Holidays with Pay Convention, 1936 (No. 52) - Myanmar (RATIFICATION: 1954)

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The Government has communicated the following information:

Despite the fact that Burma, as a developing country, is experiencing difficulties, such as lack of adequate resources and institutions with skilled Personnel, efforts have been made to explore the ways and means so that measures could be taken to ensure closer conformity of the legislation with the Convention.

In this connection, the Government has submitted to the Law Commission the proposals to amend the relevant provisions of the respective labour laws and has duly reported this to the Office.

At the same time, the Government has been engaged in the task of amending the legislation in general, including labour laws, with a view to bringing them into line with the changing needs and priorities of the country.

The Law Commission, in turn, referred the proposals to the Council of the People's Attorney which suggested that it would be more advisable to amend the corresponding Acts as a whole instead of amending only some of the provisions associated with the observations made by the Committee of Experts.

Accordingly, the Government has initiated the amendments covering the Acts as a whole and has submitted them to the relevant committees for their review, approval and onward transmission to the bodies concerned, paving the way for submission to the Pyithu Hluttaw (Parliament).

Any further developments and progress in this respect will be reported to the Committee of Experts.

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Article 2(1) and (4) of the Convention. Postponement and division of annual holidays with pay. In its previous comments, the Committee requested the Government to take measures for the timely revision of section 4(3) of the Leave and Holidays Act, which allows for the accumulation of holidays over a period of three years. The Committee notes that the Government’s report does not contain any information in this respect. In this context, the Committee once more requests the Government to take the necessary measures to ensure that the minimum annual holiday with pay prescribed by Article 2(1) of the Convention is not divided or postponed so that all workers effectively enjoy at least six uninterrupted days of holidays with pay per year.

Article 2(2). Annual holiday with pay for persons under 16 years of age. In previous comments, the Committee requested the Government to take the necessary measures to bring in line with the Convention section 4(1)(a) of Leave and Holidays Act 1951 which grants ten consecutive days of holidays with pay to employees aged 15 years, while Article 2(2) of the Convention requires 12 days for workers under 16 years of age. The Committee notes that the Government does not provide any relevant information in this respect. The Committee requests the Government to take the necessary measures to ensure that workers aged 15 years enjoy at least 12 consecutive days of annual holidays with pay as required by the Convention.

Article 2(3). Public and customary holidays and interruptions of attendance at work due to sickness. The Committee notes that section 3(2) of the Leave and Holidays Act prescribes that if any public holiday falls on any weekly day of rest or on any other holiday, an alternative holiday shall not be allowed. The Committee observes that this provision is not in conformity with Article 2(3)(a) of the Convention which prescribes that public and customary holidays shall not be included in the annual holiday with pay period. Moreover, the Committee notes that no provision of the Leave and Holiday Act seems to provide that interruptions of attendance at work due to sickness shall not be included in the annual holiday with pay, as required by Article 2(3)(b) of the Convention. The Committee requests the Government to take the necessary measures to ensure that public and customary holidays and interruptions of attendance at work due to sickness are not counted as part of the annual holidays with pay period as required by the Convention.

Article 2(5). Increase of the duration of the annual holiday with pay with the length of service. The Committee notes that no provision of the Leave and Holidays Act seems to prescribe the increase of the duration of the annual holiday with pay with the length of service as required by Article 2(5) of the Convention. The Committee requests the Government to take the necessary measures to give effect to this provision of the Convention.

The Committee noted information supplied by the following State in an answer to a direct request: Denmark (Faroe Islands).

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Article 2 of the Convention. Annual holidays with pay. The Committee notes that the Government’s report again refers to the provisions of the Leave and Holidays Act, 1951, as last amended by Act No. 6/2006, without providing any specific replies to the Committee’s previous comments. The Committee is therefore bound to once more ask the Government: (i) to take measures for the timely revision of section 4(3) of the Leave and Holidays Act, which allows for the accumulation of holidays over a period of three years (Article 2(1) and (4)); and (ii) to bring in line with the Convention, section 4(1) of the Leave and Holidays Act, which provides for ten consecutive days of paid leave for those workers who have completed 12 years of service but still does not provide for at least 12 working days of leave for young workers under 16 years of age (Article 2(2)). In addition, noting the Government’s statement that the Leave and Holidays Act is being reviewed and amended in line with the Convention, the Committee asks the Government to provide concrete information regarding the legislative reform currently in progress and the manner in which the above comments have been taken into account.

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The Committee notes the Government’s reference to section 96 of the new State Constitution (2008), which was approved in a constitutional referendum in May 2008 and is due to take effect in 2010, conferring powers to the national Parliament to enact laws, among other matters, on hours of work and rest and holidays. It also notes the Government’s indication that the revision process of the labour legislation has been initiated. Recalling that the Government has been referring for over 15 years to an ongoing review process by the Laws Scrutiny Central Body of the Attorney-General’s Office, the Committee hopes that the Government will take prompt action to give full effect to the requirements of the Convention.

Article 1 of the Convention. Scope of application. In the absence of any reply to its previous comment on this point, the Committee is obliged to reiterate its request for a copy of the Fundamental Rules and the Burma Leave Rules and additional clarifications on the legal provisions regulating annual paid leave for those workers who are excluded from the coverage of the Leave and Holidays Act 1951.

Article 2(1) and (4). Postponement of annual leave. Further to its previous comments on section 4(3) of the Leave and Holidays Act 1951, which allows for the accumulation of holidays over a period of three years, the Committee once again recalls that the Convention requires the granting of at least six working days of leave every year, even in case of division of the leave into parts. The Committee regrets that the Government has not proceeded – as it had indicated in earlier reports – to the amendment of section 4(3) on the occasion of the adoption of Law No. 6/2006 amending the Leave and Holidays Act 1951, and asks the Government to take appropriate steps for the timely revision of the relevant provision.

Article 2(2). Annual holiday with pay for persons under 16 years of age. The Committee notes that following the adoption of Law No. 6/2006 amending the Leave and Holidays Act 1951, amended section 4(1) of the Act now prescribes ten consecutive days of leave remunerated at average pay for all workers, regardless of their age, who have completed 12 months of continuous service. The Committee is bound to observe that the new provision is still inconsistent with this Article 2(2) of the Convention which provides that apprentices and persons under 16 years of age are entitled to annual paid leave of at least 12 working days. The Committee asks the Government to take all necessary measures to bring its legislation into conformity with the Convention.

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The Committee notes the Government’s response to its comments made in 2003 but reiterates the following points.

Article 1 of the Convention. Scope of application. The Government states that workers excluded under section 2(4)(e) of the Leave and Holidays Act 1951 from the holidays with pay provisions therein are covered by the Fundamental Rules and the Burma Leave Rules and can therefore enjoy ten days of casual leave and 30 days of earned leave in a year with full pay. The Committee requests the Government to provide the legislative texts which guarantee the workers these entitlements.

Article 2, paragraph 2. Holidays with pay for those under 16 years of age. The Government states that section 4(1) of the Leave and Holidays Act, which allows workers between 15 and 16 years to ten days of annual leave instead of the entitlement in the Convention of 12 working days after one year of continuous service, will be reviewed. The Committee hopes that the legislative provisions will be amended in the near future to bring the provision in line with the Convention.

Article 4. Agreements to relinquish the right to annual holidays with pay. The Government states that section 4(3) of the Leave and Holidays Act, which allows for agreements permitting the accumulation of earned leave, will be reviewed. The Committee hopes that the Government will be able to provide information on new provisions which nullify or make void any agreement to forgo or relinquish the right to the minimum annual holiday with pay (six working days or in the case of persons under 16 years of age 12 working days).

The Committee urges the Government to take the steps necessary for the adoption of the revised text and hopes that the Government will be able to report on the progress made in its next report.

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The Committee notes that the Government has not provided new information in reply to its previous comments. The Government simply repeats that draft texts revising the 1951 Acts on factories, shops and undertakings and on holidays and public holidays are still under consideration by the legislative supervisory body. The Committee must therefore insist that the Government take appropriate action with regard to its previous observations.

Article 1 of the Convention. In addition to its previous observations concerning the scope of the Convention, the Committee points out that, according to Article 1(1)(f) of the Convention, persons engaged mainly in clerical work in public administrative services are also covered by the Convention. In so far, section 2(4)(e) of the Leave and Holidays Act, 1951, is not consistent with the Convention.

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service. Section 4(1) of the Leave and Holidays Act, which allows workers between 15 and 16 years only ten days, is not in conformity with the Convention.

Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days or, in the case of persons under 16 years of age, 12 working days) shall be void, whereas section 4(3) of the same Act allows agreements permitting the accumulation of earned leave.

The Committee urges the Government to take the steps necessary for the adoption of the revised texts very soon and once again expresses its hope that the Government will be able to give an account in its next report of progress made in the application of the Convention.

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The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation which read as follows:

The Committee has noted the Government’s latest report on application of the Convention. In it the Government indicates that draft texts revising the 1951 Acts on factories, shops and undertakings and on holidays and public holidays are still under consideration by the legislative supervisory body. With reference to its previous comments, the Committee recalls that these texts must ensure the application of the Convention to all the undertakings set forth in Article 1 of the Convention, particularly small establishments, shops and offices as well as building and public works and road transport undertakings. They should also ensure application of the provisions of the Convention on the two points below which have been the subject of comments by the Committee for many years.

  Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are allowed only ten days.

  Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements permitting the accumulation of earned leave.

The Committee trusts that the revised texts will be adopted very shortly and that the Government will thus be able to give an account in its next report of progress made in application of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which reads as follows:

The Committee has noted the Government’s latest report on application of the Convention. In it the Government indicates that draft texts revising the 1951 acts on factories, shops and undertakings and on holidays and public holidays are still under consideration by the legislation supervisory body. With reference to its previous comments, the Committee recalls that these texts must ensure the application of the Convention to all the undertakings set forth in Article 1 of the Convention, particularly small establishments, shops and offices as well as building and public works and road transport undertakings. They should also ensure application of the provisions of the Convention on the two points below which have been the subject of comments by the Committee for many years.

  Article 2, paragraph 2.  Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are allowed only ten days.

  Article 4.  Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements permitting the accumulation of earned leave.

The Committee trusts that the revised texts will be adopted very shortly and that the Government will thus be able to give an account in its next report of progress made in application of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee has noted the Government's latest report on application of the Convention. In it the Government indicates that draft texts revising the 1951 acts on factories, shops and undertakings and on holidays and public holidays are still under consideration by the legislation supervisory body. With reference to its previous comments, the Committee recalls that these texts must ensure the application of the Convention to all the undertakings set forth in Article 1 of the Convention, particularly small establishments, shops and offices as well as building and public works and road transport undertakings. They should also ensure application of the provisions of the Convention on the two points below which have been the subject of comments by the Committee for many years.

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are allowed only ten days.

Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements permitting the accumulation of earned leave.

The Committee trusts that the revised texts will be adopted very shortly and that the Government will thus be able to give an account in its next report of progress made in application of the Convention.

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The Committee takes note of the Government's report for the period ending on 31 August 1998. The Government indicates once again that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) have been revised and redrafted taking into consideration the Committee's comments and that the revised texts are among the labour Bills that are to undergo final review by the Laws Scrutiny Central Body. The Committee hopes that these texts will be adopted in the very near future and that the Government will provide the Office with copies.

With reference to its previous comments, the Committee wishes to draw the Government's attention to the fact that the texts adopted should ensure the application of the Convention to all the undertakings set forth in Article 1 of the Convention, particularly small establishments, shops and offices, as well as building, public works and road transport undertakings. Lastly, the Committee hopes that the texts adopted will give effect to the provisions of the Convention in respect of the following points on which the Committee has commented for many years:

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days.

Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements permitting the accumulation of earned leave.

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The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous observations, the Committee noted the Government's indication that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) had been reviewed and redrafted taking into consideration the Committee's comments and that the revised texts were undergoing final review by the Laws Srutiny Central Body. The Government's latest report indicates that the draft labour laws are still under review. The Committee would be grateful if the Government would indicate any more recent developments in this respect. It also hopes that the revised texts will be adopted and transmitted to the Office in the very near future. Furthermore, the Committee trusts that the adopted texts will ensure the application of the Convention to all undertakings set forth in Article 1 of the Convention, particularly those small establishments, shops and offices not currently covered by the legislation, as well as building and public works and road transport undertakings. In this connection, the Committee reiterates to the Government the following points: Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days. Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements to accumulate earned leave.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous observations, the Committee noted the Government's indication that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) had been reviewed and redrafted taking into consideration the Committee's comments and that the revised texts were undergoing final review by the Laws Security Central Body. The Government's latest report indicates that the draft labour laws are still under review. The Committee would be grateful if the Government would indicate any more recent developments in this respect. It also hopes that the revised texts will be adopted and transmitted to the Office in the very near future. Furthermore, the Committee trusts that the adopted texts will ensure the application of the Convention to all undertakings set forth in Article 1 of the Convention, particularly those small establishments, shops and offices not currently covered by the legislation, as well as building and public works and road transport undertakings. In this connection, the Committee reiterates to the Government the following points: Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days. Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements to accumulate earned leave.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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In its previous observations, the Committee noted the Government's indication that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) had been reviewed and redrafted taking into consideration the Committee's comments and that the revised texts were undergoing final review by the Laws Security Central Body. The Government's latest report indicates that the draft labour laws are still under review. The Committee would be grateful if the Government would indicate any more recent developments in this respect. It also hopes that the revised texts will be adopted and transmitted to the Office in the very near future.

Furthermore, the Committee trusts that the adopted texts will ensure the application of the Convention to all undertakings set forth in Article 1 of the Convention, particularly those small establishments, shops and offices not currently covered by the legislation, as well as building and public works and road transport undertakings. In this connection, the Committee reiterates to the Government the following points:

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days.

Article 4. Any agreement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements to accumulate earned leave.

[The Government is asked to report in detail in 1996.]

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In its previous observation, the Committee noted the indication in the Government's report for the period ending 30 June 1992 that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) had been reviewed and redrafted taking into consideration the Committee's comments and that the revised texts were undergoing final review by the Laws Security Central Body. In its latest report, the Government indicated that the Leave and Holidays Act was still under review by the Laws Security Central Body and does not mention the status of the other revised texts. The Committee would be glad if the Government would supply details of the steps being taken in this respect. It trusts that the revised texts will be adopted and transmitted to the Office in the very near future and that they will ensure the application of the Convention to all undertakings set forth in Article 1 of the Convention, particularly those small establishments, shops and offices not currently covered by the legislation, as well as building and public works and road transport undertakings, especially on the following points:

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days.

Article 4. Any agreeement to forego or relinquish the right to the minimum annual holiday with pay laid down in the Convention (i.e. six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements to accumulate earned leave.

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The Committee notes from the Government's latest report that the Factories Act (1951), the Shops and Establishments Act (1951) and the Leave and Holidays Act (1951) have been redrafted taking into consideration the Committee's previous comments, and that the revised texts are now under final review by the Laws Security Central Body. The Committee hopes that these revised texts will be adopted and transmitted to the Office in the very near future and that they will ensure the application of the Convention to all undertakings set forth in Article 1 of the Convention, particularly small establishments, shops and offices in certain places, and building and public works and road transport undertakings, and especially on the following points:

Article 2, paragraph 2. Every person under 16 years of age should be entitled to an annual holiday with pay of at least 12 working days after one year of continuous service, whereas under section 4(1) of the Leave and Holidays Act workers between 15 and 16 years are only allowed ten days.

Article 4. Any agreement to forgo or relinquish the right to the minimum annual holiday with pay laid down in the Convention (i.e., six working days, or, in the case of persons under 16 years of age, 12 working days) must be void, whereas section 4(3) of the same Act allows agreements to accumulate earned leave.

[The Government is asked to report in detail for the period ending 30 June 1993.]

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Further to its earlier observations, the Committee notes that the Government now envisages a review of legislation relating to the Convention. The Committee's outstanding comments concern the following difficulties:

Article 1 of the Convention. The Leave and Holidays Act, 1951, does not apply to all undertakings covered by the Convention - for example, small establishments exempted from the Factories Act; shops and offices in places to which the Shops and Offices Act has not been extended; building and public works undertakings; road transport undertakings. Article 2(2). Workers between 15 and 16 years of age are only allowed a holiday of ten days (section 4(1) of the Act), whereas under the Convention, every person under 16 years of age after one year of continuous service should be entitled to an annual holiday with pay of at least 12 working days. Article 4. The 1951 Act (section 4(3)) allows agreements between employer and employee to accumulate earned leave, whereas under the Convention any agreement to forgo or to relinquish the right to the annual holiday with pay laid down in the Convention (i.e. at least six working days, or, in the case of persons under 16 years of age, at least 12 working days) must be void.

The Committee hopes that the Government's review of the legislation will lead to the full application of the Convention in the very near future, and that the Government will supply details.

[The Government is asked to report in detail for the period ending 30 June 1992.]

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The Committee notes with regret that no progress has yet been made concerning the adoption of appropriate legislative measures in order to give full effect to the Convention as regards some points which have been raised in its comments since 1957. The Committee must once again urge the Government to take the necessary steps to bring the legislation into conformity with the following provisions of the Convention.

Article 1 of the Convention. The Act of 1951 on Leave and Holidays does not yet apply to certain private sector enterprises covered by the Convention.

Article 2, paragraph 2. Workers between 15 and l6 years of age are only allowed a holiday of ten days (section 4(1) of the Act of 1951) while, under this provision of the Convention, every person under 16 years of age shall be entitled to an annual holiday with pay of at least 12 working days.

Article 4. The Act on Leave and Holidays allows an accumulation of holidays over a period of three years (section 4(3)), while the Convention requires the granting of annual holidays of at least six working days for workers of more than 16 years of age and at least 12 working days for workers of less than 16 years of age. [The Government is asked to supply full particulars to the Conference at its 77th Session.]