Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 31 August 2011.

The Committee further notes the conclusions of the Conference Committee on the Application of Standards of June 2011. The Committee notes, in particular, that the Conference Committee noted with great concern the continued failure by the Government, over several years, to eliminate serious discrepancies in the application of the Convention. The Committee further observes that an Article 26 of the Constitution complaint in relation to the application of this Convention is pending for decision before the Governing Body.

Legislative framework. In its previous comments, the Committee recalled the issues it has been raising over the years with respect to the complete absence of a legislative framework in which the rights under the Convention can be exercised. The Committee recalls that it had not only urged the Government to adopt legislation which would enable workers to freely establish the organization of their own choosing, but had also emphasized the urgent need to repeal a number of legal texts, which continue to seriously impinge upon the freedom of association rights in the country.

The Committee notes with interest from the Government’s report that, following advice from the ILO, the Labour Organizations Law was adopted by the Parliament (Hluttaw) on 16 September 2011 and signed and enacted by the President on 11 October 2011. The Committee observes that the Law contains provisions on the establishment of labour organizations, their functions and duties, rights and responsibilities, including the right to strike. Moreover, it notes with interest that the law provides for the repeal of the 1926 Trade Union Act. It further understands that a Bill proposing the repeal of the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers is before the Parliament.

The Committee expresses the firm expectation that the Labour Organizations Law will come into force immediately and be applied in practice so as to ensure to all workers in the country the long-awaited legal framework in which they may exercise the rights set out in the Convention.

As regards the provisions of the new legislation, recalling that, under Articles 2 and 5 of the Convention, trade union diversity must remain possible in all cases (General Survey on freedom of association and collective bargaining, 1994, paragraphs 91–93), the Committee observes with concern that the English translation of the legislation appears to refer to a single labour confederation (sections 6, 7, 11, 12, and 14). The Committee requests the Government to indicate whether more than one confederation may indeed be formed and recognized under the new Labour Organizations Law.

The Committee further observes with concern that section 40(b) appears to enable the exercise of strike action only following the approval from “the relevant labour federation”. The Committee considers that the right to strike should not be subjected to legislative restrictions which would place the authority to permit strike action with higher-level workers’ organizations regardless of the rules of the organizations concerned or the affiliation of the lower-level organization. The Committee requests the Government to indicate the steps taken to amend this section so as to ensure the right of all workers’ organizations, including at the basic level, to organize their activities and formulate their programmes in full freedom.

In addition, the Committee observes with concern that section 26 provides that the basic labour organization shall allocate monthly contributions to the higher labour organizations, federations and confederation as prescribed by the relevant labour federation. Recalling that Article 3 of the Convention protects the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular their autonomy and financial independence and the protection of their assets and property, the Committee requests the Government to take the necessary measures to amend this section so as to ensure that the transmission of funds to a higher-level worker’s organization is a matter wholly for determination by the organizations themselves and without any legislative or other intervention on the part of the Government.

The Committee will address the new Labour Organizations Law in more detail at its next meeting when it expects further information to be provided by the Government in its report due on the manner in which the Law is implemented in practice and on the adoption of any relevant regulations or instructions.

The Committee further recalls its previous comments in relation to the broad exclusionary clause of article 354 of the Constitution which subjects the exercise of freedom of association rights “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. The Committee expresses the firm expectation that with the entering into force of the Labour Organizations Law the Government will take all necessary steps to ensure that this article is not used to permit restrictions on the rights consecrated in the Convention and requests the Government to provide all relevant information on the practical application of the Labour Organizations Law.

Finally, the Committee recalls its previous comments with respect to the following legal texts: (i) Order No. 6/88 of 30 September 1988 which provides that “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted, shall be punished with imprisonment for a term which may extend to three years (section 7); (ii) Order No. 2/88 which prohibits the 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 a disturbance or of committing a crime; (iii) the Unlawful Association Act of 1908 which provides 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 a fine (section 17.1); and (iv) the 1929 Trade Disputes Act which contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to courts of inquiry or to industrial courts.

In its previous comment, the Committee had noted the Government’s indication that the Hluttaw would take the necessary measures, after the 2010 elections, to repeal Orders Nos 2/88 and 6/88, the Unlawful Association Act, as well as Declaration No. 1/2006. The Committee observes, however, that, in its latest report, while recalling that these matters are being discussed in the Hluttlaw, the Government states that the Orders are important in ensuring law and order and community peace and tranquillity and that the Unlawful Association Act is necessary in protecting against illegal armed forces. The Committee recalls in this regard the serious concerns that it has raised for many years in respect of these texts and their use to imprison workers for their relations with trade unions as observed in complaints before the Committee on Freedom of Association (see Case No. 2591, 349th Report). Further noting the Government’s indication before the November 2011 Governing Body that these texts will be repealed once the Bill on Peaceful Assembly and Procession which is before the Parliament is promulgated, the Committee urges the Government to take without delay the necessary measures for the repeal of Orders Nos 2/88 and 6/88 as well as the Unlawful Association Act and Declaration No. 1/2006, so that they may no longer be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations, and to provide a copy of the Law on Peaceful Assembly and Procession as soon as it is adopted.

Civil liberties. As in its previous observations, the Committee once again notes the shared concern of the Conference Committee concerning the continued imprisonment of many people due to their exercise of freedom of expression and of association, despite repeated calls for their release. The Committee recalls in this regard the Conference Committee’s urgent call to the Government to put an end to the practice of persecuting workers or other persons for having contact with workers’ organizations and to ensure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights. The Committee deeply regrets that the Government only reiterates the information provided in its previous reports that these persons were not workers and states that these persons continue to serve their prison sentence.

The Committee welcomes however the latest information provided by the Government that Myo Aung Thant has been released after serving 13 years in prison for having maintained contacts with the Federation of Trade Unions of Burma (FTUB). The Committee further notes the information provided by the Government that Tin Hla has been provided medical treatment for tuberculosis in Insein Central Prison and is in good health.

The Committee, however, notes with regret that the Government has not provided the information requested in its previous observation in relation to the other persons alleged to be serving sentences for their exercise of freedom of association (Khin Maung Cho (aka Pho Toke), Nyo Win, Kan Myint, Thein Win, Tin Oo, Kyi Thein, Chaw Su Hlaing, U Aung Thein, Khin Maung Win, Ma Khin Mar Soe, Ma Thein Thein Aye, U Aung Moe, and Naw Bey Bey).

The Committee recalls that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. Furthermore, the Committee recalls that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”, the authorities should not interfere with legitimate trade union activities through arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.

The Committee urges the Government to take all necessary measures to secure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win, Myo Min, and all those who have been imprisoned for the exercise of their basic civil liberties and freedom of association rights and to provide detailed information on the steps taken in this regard in its next report and on the whereabouts and health status of all the abovementioned detained workers.

Extension of ILO mandate. The Committee notes that the Conference Committee has once again suggested that the Government accept an extension of ILO presence to cover the matters relating to the Convention. The Committee notes with regret the Government’s indication in its latest report that an extension of the ILO presence to cover the matters related to the Convention was still not required given that the Labour Organizations Law has been approved and the formation of workers’ organizations will proceed from that. The Committee considers however that it is precisely within this new configuration that the Government will be in most need of assistance to effectively ensure that all parties understand the new framework of rights and responsibilities and implement it in the true spirit of the Convention. The Committee therefore once again expresses the firm hope that the Government will be in a position to accept such an extension in the very near future and requests it to provide information on any developments in this respect.

The Committee requests the Government to furnish a detailed report on all concrete measures taken, with the full and genuine participation of workers and employers from all sectors of society regardless of their political views, to implement the Labour Organizations Law and enact any additional measures necessary so that all workers and employers may fully and effectively exercise their rights under the Convention without interference from the public authorities.

[The Government is asked to report in detail in 2012.]