Rapport définitif - Rapport No. 27, 1958

Cas no 163 (Myanmar) - Date de la plainte: 20-AVR. -57 - Clos

A. A. The complainants' allegations

1. 46. The complaint of the Dallah Dockyard Workers' Union (W.F.T.U.) is contained in two communications dated 20 April and 10 May 1957.
2. 47. The complainant states that certain riveters working in the Dallah dockyard on 26 March 1957 took a short rest after working in the heat of the middle of the day. The works manager is alleged to have appeared and to have suspended one man for seven days. When the workers complained to the deputy manager, the latter reduced the suspension to one half-day. The workers still complained. On 28 March, it is alleged, the workers again pressed the matter and were told that the suspended worker was to lose the wages for the half-day and that the other workers in the department were to lose one hour's wages. The workers demanded to see, firstly, the Chairman of the Inland Water Transport Board and, secondly, the Commissioner for Inland Water Transport. These demands being refused, a sit-down strike was begun on 29 March and continued until the following day. When they resumed work, it is alleged, 16 of them were dismissed on the ground that they had disrupted a public utility service. The complainant contends that the dismissal was a violation of trade union rights.
   • ANALYSIS OF THE REPLY
3. 48. In a communication dated 17 July 1957 the Government makes the following observations. In the first place, the Government agrees that 16 workers were dismissed, including seven officials of the complaining organisation. The principal reason for the dismissal given by the Government is that the persons concerned instigated and staged a strike which was illegal under the provisions of the Trade Disputes Act, 1929, a copy of the relevant sections of which is attached to the reply. As a secondary reason for the dismissals, the Government states that the dockyard authorities were " exercising their right to eradicate the subversive elements persistently endeavouring to disrupt a national enterprise ".

B. B. The Committee's conclusions

1. 49. The essence of this case would appear to be that workers in a public utility service, who were dissatisfied because the disciplinary sanction of deprivation of a portion of their pay was imposed on those of their number who took a rest at their workplace, decided to call a strike, which lasted for about a day, following which 16 men were dismissed. While the Government states that, in effecting the dismissals, the dockyard authorities eradicated " subversive elements persistently endeavouring to disrupt a national enterprise ", the principal reason given for the dismissals is that the strike was illegal under the provisions of the Trade Disputes Act, 1929, the relevant sections of which are cited by the Government.
2. 50. Section 2 of this Act defines a public utility service as including, inter alia, any port service which the President of the Union may declare to be a public utility service as provided in the Act. The dockyard service in which the strike took place in the present case is stated by the Government to be covered by the provisions in the Act relating to strikes in public utility services. Section 23 of the Act makes it illegal for persons employed in a public utility service to go on strike without having given to the employer, within one month before the strike, 14 days' previous notice in writing of the intention to go on strike. Other sections in the aforesaid Act provide for conciliation and arbitration procedures to which the President of the Union of Burma may (on the application of either party to a dispute) or must (on the application of both parties) refer disputes, whether they occur in the public sector or the private sector of industry. Strikes are prohibited during arbitration proceedings.
3. 51. On a number of occasions the Committee, following its established principle that allegations relating to the right to strike are not outside its competence when the question of freedom of association is involved, has expressed the view that the right of workers and workers' organisations to strike as a legitimate means of defence of their occupational interests is generally recognised, provided that the right is exercised with due regard to temporary restrictions placed thereon (e.g. cessation of strikes during conciliation and arbitration procedures and, in the case especially of essential services, the giving of the due notice of the intention to strike which is normally required in such services). The Committee has emphasised, however, that, where the law places restrictions on the exercise of the right to strike, appropriate guarantees should be afforded to the workers concerned in the form of adequate procedures for the peaceful settlement of disputes. Where there is provision for national remedies before a court or an independent tribunal, however, and such remedies have not been pursued with respect to the matters raised in a complaint, the Committee has taken the view in certain previous cases that it must have regard to this fact when examining the merits of the complaint.
4. 52. In the present case it would appear that procedures for the conciliation and arbitration of disputes are provided under the Trade Disputes Act, 1929. While the application of the procedure for settlement of disputes appears to be in the discretion of the President of the Union of Burma where only one party to a dispute asks for a dispute to be submitted to the procedure, there is nothing in the complaint itself, or in the Government's reply, to suggest that the complainants ever made any attempt to have the dispute in the present case referred to conciliation or arbitration, or that any recourse was had to national procedures by or on behalf of those aggrieved by the deduction of pay or the subsequent dismissals. It seems clear, moreover, from the complaint, that the complaining organisation, to which the dismissed workers belonged, did not have regard to the legal requirement that, in the essential service in which these workers were employed, 14 days' notice of an intention to strike should be given. In fact, according to the complainant, the first events in the dispute occurred on 26 March 1957 and a strike was begun on 29 March.

The Committee's recommendations

1. 53. In these circumstances the Committee considers that, in view of the failure either to have recourse to appropriate national remedies with respect to the matters raised in the complaint or to observe fully the requirements laid down with respect to strikes in the Trade Disputes Act, 1929, the complainants have not offered sufficient evidence to show that the imposition of the sanction of dismissal constituted, in the present case, an infringement of trade union rights, and therefore recommends the Governing Body to decide that the case does not call for further examination.