Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations made by the International Organisation of Employers (IOE) in a communication received on 1 September 2014. The Committee also notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014 and the Government’s reply thereto.

General context of freedom of association. The Committee notes the information provided by the Government that, since the adoption in 2012 of the Labour Organization Law (LOL), there are now 1,384 basic labour organizations, 45 township labour organizations, two labour federations, 28 basic employers’ organizations, one township employers’ organization and one employer federation that have formed freely under the Law. The Government further indicates that the Union Minister and Chief Registrar met with the leaders of three informal labour federations, namely Federation of Trade Unions of Myanmar (FTUM), the Agricultural and Farmers’ Federation of Myanmar (AFFM) and the Myanmar Trade Union Federation (MTUF) so as to determine the means for their recognition as formal federations. Moreover, the Union Minister of Labor, Employment and Social Security and Chief Registrar engage with those leaders regularly to consult on challenges, difficulties and progress in the implementation of freedom of association. The Government also refers to a Project Advisory Committee (PAC) which has as an immediate objective to consider new or amended labour law provisions to bring the national legislation into greater conformity with international labour standards. The Government indicates that the LOL will be reviewed in cooperation with the ILO Chief Technical Adviser of the Freedom of Association Programme at the convenient time. Additionally, a cluster group has been formed to implement labour law reform and institutional capacity building under the Employment Opportunity Sector Working Group with representatives from relevant ministries, the ILO and other international agencies and institutions.

The Committee notes the ITUC’s observations that, while the LOL contains improvements, it considers that key provisions are plainly not in conformity with the Convention or are ambiguous and that implementation and enforcement are inconsistent. In addition, the ITUC considers that none of the issues raised in its 2012 observations or those raised in the direct request has been addressed by the Government. It further notes that while there has been an encouraging rise in registered trade unions, troubling issues remain with the registration process. Neither the FTUM, nor other associations of trade unions have been recognized by the Government, leaving workers without a voice at national level and with no ability to engage in formal tripartite dialogue. The Committee requests the Government to reply in detail to these comments in its next report.

Civil liberties. In reply to its previous comments, the Committee notes the information provided by the Government that no person by the name Naw Bay Bay was found to be in prison and that there are 40 persons by the name Nyo Win and therefore the Government would need more information in order to determine his status.

The Committee further notes the information provided by the Government that section 9(d) of Act No. 15/2011 on the right to peaceful assembly and peaceful procession was repealed and the Ministry of Home Affairs has been advised with regard to the review of sections 8(d), 12(c) and (f). The ITUC however reports the continuing harassment of union leaders and workers engaged in organizing campaigns, and indicates that, despite minor amendments in 2014, the Government continues to arrest and charge workers and activists for participating in peaceful assemblies under the 15/2011 Act. Bearing in mind the concerns raised by the ITUC about continuing arrests and detentions under the Act, the Committee requests the Government to continue to provide information on the developments of this legislative review.

Article 2 of the Convention. Legislative framework. Right of workers to establish organizations. The Committee recalls its previous comment in which it observed the concerns raised by the ITUC in relation to the minimum membership requirement to form a workers’ organization at various levels. The Committee recalls that while a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. The Committee notes in this regard that section 4(a) of the LOL refers to a 30-worker requirement, but additionally refers to the need to have affiliated 10 per cent of the workers in the trade or activity for the establishment of a basic labour organization. Such a requirement could render it particularly difficult for workers to exercise their organizational rights in large enterprises. The ITUC also refers to what it considers to be an excessively rigid trade union structure which impedes the registration of higher-level trade unions and points to the fact that, as yet, no national trade union confederation has been recognized under the law.

Given the specific cases raised by the ITUC where workers have been said to have been seriously challenged in their capacity to form organizations under the requirements set out in section 4 of the LOL, the Committee requests the Government to review these requirements in consultation with workers’ and employers’ organizations concerned with a view to their amendment, so that the simple act of forming an organization is not subject to unreasonable requirements and in order to facilitate the recognition of national level organizations that may participate in tripartite social dialogue on matters being considered by the Government that might affect workers’ socio-economic interests.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2016.]