Informe provisional - Informe núm. 340, Marzo 2006

1. (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
2. 1064. The Committee examined this case at its May-June 2005 meeting and submitted an interim report to the Governing Body [see 337th Report, paras. 1058-1112, approved by the Governing Body at its 293rd Session (June 2005)].
3. 1065. The Government sent new observations in communications dated 1 and 14 September 2005.
4. 1066. 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. 1067. At its May-June 2005 meeting, the Committee made the following recommendations in relation to this case [see 337th Report, para. 1112]:
2. (a) The Committee strongly urges the Government to enact legislation whereby the respect for, and the realization of, freedom of association is guaranteed for all workers, including seafarers, and employers; to include in that legislation specific measures whereby other legislation, including Orders Nos. 2/88 and 6/88, will be abolished 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 public authorities, including the army; and to ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee further urges the Government, once again, to take advantage of the technical assistance of the Office to remedy the legislative situation and to bring it into line with Convention No. 87 and collective bargaining principles. The Committee requests the Government to keep it informed of all developments in respect of legislation enacted or envisaged.
3. (b) Recalling that the right of workers and employers to freely establish and join organizations of their own choosing cannot exist unless such freedom is established and recognized in both law and practice, the Committee once again requests the Government to refrain from any acts 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 since they cannot be recognized in the prevailing legislative context of Myanmar. The Committee further requests the Government to issue instructions to that effect to its civil and military agents as a matter of urgency and to keep it informed.
4. (c) The Committee once again firmly requests the Government to convene as a matter of urgency an independent and impartial panel of experts to investigate the death of Saw Mya Than and to keep it informed in this regard.
5. (d) Expressing its deep concern at the paucity and nature of the evidence provided by the Government aimed at proving that the criminal charges brought against the General Secretary of the FTUB were unrelated with his trade union activities, the Committee once again requests the Government to provide copies of the decision by which the General Secretary had been found guilty under section 122 of the Penal Code, and any documentation relating to the case the Government explained had been filed against him under the Public Preservation Law, 1947.
6. (e) Deploring the Government’s failure to take any steps to ensure the immediate release of Myo Aung Thant and Khin Kyaw, the Committee urges the Government to do so as a matter of urgency and to keep it informed in this regard.
7. (f) The Committee once again requests the Government to submit a detailed reply on the allegations of anti-union discrimination relating to Shwe Tun Aung’s case and, in particular, the allegations that before taking his first position as a seafarer, the Seaman Employment Control Division (SECD) obliged Shwe Tun Aung to sign a document warning against union membership; that other M/V Great Concert crew members who returned to Myanmar were forced by the SECD to refund wages increased by the union action, fined heavily and forbidden to leave the country for three years; and that, following his trade union activities, Shwe Tun Aung’s name was on a Government “blacklist”. The Committee further requests the Government to provide a copy of any contract or document that Myanmar seafarers in general are currently obliged to sign prior to taking up their first work assignment. If these allegations relating to anti-union harassment are found to be true, the Government is requested to take immediate measures so that Shwe Tun Aung and all Myanmar seafarers are free to join the trade union of their own choosing.
8. (g) Pending the adoption of legislation that protects and promotes freedom of association, the Committee requests the Government to take measures to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in Myanmar and to keep it informed of the measures taken in this regard.
9. (h) Taking account of the figures contained in the table provided by the Government for the Motorcar tyre factory, the Committee requests the Government to provide due explanations of the differences in the total workforce on 9 and 31 March 2001 and, in particular, to provide details concerning the cases of those three workers whose employment at the factory ceased during that period of time as well as an indication as to whether any other workers left their employment at the factory during this period, but were replaced. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
10. (i) The Committee once again requests further details in relation to the case of 77 night shift workers who were dismissed from the Unique Garment Factory following a dispute on 10 July 2001 during their probationary period and following a conciliation by the TWSC including, in particular, a copy of the conciliation agreement reached under the authority of the TWSC to which the Government referred to in its previous observations. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
11. (j) The Committee requests the Government to provide a copy of the agreement to which it referred to in its previous observations concerning a dispute between 300 workers and the Myanmar Texcamp Industrial Ltd. that arose on 5 July 2003 and that was conciliated by the Department of Labour, as well as information indicating the criteria upon which the 340 workers who were laid off for economic reasons on 1 August 2003 were chosen from the total workforce of 581 workers. If it is found that the dismissals in question were due to legitimate trade union activities, the Committee requests the Government to take the appropriate steps with a view to their reinstatement or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions.
12. (k) The Committee requests the Government to establish an impartial investigation into this matter and to keep it informed in this regard. It further requests the Government to provide a copy of the agreement at the Myanmar Yes Garment Factory dated 16 September 2002 and any further information that the Government may have in relation to the dismissal of Mg Zin Min Thu.
13. B. The Government’s new observations
14. 1068. The Government submitted further information in response to the Committee’s recommendations in communications dated 1 and 14 September 2005.
15. Legislative issues
16. 1069. With regard to the issues raised in point (a) of the Committee’s recommendations, the Government indicated that the basic principles for the social sector, including the rights of the workers, would provide the framework under which detailed provisions would be developed in drawing up the new Constitution. According to the Government, the National Convention was convened for the first time from 17 May to 9 July 2004. Concrete measures have been taken to achieve success in the implementation of the Seven-Point Road Map for the emergence of a peaceful, modern, developed and discipline-flourishing democratic nation. The National Convention had adopted by consensus a total of 104 basic principles and laid down that “the State shall enact necessary laws to protect the rights of the Workers”. This first National Convention also laid down the detailed basic principles for the social sector to be embodied in the union legislative list as regards the sharing of legislative power. The second National Convention laid down the detailed basic principles for the social sector to be embodied in the union legislative list. The third National Convention would be held in December 2005 and, after that, the detailed basic principles of the social sector to be embodied in the union legislative list would be adopted. Thus, the Government assured that after the Seven-Step Road Map was implemented, the legislative issue would be definitely solved in the very near future. Moreover, during the transitional period the workers were well protected by the existing labour laws.
17. Factual issues
18. Death of Saw Mya Than
19. 1070. With regard to the issue raised in point (c) of the Committee’s recommendations, the Government indicated that it had already replied on this issue and that it had never neglected or ignored any person who had the right to get compensation under the prevailing labour laws. The Government reiterated that it had already made systematic consultations and investigations about the case and that a thorough investigation had been conducted with the concerned ministries and departments. Saw Mya Than’s family themselves had already accepted the compensation with satisfaction.
20. Conviction of the General Secretary of the FTUB
21. 1071. With regard to the issues raised in point (d) of the Committee’s recommendations, the Government attached the untranslated text of certain legal documents, including a police complaint and the decision of the respective court.
22. Response concerning the imprisonment of
23. Myo Aung Thant and Khin Kyaw
24. 1072. With regard to the issues raised in point (e) of the Committee’s recommendations, the Government indicated that it always tried to follow all the requests of the Committee but if the issue was a serious one involving the security of the country, it could not fulfil the request. As a result, Myo Aung Thant was still in prison. As already indicated in the Government’s previous report, Khin Kyaw had received a conditional pardon since 1997 according to section 337 of the Criminal Procedure Code (CPC), under the order of the Additional Divisional Judge of the Western District Court.
25. Discrimination against Shwe Tun Aung
26. 1073. Concerning the issues raised under point (f) of the Committee’s recommendations, the Government indicated that according to the latest information in Shwe Tun Aung’s file in the SECD, this person had left Myanmar since 14 March 1996 on assignment as a deck cadet on M/V Haitum Ocean, owned by the Petrolserve company. From that date, he had never come back to Myanmar. He had been assigned as an oiler and had signed his contract with M/V Great Concert owned by CTM Trading Co., Ltd., in Bangkok. The agreement was neither related to the Department of Marine Administration nor the Government, but only to the individual parties.
27. 1074. The Government also recalled the communication it had sent to the Committee in the framework of Case No. 1752 based on allegations by the International Transport Workers’ Federation (ITF), concerning the treatment of Myanmar maritime workers serving aboard foreign vessels. At that time, the Department of Labour had held discussions with high officials of the concerned ministries and the following steps had been taken so as to implement the recommendations of the Committee in this case. (1) The SECD (under the Ministry of Transport) had promptly revoked the requirement for Myanmar seafarers to sign an affidavit before leaving the country with effect from 9 February 1995. (2) Necessary measures had already been taken so that Myanmar seafarers were free to take care of their own affairs and interests. The Government had no anti-union discrimination practices whatsoever against seafarers. (3) The SECD formally issued a departmental instruction dated 1 February 1995, mentioning that there would be no more deduction of 25 per cent out of family remittances of Myanmar seafarers in exchange for local currency with effect from 1 December 1994. (4) The Constitution of the Myanmar Overseas Seafarers’ Association (MOSA) was legislated after consultations, coordination and cooperation with the seafarers and responsible officials from the ITF. The outcome was the establishment of MOSA in May 2002. This showed the goodwill and good intentions of the Myanmar Government. Since 1995, the Government had thus already implemented the recommendations of the Committee reached in Case No. 1752 in relation to the obligation to sign a contract with the company concerned before seafarers could take up their first work assignment. The Government attached a model contract between the SECD and shipping companies.
28. 1075. Concerning the seafarers from M/V Great Concert, the Government indicated that only three had come back to Myanmar. No one had been forced by the SECD to refund wages increased by union action nor fined heavily and forbidden to leave the country. The Government never forbade the seafarers who made complaints to any union. If any union gave a salary in excess of that contained in the contract, the Government had no objection to its citizens enjoying a better wage. But if anyone violated the provisions under the contract, for example, holding of false documents, then he would be punished.
29. Response concerning alleged labour unrest
30. and dismissals of workers
31. (a) Disputes resolution
32. 1076. With regard to the issues raised in point (g) of the Committee’s recommendations, the Government drew attention to the existence of detailed instructions in the guide book of the Township Workers’ Supervisory Committees (TWSC) with regard to the scope and nature of the guide book, the duties and functions of the TWSC, the power of conciliation, the procedures to follow in the respective sectors and the activities of the TWSC. The Government also drew attention to the existence of detailed instructions in the 1976 directive of the Central Trade Dispute Committee (CTDC) issued by the Ministry of Labour. The directive included the instructions of the CTDC on the methods of solving disputes, the various trade disputes on which committees are formed under the existing labour laws, the responsibilities and the activities of the head office of the CTDC in solving the disputes smoothly, the establishment of the CTDC, the State/Division Appeal Dispute Committees, and the Township Trade Dispute Committees, the duties and functions of these committees, the duties and functions of their secretaries, their procedures, the references to be provided and general provisions. Detailed instructions were also included in the procedures of the State/Division Trade Dispute Committees and Township Trade Dispute Committees, issued by the CTDC under the Ministry of Labour.
33. (b) Motorcar tyre factory
34. 1077. With regard to the issue raised in point (h) of the Committee’s recommendations, the Government indicated that the payroll of February 2001 showed a decrease of three persons and an increase of one which can be explained as follows. Min Than Win, work register No. Ta-2/1187, was working in the payment category 5400-100-5900. He was absent from the factory without prior permission and without leave for over 21 days. He was dismissed on 27 February 2001 because of continuous absence from work for more than 21 days without leave under the provisions of the Fundamental Rules and the Services Rules. Worker Aung Myo Win, work register No. Ta-2/1098, was working under the payment category 3000-100-3500. He had stolen three goats from the Workers’ Welfare Animal Husbandry Compound. He was sentenced under section 379 of the Penal Code to prison for one month with hard labour. Because of the sentence passed by the Township Justice Court, he was removed from work on 18 January 2001. This kind of action was taken on any service man from the government sector under the Fundamental Rules and the Services Rules. As these two persons were dismissed from work according to the provisions of the existing laws, there was no way they could be reinstated. According to the provisions of the Workmen’s Compensation Act, 1923, they were not entitled to any compensation either. In February 2001, Daw Cho Cho Win, work register No. Ta-2/0547, was promoted and was included in the payment category 5400-100-5900. She was transferred from the head office of the Myanmar Tyre and Rubber Industries to the Motorcar tyre factory, Thahtone.
35. (c) Unique Garment Factory
36. 1078. With regard to the issues raised in point (i) of the Committee’s recommendations, the Government attached the agreement of 10 July 2001 reached under the authority of the TWSC and added that, because of unexpected problems, part of the production of the Unique Garment Factory was stopped and the workers who worked in that part of the production during their probation period were retrenched. Seventy-seven of the night shift workers who were working during their probation period were retrenched and received the payable compensation. On 31 August 2003, the Unique Garment Factory was closed because of the suspension of orders from buyers (as a result of trade sanctions) originating in the United States, Germany and Mexico (the main export products were children’s jackets and polo shirts). The Government added that the employers of the Unique Garment Factory had compensated the workers according to the provisions of the existing labour laws. The Government attached the document of agreement dated 1 September 2003 and the receipt of the compensation signed by the workers.
37. (d) Myanmar Texcamp Industrial Ltd.
38. 1079. With regard to the issue raised in point (j) of the Committee’s recommendations, the Government indicated that a complaint was made by approximately 300 workers on 5 July 2002 and an agreement was reached on 1 August 2002 (not 5 July 2003 as previously indicated). The Government attached the text of this agreement adding that although the complaint involved 300 workers, the employer gave compensation not only to these workers, but to all 504 workers in the factory.
39. 1080. The Government added that in July 2003, the Myanmar Texcamp Industrial Ltd., sent letters (dated 24 and 30 July 2003) to all departments concerned, mentioning that due to the suspension of orders from buyers (due to trade sanctions) part of the production would be stopped and inevitably they would have to retrench the workers in that line of production. The untranslated text of these letters was attached to the Government’s response. After the said communication had been sent to the concerned departments and organizations, an agreement was signed between the employer and 340 workers on 1 August 2003 (and not 1 August 2002 as previously indicated). The Government attached the said agreement.
40. (e) Myanmar Yes Garment Factory
41. 1081. With regard to the issues raised in point (k) of the Committee’s recommendations, the Government indicated that Maung Zin Min Thu’s service was just five months and he was still on probation. Within the framework of the employment contract, it was mentioned that a worker who was undergoing the probation period could be dismissed. Moreover, a worker could be dismissed if he breached the discipline rules laid down by the factory and the provisions of the employment contract. The worker in question was entitled to compensation of one month under articles 6(1)(8) and 68(6)(8) of the Law of 1964 defining the fundamental rights and responsibilities of workers, and Notification No. 55 issued by the Ministry of Labour dated 31 December 1976. The employer gave him compensation for two months but the worker in question refused to accept it. The Government added that on 16 September 2002, Maung Zin Min Thu sought advice on his case and went to the Labour Office at 9.40 a.m. as he wished to make a complaint. On that very same day at 12.15 p.m., Min Min Htwe and five other workers made a complaint against the employer concerning their own grievances. The complaint by Min Min Htwe and five other workers had nothing to do with that of Zin Min Thu. It was moreover pure coincidence that Min Min Htwe and five other workers received compensation (on the basis of the agreement of 16 September 2002).

C. The Committee’s conclusions

1. 1082. 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 Federation of Trade Unions of Burma (FTUB), the arrest, imprisonment and death of trade unionists, and threats against, and dismissals and arrests of, workers who pursue labour grievances.
2. Legislative issues
3. 1083. 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. In particular, the Committee had noted that the absence of any legislative guarantee on freedom of association as well as the existence of Order No. 6/88 that subjects the establishment of unions to previous authorization by the Ministry of Home and Religious Affairs and bans organizations on broad terms, gives rise to a situation which is clearly in breach of Convention No. 87 as it renders the exercise of the right to organize impossible. The Committee thus requested the Government: (i) to enact legislation guaranteeing freedom of association rights to all workers, including seafarers, and employers; (ii) abolish existing legislation which undermines the guarantees related to freedom of association and collective bargaining, including Orders Nos. 2/88 and 6/88; (iii) explicitly protect workers’ and employers’ organizations from interference by the authorities, including the army; (iv) ensure that any such legislation so adopted is made public and its contents widely diffused. The Committee also urged the Government to take advantage of the technical assistance of the Office so as to remedy the legislative situation.
4. 1084. The Committee notes with deep regret, that in reply to this long list of recommendations, the Government has confined itself to an update of the steps taken with a view to adopting “basic principles for the social sector, including the rights of the workers”, which, it states, would eventually constitute a framework under which detailed provisions would be developed in drawing up the new Constitution. The Committee notes in particular, that according to the Government, the National Convention was convened for the first time from 17 May to 9 July 2004 in the framework of the implementation of the Seven-Point Road Map which is to eventually lead to the adoption of a new Constitution. The National Convention adopted by consensus a total of 104 “basic principles” and laid down that “the State shall enact necessary laws to protect the rights of the workers”. The third National Convention was to be held in December 2005 and after that, the detailed basic principles of the social sector to be embodied in the union legislative list would be adopted.
5. 1085. While taking due note of the Government’s assurances that once the Seven-Step Road Map is implemented the legislative issue will be definitely solved in the very near future, the Committee must also note that the Seven-Step Road Map process goes as far back as 1993 and has yet to render any concrete results. In the meantime, the right to organize remains subject to severe measures of repression both in law and in practice. The Committee notes moreover that the “detailed principles” adopted so far are no more than generic phrases such as “labour disputes” and “labour organizations” which provide no indication whatsoever as to the concrete content and scope of any future legislation or the timetable for its adoption. The Committee must also reiterate that the absence of a new Constitution should not prevent the adoption of legislation in conformity with Convention No. 87 as it has apparently not prevented the Government from adopting legislation (like Order No. 6/88) which directly contradicts this Convention.
6. 1086. Given 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 whatsoever in this regard. The Committee deeply regrets that the Government has still not given any concrete indication of steps taken or contemplated so as to establish a legal basis enabling workers to exercise the right to organize as requested by the Committee. The Committee must 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 50 years ago.
7. 1087. 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.
8. Factual issues
9. Workers’ welfare associations and Myanmar Overseas Seafarers’ Association
10. 1088. 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.
11. 1089. The Committee notes with regret that the Government does not provide any information in this respect. It recalls from the previous examination of the case the Government’s own submission that no trade unions exist in Myanmar which fulfil the requirements of Convention No. 87. The Committee therefore 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.
12. Death of Saw Mya Than
13. 1090. 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. The Committee regrets to note 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, 4th edition, 1996, paras. 47 and 51]. 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.
14. Criminal charges against the General Secretary of the FTUB
15. 1091. 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. In this regard, the Committee takes note of certain untranslated legal documents provided by the Government, which it will examine once a translation is available. Given that this case was brought against Maung Maung in absentia, the Committee has also provided the relevant documents to the complainant for any comments or observations they may wish to make thereon.
16. Imprisonment of Myo Aung Thant and Khin Kyaw
17. 1092. In its previous recommendations the Committee deplored the Government’s failure to take any steps to ensure the immediate release of Myo Aung Thant and Khin Kyaw, who had allegedly been convicted to heavy prison sentences for their trade union activities pursuant to a secret trial without freely chosen legal representation and confessions obtained under torture, and urged the Government to do so as a matter of urgency. The Committee notes that according to the Government, Khin Kyaw received a conditional pardon by order of the Additional Divisional Judge of the Western District Court under section 337 of the Criminal Procedure Code. While taking due note of the Government’s latest indication that Khin Kyaw has been pardoned, the Committee is deeply concerned about the vacillation of the information provided by the Government in this regard as in its last communication it had indicated that there was no record of Khin Kyaw’s imprisonment.
18. 1093. The Committee also notes with regret from the Government’s reply that it refuses to consider the release of Myo Aung Thant for national security reasons (according to information previously provided by the Government, he has been convicted to 20 years’ imprisonment under the Penal Code, the Emergency Provision Act and the Unlawful Association Act). The Committee notes with regret that the Government has still not given any specific response to the allegations that Myo Aung Thant was persecuted because of his trade union involvement, that his trial was unfair and devoid of basic guarantees of due process and that his conviction relied on a confession obtained under torture.
19. 1094. The Committee 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. 35 and 71]. It also wishes to emphasize that as regards allegations of the physical ill-treatment and torture of trade unionists, the Committee has recalled that governments should give precise instructions and apply effective sanctions where cases of ill-treatment are found, so as to ensure that no detainee is subjected to such treatment. It has also emphasized the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. 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., paras. 59 and 102]. In these circumstances, 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.
20. Seafarer Shwe Tun Aung
21. 1095. In its previous recommendations, the Committee requested the Government to: (1) submit a detailed reply on the serious allegations of anti-union discrimination relating to Shwe Tun Aung’s case and, in particular, the allegations that before taking his first position as a seafarer, the SECD obliged Shwe Tun Aung to sign a document warning against union membership; that after Shwe Tun Aung initiated trade union action aboard the M/V Great Concert which led to the payment of outstanding fair wages to the crew, the SECD forced those crew members who returned to Myanmar to refund wages increased by the union action, fined them heavily, and forbade them to leave the country for three years; and that, following his trade union activities, Shwe Tun Aung’s name was on a government “blacklist” which prevented him from obtaining a passport for some time; (2) provide a copy of any contract or document that Myanmar seafarers in general were currently obliged to sign prior to taking up their first work assignment; (3) if the allegations of anti-union harassment were found to be true, to take immediate measures so that Shwe Tun Aung and all Myanmar seafarers were free to join the trade union of their own choosing.
22. 1096. The Committee notes with deep regret that in reply to the above request, the Government once again confines itself to general information confirming that Shwe Tun Aung had left the country in 1996 and never returned, and that the agreement signed between Shwe Tun Aung and M/V Great Concert pertained to the individual parties and not the Government. The Government also indicates that pursuant to the conclusions and recommendations reached in Case No. 1752 [see 295th Report, paras. 87-119], it has revoked with effect from 9 February 1995 the requirement for Myanmar seafarers to sign an affidavit before leaving the country. In response to the Committee’s request for a copy of any contract or document that Myanmar seafarers in general may be obliged to sign prior to taking up their first work assignment, it attaches a copy of a model agreement between the SECD and shipping companies.
23. 1097. The Government also indicates that it took steps to ensure that seafarers may take care of their own affairs, in particular, by enacting the Constitution of the Myanmar Overseas Seafarers’ Association (MOSA) after consultations, coordination and cooperation with responsible officials from the ITF. The Committee recalls, however, that the ITF categorically refuted, in a communication dated 14 April 2004, the Government’s statement already made in previous communications, that the Department of Marine Administration had reached an agreement with the ITF and that MOSA was affiliated to the ITF [see 333rd Report, para. 716, and 337th Report, para. 1059].
24. 1098. Finally, the Committee notes with regard to the allegations of anti-union discrimination against the M/V Great Concert crew who returned to Myanmar, that the Government generally refutes that it has a policy of anti-union discrimination and that it took measures of retaliation against the three seafarers who returned to Myanmar. The Committee notes that the Government’s additional statement concerning other reasons for punishment implies however, that these seafarers might have been punished for the holding of false documents.
25. 1099. The Committee recalls the conclusions and recommendations reached in Case No. 1752 in which it had requested the Government: (1) to withdraw the SECD requirement that Myanmar seafarers must sign an affidavit restricting their right to affiliate with or contact the International Transport Workers’ Federation (ITF) for assistance; (2) to end the practice of double payroll (on each pay day the seafarers were given two lists to sign, an official ITF salary list, and the SECD salary list with considerably lower wages) which was according to the Committee a reprehensible way of evading the terms of collective agreements; (3) to guarantee and respect the right of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests if they so wish; (4) finally, to refrain in the future from having recourse to acts of anti-union discrimination against Myanmar seafarers who pursue their legitimate grievances through the ITF and/or its affiliated trade unions (revocation of seafarers’ registration, confiscation of their passports, threat of imprisonment, in the event that seafarers accepted or received an ITF settlement and refused to hand back their back-pay settlements to the SECD). The Committee notes that during the follow-up to this case, the Government had indicated that it had abolished the requirement for seafarers to sign an affidavit restricting their right to affiliate with or contact the ITF for assistance. The Committee notes however, that the Government never reported on any measures conducive to genuine trade union representation, steps taken to end the practice of double payroll so as to stop evading the terms of collective agreements, and concrete action taken to prevent anti-union discrimination in case seafarers accepted or received a settlement. As for the establishment of MOSA as a way to ensure the representation of seafarers’ interests, the Committee once again recalls that this entity, which is an example of a workers’ welfare association, is not a substitute for free and independent trade unions since it is by law the sole association representing seafarers and paragraph 5 of Chapter 4 of its rules explicitly limits seafarers’ right to establish and join associations of their own choosing [see 333rd Report, para. 741; 337th Report, para. 1089].
26. 1100. As for the text of the model agreement between the SECD and shipping companies forwarded by the Government, the Committee notes with concern that the provisions of this agreement, under which the SECD agrees to supply and the company agrees to employ Myanmar seafarers who are registered with the SECD: (i) exclude the possibility of introducing improvements to the terms and conditions of employment of seafarers through negotiations or the conclusion of a collective agreement; (ii) prevent trade unions from representing Myanmar seafarers in case of grievance; and (iii) do not afford guarantees against acts of anti-union discrimination and retaliation in case seafarers engage in trade union activity. In particular, the Committee notes that section C.1 of the model agreement provides that “the wages and remuneration for Officers and ratings who have entered into this agreement shall be as mentioned against their names in the agreement and stated herein, and it has been clearly understood that they shall not be entitled to any other payment or compensation whatsoever, except as stated in this agreement. Deck cadets and junior engineers may be required to sign articles in other ranks or occupations as required by the Company or by the national requirements of the registry. Such changes in capacities shall not entitle them to any additional wages and/or terms of employment”. 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 seaman, not later than two months before 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 the initial agreement, if the extension is requested by the Company and Extension Allowance will not be paid if requested by Crew”. Section E.2 provides that “the Seamen agree to carry out all works on board as required by the Company, the Charterers and the Master … They shall be paid for such extra work in accordance with agreements in charter parties or at rates laid down by the Company from time to time”. With regard to the procedure for complaints and grievances, the Committee notes that section E.3 provides the following: “The Seamen agree to represent to the Master through respective head of department, any complaint or grievances including any alleged breach of this agreement, in a quiet and orderly manner. If the Seaman is unsatisfied with the decision or action of the Master, he may forward his complaint through the Master to the Company, with a copy to the SECD Yangon. The Company will advise its decision to the Master and to SECD, Yangon. If the Seamen (sic) is still unsatisfied with the decision of the Company, he may forward his views to the SECD, Yangon through the Company, who will refer to SECD, Yangon. The Company shall not take any action concerning any complaint from the Seaman which is not represented through the Company.” Section E.9 adds: “The Company reserves the right to discharge any of the Seaman at any port due to insobriety, misconduct, neglect of duty, insubordination of a criminal act, failure to rejoin, and unruly behaviour detrimental to maintaining discipline onboard, in which case the Seaman shall forfeit all claims to balance of wages and savings as well as any other rights under this agreement. The Company will advise SECD, Yangon full particulars of such cases duly supported by extracts from official ship’s log book and other evidence.”
27. 1101. Finally, with regard to the Government’s statement that it did not take anti-union measures against the crew of M/V Great Concert who returned to Myanmar after having received a settlement, but might have punished them if they were holding false documents, the Committee recalls that in Case No. 1752, the Government had stated that four of the seafarers concerned by the complaint were carrying fake passports and CDCs [see 295th Report, para. 105]; however, according to the allegations in that case, it was the Myanmar authorities that confiscated the passports of the seafarers concerned (after they had accepted back-pay as a result of a settlement and signed off the ship to return to Asia) upon their arrival to Bangkok, prompting the Thai authorities to declare them illegal immigrants and to request that they be returned to Myanmar as soon as practicable [see 295th Report, para. 98].
28. 1102. The Committee therefore notes with deep regret that the allegations made in the case of Shwe Tun Aung and the other crew of M/V Great Concert exemplify all the elements of anti-union harassment and denial of freedom of association found in the earlier Case No. 1752 and that the Government’s reply does not provide any specific information indicating that the allegations are unfounded. On the contrary, the text of the model agreement furnished by the Government contains provisions which are in blatant violation of seafarers’ freedom of association and collective bargaining rights as it prevents any negotiation over the terms and conditions of employment of Myanmar seafarers and any representation by trade unions in case of a grievance, leaving open the possibility of anti-union reprisals in case of trade union action. The Committee deplores the fact that more than ten years after the filing of the complaint in Case No. 1752 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 (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.
29. Disputes resolution mechanisms
30. 1103. In its previous recommendations, the Committee requested the Government, pending the adoption of legislation that protects and promotes freedom of association, to take measures to ensure the freely chosen representation of employees and employers in cases conciliated by the various disputes resolution committees operating in the country. The Committee notes with regret that the Government does not provide any information on this point, and confines itself to a general reference to the existence of detailed instructions in the guidebook concerning the Township Workers’ Supervisory Committee, in the 1976 directive of the Central Trade Dispute Committee, and in the procedures of the State/Division Trade Dispute Committees and Township Trade Dispute Committees. 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.
31. Motorcar tyre factory
32. 1104. The Committee recalls from the 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. With regard to the Motorcar tyre factory, the Committee had noted that the Government had refuted the allegations that 19 workers were arrested on 9 and 10 March 2001 and that arrests at the factory continued on 11 March 2001. The Committee had also noted however, from a list indicating the number of employees on 9 and 31 March 2001 that the total number of workers had fallen by three and increased by one during that period. The Committee had therefore requested the Government to provide due explanations of the differences in total workforce on these two dates and, in particular, to provide details concerning the cases of those three workers whose employment at the factory ceased during that period of time, as well as an indication as to whether any other workers left their employment at the factory during this period, but were replaced. If it were found that the dismissals were due to legitimate trade union activities, the Government was requested 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.
33. 1105. The Committee notes that the Government provides information on two of the dismissed workers, Min Than Win and Aung Myo Win, indicating that their dismissal was due to their own conduct (absence without permission for over 21 days and conviction for theft respectively). Given these grounds, the Government indicates that their reinstatement or the payment of compensation is not possible. The Government also provides information on another person who was promoted to the plant in question during the same period. While taking note of this information, the Committee also notes that the conduct of these two workers should normally be reflected in public records, for instance, the absence records of the company and the court decision which convicted Aung Myo Win. The Committee therefore 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. The Committee requests to be kept informed in this respect.
34. Unique Garment Factory
35. 1106. In relation to the Unique Garment Factory, 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 shift workers who had been dismissed two years earlier, on 10 July 2001, during their probationary period following a dispute, and requested further details in relation to these dismissals, including in particular a copy of the conciliation agreement reached under the authority of the TWSC. It requested the Government to take the appropriate steps (reinstatement or if not possible, adequate compensation constituting sufficiently dissuasive sanctions) if it was found that the dismissals in question were due to legitimate trade union activities. The Committee notes that the Government attaches to its reply a copy of the agreement of 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. While taking note of this information, the Committee observes that the Government does not indicate the exact criteria for the selection of the workers who were dismissed. The Committee therefore 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 shift workers 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.
36. Myanmar Texcamp Industrial Ltd.
37. 1107. In relation to the Myanmar Texcamp Industrial Ltd., the Committee had taken note of information provided by the Government on 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 to economic sanctions, which led to the dismissal of 340 out of 581 workers on 1 August 2003 with due compensation paid. The Committee expressed concern at the number of workers laid off for economic reasons at the Myanmar Texcamp Industrial Ltd. which seemed approximately equal to the number that had been involved in a labour dispute three weeks earlier. The Committee therefore requested the Government to provide a copy of the agreement which emerged from the conciliation by the Department of Labour, as well as information indicating the criteria upon which the 340 workers who were laid off for economic reasons were chosen from the total workforce of 581 workers. It also requested the Government to take the necessary measures (reinstatement or where not possible payment of adequate compensation constituting sufficiently dissuasive sanctions) if it was found that the dismissals in question were due to legitimate trade union activities.
38. 1108. The Committee notes that the Government indicates in its reply that a complaint was made by approximately 300 workers on 5 July 2002 and an agreement was reached on 1 August 2002 and not 5 July 2003 as previously indicated. It adds that in July 2003, the Myanmar Texcamp Industrial Ltd. sent letters to all departments concerned mentioning that part of the production would be stopped due to trade sanctions and workers in that line of production would have to be retrenched. The Government attaches a copy of an agreement signed between the employer and 340 retrenched workers on 1 August 2003. The agreement indicates that part of the production will be stopped because of unexpected problems and compensation will be given to 340 workers who agree to their retrenchment. While taking note of the text of the agreement and the information provided by the Government, the Committee also observes that the Government provides no information as to the specific criteria on the basis of which 340 workers were selected for retrenchment as previously requested by the Committee. The Committee therefore requests the Government to conduct an inquiry in this regard 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.
39. Myanmar Yes Garment Factory
40. 1109. In relation to the Myanmar Yes Garment Factory, the Committee had noted the information provided by the Government concerning a dispute of 16 September 2002 which had apparently resulted in an agreement concluded under the TWSC; the dispute had apparently commenced with the dismissal of Mg 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 about which an agreement was reached under the authority of the TWSC with which all workers were satisfied; according to the Government, Mg Zin Min Thu did not attend those negotiations nor had he since been to the factory to receive his dismissal compensation. The Committee requested the Government to establish an impartial investigation into this matter to provide a copy of the agreement dated 16 September 2002 reached under the authority of the TWSC.
41. 1110. The Committee notes that the Government provides in its reply a copy of the agreement of 16 September 2002 which indicates inter alia that it concerns the administration of the factory, workers’ hours, overtime, welfare, lunch time, etc. without however indicating the substance of the agreed terms. Moreover, the Committee notes that the Government does not provide any information in its reply as to whether an impartial investigation has taken place into the dismissal of Mg Zin Min Thu and the specific reasons which led to his dismissal. Furthermore, the Government seems to give a different version of the facts than the one given in its last communication concerning the organizing of five workers by Mg Zin Min Thu so as to submit a complaint to the TWSC. The Government emphasizes in its latest report that 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, was pure coincidence; so was also the fact that Min Min Htwe and the five workers received compensation on the basis of the agreement of 16 September 2002. 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 of developments in this respect.
42. 1111. 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 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.