Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Myanmar (Ratification: 1955)

The Government supplied the following information:

In an observation on the labour laws in the Union of Myanmar, the Committee of Experts expressed its concern that no progress had been made with respect to the legislation, nor in practice, and urged the Government to take the necessary measures. The Myanmar Government is taking positive and concrete steps to put in place institutions that will establish, promote and nurture democratic principles and practices. With these objectives in view, a broad-based national convention comprising some 700 delegates representing the whole strata of Myanmar society was held. This convention has by consensus adopted 104 basic principles which will serve as the basis for a new State Constitution. Among these principles, the national convention has laid down that the State shall enact laws to protect the rights of the workers in the country. In May 1994, an opportunity was afforded by the relevant technical services of the International Labour Office for a brief preliminary discussion of some aspects of the new draft legislation to allow workers to establish trade unions, federations, etc., of their own choosing. These discussions took place between the ILO Technical Adviser based in New Delhi and the authorities in the Ministry of Labour, Government of the Union of Myanmar. The Government is of the view that further contacts should continue to be held between the Government and the International Labour Office to obtain technical advice that would contribute considerably towards its efforts in applying this Convention and the principle of freedom of association, etc. The Government is looking forward to these contacts with the International Labour Office and, subject to mutually convenient dates, preparations are being made to receive a technical assistance mission in Myanmar from the International Labour Office some time before the next session of the Committee of Experts. The Myanmar Government is making every effort to take further action with the technical assistance of the International Labour Office.

In addition, a Government representative recalled the transformation of the political and economic system of his country, including measures to draft a new State Constitution. The speaker quoted one of the basic constitutional principles laid down by the National Convention that "the State shall enact the necessary laws to protect the right of the workers". While measures were being taken to put in place democratic institutions including the rights of the workers to form their own unions, he considered that the present machinery for the protection of the rights of the workers was as strong and effective as ever: for example, the workers' welfare associations and several other professional and craft organizations were the forerunners of the trade unions to be established in the country. He further stated that a body known as the Laws Scrutiny Central Body was formed in 1990 to review the existing national legislation including labour laws, and that a law reviewing committee headed by the Minister of Labour was also formed. The relevant labour laws including the Trade Union Act of 1926 had been reviewed and redrafted in the national language since the advent of the State Law and Order Restoration Council (SLORC). The draft laws including that relating to the trade union had been forwarded to the Attorney General's office for a preliminary review and would be later submitted to the Laws Scrutiny Central Body. The Government representative also recalled the visit made in May 1994 by an ILO technical adviser on standards for an initial round of discussions on some aspects of the draft legislation. He stressed that such contacts should be continued to assist the Government in its efforts to ensure the application of the Convention. He concluded by confirming that the fundamental rights of workers continued to be the major concern of his Government which would make every effort to take further action with the assistance of the International Labour Office.

The Workers' members described this case as one of almost total despair, considering that the Convention had been ratified 40 years ago by the Government. Since then there had been ten observations by the Committee of Experts regarding the complete lack of progress in fulfilling obligations under the Convention; six long discussions of this case and the lack of any progress in the Conference Committee; no progress recorded in the report of the Committee of Experts; and mention of the case in a special paragraph of the report in both 1982 and 1993. Although there had been promises of a new Constitution respecting fundamental rights including freedom of association, and of new labour laws to replace old ones, there had been no concrete action and no real progress. The Convention was a cornerstone of human rights but it was neither complex nor difficult to implement if the Government really wished to meet its obligations. With regard to the current situation in Myanmar, they had learned from a reliable source that repression of trade unions existed, and that there was a climate of fear in which grave human rights violations continued. Moreover, the existence of independent trade unions was still illegal, and those who promoted them were punished. To show real progress, the Government needed to provide more specifics such as texts of new laws under consideration and the dates when they were planned to come into effect. They recognized that the 1994 intervention by the Office in the form of technical assistance represented an opportunity to move forward, and that a future meeting between the ILO staff and the Government administration might help the situation. Laws must be adopted that would permit the establishment of first-level unions as well as federations and confederations for workers of their own choosing, independent of previous government authorization. As this case was so deplorable, and as there had been a total lack of real progress, it was necessary for the Committee to express the need to act urgently and the need for discernable progress.

The Employers' members endorsed most of the declarations of the Workers' members. They noted that this case had been dealt with on seven occasions since 1987 and every year since 1991, and that in 1982 and 1993 it had been referred to in special paragraphs. The case had been around for a very long time, and there had been far too little action. They were concerned that the law provided for a trade union monopoly and that basic freedom of association was not guaranteed. In reference to the draft legislation under preparation which if enacted would constitute a substantial change, and the information from the Government regarding the technical assistance provided by the Office in May 1994, they said that usually one would be glad when requests were made by countries for technical assistance, as they often were a sign of determination to bring their legislation into conformity with the Convention. However, in this case, they felt that this was simply a delaying tactic, and that although the Government referred to 104 basic principles for the planned Constitution that had been adopted by consensus, in fact legislative preparation was at a very early stage. The Employers' members were less concerned with the finer details than with the establishment of the very basis of freedom of association. While the Government only referred to its plans to give workers the freedom to form trade unions, they urged that everyone, including employers, be entitled to form organizations of their choice as provided for under the Convention. They agreed with the Workers' members that the Committee had waited far too long for progress and they urged the Government to act quickly as it was a matter of urgency that changes be made.

The Government member of the United States said that upon reviewing the history of this case, she noted that since 1989 the Government had repeatedly said that there were political changes taking place in the country, that a period of transition was under way, and that there would be a new Constitution and new legislation that would conform to the Convention. However, these repeated promises had a hollow ring. Although the basis of the case had been a problem of trade union monopoly, she now considered that it was actually a total lack of freedom of association. While the legislation was not in conformity with the Convention, the practice was even worse as workers were not free to join organizations of their own choosing, and there were reported violations of civil liberties. In the past few years, not only the ILO but the United Nations Committee on Human Rights and the General Assembly had expressed their urgent concern regarding the lack of freedom of association in the country. It was encouraging that the Government had entered into discussions with the Office about this matter, and had requested future technical assistance. She supported any measures the Office and this Committee considered appropriate to ensure that the actions of the Government would, in the near future, match the promises made.

The Workers' member of Pakistan noted the great concern expressed in previous special paragraphs regarding this situation which urged the Government to bring its legislation into conformity with the Convention. Regulation No. 5 of 1976 did not permit the existence of independent unions freely chosen by workers. The Government had been making similar promises for several years, but there was no real progress in legislation and practice. He hoped that the Government would not merely confine itself to receiving advice from the Office, but that it would have the political will to protect freedom of association, as there could be no social justice without it.

The Government member of the Netherlands supported the statement of the Government member of the United States. He noted that the Government had been promising new labour laws to replace old ones for a very long time, but that no concrete progress had yet been made. Although one of the aims of the Convention was to create a level playing field, this was far from being achieved in Myanmar. He urged the Government to bring the legislation into conformity with the Convention, so that there could be true tripartism in which employers and workers played their proper roles.

The Workers' member of the Netherlands asked the Government representative to provide information on the existing practice with regard to the exercise of trade union rights in Myanmar in the absence of conforming legislation.

The Workers' member of Japan noted that the Government had made repeated assurances year after year regarding its intention to establish legislation in compliance with the Convention. However, he emphasized that empty assurances were no substitute for concrete progress. In his view, the case under consideration indicated a complete lack of freedom of association. Although the statement of the Government indicated that there were functioning workers' organizations in the country, he pointed out that the Workers' delegate for Myanmar at the Conference was a person who, in actual fact, did not represent any workers' organization.

The Government member of Norway, speaking on behalf of the Governments of the Nordic countries, noted with great interest the proposed laws that were intended to conform with the Convention. However, he pointed out that no real progress had been made in this respect in legislation or in practice. He hoped that there would soon be legislation in force that would permit independent trade unions, and that democratic rights would be established in Myanmar.

The Government representative stated that he had listened very attentively to the comments made by the delegates to the effect that there had been a lack of progress and repression of workers in his country. However, he insisted that concrete and positive steps had been taken and that there was a distinct improvement in the situation. In his view, the Workers' members had failed to take into proper consideration the second part of the letter of 9 June 1994 to the Office from the Director-General of the Myanmar Labour Department requesting technical assistance in which he had underlined the need for further contacts with the ILO to obtain technical advice that would contribute to the efforts of the Government in applying Convention No. 87 and the principles of freedom of association. He stressed that it was more productive to talk about the future rather than the past and stated that this letter and its contents were evidence of his Government's forward-looking attitude, and that there had been active consultation with the Office on some aspects of the draft trade union law. There was a misconception that trade union monopoly existed in Myanmar, as the one-party system had been abolished in 1988, and with it the trade union monopoly. Moreover, a Chamber of Commerce and Industry, whose chairman was an Employers' delegate at this Conference, existed in his country and was functioning effectively. The Government was making every effort to establish democratic institutions including trade unions, and was in the process of revising its legislation on trade unions to conform with the new political and economic system. This was testimony to the efforts being made by his Government in good faith and with sincerity to take further necessary measures with the assistance of the ILO.

The Workers' member of the Netherlands reiterated his previous request for information about the current practice in Myanmar, and in particular details about the functioning of trade unions and employers' organizations, and their ability to freely form and elect their leaders, and to engage in collective bargaining.

The Employers' members could not see that any progress had been made in the immediate past. Although it was true that one should look to the future, expectations for the future were based on past experience, which in this case was very negative. They reiterated that it was favourable that there had been a preliminary mission by the Office and that further technical assistance had been requested. However, it seemed that the Government was engaging in tactics that would lead to further delay in taking measures. In view of the 40 years that had passed since ratification of the Convention, they asked that rapid measures be taken, and urged that substantive changes be made.

The Workers' members strongly reiterated what they had said in their previous statement, and stood solidly on their statements about the actual practice in Myanmar, which contrasted sharply with the promises of reform. They also agreed entirely with the insistence of the Employers' members on employers' rights to freedom of association.

The Committee noted the written information provided by the Government and the statement made by the Government representative as well as the discussion which took place in the Committee. The Committee regretted that despite the assurances made by the Government to the effect that it was involved in the process of changing legislation in order to guarantee trade union rights, no tangible sign of improvement had been visible to the Committee of Experts. The Committee noted, however, that since the meeting of the Committee of Experts, a preliminary discussion with the ILO took place in the country relating to certain aspects of draft legislation. In addition the Committee noted that the Government requested a technical assistance mission to be sent to the country before the next session of the Committee of Experts. While reiterating its deep concern with the situation, the Committee urged the Government to adopt at an early date all the necessary measures urgently needed to guarantee that in law and in practice, employers and workers, without distinction of any kind and without previous authorization, may have the right to associate and that workers have the right to join trade unions of their choice outside the existent trade union structure, and trade unions the right to establish federations and confederations without impediment. The Committee expressed the firm hope that in the very near future it would be in a position to register real substantial progress in the application in law and in practice of the Convention, and it requested the Government to send a detailed report to the Committee of Experts so as to allow it to make an assessment of progress made by next year.