Report in which the committee requests to be kept informed of development - Report No 351, November 2008

Case No 2268 (Myanmar) - Complaint date: 28-MAY-03 - Closed

Allegations: (1) Allegations relating to legislative issues: 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 the Myanmar Yes Garment Factory; intervention of the army in labour disputes

1. 1016. The Committee has already examined the substance of this case on three occasions, most recently at its March 2006 meeting, where it presented an interim report to the Governing Body [see 340th Report, paras 1064–1112, approved by the Governing Body at its 295th Session].
2. 1017. The Government submitted new observations respecting this case in a communication dated 20 September 2006.
3. 1018. Myanmar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 1019. In its previous examination of the case, the Committee made the following recommendations [see 340th Report, para. 1112]:
2. (a) The Committee once again urges the Government in the strongest of terms to enact legislation guaranteeing freedom of association to all workers, including seafarers, and employers; to abolish existing legislation, including Orders Nos 2/88 and 6/88 so as not to undermine the guarantees relating to freedom of association and collective bargaining; to explicitly protect workers’ and employers’ organizations from any interference by the authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee once again urges the Government to take advantage in good faith of the technical assistance of the Office so as to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. It requests the Government to keep it informed of all developments in this respect.
3. (b) The Committee once again urges the Government to issue instructions to its civil and military agents as a matter of urgency so as to ensure that the authorities fully refrain from any act preventing the free operation of all forms of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. The Committee requests the Government to keep it informed of all measures taken in this regard.
4. (c) The Committee once again urges the Government to institute an independent inquiry into the alleged murder of Saw Mya Than, to be carried out by a panel of experts considered to be impartial by all the parties concerned. The Committee requests the Government to keep it informed of measures taken in this respect.
5. (d) As regards the case of high treason brought against the General Secretary of the FTUB, the Committee will examine the legal documents provided by the Government as soon as a translation is available, along with any comments or observations made by the complainant in this case.
6. (e) The Committee once again deeply deplores that the Government refuses to consider the release of Myo Aung Thant and strongly urges the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect.
7. (f) The Committee once again requests the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requests the Government to issue appropriate instructions without delay so as to ensure that the SECD authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action and immediately revise the text of the model agreement concerning Myanmar seafarers (in particular, sections B.2, C.1, E.2, E.3 and E.9) so as to bring it into conformity with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in this respect.
8. (g) The Committee once again recalls that a disputes resolution process that exists within a system with a total absence of freedom of association in law and practice cannot possibly fulfil the requirements of Convention No. 87 and urges the Government to take all necessary measures to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country, and to keep it informed in this respect.
9. (h) The Committee requests the Government to further investigate the dismissals of Min Than Win and Aung Myo Win from the Motorcar tyre factory and if it is found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
10. (i) The Committee requests the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to the workers’ reinstatement or if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
11. (j) The Committee requests the Government to conduct an inquiry into the exact part of the production of the Myanmar Texcamp Industrial Ltd. which was stopped and the criteria for the selection of the 340 workers who were retrenched in August 2003; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to the workers’ reinstatement or if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
12. (k) With regard to the filing of complaints against the Yes Garment Factory on the same day by both Mg Zin Min Thu and Min Min Htwe along with five other workers, the Committee requests the Government once again to establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Mg Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Mg Zin Min Thu was dismissed; if it is found that the dismissal of Mg Zin Min Thu was due to legitimate trade union activities, the Committee requests the Government to take appropriate steps with a view to his reinstatement or if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
13. (l) The Committee once again urges the Government in the strongest terms to undertake real steps towards ensuring respect for freedom of association in law and in practice in Myanmar in the very near future and reminds the Government that it may avail itself of the technical assistance of the Office in this respect.
14. B. The Government’s new observations
15. 1020. The Government submitted further information in response to the Committee’s recommendations in a communication dated 20 September 2006.
16. Legislative issues
17. 1021. With regard to the issues raised in point (a) of the Committee’s recommendations, the Government reiterates its previous assertions that workers are well protected by the existing legislation, and that new labour laws would only be adopted following the implementation of the 7 Step Road Map for the emergence of a peaceful, modern, developed and discipline-flourishing democratic nation.
18. Factual issues
19. Lack of legally registered workers’ organizations
20. 1022. With regard to the issues raised in point (b) of the Committee’s recommendations, the Government indicates that organizations operating in exile do so not because it is impossible to gain recognition within the country, but rather because they have been formed by persons who had fled the country in order to pursue destructive activities.
21. Death of Saw Mya Than
22. 1023. With regard to the issue raised in point (c) of the Committee’s recommendations, the Government states that it has already replied to this matter; it reiterates that Saw Mya Than was not murdered but accidentally killed in a mine, and that Saw Mya Than’s family have accepted the compensation provided to them.
23. Conviction of the General Secretary of the FTUB
24. 1024. With regard to the issues raised in point (d) of the Committee’s recommendations, the Government indicates that the Federation of Trade Unions of Burma (FTUB) General Secretary, Maung Maung (alternatively known as Pyithit Nyunt Wai), was declared a terrorist on the basis of firm evidence. In this connection, the Government attaches a copy of a 12 April 2006 announcement issued by the Ministry of Home Affairs indicating that, according to the confession of an individual named Saya Ya, Maung Maung was a follower of Dr Sein Win of the National Coalition Government of the Union of Burma (NCGUB) and received aid from the international community to form the FTUB to commit terrorist acts. The announcement further describes Maung Maung as “skillful in detonating bombs with the use of a computer” and declares him, Dr Sein Win, and their respective organizations to be terrorists.
25. Imprisonment of Myo Aung Thant
26. 1025. With regard to the issues raised in point (e) of the Committee’s recommendations, the Government states that Khin Kyaw has been released. As concerns Myo Aung Thant, however, the Government indicates that he was not tried for his trade union activities, but rather for high treason. The Government further denies the allegation that his conviction relied upon a confession obtained under torture.
27. Freedom of association rights of seafarers
28. 1026. With regard to the issues raised in point (f) of the Committee’s recommendations, the Government states that article IV of the Constitution of the Myanmar Overseas Seafarers’ Association (MOSA) would be amended and that a copy of the text, once amended, would be forwarded. Furthermore, the Department of Marine Administration is preparing to amend sections B2, C1, E2, E3 and E9 of the model agreement between the Seaman Employment Control Division (SECD) and shipping companies. The abovementioned sections would be amended as follows:
29. Section B2
30. This agreement may be extended by mutual agreement for a further period of six months at the discretion of the Company and written application by the seamen, not later than two months before the expiry in which case, officers’ ratings will be entitled to 10% of basic wages as Extension Allowance with effect from the date of completion of initial agreement, irrespective of whoever requests an extension.
31. Section C1
32. The wages of each Seafarer shall be calculated in accordance with this agreement and the attached Wage Skill and the only deductions from such wages shall be proper deduction as recorded in the Special Agreement and this Collective Agreement and deductions authorized by the Seafarers himself. The Seafarers shall be entitled to payment in cash in US Dollars of his net wages after such deductions at the end of each calendar month.
33. Section E2
34. The Seamen agree to carry out all works on board as required by the Company, the Charterers and the Master, including cargo hold cleaning, cargo hold repairs, ballast and fuel oil tanks cleaning, cargo lashing, transhipment /shifting of cargo, etc. .... They shall be paid for such extra work in accordance with the rate mutually agreed between seamen and charter parties or company.
35. Section E3
36. Each Seafarer shall be entitled to work, train and live in an environment free from harassment and bullying whether sexually, mentally or otherwise motivate. Grievances abroad the ship shall be settled through the organizational system on board. Any grievance, that is impossible to be settled aboard the ship, SECD and the Company shall hold a consultation to settle the matter.
37. Section E9
38. The Company reserves the right to discharge any of the Seamen at any port due to insobriety, misconduct, neglect of duty, insubordination of a criminal act, failure to rejoin and unruly behavior detrimental to maintaining discipline on board, his repatriation expenses will be deducted from balance of his wages and savings. The Company will advice SECD and MOSA with full particulars of such cases duly supported by extracts from official ship’s log book and other evidence.
39. 1027. The Government further states that it is unnecessary to issue instructions to the SECD authorities, as requested in point (f) of the Committee’s recommendations.
40. Response concerning alleged labour unrest and
41. dismissals of workers
42. (a) Motorcar Tyre Factory
43. 1028. With regard to the issue raised in point (h) of the Committee’s recommendations, the Government indicates that Min Than Win and Aung Myo Min were not dismissed due to their trade union activities. The two persons were dismissed for unauthorized absence from work and conviction for theft, respectively.
44. (b) Unique Garment Factory
45. 1029. With regard to the issue raised in point (i) of the Committee’s recommendations, the Government reiterates that the 77 workers concerned were dismissed due to unexpected problems which led to a stoppage in production. The Government attaches a copy of a previously sent agreement, dated 10 July 2001, according to which the workers concerned agreed to their retrenchment with compensation, and further reiterates that the Unique Garment Factory was closed on 31 August 2003.
46. (c) Myanmar Texcamp Industrial Ltd
47. 1030. With regard to the issue raised in point (j) of the Committee’s recommendations, the Government indicates that the employer concerned, in enacting retrenchments due to a reduction in production, had chosen to retrench unskilled and non-service workers while retaining skilled and service workers.
48. (d) Myanmar Yes Garment Factory
49. 1031. With regard to the issue raised in point (k) of the Committee’s recommendations, the Government indicates that Maung Zin Min Thu was not dismissed on account of his trade union activities, but for having breached provisions of his employment agreement. His employer had nevertheless agreed to pay him compensation and the Township Worker’s Supervisory Committee (TWSC) is currently trying to contact him in order to provide him with the said amount.

C. The Committee’s conclusions

1. 1032. The Committee recalls that this case concerns the absence of freedom of association both in law and in practice in Myanmar. It includes allegations regarding legislative issues, in particular, the absence of a legislative basis for freedom of association in Myanmar, as well as factual allegations concerning the total absence of recognized workers’ organizations, opposition by the authorities to the organized collective representation of seafarers and to the exiled FTUB, the arrest, imprisonment and death of trade unionists, and threats against, and dismissals and arrests of, workers who pursue labour grievances.
   • Legislative issues
2. 1033. The Committee recalls that its previous recommendations on this issue concerned the need to both elaborate legislation guaranteeing freedom of association, and to ensure that existing legislation which impedes freedom of association would not be applied. It further recalls that considerable concern over the lack of conformity of Myanmar legislation with Convention No. 87 had been expressed, for a number of years, by the Committee of Experts and the Conference Committee on the Application of Standards. The Committee therefore deeply regrets that the Government, in reply to these recommendations, confines itself to repeating its previous indication that labour laws would only be adopted following the implementation of the 7 Step Road Map, and within the framework of the new Constitution. In the meantime, the right to organize remains subject to severe measures of repression both in law and in practice. In view of the above, the Committee is bound to deplore once again the fact that despite its previous detailed requests for legislative measures guaranteeing freedom of association to all workers in Myanmar, there has been no progress in this regard, and no indication that suggests the Government is considering, in good faith, steps to provide for a legal basis for freedom of association as urged by the Committee. The Committee must also once again recall that this persistent failure to take any measures to remedy the legislative situation constitutes a serious and ongoing breach, by the Government, of its obligations flowing from its voluntary ratification of Convention No. 87.
3. 1034. The Committee therefore once again urges the Government in the strongest of terms to enact legislation guaranteeing freedom of association to all workers, including seafarers, and employers; to abolish existing legislation, including Orders Nos 2/88 and 6/88 so as not to undermine the guarantees relating to freedom of association and collective bargaining; to explicitly protect workers’ and employers’ organizations from any interference by the authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee once again urges the Government to take advantage in good faith of the technical assistance of the Office so as to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. It requests the Government to keep it informed of all developments in this respect.
   • Factual issues
   • Myanmar Overseas Seafarers’ Association
4. 1035. In its previous recommendations, the Committee had requested the Government to refrain from any act preventing the free operation of any form of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. The Committee had further requested the Government to issue instructions to that effect to its civil and military agents as a matter of urgency and to keep it informed of all measures taken in this regard.
5. 1036. The Committee notes with deep regret that the Government provides no information in this regard, apart from stating that organizations operate in exile not because it is impossible to gain recognition within the country, but rather because they have been formed by persons who had fled the country in order to pursue destructive activities. Recalling from a previous examination of the case, the Government’s own submission that no trade unions exist in Myanmar that conform with the requirements of Convention No. 87 [see 337th Report, para. 1089], the Committee once again urges the Government to issue instructions to its civil and military agents as a matter of urgency so as to ensure that the authorities fully refrain from any act preventing the free operation of all forms of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. The Committee requests the Government to keep it informed of all measures taken in this regard.
   • Death of Saw Mya Than
6. 1037. The Committee recalls that in its previous recommendations, it had requested the Government to convene as a matter of urgency an independent and impartial panel of experts to investigate the death of Saw Mya Than, who was an FTUB member and an official of the Kawthoolei Education Workers’ Union (KEWU), allegedly murdered by the army in retaliation for a rebels’ attack. In this regard the Committee deeply regrets that the Government provides no new information in this respect, and has once again limited its reply to a repetition of its earlier comments. The Committee emphasizes once again that serious cases such as the alleged 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 the 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. It also recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 44 and 48]. The Committee therefore once again urges the Government to institute an independent inquiry into the alleged murder of Saw Mya Than, to be carried out by a panel of experts considered to be impartial by all the parties concerned. The Committee requests the Government to keep it informed of measures taken in this respect.
   • Criminal charges against the General Secretary of the FTUB
7. 1038. The Committee recalls that in its previous recommendations, it had expressed deep concern at the paucity and nature of the evidence provided by the Government in order to prove that the criminal charges brought against the General Secretary of the FTUB, Maung Maung, were unrelated to his trade union activities, and had requested the Government to provide copies of the decision which found the General Secretary guilty of high treason under section 122 of the Penal Code, and any documentation relating to the case filed against him under the Public Preservation Law 1947. The Committee notes, from an unofficial translation of the legal documents submitted by the Government, that Maung Maung was apparently convicted in absentia of high treason on the basis of the testimony of one witness for the prosecution, who testified that Maung Maung had conspired with others to carry out destructive acts in Myanmar. The Committee observes that it is unable, from the documentation provided, to determine the sufficiency of the evidence on which Maung Maung’s conviction was based. It must, nevertheless, recall that ever since its first examination of this case in 2004 it has been called upon to examine allegations of arrests, detentions and trials of workers exercising basic activities in the defence of workers’ interests, and that on each occasion, and within a context where there exists no legal and practical framework to ensure freedom of association, the Government has accused these individuals of terrorist acts and unlawful association with the FTUB. The Committee recalls its recommendation relating to workers’ organizations, including the legalization of the FTUB, in this regard [see 337th Report, para. 1112] and requests the Government to ensure that workers’ organizations may function freely within the country and that all those working for such organizations, including Maung Maung, will be able to exercise trade union activities free from harassment and intimidation.
   • Imprisonment of Myo Aung Thant
8. 1039. In its previous recommendations, the Committee deplored the Government’s refusal to consider the release of Myo Aung Thant and strongly urged the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect. The Committee deeply regrets that the Government provides no additional information concerning this matter, other than to flatly deny that Myo Aung Thant’s conviction rested on a confession obtained through torture. Noting, moreover, that the Government has not replied to the allegations that Myo Aung Thant was persecuted because of his trade union involvement, and that his trial was unfair and devoid of basic guarantees of due process, the Committee once again recalls that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular. A genuinely free and independent trade union movement can only develop where fundamental human rights are respected [see Digest, op. cit., paras 33 and 64]. Moreover, detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [see Digest, op. cit., para 102]. The Committee once again deeply deplores the Government’s refusal to consider the release of Myo Aung Thant and strongly urges the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect.
   • Freedom of association rights of seafarers
9. 1040. In its previous recommendations, the Committee had requested the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requested the Government to issue appropriate instructions without delay so as to ensure that the Seaman Employment Control Division (SECD) authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action and immediately revise the text of the model agreement between the SECD and shipping companies concerning Myanmar seafarers (in particular sections B.2, C.1, E.2, E.3 and E.9) so as to bring it into conformity with Convention No. 87 and collective bargaining principles.
10. 1041. In this connection, the Committee notes the Government’s indication that the Department of Marine Administration is preparing to amend the model agreement. The Committee further notes that the proposed amendment to section C.1 states, “the wages of each seafarer shall be calculated in accordance with this agreement and the attached Wage Skill and the only deductions from such wages shall be proper deductions as recorded in the Special Agreement and this Collective Agreement, and deductions authorized by the seafarer himself. The seafarers shall be entitled to payment in cash in US dollars of his net wages after such deductions at the end of each calendar month”. The proposed amendment to section B.2 provides that “this agreement may be extended by mutual agreement for a further period of six months at the discretion of the Company and written application by the seamen, not later than two months before the expiry in which case, officers’ ratings will be entitled to 10 per cent of basic wages as Extension Allowance with effect from the date of completion of initial agreement, irrespective of whoever requests an extension”. The proposed amendment to section E.2 states, “the Seamen agree to carry out all works on board as required by the Company, the Charterers and the Master, including cargo hold cleaning, cargo hold repairs, ballast and fuel oil tanks cleaning, cargo lashing, transhipment/shifting of cargo, etc. … they shall be paid for such extra work in accordance with the rate mutually agreed between seamen and the charter parties or the company”. The Committee notes that the proposed amendment to section E.3, which provides for complaints and grievances, states that “each seafarer shall be entitled to work, train and live in an environment free from harassment and bullying whether sexually, mentally or otherwise motivated. Grievances aboard the ship shall be settled through the organizational system on board. [For] any grievance that is impossible to be settled aboard the ship, the SECD and the Company shall hold a consultation to settle the matter”. Section E.9 adds that “The Company reserves the right to discharge any of the Seamen at any port due to insobriety, misconduct, neglect of duty, insubordination of a criminal act, failure to rejoin and unruly behavior detrimental to maintaining discipline on board, his repatriation expenses will be deducted from the balance of his wages and savings. The Company will advise the SECD and MOSA with full particulars of such cases duly supported by extracts from the official ship’s log book and other evidence.”
11. 1042. The Committee observes that the proposed amendments to the previously highlighted sections of the model agreement do not substantially alter the provisions of these sections, and that it still is not clear whether the overtime pay referred to in section E.2 can actually be bargained collectively through a legitimate and freely chosen representative of the workers. Even with the proposed amendments, these sections of the model agreement would appear to continue to: (1) exclude the possibility of introducing improvements to the terms and conditions of employment of seafarers through negotiations or the conclusion of a collective agreement; (2) prevent trade unions from representing Myanmar seafarers in case of grievance; and (3) not afford guarantees against acts of anti-union discrimination and retaliation in case seafarers engage in trade union activity. Moreover, the Committee notes with deep regret that the Government provides no indication that it has considered measures to enact legislation relating to seafarers’ right to organize while maintaining that it is unnecessary to issue instructions to the SECD authorities to refrain from all acts of anti-union discrimination against seafarers who engage in trade union action, as the Committee had previously recommended. In these circumstances, the Committee is bound to once again deplore the fact that virtually no steps have been taken to guarantee genuine freedom of association to seafarers so as to enable them to defend their occupational interests, notably through collective bargaining. The Committee therefore once again requests the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requests the Government to issue appropriate instructions without delay so as to ensure that the SECD authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action and immediately revise the text of the model agreement concerning Myanmar seafarers so as to bring it into conformity with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in this respect.
    • Disputes resolution mechanisms
12. 1043. In its previous recommendations, the Committee had urged the Government to take all necessary measures to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country, and to keep it informed in this respect. Noting with deep regret that the Government provides no new information respecting this matter, the Committee once again recalls that a disputes resolution process that exists within a system with a total absence of freedom of association in law and practice cannot possibly fulfil the requirements of Convention No. 87 and urges the Government to take all necessary measures so as to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country, and to keep it informed in this respect.
    • Motorcar Tyre Factory
13. 1044. The Committee recalls from its previous examination of this case that factory workers had allegedly been dismissed, arrested or threatened for pursuing their labour grievances in four instances, namely the Motorcar Tyre Factory and three garment factories in the Hlaing That Ya industrial zone. It further recalls that according to the Government two of the dismissed workers, Min Than Win and Aung Myo Win, were dismissed due to their own conduct (absence without permission for over 21 days and conviction for theft, respectively) and that given these grounds, their reinstatement or the payment of compensation was not possible. While having noted this information, the Committee also noted that the conduct of these two workers should normally be reflected in public records, for instance, the absentee records of the company and the court decision which convicted Aung Myo Win. It therefore requested the Government to investigate this matter further and, if it was found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee notes with deep regret that the Government limits itself to repeating that Min Than Win and Aung Myo Win were dismissed for an unauthorized absence from work and a conviction for theft, respectively, without providing any additional information supporting the position that these dismissals had nothing to do with their trade union activities. It once again requests the Government to investigate this matter further and, if it is found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions.
    • Unique Garment Factory
14. 1045. With respect to the Unique Garment Factory, the Committee recalls that the allegations concerned the alleged dismissal of workers involved in a workers’ movement in November 2001 in relation to overtime. Although the factory closed on 31 August 2003 (at which point all 272 workers were laid off) the Committee had taken note of the case of 77 night shiftworkers who had been dismissed two years earlier, on 10 July 2001, during their probationary period following a dispute. The Committee further recalls that the Government had provided a copy of an agreement dated 10 July 2001, according to which the workers agreed to their retrenchment with compensation because of unexpected problems which led to the stoppage of part of the production. Observing that the Government had not indicated the exact criteria for the selection of the workers who were dismissed, the Committee therefore requested the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched. In this respect, the Committee notes with deep regret that the Government largely confines itself to repeating previously-sent information. Further noting that the Government simply maintains that the workers concerned were not retrenched for engaging in trade union activities, the Committee can only deplore the lack of any indications, on the Government’s part, to suggest that it has inquired into the criteria for the selection of the workers who were retrenched. In these circumstances the Committee once again requests the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to ensuring the payment of adequate compensation so as to constitute sufficient dissuasive sanctions. The Committee requests to be kept informed in this respect.
    • Myanmar Texcamp Industrial Ltd
15. 1046. The Committee recalls that this matter concerns a dispute at the factory that apparently arose on 5 July 2003 and involved 300 workers, and the subsequent stoppage of certain parts of Texcamp’s production due, according to the Government, to economic sanctions, which led to the dismissal of 340 out of 581 workers, on 1 August 2003, with due compensation paid. It further recalls that the Government had attached a copy of an agreement signed between the employer and 340 retrenched workers on 1 August 2003, indicating that part of the production would be stopped because of unexpected problems and compensation would be given to 340 workers, who agreed to their retrenchment. Observing that the Government provided no information as to the specific criteria on the basis of which 340 workers were selected for retrenchment, the Committee requested the Government to conduct an inquiry in this regard and, if it was found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or, if reinstatement was not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee notes, in respect of this matter, the Government’s indication that the employer concerned, in enacting retrenchments due to a reduction in production, had chosen to retrench unskilled and non-service workers while retaining skilled and service workers. Noting, however, that the Government has not provided any information or documentation relating to the criteria used by the employer concerned in retrenching its work force, the Committee requests the Government to provide full information, including official company documents where available, demonstrating that the retrenchment was in no way carried out in retaliation for trade union activities.
    • Myanmar Yes Garment Factory
16. 1047. With regard to the Myanmar Yes Garment Factory, the Committee recalls that this matter concerns a dispute of 16 September 2002 which had apparently resulted in an agreement concluded under the Township Workers’ Supervisory Committee (TWSC). The dispute had apparently commenced with the dismissal of Maung Zin Min Thu for disciplinary reasons on 16 September 2002; on the same day, he had apparently “organized” five other workers to submit a complaint, in respect of which an agreement was reached under the authority of the TWSC with which all workers were satisfied. The Government had previously indicated that Maung Zin Min Thu did not attend those negotiations, nor had he since been to the factory to receive his dismissal compensation. Noting that the Government had not provided any information as to whether an impartial investigation had taken place into the dismissal of Maung Zin Min Thu and the specific reasons which led to his dismissal, the Committee had requested the Government to once again establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Maung Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Maung Zin Min Thu was dismissed. The Committee further requested the Government, if it was found that the dismissal of Maung Zin Min Thu was due to legitimate trade union activities, to take appropriate steps with a view to his reinstatement or, if reinstatement was not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions.
17. 1048. The Committee notes the Government’s indication that Maung Zin Min Thu was not dismissed on account of his trade union activities, but for having breached provisions of his employment agreement. The Government adds that the employer had nevertheless agreed to pay him compensation and the TWSC was trying to contact him in order to provide him with the said amount. While noting these indications, the Committee can only deplore that the Government, as in its replies to the matters involving the Motorcar Tyre Factory, the Unique Garment Factory and the Myanmar Texcamp Industrial Ltd, once again confines itself to statements of a perfunctory nature while providing no indication that it has undertaken an investigation into the reasons for the dismissals of the parties concerned. It once again urges the Government to establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Maung Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Maung Zin Min Thu was dismissed. If it is found that the dismissal of Maung Zin Min Thu was due to legitimate trade union activities, the Committee urges the Government to take appropriate steps with a view to his reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions.
18. 1049. As a final and overall point, the Committee once again observes with deep concern the paucity and obscure nature of the information provided by the Government which renders any in-depth examination of the complaint virtually impossible. The Committee observes that most of the information submitted by the Government fails to address the substance of the Committee’s recommendations and elucidate the matters brought before it. The Committee deeply regrets that very little can be gleaned from the Government’s reply to indicate that it intends to take any steps to implement the Committee’s recommendations in this very serious and urgent case. The Committee deplores once again the fact that the Government has felt it appropriate to put the blame for workers’ dismissals on the imposition of economic sanctions aimed at combating practices of forced labour in Myanmar. The Committee once again urges the Government in the strongest terms to undertake real and concrete steps towards ensuring respect for freedom of association in law and in practice in Myanmar in the very near future.

The Committee's recommendations

1. 1050. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government in the strongest of terms to enact legislation guaranteeing freedom of association to all workers, including seafarers and employers; to abolish existing legislation, including Orders Nos 2/88 and 6/88 so as not to undermine the guarantees relating to freedom of association and collective bargaining; to explicitly protect workers’ and employers’ organizations from any interference by the authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee once again urges the Government to take advantage in good faith of the technical assistance of the Office so as to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. It requests the Government to keep it informed of all developments in this respect.
   • (b) The Committee once again urges the Government to issue instructions to its civil and military agents as a matter of urgency so as to ensure that the authorities fully refrain from any act preventing the free operation of all forms of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including seafarers’ organizations and organizations which operate in exile and which cannot be recognized in the prevailing legislative context of Myanmar. It further requests the Government to ensure that all those working for such organizations can exercise trade union activities free from harassment and intimidation. The Committee requests the Government to keep it informed of all measures taken in this regard.
   • (c) The Committee once again urges the Government to institute an independent inquiry into the alleged murder of Saw Mya Than, to be carried out by a panel of experts considered to be impartial by all the parties concerned. The Committee requests the Government to keep it informed of measures taken in this respect.
   • (d) The Committee once again deeply deplores the Government’s refusal to consider the release of Myo Aung Thant and strongly urges the Government to take the necessary steps to ensure his immediate release from prison and to keep it informed in this respect.
   • (e) The Committee once again requests the Government to adopt legislative measures which fully guarantee the right of seafarers to establish and join organizations of their own choosing and afford them adequate guarantees against acts of anti-union discrimination. It further requests the Government to issue appropriate instructions without delay so as to ensure that the SECD authorities immediately refrain from all acts of anti-union discrimination against seafarers who engage in trade union action and immediately revise the text of the model agreement concerning Myanmar seafarers so as to bring it into conformity with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in this respect.
   • (f) The Committee once again recalls that a disputes resolution process that exists within a system with a total absence of freedom of association in law and practice cannot possibly fulfil the requirements of Convention No. 87 and urges the Government to take all necessary measures so as to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country, and to keep it informed in this respect.
   • (g) The Committee once again requests the Government to further investigate the dismissals of Min Than Win and Aung Myo Win from the Motorcar Tyre Factory and if it is found that the dismissals were due to legitimate trade union activities, to take the appropriate steps with a view to the workers’ reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (h) The Committee once again requests the Government to inquire into the specific part of the production of the Unique Garment Factory which was stopped in July 2001 and the exact criteria for the selection of the 77 night shiftworkers who were retrenched; if it is found that the dismissals were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to ensuring the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (i) The Committee requests the Government to provide full information, including official company documents where available, on the Myanmar Texcamp Industrial Ltd’s decision to retain skilled and service workers over unskilled and non-service workers in undertaking its retrenchment of 340 employees.
   • (j) With regard to the filing of complaints against the Yes Garment Factory on the same day by both Maung Zin Min Thu and Min Min Htwe along with five other workers, the Committee requests the Government once again to establish an impartial investigation into this matter, in particular as regards the substance of the complaints filed by Maung Zin Min Thu and Min Min Htwe along with five other workers, the substance of the agreement reached on the basis of these complaints, and the specific reasons for which Maung Zin Min Thu was dismissed; if it is found that the dismissal of Maung Zin Min Thu was due to legitimate trade union activities, the Committee requests the Government to take appropriate steps with a view to his reinstatement or, if reinstatement is not possible, the payment of adequate compensation so as to constitute sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
   • (k) The Committee once again urges the Government in the strongest terms to undertake real and concrete steps towards ensuring respect for freedom of association in law and in practice in Myanmar in the very near future.
   • (l) The Committee calls the Governing Body’s attention to this serious and urgent case.