Informe provisional - Informe núm. 48, 1961

1. 37. The complaint of the Dockworkers' Union (Rangoon) is contained in a telegram dated 19 January 1959 and a letter dated 15 February 1959, both addressed directly to the Director-General of the I.L.O. The Government forwarded its observations on the complaint in a communication dated 28 August 1959. At its meeting on 9 and 10 November 1959 the Committee decided to request the Government to furnish further information on certain points. The Government did so by a communication dated 27 March 1960.
2. 38. Burma 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. A. The complainants' allegations

1. 39. The complainants allege that, from April 1958, the employees of the Rangoon Port Management Board, a " semi-governmental Organisation ", were organised in three different trade unions: the Port Workers' Federation, the Federation of Port Workers and the Dockworkers' Union, affiliated respectively to the Trade Union Congress (Burma), the Union Labour Organisation and the Burma Trade Union Congress. They claim that the Board recognised the collective bargaining rights of all three unions. In 1958, after political changes in the Government, it is alleged, high-ranking military officers were appointed to direct a number of administrations, these appointments including that of a naval officer as Special Commissioner on the Rangoon Port Management Board. The complainants declare that, on 14 January 1959, this Special Commissioner ordered that all the existing trade unions of employees of the Board must be dissolved by the end of January 1959, that such employees could join only a new union supervised by the authorities, that the port authorities would form the new union when, and only when, 50 per cent of the employees had enrolled as members, and that the new union would not be permitted to affiliate with any other trade union federation or national centres. The complainants contend that these orders are in violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma.
2. 40. The Government declared, in its communication dated 28 August 1959, that it has been the practice in Burma since pre-war days for employees of the Government and of " government-sponsored bodies (like the Board of Management for the Port of Rangoon) " to be permitted to form " service associations " as prescribed by the Burma Government Servants' Conduct Rules, 1940, while employees in the private sector can form " trade unions " within the meaning of the Trade Unions Act, 1926. Soon after the war the Workers' Federation of the Rangoon Port Employees, stated the Government, split up as the result of political influences which began to be experienced when the Socialist Party was the strongest party. This resulted in the appearance of the three rival unions of port workers, reconstituted as trade unions and no longer as service associations, which, according to the Government, accepted political control from outside and infringed the law of the land prohibiting service associations from participating in political activities and from including in their membership persons who were not port employees. The Government stated that it has been customary for the Board of Management of the Port of Rangoon to recognise only a union which has more than 50 per cent of the port employees as members, and contended that, as none of the three unions in question could fulfil this condition and also did not pursue true union aims but devoted themselves to party politics, " official recognition was withheld, and union dues could not be collected and the unions existed only in name but not in function ". The Government went on to state that, in order to facilitate the formation of " a solid union, in which all employees irrespective of their political beliefs can participate ", the existing unions were told that they would not be recognised after 31 January 1959, and that " a union free from any influences of party politics will be formed ". The Government pointed out that the three unions " that were in existence " towards the end of 1958 did not conform to the provisions of the Government Servants' Conduct Rules by reason of the fact that persons outside the occupational category concerned were admitted as members or officials. The argument was also advanced that " by virtue of the agreement (the Government Servants' Conduct Rules) between the Board of Management for the Port of Rangoon and its employees the provisions of the Trade Unions Act cannot be made applicable to the employees of the port (proviso (ii) to section 2 of the Trade Unions Act) ". In these circumstances, claimed the Government, " the action taken to dissolve the trade unions by the Special Commissioner for the Board of Management for the Port " did not infringe the legislation of Burma or the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
3. 41. At its meeting on 9 and 10 November 1959 the Committee observed that there are a number of points at issue in this case connected with the right of employees in public or semi-public undertakings to establish and join organisations of their own choosing, in accordance with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma, and with the application of Article 4 of that Convention, which provides that workers' organisations shall not be liable to be dissolved or suspended by administrative authority. It noted that the Government admitted that administrative action had been taken to dissolve the unions of Rangoon port workers, but claimed that these unions were not entitled to benefit from the provisions of the Trade Unions Act, 1926. It based this contention, at least in part, on proviso (ii) to section 2 of the Act, which provides that the Act shall not affect " any agreement between an employer and those employed by him as to such employment ". The Government appeared to the Committee to hold the view that an agreement subsisted which took the employees in the Port of Rangoon out of the coverage of the Trade Unions Act, because it stated: " By virtue of the agreement (the Government Servants' Conduct Rules) between the Board of Management for the Port of Rangoon and its employees the provisions of the Trade Unions Act cannot be made applicable to the employees." A copy of these Rules was forwarded by the Government. They were published as Home Department (General Branch) Notification No. 403 of 14 May 1940. The Committee noted that there is nothing whatever in the text of the Rules to indicate that they constitute or are based on " any agreement between an employer and those employed by him as to such employment ".
4. 42. In view of the fact that the allegations before the Committee, read together with the admissions made in the Government's reply, appeared to raise important questions as to the right of workers in public undertakings to form trade unions-a point concerning which a direct request for information was made in 1959 by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations-and as to the liability of organisations of such workers to dissolution by administrative authority, the Committee considered that, before it examined in substance what is, in essence, the question of the application of a ratified Convention, it should make sure that it was clearly aware of the precise reasoning on which the Government's reply was based. More specifically the Committee decided to request the Government to explain how the Government Servants' Conduct Rules could constitute an agreement, binding on the three trade unions stated to have been dissolved, of such a nature as to deprive the port employees and their organisations of the benefit of the Trade Unions Act, 1926, and to furnish the text of any collective agreement or undertaking on which it based this contention.
5. 43. Pursuant to this request the Government furnished further information in a communication dated 27 March 1960. It declares that employees of the Board of Management for the Port of Rangoon are in the same position as government servants " in regard to their service conduct and conditions "; this has been established by custom in the course of years and " by implied agreement between the Board and its employees who receive the benefits and privileges of government servants and, in return, accept the duties and rules of conduct of such servants ". The Government Servants' Conduct Rules permit of the formation of " service associations " but not of " trade unions ". The previously existing " trade unions " in the port, declares the Government, showed a " preponderance of outside membership " and " accepted the leadership of political parties on their executive committees "-which would, now, infringe the provisions of the Trade Unions (Amendment) Act, promulgated on 29 September 1959. The Government has forwarded the text of this enactment. In conclusion the Government maintains that the port employees enjoy freedom to organise within the framework of legislation which is not incompatible with Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
6. 44. There are a number of provisions in the new Act which require to be considered, especially, in the light of the said Convention. The new Act being subsequent in date to the most recent report considered by the Committee of Experts on the Application of Conventions and Recommendations, that for the period 1 July 1958 to 30 June 1959, it has not yet been considered by that Committee. Before proceeding to examine these provisions, however, the Committee observes that the Government admits " the action taken to dissolve the trade unions " of employees in the Port of Rangoon " by the Special Commissioner for the Board of Management for the Port " (see paragraph 40 above). This action was taken in or about the month of January 1959. The Government declares that the unions were constituted in a manner which would, if they had continued to exist, have infringed the provisions of the Trade Unions (Amendment) Act of 29 September 1959. This law was not in existence at the material time but, states the Government, the unions were unlawful in that, among other things, they did not comply with the Government Servants' Conduct Rules. The Committee considers, as it did in Case No. 2 relating to Venezuela, that, irrespective of whether a trade union is in full compliance with legislation or not, the fundamental fact which is clear is that a measure of dissolution was taken by the authorities without the case having been submitted to the courts. In these circumstances the Committee recommends the Governing Body to decide that the dissolution of the trade unions of workers in the Port of Rangoon by administrative authority in or about the month of January 1959 constituted an infringement of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma, according to which workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.
7. 45. Under section 4 of the Trade Unions Act, 1926, as amended by the aforesaid Act of 1959, a trade union may not be registered unless it has as members more than 50 per cent of the total number of employees of the undertaking or establishment concerned. This is a provision relating, according to the Government, to workers in the private sector and not to public employees, such as employees of the Port of Rangoon, to whom the Trade Unions Act does not apply. Registration is not compulsory but is attended by advantages-the right to set up a political fund (section 16 of the Trade Unions Act, 1926), protection against prosecution for criminal conspiracy and immunity from civil suits (sections 17 and 18), acquisition of corporate personality with power to hold property, to contract and to sue (section 13)-which are essential to the operations of a trade union. The question would seem to arise as to how far the conditions attaching to registration are compatible with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which guarantees the right of workers to establish and join organisations of their own choosing without previous authorisation, with Article 3, which guarantees the right of workers' organisations to organise their administration and activities and with Article 8 (2), which provides that the 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 the Convention. As the acquisition of legal personality by trade unions in Burma is dependent upon registration, a further question would appear to arise as to the compatibility of the conditions attaching to registration with Article 7 of the Convention, which provides that the acquisition of legal personality by workers' and employers' organisations shall not be made subject to conditions of such a character as to restrict the application of Articles 2, 3 and 4 of the Convention.
8. 46. Employees of the public sector, including employees of the Port of Rangoon, are not covered by the Trade Unions Act, 1926, but by the Government Servants' Conduct Rules. This means that they can form " service associations " limited to their categories but not " trade unions ". In this case the 50 per cent membership requirement is even more serious. The Government states that the authority for the Port of Rangoon--the same would appear to be true in the case of any public employing authority-will not " recognise " any association except a single association which has more than 50 per cent of the total of the port employees as members. The Committee of Experts on the Application of Conventions and Recommendations has expressed the view that, while the " recognition " of an organisation for the purposes of representation in joint bodies or of previous consultation may, in certain circumstances, be admissible, the fact that the law itself authorises this recognition in the case only of a single organisation of civil servants and grants to that organisation alone the right to " negotiate " may in certain cases limit the possibility of action by non-recognised organisations, while the fact that the recognised organisations may alone be in a position to " further and defend the interests " of its members may not be reconcilable with the principle laid down in Article 2 of the Convention that the persons concerned shall have the right to establish and to join the organisations " of their own choosing ". Such a situation would appear to be clearly different from that subsisting in certain countries in which a particular trade union may enjoy exclusive rights as the bargaining agent in a given unit as the result of a ballot taken among the employees in the said unit, a system which, if it embodies certain conditions and safeguards, may not be incompatible with the Convention. In Burma, if an association does not have " recognition " it cannot enjoy any negotiating or representational rights vis-à-vis the employing authority; even more, as the Government has stated, it cannot collect union dues and can exist " only in name but not in function " (see paragraph 40 above). In this case again, therefore, a question would appear to arise as to the compatibility of the provisions referred to above with Articles 2, 3 and 8 (2) of the Convention.
9. 47. Under section 6 (h) of the Trade Unions Act, 1926, as amended in 1959, any official of a trade union who is an executive member of any political party shall cease to be an official of the trade union. This section is not linked with any stipulation restricting such disqualification to persons whose political activities are unlawful in character or who adhere to a political party which pursues unconstitutional or unlawful objects. A question would appear to arise, therefore, as to how far the above provision is compatible with the provision in Article 3 of the Convention that workers' organisations shall have the right to elect their representatives in full freedom.
10. 48. Section 24 (a) of the Government Servants' Conduct Rules provides that membership of a service association-the only type of association, as distinct from a trade union, to which not only civil servants but all publicly employed workers can belong-is to be confined to the class of government servants concerned. Under section 24 (b) such an association may not affiliate with any association or federation which does not satisfy section 24 (a). The I.L.O. Committee of Experts on the Application of Conventions and Recommendations has pointed out that a provision prohibiting organisations of publicly employed workers from adhering to federations or Confederations of industrial or agricultural workers seems difficult to reconcile with Article 5 of the aforesaid Convention, which provides that workers' and employers' organisations shall have the right to establish and join federations and Confederations. A question would appear to arise in the present case as to the compatibility with Article 5 of the Convention of section 24 (a) and (b) of the Government Servants' Conduct Rules.
11. 49. " Trade unions " as defined by the Trade Unions Act, 1926, may set up separate funds for political purposes (section 16 of the Act). Service associations of publicly employed workers may not engage in any political activity (section 24 (c) of the Government Servants' Conduct Rules) or support by money or otherwise a candidate for an election (section 24 (d) (iii)). The Committee of Experts on the Application of Conventions and Recommendations has observed that an outright prohibition in general terms of all political activity by workers' organisations may " impair " or " be so applied as to impair the guarantees " provided for in Convention No. 87, contrary to Article 8 thereof, and may be interpreted and applied in a manner incompatible with Article 3 of the Convention, according to which workers' and employers' organisations shall have the right to organise their activities and to formulate their programmes. The same view was expressed by the Governing Body, on the recommendation of the Committee, in Case No. 151 relating to the Dominican Republic. In these circumstances a question would seem to arise as to the compatibility of section 24 (c) and (d) (iii) of the Government Servants' Conduct Rules with Articles 3 and 8 (2) of the Convention.
12. 50. Under section 24 (d) of the Government Servants' Conduct Rules no service association of government employees may issue any periodical publication or publish any representation on behalf of its members except with the permission of the Governor. This restriction does not apply to " trade unions " of workers in the private sector. In certain previous cases the Committee has expressed the view that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights. In these circumstances a question would appear to arise as to the compatibility of the above provisions with Articles 3 and 8 (2) of the Convention.
13. 51. Section 22 of the Trade Unions Act, 1926, as amended in 1959, provides that all the officers of every registered trade union shall be employees of the establishment or undertaking for which the trade union is formed. While it is an unfair labour practice under section 28 (b), punishable by a fine, for an employer to discharge or otherwise discriminate against any such persons by reason of their being trade union officers, the Act contains no provision entitling the competent court to order reinstatement of an officer of a workers' organisation who is dismissed from his employment; nor does any provision stipulate that trade union officers may not be dismissed from their employment during their period of office; nor, again, does any provision stipulate that persons who have been, but no longer are, employed in the establishment or undertaking concerned may be eligible to continue in office or to be re-elected to office. The Committee of Experts on the Application of Conventions and Recommendations has pointed out that where legislation requires that all trade union leaders shall belong to the occupation in respect of which the organisation carries on its activities, the guarantees laid down in the aforesaid Convention No. 87 may be impaired, and that the dismissal of a worker who is a trade union leader may, by reason of the fact that dismissal causes him to lose his status as a trade union officer, infringe the freedom of activity of the organisation and its right to elect representatives in freedom and may even leave the way open for acts of interference by the employer. In certain previous cases in which legislation contained similar provisions the Committee recommended the Governing Body to draw the attention of the governments concerned to its view that the fact that a trade union official who is dismissed automatically loses his right to participate in the administration of his trade union means that a management could in this way interfere with the right of workers to elect their representatives in full freedom, a right which constitutes one of the essential aspects of freedom of association. A question would therefore seem to arise as to the compatibility of section 22 of the Trade Unions Act, 1926, as amended in 1959, with Article 3 of the said Convention, according to which workers' organisations shall have the right to elect their representatives in full freedom.
14. 52. From the foregoing analysis it is apparent that the service associations formed by publicly employed workers are deprived of many of the advantages accorded to registered trade unions because, as the Government states, they cannot exist in the form of " trade unions " within the application of the Trade Unions Act. Among the disadvantages are the following: they cannot register under the Act and so acquire corporate personality and immunity against proceedings for criminal conspiracy and against civil suits; their publications are subject to previous authorisation; they cannot set up a political fund; they cannot federate freely, etc. Most of these separate aspects have been dealt with in earlier paragraphs, but, having regard to the fact that the denial of the right of publicly employed workers to set up " trade unions ", as may privately employed workers, with the result that their " associations " do not enjoy the same advantages and privileges as do " trade unions ", involves discrimination in the case of government-employed workers and their organisations, as compared with privately employed workers and their organisations, a question would appear to arise as to the compatibility of these distinctions with Article 2 of the Convention, according to which workers " without distinction whatsoever " shall have the right to establish and join organisations of their own choosing without previous authorisation, as well as with Articles 3 and 8 (2) of the Convention.
15. 53. In view of the importance of many of the questions arising out of the foregoing analysis the Committee recommends the Governing Body to bring the provisions of the Trade Unions Act, 1926, as amended in 1959, and of the Government Servants' Conduct Rules, referred to in paragraphs 45 to 52 above, to the notice of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, so that it may consider the question as to their compatibility with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1958 (No. 87), ratified by Burma, and also to request the Government to keep the Governing Body informed as to any measures that it may intend to take in this connection.
16. 54. In its reply dated 28 August 1959 the Government stated that it had long been the practice for privately employed workers to form " trade unions " within the meaning of the Trade Unions Act, while government employees were permitted to organise "service associations " within the meaning of the Government Servants' Conduct Rules. The Government put forward the argument that " by virtue of the agreement (the Government Servants' Conduct Rules) between the Board of Management for the Port of Rangoon and its employees the provisions of the Trade Unions Act cannot be made applicable to the employees of the Port " (paragraph 40 above). In response to the Committee's request for further information in this connection the Government states, in its communication dated 27 March 1960, that the placing of port employees in the position of government servants has come about by custom and " by implied agreement " This appears to raise an extremely important question of principle. It may or may not be the case that by custom and agreement the port employees have contracted out of the coverage of the Trade Unions Act. But the Government appears to imply that it is thereby relieved from the obligation to apply a Convention which it has ratified to them in the same way as to other employees-in other words that it can justify the incomplete application of the Convention to particular categories of workers to whom the Convention itself purports to apply on the ground that such workers have contracted out of the enjoyment of the protection of the Convention. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government of Burma, which has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to the fact that by such ratification it has assumed an international obligation to apply its provisions to " workers without distinction whatsoever " and that in these circumstances the provisions of the Convention cannot be regarded as subject to modification in the case of particular categories of workers because of any private or national agreement, custom or other understanding subsisting between such categories of workers and the Government.