Observation (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Myanmar (Ratification: 1955)

The Committee notes the observations of the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) and of the Myanmar Seafarers Federation (MSF), communicated with the report of the military authorities. The Committee further notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 and 15 November 2024, which concern the matters addressed below. The Committee also notes the reply of the military authorities to the 2022 ITUC observations. The Committee requests that the military authorities provide comments on the 2024 ITUC observations, whichpoint to severe and continued repression of workers and trade unionists in the post-coup context.

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee recalls that the Commission of Inquiry established by the Governing Body to examine the non-observance by Myanmar of this Convention, among others, issued its report on 4 August 2023. The Committee notes that the Governing Body discussed the follow-up to the recommendations of the Commission of Inquiry at its 350th, 351st and 352nd Sessions (March, June and November 2024). At its 352nd Session, the Governing Body noted with utmost concern the absence of any concrete action towards the implementation of the recommendations of the Commission of Inquiry and observed that, according to reports from trade unions, workers in Myanmar continue to face severe oppression and exploitation, denial of basic employment rights, widespread labour rights abuses and violent suppression of workers’ protests, exacerbated by the military regime’s oppressive tactics, threats and persecution, which have effectively outlawed any form of organized labour. The Governing Body therefore repeated its call for Myanmar to ensure that employers’ and workers’ organizations are able to exercise their rights in a climate of freedom and security, free from violence, arbitrary arrest and detention, by means of the full implementation of the recommendations of the Commission of Inquiry, which include the revocation of any military orders, legislative or other measures, decreed since February 2021 and identified as restricting freedom of association and the basic civil liberties of trade unionists. The Governing Body also decided to place on the agenda of the 113th Session (2025) of the International Labour Conference an item concerning measures under article 33 of the Constitution to secure compliance by Myanmar with the recommendations of the Commission of Inquiry and requested the Director-General to submit to the Governing Body at its 353rd Session (March 2025) a draft resolution concerning the measures to be taken under article 33 of the ILO Constitution in light of its discussion.

The Committee observes with deep concern the above information which indicates a complete lack of progress in implementing the 2023 recommendations of the Commission of Inquiry and shows a total denial by the military authorities of the gravity of the situation affecting civil liberties and freedom of association in the country.

Civil liberties. Violence and repression against trade unionists. The Committee previously called for a full and independent investigation into the circumstances of the killings of three unionists (Chan Myae Kyaw, Nay Lin Zaw and Zaw Htwe). The Committee notes the indication of the military authorities that, according to a March 2022 court order, the death of Zaw Htwe was caused by action of the security forces taken in line with the applicable legislation. With regard to the other two unionists, the military authorities reiterate information provided previously (no casualties were found at the protest where Chan Myae Kyaw is said to have been shot and there were no events of a crackdown by security guards where Nay Lin Zaw is said to have died). While further noting the general justification put forward by the military authorities as to the need for the security forces to intervene to counter violent protests that were causing injuries and destruction and were considered as terrorism, the Committee deplores the repeated reports of continued violence against trade unionists from the ITUC and its affiliates and also observed by the ILO Governing Body and the Committee on Freedom of Association (see Case No. 3405, 407th Report, June 2024, paragraphs 299 and 304). The Committee notes in this respect that the ITUC raises concerns about the increasingly vulnerable situation of workers and trade unionists who continue to face severe repression and grave violations of civil liberties and trade union rights and points to the abduction and killing of two unionists in the southern Sagaing region in May 2022. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights are fully respected and guaranteed, and in particular those, relating to human life, dignity and personal safety. In line with the above, the Committee urges that all measures be taken to cease all action threatening the right to life and physical integrity of trade unionists. It further urges that an investigation be conducted by an independent and impartial entity into the circumstances of killings of trade union members reported by the ITUC and requests to receive a full report on the outcome of such investigations and the measures taken to prosecute and punish the guilty parties.

Arrest, detention, threats and other restrictions on civil liberties. Having previously noted serious allegations of a number of arrests and detentions of trade unionists, the Committee called for the immediate release of any trade unionists detained or imprisoned for having exercised their trade union rights protected under the Convention. The Committee notes that the military authorities assert that no one has been arrested for peacefully exercising their labour rights, only those who violated the law, and that thousands have been released following the granting of pardons, including the chairperson of the Myanmar Industries Craft and Services Trade Union Federation (MICS-TUsF) in Hmawbi Township and a member of the Confederation of Trade Unions Myanmar (CTUM), who had been detained in Insein prison (released in November 2022 and August 2023), but that some individuals face criminal charges for having committed unlawful acts, including terrorist activities. Similarly, charges have been made in the case of several CTUM executive committee members and of Thet Hnin Aung, the MICS-TUsF General Secretary, who, after having served his first sentence and having been released in March 2023, was rearrested and sentenced to seven years of imprisonment under sections 52(a) of the Anti-Terrorism Law and 505A of the Penal Code in November 2023 for his involvement in unlawful activities; he remains detained. The Committee notes with deep concern the continued detention of the MICS-TUsF leader, as well as the observations of the ITUC that the military continue to systematically stigmatize the CTUM, its affiliates and its leaders, associating them with “terrorist organizations”, that trade union leaders and activists are arrested simply for having exercised their rights to freedom of speech, assembly and association and that those who remain detained suffer ill-treatment, abuse, torture and sexual assault. The ITUC points to an incident of beatings and arrest of two female unionists from the Industrial Workers’ Federation of Myanmar (IWFM) in April 2022 (one was released after having served 2 out of 3 years of her sentence), as well as the arrest of striking workers in a garment factory in the Watayar Industrial Zone in Yangon in August 2024 after the management called in the military, the police, the administration and the ward administrators.

The Committee further notes with concern that while the military authorities claim that workers and employers can freely exercise freedom of association (a position also supported by the MSF and the UMFCCI), the ITUC reports a tightening control, surveillance and suppression of fundamental freedoms, systematic union busting in all economic sectors and raids on union offices and homes of union leaders, coupled with a lack of labour law enforcement, labour inspection and functioning dispute settlement mechanisms. The ITUC points to several problematic practices, including the use of Workers’ Coordination Committees (WCC), the composition of which is mostly hand-picked by the management, to replace trade unions; interference in trade union affairs by requesting workers to re-elect new CTUM leadership; and threats by the management of a sportswear factory in Shwe Lin Ban Industrial Zone to call in the military to arrest striking workers in August 2024. The ITUC argues that it is impossible to exercise freedom of association in the country without a significant risk and raises concerns that without genuine freedom of association, the increasingly vulnerable situation of workers, repression and exploitation will remain hidden and unreported.

The Committee is deeply alarmed at the continuing repression of workers and trade unionists characterized by arrests and other serious restrictions on basic civil liberties, and it urges that all measures be taken to ensure full respect for the basic civil liberties necessary for the exercise of freedom of association, including freedom of opinion and expression, freedom of assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal, so that workers’ and employers’ organizations can carry out their activities and functions without threat of intimidation or harm and in a climate of complete security. Further, the Committee urges the immediate release of MICS-TUsF leader and any other trade unionists still detained or imprisoned for having exercised their trade union rights protected under the Convention.

Criminalization of basic civil liberties. The Committee also previously requested the repeal of section 505-A of the Penal Code (a broad and vague definition of the term “treason”), the amendment of section 124-A of the Penal Code (a broad wording of “a criminal act”) and the revision of section 38(c) of the Electronic Transaction Act (ETA) (penalizing the spreading of false news (undefined)), all of which were introduced or expanded after the February 2021 military coup. The Committee observes that the Commission of Inquiry also considered that the above amendments to the Penal Code were broadly worded, subject to extensive interpretation and used to criminalize legitimate trade union activities and that a number of other amendments (such as section 38(c) of the ETA), expanded the grounds for State regulation of freedom of speech, with a chilling effect on the population; it therefore called on the military authorities to revoke those legislative measures. Observing that the above provisions have far-reaching applications that can be brought to bear in a manner so as to compromise the exercise of basic civil liberties necessary for the full exercise of trade union rights and that, since 2021, many reported arrests and detentions of workers, including trade unionists, have been based on these provisions, the Committee calls once again for the repeal of section 505-A of the Penal Code, as well as the revocation of post-2021 amendments to section 124-A of the Penal Code and section 38(c) of the ETA.

Labour law reform process. In light of the deeply concerning deterioration of the situation in the country, the Committee is strongly convinced that priority must be given to the restoration of democratic and civilian rule. The Commission of Inquiry also observed the importance of taking steps to preserve democracy and considered that democratic institutions were needed for the protection of fundamental rights and freedoms. The Committee nevertheless wishes to recall its previous comments concerning the labour law reform process in the country for further action once the democratic institutions and processes, as well as a democratically elected government, are restored. The Committee notes in this respect that the ITUC points to several pieces of legislation, which need to be brought in line with the Convention, including the ETA; the Law on the Right to Peaceful Assembly and Peaceful Procession, 2016; the Labour Organization Law, 2011; the Settlement of Labour Disputes Law, 2012 and the Special Economic Zone Law, 2014.

Article 2 of the Convention. Minimum membership requirement. The Committee had previously encouraged consultations within the framework of the National Tripartite Dialogue Forum (NTDF) concerning the membership requirements and pyramidal structure set out in the Labour Organization Law so as to ensure that all workers and employers, without distinction whatsoever, are able, not only in law but also in practice, to fully exercise their rights under the Convention, bearing in mind key difficulties faced by parts of the population, such as those in remote areas. The Committee trusts that, once a democratically elected government resumes power, genuine tripartite consultations will take place to ensure that all workers and employers, without distinction whatsoever, are able to fully exercise their rights under the Convention and that the membership requirements and pyramidal structure set out in the Labour Organization Law do not restrict this right in practice. The Committee also requests information on any denials of registration, including reasons for such decisions and procedures for review and appeal of such denials.

Article 3. Eligibility to trade union office. The Committee previously noted the restrictions for eligibility to trade union office set out in the Rules to the Labour Organization Law, including the obligation to have been working in the same trade or activity for at least six months (no initial time period should be required) and the obligation for foreign workers to have met a residency requirement of five years (this period should be reduced to a reasonable level such as three years), as well as the requirement to obtain permission from the relevant labour federation under section 40(b) of the Law in order to go on strike. The Committee once again expresses its expectation that, as soon as conditions permit, all of the above matters will be reviewed within the framework of the legislative reform process in consultation with the social partners so as to ensure fully the rights of workers and employers under the Convention.

The Law on the Right to Peaceful Assembly and Peaceful Procession, 2016. The Committee recalls from its previous comments that the Chapter on Rules and the corresponding Chapter on Offences and Penalties of the Law on the Right to Peaceful Assembly and Peaceful Procession could give rise to serious restrictions on the right of organizations to carry out their activities without interference (incidents of prosecution of unionists for peaceful protests). The Committee therefore calls for all steps to be taken to ensure that workers and employers are able to carry out and support their peaceful activities without threat of imprisonment, violence or other violations of their civil liberties by police or private security and that the Law on the Right to Peaceful Assembly and Peaceful Procession not be used in any way to restrict these rights.

Settlement of Disputes Law, 2012. The Committee previously noted the 2019 amendments of the Settlement of Labour Disputes Law and requested the text of the amended law and its implementing Rules. The Committee notes that the amended law contains a number of provisions that may in practice raise issues of compatibility with the Convention: (i) section 2(a) adopts a different definition of workers than the one in the Labour Organization Law and excludes certain categories of workers from its scope of application – civil servants, defence services personnel, members of the police and members of the armed forces; (ii) under section 2(f)(vi), the Ministry of Labour, Immigration and Population can unilaterally declare a service essential, in addition to those provided by the law; (iii) section 25 provides for automatic referral of unresolved disputes by the conciliation body to the arbitration body; and (iv) sections 10–22 attribute State entities a crucial role in the appointment, composition and functioning of the dispute settlement mechanisms, which may raise concerns of full independence of these entities from State authorities. While noting from the observations of the ITUC and the report of the Commission of Inquiry that, in the present situation, the dispute resolution system is not functioning properly, despite the military authorities suggesting otherwise, the Committee trusts that, once the conditions allow, the Settlement of Disputes Law will be amended to ensure full compliance with the Convention and will be applied in a manner to ensure the effective protection of the right to organize.

Special economic zones (SEZs). The Committee previously requested all necessary measures to be taken to guarantee fully the rights under the Convention to workers in SEZs, including by ensuring that the Special Economic Zones Law does not contradict the application of the Labour Organization Law and the Settlement of Labour Disputes Law in SEZs, and suggested that this matter be followed up within the framework of the NTDF as soon as conditions permit. The Committee reiterates its request.

The Committee deeply deplores the far-reaching humanitarian crisis in the country and the reports of continued grave violations of basic civil liberties and labour rights of workers and employers under the military rule, including numerous deaths, massive detentions and arrest of trade unionists, threats, oppression and other serious labour rights violations, which have severely undermined prospects to freely exercise freedom of association in the country. Recalling the interdependence of freedom of association and basic civil liberties, also highlighted by the Commission of Inquiry, the Committee strongly urges the military authorities to refrain from any further acts or measures that put in peril, directly or indirectly, the life and safety of workers and trade union members and thereby restrict the free exercise of trade union rights protected by the Convention. The Committee is also deeply concerned with the delay in restoring democratic governance in the country which is necessary for the exercise of freedom of association, the authorities’ continued denial of the seriousness of the situation, and the total lack of progress regarding the Committee’s previous recommendations and the recommendations of the Commission of Inquiry, despite regular follow-up of the issues by the ILO supervisory mechanisms and the Governing Body. Given the urgency and the gravity of the situation, the Committee strongly urges the military authorities to take into account the Committee’s requests detailed above and to implement without delay the recommendations of the Commission of Inquiry calling for the cessation or reversal of any measures or actions that violate the Convention, and to provide information on all the steps taken in this regard.