisfied; according to the Government, Mg Zin Min Thu did not attend those negotiations nor has he since been to the factory to receive his dismissal compensation. The Committee requests the Government to establish an impartial investigation into this matter and to keep it informed in this regard. It further requests the Government to provide a copy of the agreement dated 16 September 2002 and any further information that the Government may have in relation to the dismissal of Mg Zin Min Thu from the Myanmar Yes Garment Factory.
45. 1111. As a final and overall point, the Committee is deeply concerned to observe that while the Government has submitted further information in relation to many of the Committee’s recommendations, much of that information fails to truly reply to the requests made by the Committee and the substance of its recommendations. Indeed, the Committee deeply regrets that very little can be gleaned from the Government’s reply to indicate that it intends to take any steps to implement the Committee’s recommendations in this very serious and urgent case. The Committee further deplores that the Government has felt compelled to justify the dismissals and the closing of two enterprises by the fact of the imposition of economic sanctions aimed at combating forced labour. The Committee urges the Government in the strongest terms to undertake real steps towards ensuring the respect for freedom of association in law and in practice in Myanmar in the very near future and once again reminds the Government of the availability of the Office to assist in this respect.

The Committee's recommendations

1. 1112. In light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly urges the Government to enact legislation whereby the respect for, and the realization of, freedom of association is guaranteed for all workers, including seafarers, and employers; to include in that legislation specific measures whereby other legislation, including Orders Nos. 2/88 and 6/88, will be abolished 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 public authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee further urges the Government, once again, to take advantage of the technical assistance of the Office to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in respect of legislation enacted or envisaged.
   • (b) Recalling that the right of workers and employers to freely establish and join organizations of their own choosing cannot exist unless such freedom is established and recognized in both law and practice, the Committee once again requests the Government to refrain from any acts preventing the free operation of any form 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 since they cannot be recognised in the prevailing legislative context of Myanmar. The Committee further requests the Government to issue instructions to that effect to its civil and military agents as a matter of urgency and to keep it informed.
   • (c) The Committee once again firmly requests the Government to convene as a matter of urgency an independent and impartial panel of experts to investigate the death of Saw Mya Than and to keep it informed in this regard.
   • (d) Expressing its deep concern at the paucity and nature of the evidence provided by the Government aimed at proving that the criminal charges brought against the General Secretary of the FTUB were unrelated with his trade union activities, the Committee once again requests the Government to provide copies of the decision by which the General Secretary had been found guilty under section 122 of the Penal Code, and any documentation relating to the case the Government explained had been filed against him under the Public Preservation Law, 1947.
   • (e) Deploring the Government’s failure to take any steps to ensure the immediate release of Myo Aung Thant and Khin Kyaw, the Committee urges the Government to do so as a matter of urgency and to keep it informed in this regard.
   • (f) The Committee once again requests the Government to submit a detailed reply on the allegations of anti-union discrimination relating to Shwe Tun Aung’s case and, in particular, the allegations that before taking his first position as a seafarer, the SECD obliged Shwe Tun Aung to sign a document warning against union membership; that other M/V Great Concert crew members who returned to Myanmar were forced by the SECD to refund wages increased by the union action, fined heavily and forbidden to leave the country for three years; and that, following his trade union activities, Shwe Tun Aung’s name was on a Government “blacklist”. The Committee further requests the Government to provide a copy of any contract or document that Myanmar seafarers in general are currently obliged to sign prior to taking up their first work assignment. If these allegations relating to anti-union harassment are found to be true, the Government is requested to take immediate measures so that Shwe Tun Aung and all Myanmar seafarers are free to join the trade union of their own choosing.
   • (g) Pending the adoption of legislation that protects and promotes freedom of association, the Committee 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 Myanmar and to keep it informed of the measures taken in this regard.
   • (h) Taking account of the figures contained in the table provided by the Government for the Motorcar tyre factory, the Committee requests the Government to provide due explanations of the differences in the total workforce on 9 and 31 March 2001 and, in particular, to provide details concerning the cases of those three workers whose employment at the factory ceased during that period of time as well as an indication as to whether any other workers left their employment at the factory during this period, but were replaced. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
   • (i) The Committee once again requests further details in relation to the case of 77 night shift workers who were dismissed from the Unique Garment Factory following a dispute on 10 July 2001 during their probationary period and following a conciliation by the TWSC including, in particular, a copy of the conciliation agreement reached under the authority of the TWSC to which the Government referred to in its previous observations. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
   • (j) The Committee requests the Government to provide a copy of the agreement to which it referred to in its previous observations concerning a dispute between 300 workers and the Myanmar Texcamp Industrial Ltd. that arose on 5 July 2003 and that was conciliated by the Department of Labour, as well as information indicating the criteria upon which the 340 workers who were laid off for economic reasons on 1 August 2003 were chosen from the total workforce of 581 workers. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
   • (k) The Committee requests the Government to establish an impartial investigation into this matter and to keep it informed in this regard. It further requests the Government to provide a copy of the agreement at the Myanmar Yes Garment Factory dated 16 September 2002 and any further information that the Government may have in relation to the dismissal of Mg Zin Min Thu.