333rd Report of the Committee on
Freedom of Association
INTERNATIONAL LABOUR OFFICE GB.289/9
289th Session
Governing Body
NINTH ITEM ON THE AGENDA
[extracts on the
CASE NO. 2268
INTERIM REPORT
Complaint against the Government of Myanmar presented
by the International Confederation of Free Trade Unions (ICFTU)
Allegations: (1) Allegations relating to legislative issus: 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 theMyanmar Yes Garment Factory; intervention of the army in
labour disputes
642.
The International Confederation of Free
Trade Unions (ICFTU) submitted its complaint in a communication dated
643.
The Government sent its reply in two
communications, the first of which is dated
644.
Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
645.
The complaint and its 17 appendices can be
summarized as follows.
646.
In an introduction, the complainant
indicates that the complaint raises new cases of violations of the right to
freedom of association. These new cases are further examples of the military
regime’s established practice of violating workers’ right to freely associate
in trade unions. From a more general perspective, the complainant invites the
Committee, in the course of its examination, to bear in mind that violations of
freedom of association occur in a climate in which human rights and other
fundamental freedoms and guarantees are being violently repressed. In the
present case, the interdependence between freedom of association and civil
liberties is particularly important. According to the complainant, there is
little chance of any free exercise of trade union rights in
647.
In the field of freedom of association, the
complainant recalls that for over 40 years the Committee of Experts on the
Application of Conventions and Recommendations (CEACR) has pinpointed serious
discrepancies in the law and practice with regard to the application of
Convention No. 87. In addition, the Conference Committee on the Application of
Standards has examined violations of the Convention in
648.
Despite the international pressure, the
military junta has not taken any action so far in order to bring law and
practice into conformity with the basic principles of freedom of association.
On the contrary, gross violations persist in
649.
The complaint is divided into two parts. The
first part addresses issues related to legislation, while the second deals with
specific instances of grave, factual violations of freedom of association.
Violations of freedom of association based on legal
issues
650.
In its introductory remarks, the complainant
describes briefly the political and institutional history of
651.
In 1988, the country faced a rising tide of
discontent due to the economic and political situation. A general strike broke
out in August 1988 and was violently repressed. The military retreated
nonetheless to their quarters in August and September. During this
period, in the wake of a general movement which led to the
creation of various organizations and an independent media, hundreds of
workers’ organizations were established in both the public and private sectors.
These organizations were grouped in the
All
including workers’ organizations, were disbanded and top
leaders were jailed. In March 1990, the democratic opposition, the National
League for Democracy (NLD), won the legislative elections but was not permitted
to assume power. On
SLORC dissolved itself and appointed a new State Peace
and Development Council (SPDC).
652.
As regard the legislative framework, the
complainant stresses that it is particularly difficult to have a clear idea of
the legislation in force in
Laws on freedom of association: the Trade Union Act, 1926; the Law
“defining the fundamental rights and responsibilities of the people’s workers”,
1964 (amended in 1976); and the Trade Disputes Act, 1929
653.
The complainant explains that
subject of comments by the CEACR for many years. One of the
issues raised by the CEACR was the excessively high threshold required to
establish a trade union. In 1964, the Law “defining the fundamental rights and
responsibilities of the people’s workers” was
adopted (the law is attached to the complaint). The Trade
Union Act remained in force in so far as it was compatible with the 1964 Law.
For many years, the CEACR has sought, without success, clarification from the
Government on the extent to which the 1964 Law had repealed the Trade Union
Act.
654.
The complainant indicates that the 1964 Law
is far from complying with Convention No. 87 since it establishes a compulsory
system for the organization and representation of workers. The 1964 Law was
amended in 1976. In its 1977 comments, the CEACR noted however that the law as
amended still “… imposes a single trade union system contrary to Article 2 of
the Convention under which workers have the right to form organizations of
their own choosing”. The complainant underlines that since that date, the CEACR
has repeated its comments in successive reports. Unfortunately no progress has
yet been noted.
655.
The complainant indicates that other laws
should be brought to the attention of the Committee and in particular the Trade
Disputes Act, 1929 (attached to the complaint). This Act, amended in 1966,
appears to define the means of resolving industrial disputes. The complainant
mentions a number of provisions that, in its view, appear not to be in
conformity with freedom of association. On the other hand, the complainant
indicates that it is unable to confirm whether the Act is still in force.
Military decrees and orders: Orders Nos. 2/88 and 6/88
656.
The complainant underlines that the legislative framework would not be complete
if decrees and orders adopted by the military since 1988 were not taken into
account. These decrees and orders have direct detrimental effects on the free
exercise of trade union rights. In some cases they appear to supersede outdated
legislation that has not been officially repealed.
657.
The complainant first draws the attention of the Committee to Order No. 2/88
issued on 18 September 1988 under the title "Order No. 2/88 of the
Organization for Building Law and Order in the State" (attached to the complaint).
Order No. 2/88 prohibits "gathering, walking or marching in procession …
by a group of five or more people … regardless of whether the act is with the
intention of creating disturbance or of committing a crime or not". Order
No. 2/88 goes on to state that "no one is permitted to open strike centres regardless of whether or not the intent is to
create disturbances or to commit a crime". Finally, "no one is
permitted to demonstrate en masse" or "
interfere or obstruct people carrying out security duties". The
complainant underlines that the sweeping wording of Order No. 2/88 covers all
types of meetings, including those related to legitimate trade union
activities. It could thus render illegal normal trade union gatherings
essential to the defence and promotion of workers' rights.
658.
The complainant underlines that the provisions of Order No. 2/88 are
strengthened by the Unlawful Association Act, 1908, which provides, under
section 17.1 that "whoever is a member of an unlawful association, or takes
part in meetings of any such association, or contributes or receives or
solicits any contribution for the purpose of any such association or in any way
assists the operations of any such association, shall be punished with
imprisonment for a term which shall not be less than two years and more than
three years and shall also be liable to fine".
659.
The complainant then draws the attention of the Committee to Order No. 6/88 of
30 September (attached to the complaint), entitled "Law on the Formation
of Associations and Organizations". The complainant considers that Order
No. 6/88 is in blatant contravention of Convention No. 87. Thus, under section
2(a), "an organization means an association, society, union (underlining
added), party committee, federation, group of associations, front, club, and
similar organization that is formed with a group of people for an objective or
a programme …". By virtue of section 3(a),
"organizations shall apply for permission to form to the Ministry of Home
and Religious Affairs …", while section 3(c)
states that "organizations that are not permitted shall not form or
continue to exist and pursue activities". There is no doubt, according to
the complainant, that Order No. 6/88 applies to workers' and employers'
organizations, which are thus required to request previous authorization from
the military to be established or to pursue their activities.
660.
In addition, section 5(b) and (c) describes, in a very broad manner, the
organizations which are prohibited, i.e. "organizations that attempt,
instigate, incite, abet or commit act that may in any way disrupt law and
order, peace and tranquillity, or safe and secure
communications" and "organizations that attempt, instigate, incite,
abet or commit act that affect or disrupt the regularity of the state
machinery". The complainant emphasizes that the order does not give any
indication of the grounds on which the Government would judge a violation to
have occurred. Moreover, it does not provide an appeal against decisions denying
permission for organizations to be established.
661.
Finally, penalties provided in the Order for punishing violations are
particularly harsh. Under section 6, any person found to have infringed section
3(c) and section 5, "shall be punished with imprisonment for a term which
may extend to five years". Section 7 states that "any person found
guilty of being a member of, or aiding and abetting or using the paraphernalia
or organizations that are not permitted … shall be punished with imprisonment for
a term which may extend to three years".
662.
The complainant underlines that these two military Orders are part of a net of
repressive texts, some dating back to colonization, others new, and others
secret, which are designed to prevent any person from challenging the military
by organizing peaceful demonstrations. The complainant lists some other texts:
(1) the Unlawful Association Act, 1908 (mentioned above and attached to the
complaint); (2) the Official Secrets Act, 1928 (not attached to the complaint
and providing, according to the complainant, for imprisonment for the
dissemination of statements deemed official secrets); (3) the Emergency
Provisions Act, 1950 (section 5 of which is attached to the complaint); (4) the
State Protection Law, 1975 (attached to the complaint); and (5) Law No. 5/96
(attached to the complaint and bearing the following title "Law protecting
the peaceful and systematic transfer of state responsibility and the successful
performance of the functions of the National Convention against disturbance and
oppositions").
663.
The complainant submits that all these texts can be used arbitrarily as needed
by the regime to undermine any sort of trade union activities. They contribute
to nourishing a climate of denial of fundamental freedoms and to annihilating
any form of labour organization. They should
therefore be repealed without delay, or at least, be modified in order not to
pose a threat to normal trade union activities. On the other hand, the
complainant is unable to confirm whether the texts listed in the previous
paragraph are still in force.
Preliminary conclusions of the complainant on the
legislative framework
664.
In light of the serious discrepancies identified in the legislation, the
Government should:
-
suppress any reference to a monopoly;
-
suppress any previous authorization required in order to form and join workers'
or employers' organizations;
-
provide for the right to establish and join workers' and employers'
organizations at all levels;
-
eliminate all penalties for the exercise of trade union activities, including
strike action;
-
provide for an appeal before an independent body in case of refusal to register
or recognize a workers' or employers' organization.
665.
The complainant states that the Government should be urged to accept technical
assistance by ILO experts on freedom of association in order to carry out a
comprehensive review of its legislation on freedom of association so as to
ensure better compliance with Convention No. 87. In this last respect, the complainant
refers to the "resolution on widespread use of forced labour
in
Violations of freedom of association based on factual discrepancies
666.
The complainant states that, whatever the
written law, in practice, workers who fight to redress the often atrocious
conditions face threats, violence and murder.
No trade union is allowed to be
established or to function
667.
The complainant submits that there is a
total lack of legally registered workers’ organizations in
to function underground, facing constant threat of
repressions and reprisal. There is a systematic practice of repression by
public authorities of any form of labour
organization, which often extends to violence, including torture.
668.
The complainant refers also to the “Union Solidarity
and Development Association” (USDA). Workers are forced to join this
association to work, for example, in the civil service and more generally for a
myriad of economic activities. This association was
created in 1993 by the Government. It is designed to
substitute not only workers’ organizations, but all other civil institutions
and is widely seen as a political mobilization tool. Its purported objective,
published on the website of the government, is to “strengthen
the Union of Myanmar to promote love and understanding
among indigenous peoples, to strengthen State sovereignty, to safeguard
territorial integrity and to develop the country and to build a peaceful and
modern State”.
Federation of Trade Unions of
669.
The complainant states that the FTUB is an
independent workers’ organization. According to its draft constitutive
documents (attached to the complaint with the composition of its Central
Executive Committee), one of its aims is “to further the establishment,
maintenance and development of free trade unions in
670.
The complainant explains that the
organization was established in 1991 by trade unionists who were subsequently
dismissed from their jobs by the military regime. It is headed by a Central
Executive Committee. The Central Executive Committee has not yet succeeded in
registering the organization in
workers’ unions inside the
the names of some of these organizations are listed in
the complaint. In common with the FTUB, these workers’ organizations are unable
to legally register and all function underground. While they are not affiliates
of FTUB, they maintain close working
relationships.
671.
The Government has orchestrated a campaign
of defamation and discredit against the FTUB. Part of this campaign is
conducted through the government-controlled media. The complainant also quotes
a statement of the Worker delegate of the
672.
Finally, the complainant states that the
FTUB has often had to face gross interference by the public authorities in its
administration that takes the form of violations of its premises and
properties. Thus in May 2002, the military junta attacked and torched the Kawthoolei Education Workers’ Union (KEWU) office in Kho-Pay, Papun District, and
burned down the homes of several KEWU members. KEWU is not affiliated to the
FTUB but closely cooperates with it. It is not legally registered and under
constant threat of repression. The event occurred a few days after union
members led by the FTUB celebrated May Day; the building used for the May Day
celebration was also torched. To the complainant’s knowledge no inquiry was
carried out.
673.
The complainant concludes by underlining
that it would be impossible for the FTUB to obtain authorization under Order No.
6/88 to function as a legal trade union inside
Case of the General Secretary of FTUB, Maung Maung
674.
Maung Maung has been
the General Secretary of FTUB since its creation in 1991. He was forced to
leave the country in 1988 at the time of the military crackdown. previously, Maung Maung had
created with other colleagues a trade union in the state-owned mining company
in which they were employed. They became members of the executive committee of
this organization and were dismissed by the Military in application of Order
No. 6/88. Since then, Maung Maung has exercised his
trade union functions and leadership from outside
675.
The Government regularly harasses and
attempts to discredit Maung Maung, presenting him as
a fugitive criminal. The government-controlled media launched regular attacks against
Maung Maung (newspaper articles attached to the
complaint in support). In 2002, the
676.
According to the complaint, the FTUB General
Secretary faces criminal prosecution for legitimate trade union activities, in
total contradiction of the free exercise of trade union rights and fundamental
principles of freedom of association.
Murder of a trade unionist: Saw Mya Than
677.
Saw Mya Than was a member of the FTUB and an official of the KEWU
mentioned above. He received training as a specialist in human and trade union
rights in 2001 by both organizations. He became well known in his area for his
involvement with human rights and was elected as a headman of his village, Kaleiktoat, in Ye township (
678.
The complainant explains that Saw Mya Than was forced to work as a porter for the army’s Light
Infantry Battalion (LIB) No. 588, led by Major Myo Hlaing.
On
movement. Saw Mya Than
was shot dead by the State Peace and Development Council (SPDC) soldiers, retaliating
against an ambush set by the democratic forces.
679.
It is common practice for the
680.
The complainant adds that it was informed of
the murder by the FTUB; it then reported the case to the ILO. The case was
subsequently raised by the ILO Liaison Officer before the National
Implementation Committee at a meeting on
Detention of trade unionists: Myo Aung Thant,
Khin Kyaw and Thet Naing
681.
The complainant submits the following
elements concerning Myo Aung Thant. Myo Aung Thant was a member of the All Burma Petro-Chemical
Corporation Union formed during the 1988 pro-democratic movement. In 1995, he
became a member of the Central Executive Committee of the FTUB. He was arrested
on
682.
With respect to the case of Khin Kyaw, the
complainant gives the following information. Khin Kyaw was a member of the
Seamen’s Union of Burma. He was arrested in 1997 along with his wife. He had
earlier been detained for trade union activities in 1993 and had been tortured
in detention. The authorities have never stated the charges under which he is
currently held but it is known that these are related to Myo Aung Thant’s case. Khin Kyaw is presently serving a 17-year
prison sentence in Thayarwaddy prison in Pegu division. His health is poor.
683.
Regarding the case of Thet
Naing, the complainant indicates that he was an
underground trade uion leader who is currently in
jail. He was originally arrested in 1990 after involvement in politics with the
National League for Democracy (NLD), and student and
workers’ organizations. He was released in 1994. In 1997, Thet Naing was recruited in the Yan Ze Kyan
garment factory. In 1999, a protest action broke out due to unfair labour practices on the part of the employer. Thet Naing was one of 85 workers
dismissed for
their role in the protest action; 100 workers were
sanctioned with pay deductions. As a result, the entire workforce walked off the
job in a wild-cat strike and the factory management contacted the township SPDC
and military officers. An arrangement was
negotiated, and the workers, including Thet
Naing, were allowed to return to work. Five days
later, Thet Naing and 60
other workers were dismissed once again. On
684.
The complainant considers that these
detentions and convictions for trade union activities contribute to creating an
atmosphere of intimidation and fear prejudicial to the normal development of
trade union activities. The complainant believes that Myo Aung Thant, Khin Kyaw and Thet Naing should be released immediately.
Sailors repressed overseas
685.
The complainant recalls in detail Case No.
1752 examined by the Committee [see 295th Report paras.
87-119 and 299th Report, para. 17]. The complainant
then describes the case of Shwe Tun Aung to show that
contrary to what the Government indicated to the Committee during the
examination of Case No. 1752,
particularly difficult to document for fear of reprisals.
686.
The complainant recalls that in Case No.
1752, it was alleged that, prior to their departure from shore, Myanmar
seafarers were required by a governmental agency, the Seamen Employment Control
Division (SECD), to sign an affidavit saying that they would not accept any
assistance from the International Transport Workers’ Federation (ITF) or
affiliated parties. The affidavit obliged seafarers to sign a double payroll.
The Committee urged “the Government to withdraw the SECD requirement that
687.
Further, the Committee noted that the
ITF-affiliated Seafarers’ Union of Burma (SUB) which intervened on behalf of
688.
Finally the Committee noted “with serious
concern” the various incidents described by the ITF and the victimization of
Myanmar seafarers – revocation of their registration, confiscation of their
passports and even threat of imprisonment – in the event that they
accepted or received an ITF settlement and refused to hand
back their back-pay settlements to the SECD. The Committee called on the
Government “to refrain in the future from having recourse to acts of anti-union
discrimination against
689.
In the course of the follow-up of the case, the complainant recalls that the
Government informed the Committee that the "affidavit requirement"
had been revoked and that measures to allow
690.
Before taking his first position as a seafarer, Shwe Tun
Aung was called in by an employee of the SECD to sign a paper that warned him
not to join the union or make any claims to the ITF. Without signing this
document, Shwe Tun Aung would not have been able to
obtain the seafarer's certificate entitling him to work as a seafarer. At the
end of his first work, Shwe Tun Aung waited in
691.
In 1998, he joined the crew of the M/V Great Concert. For four months, the
crewmembers were not paid fair wages. For two weeks, they were not fed. When
the ship arrived in
692.
Shwe Tun Aung did not return to
693.
In September 1999, they both joined the M/V Global Mariner to participate in a
worldwide campaign to present the situation of workers in
694.
Mr. James McAuley's statement confirms Shwe Tun Aung's involvement in trade
union activities with the SUB in
Labour unrest and
dismissals of workers
695.
The complainant states that it was informed of a great number of dismissals of
workers in connection with collective labour protests
and claims.
696.
The first case reported is the case of the Motorcar tyre
factory in Kanthayar village (Thaton
township,
697.
Before any petition was submitted, the intelligence officers and the
Textile factories
698.
The complainant indicates that dozens of instances of labour
unrest, severely repressed by public authorities were reported to have occurred
in textile factories in the course of 2001. The complainant provides examples
of the ways in which workers' rights are ignored in blatant violation of the
fundamental freedom of association.
Unique Garment Factory, Hlaing That Ya
industrial zone 4
699.
In November 2001, an organized workers' movement took place at this factory in
order to obtain an increase in overtime pay. At the request of management,
officers of the Strategic Office of the Yangon Military Command arrived
immediately and asked workers to elect representatives. Six workers came
forward and explained the workers' claims. The next day, these six workers were
given three months advance pay as well as their basic monthly pay and dismissed
were from their jobs. The last update of the situation indicated that the
workers went into hiding for fear of being arrested.
Myanmar Texcamp
Industrial Ltd, Hlaing Tha Ya zone 3
700.
Myanmar Texcamp is a Singapore-financed company,
employing more than 1,000 workers. During the second week of January 2002,
there was an organized request by the workers for higher wages and better
working conditions. The management responded by calling in the tactical
commander of the Yangon Military Command who threatened the workers that if
they did not stop, they would be arrested with the charge of "creating
instability to the nation". The management added that since the overall
economy was not good, if the wages were to be increased, the company would
ultimately have to close. The workers felt compelled to stop their protests and
drop their claims.
701.
This Hong Kong-financed company employs more than 2,000 workers, in poor
working conditions. Average wages are low and working hours are very long
(workers are compelled to work until
702.
On
703.
On
704.
The case was denounced by the International Garment and Leather Workers'
Federation in a communication addressed to the Managing Director of the company
on
Conclusion of the complainant
705.
The complainant believes that this complaint
shows serious breaches in the law and practice of
B. The Government’s reply
706.
The Government completed its original
communication of
focuses only on the factual allegations.
Allegation that no trade union is allowed to be
established or to function
707.
The Government states that the fundamental transformation
and transition of one political system to another must be linked to the
forthcoming constitution. Thus, the formation of first-level trade unions can
only take place after the emergence of a national constitution, as all the laws
of the country emanate from the constitution. Nevertheless, during the
transitional period still faced by the country, the Government is trying to
make appropriate arrangements and, in particular, to building on the existing
mechanisms. The Government refers in this regard to the workers’ welfare
association and to professional associations such as the Myanmar Overseas
Seafarers’ Association, the Myanmar National Committee for Women’s Affairs, and
the Myanmar Engineer’s Association. The Government is of the view that these
associations are able to protect the rights, interests and welfare of workers
as effectively as is possible under the prevailing circumstances. The
Government indicates that these associations are currently functioning at
various workplaces, factories, industrial zones and services and they are
forerunners of trade unions.
708.
The Government states that it firmly
believes that with the continued contact, cooperation and assistance of the
ILO, differences will be resolved. The Government declares that its main
objective is to continue its cooperation with the ILO.
Allegations concerning the public authorities’
interference with regard to the Federation of Trade Unions of Burma (FTUB)
709.
The Government stresses at the outset that
the FTUB is an unlawful organization engaged in terrorist activities. It is
headed by Maung Maung, a criminal, who had previously
founded HAWK, an organization which carried out destructive terrorist
activities. This
organization was subsequently transformed into the FTUB. With
respect to the allegation relating to the campaign of defamation and discredit
against the FTUB, the Government states that it has a duty to raise awareness
in the population about dangerous elements in society.
Response concerning Maung Maung
from the Federation of Trade Unions of Burma (FTUB), representative of the
ICFTU
710.
According to the Government, Maung Maung (also known
as Pyi Thit Nyunt Wai) is a terrorist from a rebel group. He is a fugitive
from justice. Two cases have been filed against him under the Public
Preservation Law, 1947 and under the Penal Code (High Treason). In 1989, he was
dismissed from his job at the Myanmar Gems Cooperation, for involvement in the
theft of jewellery from the diplomatic department
store in
711. Maung
Maung then joined an anti-government organization -
the United Democratic Front, later called the National Coalition Government of
the Union of Burma (NCGUB) -and engaged in various activities against the
Government. While he was in
Allegations concerning the death of
Saw Mya Than
712. The
Government indicates that a thorough investigation has been carried out and led
to the following findings.
713. Saw Mya Than was a villager from the
714. Saw Mya Than was not elected as
headman of the village contrary to what the FTUB claimed, neither was he a
porter. Rather, he was employed by the army as a guide. On
Allegations concerning Myo Aung Thant and Khin Kyaw
715. The
Government contends that Myo Aung Thant had no
permanent and proper job. He went to
Allegations concerning seafarers
repressed overseas
716. The
Government provides the following elements. First, it states that the
Department of Marine Administration reached an agreement with the ITF. Further,
the Myanmar Overseas Seafarers' Association was established legally and
affiliated with the ITF. The Association takes interest in the welfare and
rights of
717.
Moreover, the Seamen Employment Control Department issued a formal instruction
dated
718. The
Government recalls that, following the recommendations made by the Committee in
Case No. 1752, a communication was sent. The Government believes that this
communication adequately replies to the allegations contained in the complaint
concerning seafarers. In this letter, the Government explained that the
following steps had been taken to comply with the recommendations of the
Committee: (1) the SCD revoked, with effect from 9 February 1995, the affidavit
that seafarers had previously been obliged to sign before leaving the country;
and (2) measures were under way to allow seafarers to form organizations on
their own; the Government strongly denied having committed any acts of
anti-union discrimination. In this communication, the Government also referred
to the departmental instruction of
Allegations concerning labour unrest and dismissals of workers
719. With
regard to the allegations concerning the Unique Garment Factory, the Myanmar Texcamp Garment Factory and the Myanmar Yes Garment Factory,
in its communication of
720. In
its communication of 20 February, the Government submits additional comments on
the allegations relating to the three garment factories mentioned in the
complaint. The Government underlines that it disagrees with the dates given and
the manner in which the events are reported by the complainant. At a general
level, the Government comments that workers in
721. The
Government proceeds to describe the dispute resolution system. It insists that
in disputes workers are represented by workers' welfare associations present in
most factories. Should a dispute arise, negotiation and conciliation are
carried out between the employer and workers in the presence of both the
workers' welfare associations and the Supervisory Committee of the Industrial
Zones. If the parties so wish, the Township Workers' Supervisory Committee may
continue the negotiation and conciliation until an agreement is reached. The
Government denies any interference from the military in cases of labour conflict. These are settled solely by the
administrative council and committees functioning under the authority of the
Ministry of Labour. The Government indicates that between January 2000 and
December 2003, a number of disputes arose in various industrial zones. In
total, all 1,069 cases concerned were resolved through the negotiation and
conciliation process and 19,186 workers received additional benefits as a
result.
722. Concerning the garment factories in particular, the
Government indicates that these have experienced a great deal of pressure
resulting from the economic sanctions imposed on 1 The Committee took note of
the information with interest. It requested the Government to indicate the
specific measures undertaken to guarantee the rights of seafarers to form an
independent trade union in
723. The
Government comments on each of the three specific cases raised in the complaint.
Unique Garment Factory
724. The
Government confirms that disputes arose but disagrees with both the dates
specified and the alleged results. The Government indicates that the three
following disputes arose: (a) on 6 October 2000, 19 workers refused to work
overtime and it was decided to transfer them to another work section; a dispute
arose and was conciliated by the Township Workers' Supervisory Committee; a
settlement was reached under which management agreed to reinstate the ten
workers (the discrepancy in figure is that of the Government) in their former
section; it was also agreed that expatriate personnel would not interfere in
the management of the factory and that 6 October would be considered as a
worked day for the workers concerned; (b) on 10 July 2001, 77 night shift
workers were involved in a dispute; the factory was going through a difficult
period; the 77 workers, who were still on probation, were dismissed and
compensation was paid to them following a conciliation undertaken by the
Workers' Supervisory Committee; (c) on 15 December 2001, workers asked for the
payment of work done during lunchtime and overtime wages; the township
authorities and officials of the Ministry of Labour met with the management and
conciliated the matter; an agreement was signed between the employer and the
workers.
725. The
Government underlines that there have been no instances of arrest and that
conciliation and negotiation were undertaken, with the assistance of the Township
Workers' Supervisory Committee, the Supervisory Committee of the Industrial
Zones and the workers' welfare associations concerned. All the workers' claims
have been met, often beyond what was demanded. The Government adds that because
of the economic crisis, the factory was obliged to pay "legal
benefits" to all workers. The Government refers to the three following
disputes: (a) on 8 January 2002, all the workers of the factory submitted
claims for a wage increase and better conditions of work; conciliation was
undertaken by officials of the Government and an agreement reached and signed;
the management agreed to all the claims submitted; the owner of the factory
even consented, in addition, to an increase for low-wage workers; (b) on 2
December 2002, workers requested a wage increase; the factory owner together
with management, met with the workers in the presence of the Township Workers'
Supervisory Committee and an agreement was reached on overtime compensation;
(c) on 5 July 2003, a dispute arose when 300 workers asked for an increase of a
particular allowance; conciliation was undertaken by officials of the
Department of Labour and an agreement was reached.
726. The
Government asserts that the working time in force in the factory is in
accordance with that prescribed under the existing labour
laws and that, when overtime is to be performed, it is paid. Transportation
depends on the understanding that exists between employer and workers and is
either free (if it is agreed that transportation should be provided) or else
charged to the workers (who are entitled to provide their own transportation,
if they so prefer). The Government refers to the following two cases
conciliated and negotiated in the presence of the Township Workers' Supervisory
Committee, the Supervisory Committee of the Industrial Zones and the workers'
welfare associations concerned: (a) on 24 May 2002, 80 workers submitted a
number of claims relating to a salary increase and improved working conditions;
agreements were reached following a conciliation undertaken by the Township
Supervisory Committee; (b) on 16 September 2002, workers voiced their
dissatisfaction about a lay-off and the conditions under which it had occurred,
as well as the treatment of workers by the line manager (sewing sector); the
Township Supervisory Committee undertook a conciliation and urged management to
pay the compensation provided for under the contracts of employment; an
agreement was reached.
727. With respect
to the individual case of Ma Moe Moe Htay, the Government confirms that on
728. With
respect to the Motorcar tyre factory in
C. The Committee’s conclusions
729.
The Committee notes that the complainant
has submitted two sets of allegations. A first set of allegations relates to
legislative issues. The complainant has identified certain legislative
instruments seriously breaching Convention No. 87. The second set of
allegations relates to factual issues. The Committee will group these
allegations under three main issues. The first issue relates to the alleged
total absence of recognized workers’ organizations in
730.
At the outset, the Committee is obliged
to observe the extreme seriousness of the allegations and the detailed manner in
which they have been set out. The Committee notes that the Government has
submitted a reply only on certain of the factual issues raised. The Committee
also notes that the second communication of the Government has been received
one week before its meeting. Noting that the Government of
731.
Turning to the substance of the
allegations, the Committee must recall the specific background concerning
freedom of association against which they are presented. ILO supervisory bodies
have closely followed the application of Convention No. 87 by
732.
Given this context, the Committee wishes
to recall at the outset that when a State takes membership of the Organization,
it accepts the fundamental principles in the Constitution and the Declaration
of
Legislative issues
733.
The Committee notes that the Government
has not responded to any of the points concerning legislation made by the
complainant. The Committee notes that the Government does, however, admits that in practice no first level trade unions exist.
The Government links this absence with the fact that the state Constitution,
from which all national laws derive, has not yet been adopted. The Committee
notes in this respect that the legislation applicable to trade unions and trade
disputes invoked by the complainant was adopted or considered to be in force
under the 1974 Constitution, which was suspended in the meantime. The Committee
notes also that Order No. 6/88, which explicitly applies to unions – and the
currency of which is not questioned – subjects their establishment to previous
authorization of the Ministry of Home and Religious Affairs. This Order bans
organizations, including unions, on very broad terms, such as disruption of the
law and order or disruption of the =tate,
without providing any mechanism ofappeal. The
Committee underlines in this respect that the principle of freedom of
association would often remain a dead letter if workers and employers were required
to obtain any kind of previous authorization to enable them to establish an
organization [see Digest, op. cit., para.
244].
734.
In light of the above, the Committee
notes that on the one hand, there is currently no Constitution in force in
Myanmar and that, according to the Government, this prevents the adoption of
laws under which unions could be formed; hence, the absence of unions in
practice. On the other hand, paradoxically, Order No. 6/88 refers to unions and
applies in the conditions described above as problematic from the freedom of
association perspective. The combination of these two elements leads the
Committee to observe that currently there is no legislation that affords a
legal basis to the respect for, and the realization of, freedom of association
in
735. In
the Committee’s view, this situation calls for several actions to be taken by theGovernment. First, a legal basis must be provided to
allow the respect for, and realization of, freedom of association and, in
particular, the recognition of free and independent workers’ and employers’
organizations. This legal basis must, at the very minimum,provide for the guarantees enshrined in Convention
No. 87. It should also address themore specific
issues of the seafarers’ right to organize. In addition, the
Committee remindsthe Government that the Convention
covers employers as well as workers. While due notehas
been taken of the Government’s observations on the lack of a state
constitution, theCommittee observes that this
situation does not prevent all legislative activities and thatdecrees
and orders have indeed been adopted since the suspension of the 1974
Constitution.
736.
Secondly, in accordance with Article 8 of
the Convention, 2 this legal basis should comprise specific measures
whereby any other legislation, and in particular Orders Nos.2/88 and 6/88, will
not be applied in a manner which would undermine the guarantees relating to
freedom of association and collective bargaining.
737.
Finally, the Committee observes that
respect for the Rule of Law requires all legislation adopted to be made public
and the contents of which to be widely diffused. Any amendment to the law or
indeed its abrogation should follow the same process. The Committee expects
that any legislative instruments adopted with respect to freedom of association
will strictly abide by these fundamental requirements.
738.
Bearing in mind the serious implications
of the lack of any legal basis for freedom of association in
Factual issues
739.
In relation to the absence of recognition
of trade unions, the Committee will first examine the question of the
representation of workers’ interests by the welfare associations referred to by
the Government and which, according to its own admission, are not trade unions
but can be considered as forerunners of trade unions. This question has been
examined previously by the Committee of Experts on the Application of
Conventions and Recommendations and was raised recently before the Credentials
Committee of the International Labour Conference.
740.
Pending the establishment and recognition
of trade unions, the Committee is of the view that alternative forms of
organized collective representation of workers can be envisaged provided they
constitute real preliminary steps towards the setting up of free and
independent trade unions. These embryonic workers’ organizations must therefore
enjoy,at least, guarantees
of independence. The question is whether welfare associations present these
guarantees.
741.
The Committee notes that, while generally
referring to their role in dispute resolution, theGovernment
has not provided any information on the composition and the functioning of
these associations, nor has it submitted examples of their rules. While the
Committee was able to obtain a copy of the rules of the Myanmar Overseas
Seafarers’ Association, in the absence of detailed information on the
circumstances under which these rules have been developed and adopted, the
Committee cannot ascertain whether they are the free expression of the will of
the workers concerned. In any event, paragraph 5 of Chapter 4 of these rules
explicitly limits seafarers’ freedom of choice to establish and join
associations; thus, under this provision the association is “… the sole
association representing the Seafarers”. The Committee notes from the
conclusions of the Credentials Committee [see3rd Report, para
27, 90th (June 2002) Session of the International Labour Conference]
2 Under Article
8, paragraph 2, of the Convention: “The law of the land shall not be such as to
impair, nor shall it be so applied as to impair, guarantees provided for in
this Convention”. that these associations are far from presenting all
guarantees of independence since
representatives of the Government and employers are members of their
executive committees. The Committee also takes note of the 2002 observation of
the Committee of Experts on the Application of Conventions and Recommendations
that “… Workers Welfare Associations … are not a substitute for the fundamental
right to organize provided for in the Convention”.
742.
In light of the considerations made
above, the Committee is also of the view that workers’welfare
associations 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, as long as these workers are prevented from establishing or
joining the association of their own choosing. By the same token, should the Government
consider the involvement of welfare associations in the elaboration of the
draft legislation on freedom of association, the Committee must point out that
such a contribution could not be considered as fulfiling
the requirements of a real representation of workers in the process.
743.
The Committee notes that in its
observations concerning the FTUB, the Government has not replied to the
allegations concerning the other workers’ organizations functioning underground
on the
organizations which operate in exile since they cannot be
recognized in the prevailing legislative context of
744.
Regarding the allegations of repression
by the authorities towards trade union officers and members, as well as workers
pursuing their labour grievances, the Committee makes
the following preliminary considerations before examining each of these
allegations in turn.Generally speaking, the Committee
recalls that appropriate measures should be taken by governments to guarantee
that, irrespective of trade union affiliation, trade union rights can be
exercised in normal conditions with respect to basic human rights and in a
climate free of violence, pressure, fear and threats of any kind. In addition,
although holders of trade union office do not, by virtue of their position,
have the right to transgress legal provisions in force, these provisions should
not infringe the basic guarantees of freedom of association, nor should they
sanction activities which, in accordance with the principles of freedom of
association, should be considered as legitimate trade union activities.
Finally,
with regard to charges brought against trade union
leaders on the grounds of their trade union activities, the Committee has
pointed out in the past the danger to the free exercise of trade union rights
by sentences passed against representatives of workers within the framework of
activities related to the defence of the interests of those they represent [see
Digest, op. cit., paras. 36, 42 and 44].
745.
The Committee is mindful of several
limitations surrounding the examination of theallegations
in question. Indeed, as mentioned earlier since freedom of association has no
legal basis and in view of the contents of some legislative instruments, such
as Order No.6/88, the logical consequence is that any form of trade union
activity would be considered illegal and, in practice, could not develop
effectively. Thus, the gathering of evidence in support of the allegations
relating to trade union activities will be especially difficult as the relevant
bodies and individuals are considered unlawful. In this context, in itsdetermination of the matters raised by this case, the
Committee will consider that any labour activity,
which can reasonably be associated with freedom of association
will form a sufficient basis for examination. Further, in what follows, the
Committee requests the Government to provide copies of the documentation
produced by governmental or any other public authorities in relation to the
issues raised by the allegations, in order to allow the Committee to carry out
an objective examination.
746.
Turning first to the case of Saw Mya Than’s
murder, the Committee notes that, according to the complainant, he was actively
involved in human rights and trade union activities: he was an FTUB member and
an official of the KEWU. He was elected as a headman in his
in the country. Saw Mya Than was killed by a mine detonated by insurgents. Due
compensation was given to the members of his family and the army helped
organize the funeral services. A thorough investigation of this murder was
carried out by the authorities.
747.
The Committee notes that the Government
does not deny Saw Mya Than’s involvement in trade union activities but merely
states that he did not belong to any lawful
association of workers. As an unlawful association of workers may equally
raise freedom of association issues, the Committee considers that it is
justified to examine the murder. In view of the directly conflicting versions
of events, however, the Committee cannot draw any conclusion as to the link
between his murder and any activity associated with freedom of association.
While the Committee takes due note that an investigation has been carried out –
indeed its results have been presented to the Governing Body 3 – it
notes that it was undertaken by the Government in a particular context and that
its findings are very succinct.
748.
In these circumstances, the Committee
recalls that serious cases such as 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 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, op.
cit., para. 51]. The Committee is aware that the
conditions to afford such inquiries are not currently met at the national
level. As a result, the Committee considers that the best solution would be the
establishment of an independent panel, composed of experts who could be
considered impartial by all the parties concerned. This panel would carry out
an independent 3 See “Developments concerning the question of the
observance by the Government of Myanmar of the Forced Labour Convention, 1930
(No. 29), Appendix 2, GB.288/5. investigation into the case of Saw Mya
Than. The Committee requests the Government to establish such a panel and
inform it of its decision in this regard.
749.
Regarding the case of the General
Secretary of FTUB, the Committee notes that, according to the complainant, the
General Secretary of FTUB faces criminal prosecution for his legitimate trade
union activities. He was allegedly dismissed from his employment under Order
No. 6/88 after establishing a union in the state-owned mining company in which
he was employed. After he had fled his country, he became General Secretary of
FTUB in 1991. The Committee notes the Government’s statement that the General
Secretary of FTUB is a fugitive from justice as two cases have been filed
against him under the Public Protection Preservation Law, 1947 and under the
Penal Code of High Treason; he was found prima facie guilty under section 122
of this Code. He was dismissed from his employment in 1989 because he had
committed theft.
750.
The Committee notes that the Government
does not make any comment at all in relation to the trade union activities of
the General Secretary of FTUB. In particular, the Government does not deny that
he participated in the establishment of a union in the state-owned company who
employed him at the time but it disagrees with the complainant on the reason of
his dismissal. While both parties agree that criminal charges have been pressed
against the General Secretary of FTUB, the Government does not spell out in
detail the grounds on which these charges have been made and on which he was
found guilty under section 122 of the Penal Code.
751.
The Committee considers that there are
enough elements present to justify its examination of this case. Given the
prominent trade union activities of the General Secretary of FTUB and the
current legislative context rendering any such activity illegal in Myanmar, the
Committee must consider the possibility that the criminal charges and the trade
union functions are linked in this particular case. Therefore, 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. In particular, 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 of any documents
relating to the other case filed against him under the Public Protection
Preservation Law, 1947.
752.
With respect to the cases of Myo Aung Thant and Khin Kyaw, according to the complainant, Myo Aung
Thant was a member of the All Burma Petro-Chemical Corporation
753.
According to the Government, Myo Aung Thant had no permanent job and was in close contact with
the General Secretary of FTUB and various anti-government organizations. He and
his accomplices, including Khin Kyaw, decided on
754.
The Committee notes that the Government
admits that the two cases are connected and that sentences have been handed
down. The Government does not comment at all on the allegations of trade union
activities. Given the prevailing legislative context in Myanmar and that Myo
Aung Thant and Khin Kyaw’s
names appear on the list of the members of FTUB Central Executive Committee,
the Committee considers that there are enough elements to justify its
examination of these two particular cases. The Committee notes with deep
concern the extreme gravity of the allegations relating to the manner in which
both Myo Aung Thant and Khin Kyaw and their families
were arrested, the allegations relating to torture, the allegations that Khin
Kyaw was not informed of the charges pressed against him and the allegations
relating to the manner in which the trial was conducted at least in Myo Aung Thant’s case. The Committee observes in this respect that
these allegations have not been denied or contradicted by the Government, with
the exception of the circumstances under which the arrests occurred.
755.
The Committee must draw the Government’s
attention to the following general principles. The arrest and detention of
trade unionists, even for reasons of internal security, may constitute a
serious interference with trade union rights unless attended by appropriate
judicial safeguards [see Digest, op. cit, para. 84]. The absence of guarantees of due process
of law may lead to abuses and result in trade union officials being penalized
by decisions that are groundless. It may also create a climate of insecurity
and fear which may affect the exercise of trade union rights [see Digest,
op. cit., para. 106]. In
cases of alleged torture or ill-treatment while in detention, governments
should carry out inquiries into complaints of this kind so that appropriate
measures, including compensation for damages suffered and sanction of those
responsible, are taken. The Committee has also emphasized the importance that should
be attached to the principle laid down in the International Covenant on Civil
and Political Rights according to which all persons deprived of their liberty
must be treated with humanity and with respect for the inherent dignity of the
human person [see Digest, op. cit., paras. 57
and 59]. Finally, a climate of
violence aimed at trade union leaders and their
families does not encourage the free exercise of trade union rights set out in
Conventions Nos. 87 and 98, and all states have the duty to guarantee their
respect [see Digest, op. cit., para. 61].
756.
In these circumstances, taking into
account that Myo Aung Thant and Khin Kyaw did not
benefit from a fair trial with access to legal counsel of their choice and that
the conviction of Myo Aung Thant rested allegedly 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.
757.
Regarding the case of Thet
Naing, according to the complainant, he was recruited
in the Yan Ze Kyan garment factory, in 1997. In 1999, a protest action
broke out, in which Thet Naing
played a role for which he was dismissed. The workers launched a wild-cat
strike and the management called for the intervention of the army. An
arrangement was eventually negotiated, and the workers, including Thet Naing, were allowed to
return to work. Five days later, Thet Naing and 60 other workers were dismissed again. Thet Naing was subsequently
apprehended at his home by the SPDC Military Intelligence Unit No. 3,
accompanied by officers of the Pegu Police Station
No. 3. He was told that he was being arrested for violating section 5(j) of the
Emergency Act, 1950 and was sentenced to seven years in prison. The Committee
regrets that the Government has not provided any reply to these allegations. It
therefore 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.
758.
Turning to the allegations that workers
of various factories have been repressed or threatened because of their
pursuance of their labour grievances, the Committee
notes the following allegations in relation to the particular examples
highlighted in the complaint. In the case of the Motorcar tyre
factory, a peaceful protest was staged in front of the factory on 9 and
companies from LIB No. 24 were deployed at the site. The fate
of the workers arrested remains unknown. The Committee notes that the
Government rejects all allegations. In view of the direct conflicting versions
given by the complainant and the Government, it would be difficult for the
Committee to express any opinion in this examination. In that context, 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.
759.
In the case of the Unique Garment
Factory, in order to obtain an increase in overtime pay, an organized workers’
movement took place in November 2001. At the request of management, the
officers of the Strategic Office of the
protest in response to the company’s failure to fulfil a promise concerning their wages. The company called
the military intelligence unit and a number of workers were arrested. Some were
detained at the Hlaing Tha Ya police station, and others were detained at Ye Kyi Ai, a
well-known military interrogation centre where political prisoners are
routinely tortured. The fate of the workers who were arrested remains unknown.
760.
With respect to these last three cases,
the Committee notes the general comments made by the Government on the
dispute-resolution mechanism and the number of disputes which arose between
January 2000 and December 2003. The Committee notes that the Government denies
that workers have been threatened or dismissed because of their participation
in protest actions; that if workers were dismissed, this was due to the
economic situation of the garment industry; and that the workers concerned
received a severance payment. With respect to the Unique Garment Factory, the
Government refers to three disputes which arose on
cases, agreements were reached following conciliations
undertaken by the Township Workers’ Supervisory Committee and officials of the
Ministry of Labour. The Government also refers, albeit without more detail, to
“legal benefits” paid to workers because of an economic crisis experienced by
the
761.
With respect to the dispute-resolution
mechanism, the Committee refers to its earlier conclusions on the representations
of workers’ interests by the workers’ welfare associations. These conclusions
apply equally for dispute resolution. The Committee trusts that the forthcoming
legislation on freedom of association will address the issue and that workers’ interests, in particular in dispute
resolution, will be represented by organizations presenting all guarantees of
independence. Further, the Committee requests the Government to provide copies
of the relevant legal instruments governing the dispute-resolution mechanism it
has described 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.
762.
Concerning the three garment factories,
the Committee notes that the Government recognizes the existence of labour disputes. However, with the exception of the dispute
which arose in the
763.
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 three
factories. Further, 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. In addition
to each of these agreements, 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.
764.
Further, the Committee requests the
Government to specify the grounds on which the dismissals referred to in its
reply have occurred and to detail the agreements reached as to the conditions
under which the dismissals were eventually settled. The Committee’s request
relates to: (1) the dismissal of the 77 night shift workers from the Unique
Garment Factory; (2) the workers from the
765.
Finally, the Committee wishes to state
that the intervention of the army in relation to labour
disputes is not conducive to the climate free from violence, pressure or
threats that is essential to the exercise of freedom of association. The
Committee notes that the Government denies any intervention of the army in labour conflicts and 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.
766.
With respect to the recognition of
seafarers’ freedom of association, as recalled by both by the complainant and
the Government, the Committee has already examined the issue in Case No. 1752.
The Committee notes, however, that the complainant adduces new evidence in
support of its allegations of denial of seafarers’ freedom of association and
anti-union discrimination by detailing the case of Shwe Tun
Aung. The Committee notes that the Government has not submitted any comments on
this individual case.
767.
As concerns the question of freedom of association
of seafarers, and in particular the representation of their interests by the
Myanmar Overseas Seafarers’ Association, the Committee can only refer the
Government to its previous conclusions on the welfare associations in general
and the Myanmar Overseas Seafarers Association in particular. The Committee
therefore requests the Government to explicitly recognize the right to organize
of
defend and promote their economic and social interests. Again, this request includesseafarers’
organizations which operate in exile and which cannot be recognized in the
prevailing legislative context in
768.
In addition, 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. With reference to the allegations that
Shwe Tun Aung was requested to sign a contract under
which he was forced to renounce his right to seek any assistance from the ITF
and/or its affiliated parties, the Committee requests the Government to provide
any contract or document signed or accepted by Shwe Tun
Aung upon taking up his first assignment, as well as any document on the basis
of which seafarers can currently take up their first assignment.
769.
The Committee trusts that the examination
of the complaint will enable the Government of Myanmar to fulfil
the general obligation to respect and realize freedom of association that it
accepted upon becoming an ILO Member as well as the specific obligation
deriving from its ratification of Convention No. 87. While the Committee and
the Office will be at the disposal of the Government of Myanmar to provide for
any assistance or guidance it may wish to have in this respect, any real and
sustainable progress will only hinge on the willingness of the Government to fulfil its obligation as an ILO Member and, in particular,
on its cooperation in the present procedure.
The Committee’s recommendations
770.
In light of the foregoing interim conclusions, the Committee invites the
Governing Body to approve the following recommendations:
(a)
Noting the absence of a legal basis for freedom association in
(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;
(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.
(b) Bearing in mind the serious implications
of the lack of legal basis for freedom of association in
(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.
(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.
(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.
(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.
(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.
(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.
(i) Concerning the various cases of alleged repression or
threats towards factory workers for having pursued their labour
grievances:
(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;
(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;
(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;
(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;
(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.
(vi) Noting that the
Government denies any intervention of the army inlabour
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.