INTERNATIONAL LABOUR CONFERENCE C. App./PV.11
93rd Session, Geneva, June 2005 Afternoon
Committee on the Application of Standards
Seventeenth sitting, 10 June 2005, 3.10 p.m.
Chairperson: Sergio Paixao Pardo
Discussion of individual cases (cont.)
Convention No. 87: Freedom of Association and Protection of the Right to Organise, 1948 (cont.)
Myanmar (ratification: 1955). A Government representative (Mr. NYUN) stated that in Myanmar, workers were always regarded as one of the major driving forces for development. Their essential role was always recognized, their social welfare was always looked after and their rights were always protected in accordance with the law by successive Myanmar governments. Both the State Constitutions of 1947 and 1974 had contained relevant provisions with regard to the role of workers in Myanmar society and their rights. He recalled that there had been labour unions under the parliamentary democracy, which had lasted from 1948 to 1962, and workers' organizations under the socialist economic system, which had lasted from 1962 to 1988. It was well known that the second Constitution of 1974 had ceased to exist in 1988 in accordance with the wishes of the people.
The current Myanmar Government had been striving to establish a modern, developed and democratic state in accordance with the aspirations of its people. In this respect, Myanmar had adopted a seven-step Road Map, the first step of which was the reconvening of the National Convention. This process, which had started in 1993 and had been interrupted in 1996, was to lay down the basic principles for drafting a new state Constitution. During its sessions between 1993 and 1996, the National Convention had laid down basic principles, including basic principles concerning workers. The resumed session of the National Convention, which had started on 20 May 2004, had conducted clarifications and deliberations on basic principles for the social sector, including the rights of workers and their social welfare rights. The deliberations also had dealt with the basic principle of forming workers' organizations. In the process of drafting a new state Constitution, these basic principles would provide a framework for drafting detailed provisions relating to these aforementioned matters. At its most recent session, starting on 17 February 2005, the National Convention had adopted some detailed basic principles for the social sector to be contained in the Union legislative list. These basic principles, among other things, included matters related to the rights of workers, i.e. hours of work, rest periods, holidays, occupational safety, labour disputes, social security and labour organizations. The National Convention had also agreed that laws to protect the rights of workers and to create job opportunities should also be enacted. The delegates attending the National Convention had also shared the view that an Occupational Safety Act and Occupational Hazard Act should be included in the Union legislative list. He concluded by stating that appropriate workers' organizations would emerge once Myanmar had its new Constitution.
The Worker members stated that it was more than embarrassing that this case was this year again before the Committee. Last year the Committee had decided to set aside the conclusions once again in a special paragraph on continued failure to apply the Convention. It appeared from the report of the Committee of Experts that the Government of Myanmar had no willingness at all to adopt any of the changes requested and had not sent any of the requested information, particularly on the concrete means adopted to ensure improved conformity with the Convention.
They recalled that the legislation and military decrees that this Committee had examined over the years were still in force and they prohibited trade union organization and allowed for the punishment of those who tried to establish any form of democratic organisation. This legislation included Order No. 2/88, issued by the SLORC on 18 September 1988, the date of the military coup, which prohibited any activity by five persons or more, such as "gathering, walking or marching in procession, chanting slogans, delivering speeches ... regardless of whether the act is with the intention of creating disturbances or committing crime or not". Other repressive legislation included the 1908 Unlawful Association Act, which provided for imprisonment of no less than two years for members of unlawful associations or persons taking part in unlawful meetings; and Order No. 6/88, known as the "Law on the formation of associations and organizations", which required organizations to apply for permission to operate and provided that "organizations that are not permitted shall not form or continue to exist and pursue activities". This Order also provided for the punishment of five years' imprisonment for persons who violated it, and up to three years' imprisonment for persons "found guilty of being a member of, or aiding and abetting or using the paraphernalia of organisations that were not permitted ...".
The Worker members noted that the Government had reported once again that there were several associations of workers in the country. They recalled that the Committee on Freedom of Association had found that such associations were not a substitute for free and independent trade unions and that they had none of the attribute characteristics of free and independent workers' organization. The legitimate trade union organization - the Federation of Trade Unions-Burma (FTUB) - was impeded from existing freely, and workers were not allowed to form and join unions of their choice. On the contrary, they were persecuted or arbitrarily arrested. Moreover, the Secretary-General of the FTUB, Mr. Maung Maung, had been repeatedly accused of terrorism before this Committee, even recently. The FTUB was obliged under existing law to operate in a clandestine manner, yet despite this obstacle it had succeeded in organizing workers on a large scale inside the country, both in the agricultural and in the industrial and service sector.
The Worker members recalled the case of Mr. Myo Aung Thant, who was condemned to life imprisonment for trade union activities, and of his wife Aye Ma, who, after having spent seven years in the terrible Insein Jail on similar charges, was now not even allowed to write to her husband. They informed the Committee that on 21 May, they had been informed by the Seafarers Union of Burma (SUB) that one of its organizers, Mr. Koe Moe Naung, had been arrested on 19 May at his residence in Ranong at the border between Thailand and Myanmar by two unidentified men, brought to the village-based Light Infantry Regiment 431 and tortured to death during interrogation. Mr. Koe Moe was a trade union leader who was organizing Burmese fishermen and migrant workers from Myanmar in the Ranong province.
Moreover, gatherings on the occasion of 1 May had been repressed, as well as other gatherings to protest against working conditions. For those who were not obliged to perform forced labour, the average salary in Myanmar was USS4-5 a month, and working time was 48 hours per week, plus 12 to 15 hours of overtime, which would be paid at US$ 0.02 per hour if only companies were able to pay. In fact, due to strict bank regulations made after the 2003 bank crisis, companies could not withdraw more than 200,000 Kyats (approximately US$200) per week. Under such conditions, most of the time salaries as well as overtime could not be paid.
The junta claimed that this situation was due to economic sanctions. This was not true. The economy was in the hands of the junta, who drained all the profits; already 49 per cent of the national budget and 30 per cent of the GDP was allocated to the military.
The Government repeatedly declared that Myanmar was a country in transition and that the issue of freedom of association was going to be examined by the National Convention, responsible for elaborating the new Constitution. For more than 16 years now, the military Government of Myanmar had been promising to adopt a new Constitution in which the issue of freedom of association would be addressed, but nothing had happened. The new National Convention had been deeply criticized as unrepresentative and undemocratic, not only by the democratic Burmese organizations and the National League for Democracy, but also by governments and parliaments from all over the world, including many in the region itself and by many members of the ASEAN.
In conclusion, in view of the above, the Worker members asked for a special paragraph on the continued failure to apply the Convention. They urged the Government of Myanmar to put into practice, immediately and without any further delay, the conclusions of the Committee on Freedom of Association and of the Committee of Experts.
The Employer members stated that the Government of Myanmar no longer had any credibility before this Committee. It had promised for more than a decade to resolve the problems in this case through the adoption of a new Constitution. The Committee of Experts had asked for detailed information, but none had been received. The case had been discussed since 1991 and had repeatedly been the object of a special paragraph as a case of continuous failure to implement the Convention. What was clear was that there were no free and independent trade unions in Myanmar. The Government did not deny this. All trade union activities constituted punishable offences under the law. The Committee of Experts and the Committee on Freedom of Association had consistently stated that workers' welfare associations were not substitutes for free and independent trade unions. The Employer members were not against such associations, but they did not satisfy the requirements of Convention No. 87. They urged the Government to take a positive step in this case and to elaborate a Constitution and law that would allow workers and employers to enjoy freedom of association.
A representative of the International Confederation of Free Trade Unions (ICFTU) (Mr. MAUNG, secretary-general of the Federation of Trade Unions-Burma) stated that the Myanmar regime presented the physical release of Mr. Shwe Mahn as a step forward, but this person, as well as Mr. Nai Min Kyi, Mr. Aye Myint and Mr. Myo Aung Thant should never have been arrested at all.
While the ILO and the international community called for democratic changes, the Myanmar regime referred to the so-called National Convention as a step forward, though the people of Myanmar considered it unrepresentative and undemocratic.
The speaker recalled that more than 150 workers of the Simmaliek dockyard had been killed in 1974 during a general strike organized in protest against the bad economic situation and against the setting up by the regime of the "Workers Councils". Moreover, in a meeting held in July 2004 in the Shwe Pyi Tha industrial zone, the current regime had established the "Workers Supervision Committee", in defiance of the right to organize freely without any interference from the Government or employers. This meeting was held after the 92nd Session of the ILC, which had adopted a special paragraph on the situation of denial of freedom of association in Myanmar. The speaker considered this as a proof that there was no political will to comply with the Convention. He also put forward a number of concrete examples where the military authorities had forcibly moved the 1 May gatherings to other locations, arrested trade union leaders and intervened in labour 'disputes, which had led to chaos, both for the workers and the employers.
The speaker observed that, though the Director-General of the Department of Labour and his office had been to a certain extent responsive to the needs of the workers in certain cases, he at the same time had been very abusive towards the ILO and the ICFTU in the course of the press conference of 15 March 2005, where he had accused the ILO of "arbitrary pressure put on Myanmar".
The speaker considered that, as compared to ten years ago, the workers of Myanmar had become much more aware of their basic rights, thanks to the ILO and the ICFTU. They had started practicing their rights either by going to the civil courts, to the Labour Department or to the ILO Liaison Office. This should be encouraged.
speaker concluded by saying that freedom of association and the right
of workers to establish independent trade unions was denied by the
Myanmar regime, and he called upon the ILO and the Committee members
to use all available means at their disposal to help the workers of
Myanmar to gain their right to associate freely and independently, in
accordance with ILO standards.
The Government member of Luxembourg (Ms. ANCEL-LENNERS), speaking on behalf of governments of Member States of the European Union, as well as Bosnia and Herzegovina, Bulgaria, Croatia, The former Yugoslav Republic of Macedonia, Norway, Romania, Turkey, Serbia and Montenegro, Switzerland, and Ukraine stated that this Committee had discussed this case on many occasions and included its conclusions in a special paragraph of its report for several years, having listed the case as one of continued failure to implement the Convention.
The speaker pointed out that there had been no progress with respect to the adoption of a legislative framework allowing the establishment of free and independent organizations.
The European Union noted with particular regret that, despite the pressing demand of the Committee last year, the Myanmar authorities did not provide the required information on concrete measures adopted. She noted with concern that, in addition to the total absence of a legislative framework guaranteeing the right to organize, there existed legislation containing restrictions on freedom of association or provisions which could be applied in a manner that seriously impaired the right to organize.
European Union urged the Myanmar authorities to take all the
necessary measures to ensure that workers and employers could fully
exercise the rights guaranteed by the Convention in a climate of full
security and in the absence of threats or fears, and that no one
could be sanctioned for contacts with workers' and employers'
organizations or with the ILO. The Myanmar authorities
should provide a detailed reply on the serious matters raised in the
Committee of Experts' report and by the ICFTU.
The Government member of Cuba (Ms. HERNANDEZ OLIVA) stated that, taking into account the internal situation of Myanmar, which had been largely discussed in this Committee, cooperation, constructive dialogue and technical assistance were the most appropriate means which could facilitate for the Government of Myanmar the resolution of the complex problems related to Convention No. 87.
The speaker requested the Government of Myanmar, also in the spirit of cooperation, to provide to the Committee of Experts detailed information on the application of the Convention, so that it could make a comprehensive analysis of the problems encountered and the solutions proposed.
The Government member of the United States (Ms. MISNER) stated that once again this year the Committee of Experts had noted a total lack of progress towards creating a legislative framework under which free and independent workers' organizations could be established in Myanmar. She referred to the Government's statement before the Committee last year that the national convention had held deliberations on basic principles for the social sector, including the rights of workers, which would provide such a framework. However, the national convention did not include representatives of the democratic opposition and ethnic minority groups, and therefore any constitution, referendum or election emerging from the deliberation of this unrepresentative body would be seriously flawed and would not constitute meaningful steps toward national reconciliation and the establishment of democracy. The speaker pointed out that the Government had demonstrated its disregard for obligations that it freely assumed 50 years ago under Convention No. 29. It was no surprise that citizens of Myanmar who believed in human rights and advocated the right of workers to organize confronted enormous risks, including arrest and imprisonment, such as a Nobel Peace laureate Aung San Suu Kyi, who had spent the majority of the past 17 years under detention and still remained under house arrest and was virtually incommunicado. She called upon the Myanmar authorities to immediately and unconditionally release Ms. Aung San Suu Kyi together with all other political prisoners.
speaker emphasized that strong and independent workers' organizations
could provide significant help to the authorities to eradicate forced
labour if the Government were genuinely committed to doing so.
However, the ILO attempts to engage the Government on this matter had
been rebuffed, and freedom from forced labour, like freedom of
association, continued to be systematically violated, both in law and
in practice. The Government should demonstrate, in this matter as in
the matter of forced labour, that it was prepared to take action to
meet its ILO obligations. As soon as the Government would do that,
she was confident that the ILO would be ready to help.
Another Government representative (Ms. MU) stated that the National Convention brought together all political parties and ethnic groups of the country, including the 17 national groups that had ceased armed struggle and had joined the peace process. Of 1,086 delegates, 633 were of national ethnic groups. Workers, peasants and all other economic sectors were represented as well. Concerning allegations made against the Department of Labour, she affirmed that the rights and welfare of workers would be provided for by the Department until the new Constitution was in force. Her Government did not have information on allegations concerning specific workers who no longer resided in the territory of Myanmar.
The Worker members thanked the Employer members and the Governments that had supported their position on this case. It was clear from the Committee of Experts' report, from the information provided by the Worker members and the Secretary-General of the Federation of Trade Unions-Burma, and by the Employer members that the situation in Myanmar was getting worse and that Convention No. 87 was gravely violated. They noted that on 29 June, the Nobel Prize laureate Aung San Suu Kyi would celebrate her 60th birthday under house arrest. They asked the Committee to adopt once again a special paragraph on continuous failure to implement Convention No. 87 and urged the Government to urgently comply with the Convention and with the requests of this Committee and the Committee on Freedom of Association.
The Employer members thanked the Government member of Cuba for suggesting ILO technical assistance in this case. This might be an appropriate way forward. In this respect they wished that two paragraphs from the conclusion of the Special Sitting on Myanmar and the Forced Labour Convention, 1930 (No. 29), be included in the conclusions to this case. The first paragraph could be adapted as follows:
- The ILO's presence in Myanmar should be strengthened to enhance its capacity to carry out all its various functions, and the Government should issue the necessary visas without delay. These functions should include assistance to the Government to implement completely its obligations under Convention No. 87.
The other paragraph to be included would read:
- The freedom of movement of the Liaison Officer as recognized by the Understanding and necessary to the discharge of his functions should be fully respected.
INTERNATIONAL LABOUR CONFERENCE C. App./PV. 12
Session, Geneva, June
Committee on the Application of Standards
Eighteenth sitting, 11 June 2005, 9.30 a.m.
Chairperson: Mr. Sergio Paixao Par do
Convention No. 87: Freedom of Association and Protection of the Right to Organize, 1948 (cont.)
Myanmar (ratification: 1955) (cont.)- The Committee took note of the statement made by the Government representative and the detailed discussion that followed. The Committee recalled that it had discussed this serious case on many occasions over more than 20 years, and that since 1996 its conclusions had been included in a special paragraph for continued failure to implement the Convention. The Committee deplored the fact that, despite these continued efforts of dialogue between this Committee and the Government, there was still absolutely no progress made in adopting a legislative framework that would allow for the establishment of free and independent trade union organizations. Moreover, the Committee noted with grave concern from the Committee of Experts' comments that the report supplied by the Government contained none of the information requested by this present Committee, relevant draft laws were not provided, nor did the Government reply to the comments made by the ICFTU. The Committee could only condemn the absence of any meaningful dialogue with the Government in this respect and trusted that its future reports would provide all requested information.
The Committee took note of the statement made by the Government, which referred once again to the need to await the promulgation of the Constitution before a legislative framework for the recognition of freedom of association could be established. The Government also indicated that the National Convention had agreed that laws to protect the rights of workers and to create job opportunities should also be enacted.
Recalling that fundamental divergences existed between the national legislation and practice and the Convention since the Government had ratified the Convention 50 years ago, the Committee once again urged the Government in the strongest terms to adopt immediately the necessary measures and mechanisms to guarantee to all workers and employers the right to establish and join organizations of their own choosing, as well the right of these organizations to exercise their activities and formulate their programmes, and to affiliate with federations, confederations and international organizations, without interference from the public authorities. It further urged the Government to repeal Orders Nos. 2/88 and 6/88, as well as the Unlawful Association Act, so that they could not be applied in a manner that would infringe upon the rights of workers' and employers' organizations.
The Committee was obliged once again to stress that respect for civil liberties was essential for the exercise of freedom of association and firmly expected the Government to take positive steps urgently, with full and genuine participation of all sectors of society regardless of their political views, to amend the legislation and the Constitution to ensure full conformity with the Convention. It further requested the Government to take all measures to ensure that workers and employers could exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. The Committee urged the Government to ensure the immediate release of all workers detained for attempting to exercise trade union activities and to ensure that no worker was sanctioned for having contact with a workers' organization. The Committee urged the Government to communicate all relevant draft laws as well as a detailed report on the concrete measures adopted to ensure improved conformity with the Convention, including a response to the serious matters raised by the ICFTU, for examination by the Committee of Experts this year.
The Committee recalled all of its conclusions in the case concerning the application of Convention No. 29 in Myanmar as regards the ILO's presence in the country. The Committee considered that, given that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association, the functions of the Liaison Officer should include assistance to the Government to fully implement its obligations under Convention No. 87.
The Committee firmly hoped that it would be in a position to note significant progress on all these matters at its next session.
The Committee decided to include its conclusions in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.
The Worker members stated that the implementation of the Convention in Myanmar should be closely monitored and that the Liaison Officer needed to be provided with adequate resources to this end. The Employer members associated themselves with the statement made by the Worker members.