Caso individual (CAS) - Discusión: 1995, Publicación: 82ª reunión CIT (1995)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Myanmar (Ratificación : 1955)

The Government supplied the following information:

Recent developments with regard to the application of this Convention included an ILO mission by the international labour standards specialist for the Asia region in May 1994. The Ministry of Labour decided to take steps to translate into English the draft Trade Unions Act which was written in the national language in order to facilitate discussions between government authorities and experts from the International Labour Office. The Government sought further assistance from the International Labour Office to obtain technical advice with regard to its efforts to apply this Convention. A further ILO mission was carried out by the Director of the ILO Office for the Asia region and a specialist from the International Labour Standards Department in January 1995, at which time meetings were held with the Minister of Labour and the Director-General of the Department of Labour. The Government regretted the cancellation of a further ILO mission, which might have provided advice with regard to the amendment of the Trade Unions Act of 1926 to adapt the Act to the new political and economic system, and hoped that discussions with the International Labour Office regarding the Act would take place at a later date.

In addition, a Government representative stressed that the Government had a genuine desire to cooperate with the ILO whose technical assistance would be welcomed in the drafting of the new trade union law. Further to the mission led by the Technical Adviser of the Asian region of the ILO on matters relating to Convention No. 87 in May 1994, the Ministry of Labour had decided to take steps to translate the draft trade union law into the English language to facilitate discussions between the Myanmar authorities and the ILO. A follow-up visit to Yangon was carried out in January 1995 by officials from the ILO Bangkok office. During the course of discussions with the ILO mission, Myanmar authorities were informed that another ILO mission from the Freedom of Association Branch would be arriving in Yangon in April or May 1995. The Ministry of Labour had been looking forward to welcoming this mission. Unfortunately, this mission could not visit Myanmar as scheduled. However, the Government was of the view that further contacts should be continued with the ILO in order to obtain technical advice that would contribute towards its effort to apply freedom of association principles. The authorities hoped that discussions in this respect would take place at a mutually convenient date. The speaker stressed that significant progress had been made by the National Convention whose task it was to lay down basic principles to be embodied in a new Constitution. Currently, the contents of the chapters on the state structure, heads of state and self-administered areas had been agreed upon. Chapters on the legislature, executive branch and judiciary would be discussed in October 1995 when the National Convention reconvened. As proceedings followed their course, basic principles in connection with citizens' fundamental rights, as well as the rights of workers, would be discussed in detail. Amongst the basic principles to be enshrined in the new Constitution, the following dealt with workers from different sectors: in connection with workers in general, it was laid down that the State would enact the necessary laws to protect the rights of workers; in connection with rural and farm workers, it was laid down that the State would enact necessary laws to protect the rights of the peasantry; in connection with intellectuals, it was laid down that the State would help promote their interests; in connection with civil servants, it was laid down that (a) state service personnel would be free from involvement in party politics while retaining the right to vote for the party of their own choice, and (b) the State would enact necessary laws for state service personnel to have due security in service and sufficiency of food, clothing and shelter.

The Workers' members recalled that this case had been in existence for almost 40 years. There had been 11 observations by the Committee of Experts, seven long discussions in this Committee, and two special paragraphs on this Convention in 1982 and 1983. Year after year there had been promises of new constitutions, new labour laws and courts. This year the Committee of Experts had additionally drawn attention to the Committee on Freedom of Association's Case No. 1752 of November 1994 concerning seafarers. However, there was no point in going into detail about the nature of the various infringements at issue. The very simple and plain point was that there were no trade unions in Myanmar at the present moment. There were some bodies under the total control of the Government which under no circumstances would ever qualify as trade unions.

With regard to the National Convention which was drawing up a new Constitution, the Workers' members pointed out that the Workers' group within this Convention and, indeed, the Convention itself was selected and totally controlled by the Government. As for the request by the Government representative for an ILO technical mission to his country, it was the view of the Workers' members that extreme caution should be exercised by the Office before it sent further missions to this country. Until there were material changes, requests for a mission should be ignored since there were no trade unions and the minimum conditions for a mission were just not there. Any ILO mission could be exploited or abused by the Government in order to be seen in a better light by the world. ILO staff should not be put in this position and exploited, for example, by having anything they said quoted out of context. The Workers' members considered that there was no point in discussing this case any more since the Government was not going to be convinced by words. Its persistent refusal over many years to do anything at all about the observations made by the Committee of Experts with regard to the application of this Convention meant that a special paragraph was justified.

The Employers' members considered that the serious differences between national law and practice in Myanmar and the requirements of Convention No. 87 had been a continuing preoccupation of this Committee since 1981; this would be the ninth time that the case had been discussed here. They considered, however, that as long as the Government's request for ILO technical assistance was not a delaying tactic but a sincere effort to correct the situation, then the possibility of a technical assistance mission could be looked into. Of course, it remained to be seen whether there was actually a piece of legislation that had been drafted and submitted to the legislature and whether this legislation would be enacted. They wished to establish a real legal basis for freedom of association which currently did not exist. They thought that it was a fundamental matter that both workers and employers be entitled to form organizations of their own choice and be able to affiliate with federations and confederations.

The Workers' member of Japan believed that at the heart of the matter lay a fundamental lack of respect for human rights by the Government of Myanmar. As Amnesty International had reported in detail, the infringement of human rights in Myanmar was such that it damaged human dignity itself. This was well demonstrated by the house arrest of Ms. Aung San Suu Kyi. He further referred to the list of the Workers' delegation from Myanmar to the Conference. The fact that the Workers' delegate was not a member of any kind of union clearly showed the current situation of the trade union movement in that country. He called on the Government to change its oppressive political stance and to fully guarantee freedom of association as an essential basis for democracy.

The Government member of Norway, speaking on behalf of the Government members of the five Nordic countries and the Netherlands, noted with interest the Government's statement that deliberations relating to labour issues, including the right of association for workers, would be undertaken. He therefore expressed the firm hope that, with the assistance of the ILO, the necessary measures would be taken as soon as possible to bring the country's law and practice into conformity with the Convention.

The Workers' member of Sweden considered that in view of the total lack of freedom of association in Myanmar and the fact that basic human rights were continuously violated, this Committee should ask itself if in reality there existed a political will of the Government to change the current situation and to conform with Convention No. 87. The Committee of Experts had noted with concern the conclusions of the Committee on Freedom of Association in Case No. 1752, approved by the Governing Body in November 1994. Here the right of seafarers to form independent trade unions or to affiliate with an international federation was just another example of the manner in which freedom of association was denied in Myanmar. Myanmar's seafarers on flag-of-convenience ships were under the strict control of the State and had to sign contracts obliging them not to contact international trade union organizations. In addition, if these seafarers' wages were to be raised to a more decent level, their contracts stipulated that such additional wage increases should be handed back to the State upon their return, otherwise they risked being penalized. In view of this and the long and serious neglect of granting freedom of association in Myanmar, this Committee had to express its strong dissatisfaction with the present situation in a special paragraph.

The Workers' member of Greece pointed out the discrepancies that existed between the Government representative's statements, according to which real progress had been made, and the reality. In this country, trade unions did not even exist, and the Government was obviously trying to buy time through meaningless speeches. As in all military regimes, it allowed itself to suppress the liberty of others. While it was appropriate for the Committee not to rule out any other alternative by refusing a new ILO mission, it was not appropriate either to leave the door open in giving too much credibility to a government which persisted in violating the most elementary rights and freedoms.

The Government representative, referring to Case No. 1752 of the Committee on Freedom of Association, pointed out that recent developments had taken place, as had been indicated in a letter by the Director-General of the Department of Labour of Myanmar, to the Director of the ILO International Labour Standards Department. These developments included the following points. Since the Government had been very concerned about the recommendations of the Committee on Freedom of Association, the Ministry of Transport had taken the following steps with regard to Myanmar seafarers. The Seamen's Control Department, under the Ministry of Transport, had promptly revoked the requirement of Myanmar's seafarers to sign an affidavit before leaving the country, with effect from 9 February 1995. Moreover, 25 per cent of Myanmar seamen's salaries, which they had previously been required to remit to their families back home, would no longer be deducted with effect from 1 December 1994. In addition, according to Notification No. 146/94 of the Ministry of Finance and Revenue, issued on 16 November 1994, Myanmar's seamen and overseas workers were liable to pay only 10 per cent as income tax on the declared total foreign exchange earnings with effect from the same date mentioned above.

The Employers' members concurred with the Workers' members' proposal that this case should be placed in a special paragraph since it clearly met the Committee's traditional criteria for serious, long-standing cases that did not seem as if they would be resolved without additional attention being given to them. However, they did think that the ILO could provide technical assistance which in turn should be converted into tangible, concrete and legislative action by the Government of Myanmar in the near future.

The Workers' members considered that the information on the recent developments regarding Case No. 1752 should be sent to the Office for examination by the Committee on Freedom of Association. They considered that if a government request was made to the Office for a technical assistance mission then it could be carried out provided the Office considered that this was worthwhile.

The Committee took note of the statement of the Government representative indicating his Government's commitment to harmonize law and practice with Convention No. 87. The Committee, however, felt serious concern that the Government had not acted on the observations of the Committee of Experts over many years despite mention of the matter in special paragraphs twice over, and that no trade unions in the true sense of the term existed. The Committee urged the Government to adopt, as a matter of urgency, the necessary measures to guarantee that in law and in practice workers and employers had the right to join organizations of their own choice and without previous authorization outside the existing structure, and that such organizations had the right to join federations and confederations and to affiliate with international organizations without impediment. The Committee expressed the firm hope that it would be in a position to register concrete and substantial progress in the application of the Convention in law and in practice, in the near future, considering the assistance of the ILO mission which had already taken place, and it requested the Government to send a detailed report to the Committee of Experts about further developments on the matter. The Committee noted that a further request might be made for ILO technical assistance by the Myanmar Government, but it would leave the question of whether an ILO mission would be appropriate, and the timing of such a mission, to the Office. The Committee decided to mention this conclusion in a special paragraph of its General Report.