Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Written information provided by the Government

The information below is submitted by the military authorities. Its publication does not imply explicit or implicit recognition of these authorities as the legitimate Government of Myanmar.

Civil liberties: Regarding the case of an individual, namely Chan Myae Kyaw, and information contained in the report of the Committee of Experts, it is learned that there is no registered organization in Myanmar under the name of Mining Workers’ Federation of Myanmar (MWFM). There is no federation-level mining organization and the name Chan Myae Kyaw is also not included in the list of members of basic labour organizations. Therefore, Myanmar is not in a position to identify the individual and more details of the said person are needed.

On 27 March 2021, in Monywa, there were protests in the industrial zone with about 50 people in Thanlar Ward, with about 100 people at the corner of Tharsi Road and Payshisae Road, with about 400 people in the morning and evening, and at the top of Kyaukkar Road and Aung Tha Pyay Road in Myawaddy Ward with about 20 people, respectively. The protests turned violent and rioters attacked the members of the security forces with deadly weapons. No casualties were found from the incidents.

The observation mentioned an individual, namely Nay Lin Zaw, who was allegedly killed. Upon verification, there is no registered organization under the name of AD Furniture Workers’ Association, while the Myanmar Industry, Crafts and Services Trade Union Federation (MICS-TUsF) does not register its members. Therefore, Myanmar cannot verify the identity of the individual and more details of the said person are needed. There was no case filed at the police station or at the administrative offices of Nos (23) and (63) Wards, Dagon Township (South), where the industrial zone exists. The AD Furniture industry did not file any case either. No riot control measures were taken by the members of the security forces in Dagon Township (South) on 28 and 29 March 2021.

With regard to the case of Zaw Zaw Htwe, there is no registered organization under the name of the Solidarity Trade Union of Myanmar (STUM). On 14 March 2021, in Shwepyithar Township, the General Administration Office was attacked and destroyed by about 200 rioters with clubs, swords, slingshots and Molotov cocktails. The members of the security forces applied riot control procedures and Zaw Zaw Htwe from the crowd, a resident of No. (10) Ward, Shwepyithar Township, died of his injuries and a case has been filed at Shwepyithar Township Police Station (Case No. 15/2021).

In connection with 28 individuals who have been facing charges for their unlawful activities, it is learned that they targeted Hlaing Tharyar Township where factory workers are heavily populated and incited the population there by disseminating fabricated news. Accordingly, they were charged under section 505A of the Penal Code at Yankin City Police Station on 22 April 2021 and under section 124A of the Penal Code at Dagon Myothit (East) City Police Station on 14 May 2021. With regard to the Director of STUM, which is not a registered organization, her case was filed at Shwepyithar Township Police Station under section 505A of the Criminal Code on 10 March 2021 and she was detained on 15 April 2021. On 18 October 2021, the State Administration Council granted her a pardon with Order No. 187/2021.

Progress on labour law reform process: The Labour Organization Law (LOL) is being amended taking into account the desires and requirements of the workers and employers to be in line with the real situation of the country by holding meetings of five Technical Working Groups on Labour Law Reform (TWG-LLR) and five National Tripartite Dialogue Forums (NTDFs). As a result of the discussions, the draft law was prepared and shared in advance to the ILO and to employers’ and workers’ federations. It was discussed by tripartite representatives at the 10th TWG-LLR, 11th TWG-LLR, 12th TWG-LLR and 13th TWG-LLR. The law amending process will be continued. According to the LOL 2011, a total of 2,886 basic labour organizations, 162 township labour organizations, 26 region or state labour organizations, 9 labour federations, 1 labour confederation, 27 basic employer organizations, 1 township employer organization and 1 employer federation, a total of 3,113 workers’ and employers’ organizations, have been registered as of present.

Regarding the refusal of registration in the report, under section 14(a) of the LOL, it is prescribed as follows: “The Chief Registrar shall scrutinize the particulars contained in the application for registration as a labour organization submitted by the Township Registrar and documents attached whether or not they are true and sufficient and allow or refuse to register by mentioning the reason within 30 days from the day of receipt of such application” and section 14(b) prescribes as follows: “The Chief Registrar shall scrutinize whether or not the particulars contained in the application for registration as the Labour Federation, the Myanmar Labour Confederation and documents attached to it are true and sufficient and allow or refuse to register by mentioning the reason within 60 days from the day of receipt of such application.” When the Township Registration Officer scrutinizes the application of a certificate of recognition as a labour organization, if insufficient members and an inadequate number of elected executives are found, the organization is assumed to conflict with any other existing laws and not fall within the jurisdiction of the law. Therefore, the Chief Registrar shall have the right to refuse because of these reasons. However, if the number of members and executives is found to be insufficient, required facts are asked to be provided and certificates are issued without any refusal. Although the second amendment to the Settlement of Labour Disputes Law was enacted on 3 June 2019, there are challenges in implementing some provisions of the Law. In this regard, inputs and advice will be requested from the Arbitration Bodies and Arbitration Council which are exercising the law in practice. The Settlement of Labour Disputes Rules (draft) was discussed with the tripartite representatives to enact as new Rules under the second amendment to the Settlement of Labour Dispute Law. It was also discussed with the responsible officials who are implementing the law in practice to be able to get inputs and advice regarding the difficulties and challenges faced on the ground. In addition, a review of those discussions and a study of the labour disputes settlement system of Association of Southeast Asian Nations (ASEAN) countries have been carried out and inputs and advice will also be requested from the related bodies.

Regarding the Committee’s request to ensure that rights are fully guaranteed to workers in special economic zones, the disputes arising among employers, workers, technicians or civil service personnel are negotiated and conciliated under the Myanmar Special Economic Zone Law (2014) in coordination with the Special Economic Zone Management Committee. If there is any dispute that cannot be negotiated and conciliated by the relevant Special Economic Zone Management Committee, it is settled in accordance with the Settlement of Labour Disputes Law. It is clear that nobody has been targeted for being a trade unionist. As regards the members of trade unions who have been facing charges, this is on account of their unlawful activities, not because of exercising labour rights peacefully.

Updated information has been published in a timely manner via the media, monthly press conferences and diplomatic briefings. However, it is regrettable to learn that the contents of the present report of the Committee of Experts rely on one-sided information from anti-government media and organizations in opposition, and the conclusion of the report was made without duly considering the information provided by the military authorities of Myanmar. Therefore, the military authorities encourage consideration to be given to information that is correct, confirmed and provided by them for a report that reflects the actual conditions of the workers and people of Myanmar so that it can contribute to their betterment.

Discussion by the Committee

The Chairperson – Before beginning our discussion of the individual case, I wish to draw the Committee’s attention to the absence of delegates from Myanmar and to recall that this is in line with the decision taken by the Credentials Committee at the 109th Session of the Conference. This decision remains valid as the question of Myanmar’s representation in the ILO remains unresolved to date. This issue has been referred back to the Credentials Committee at the present session of the Conference and its report is expected to be presented to the plenary session next week. The Committee is thus faced with an unprecedented situation in which a government is not participating in the deliberations on its case because of a decision taken by the Organization.

Since such a situation is not foreseen in our Committee’s current working methods concerning participation in its work, I have consulted with the Officers on the special arrangements to be made by the Committee for the discussion of the case of Myanmar and wish to submit to you the following proposal.

The absence of an accredited delegation from Myanmar should not impede the functioning of the ILO supervisory system and in particular the supervision of ratified fundamental Conventions, therefore, the examination of the individual case should take place, as far as possible, in the same manner as the other individual cases. In this respect, I wish to draw your attention to the fact that the supplementary information submitted in writing by the military authorities in response to the comments of the Committee of Experts has been published on the website of the Committee on the Application of Standards with a clear mention that its publication does not imply the explicit or implicit recognition of those authorities as the legitimate Government of Myanmar. However, Myanmar will not provide information orally to the Committee on the Application of Standards, as no delegate from Myanmar is accredited to participate in the Conference. Consequently, no representative will be able to take the floor and make a statement after the adoption of the conclusions.

(Proposal adopted.)

Employer members – Myanmar ratified the Convention in 1955. However, more than half a century later, the Member State is very far from achieving compliance with this Convention, both in law and practice. The Employer members understand that owing to the urgency and seriousness of the issues involved as well as the likelihood of the irreversible harm and possible deaths, the Committee of Experts have double footnoted this case as a very serious case. The Employer members, at the outset, note that we are deeply concerned about the increasingly violent action of the military junta in Myanmar leading to more victims, more oppression and more harm to society, including for workers, employers and their organizations.

This time last year, the ILC adopted a resolution concerning the situation in Myanmar which called for restoration of the democratically elected Government and also for Myanmar to uphold immediately its obligations under the Convention and to ensure that employers’ and workers’ organizations are able to exercise their rights in a climate of freedom and safety, free from violence, arbitrary arrest and detention. At the recent March 2022 session, the Governing Body deplored the lack of progress towards respecting the will of the people, democratic institutions and processes and repeated its call for Myanmar to uphold immediately its obligations under the Convention.

Given the severity of the situation, the Governing Body decided to establish a Commission of Inquiry in respect of the non-observance of this Convention and the Forced Labour Convention, 1930 (No. 29).

Turning now to the Committee of Experts’ observations, the Employer members note the following issues. First, the Committee of Experts noted with respect to the issue of civil liberties that the military authorities have continued with large-scale lethal violence and continued with harassment, ongoing intimidation, arrests and detentions of trade unionists. We stress that the guarantee of freedom of association pursuant to the Convention, requires as a vital prerequisite the rule of law and the fundamental respect for human rights and civil liberties, in particular the right to personal security, the freedom of opinion and expression, the freedom of demonstration and assembly and the right to protection of property. We noted that there have been allegations of numerous further cases of arrests, attacks on and killings of trade union leaders and trade union members, we also have noted the possible criminal prosecution regarding the exercise of freedom of expression and demonstration and assembly by the Electronic Transaction Act of 2021 and the law on the right to peaceful assembly and peaceful procession of 2016.

In light of the seriousness of the situation, the Employer members call upon Myanmar as a matter of urgency to take all necessary action to restore the rule of law. The Employer members call upon Myanmar as a matter of urgency to fully respect the fundamental human rights and civil liberties necessary for the exercise of freedom of association. Workers’ and employers’ organizations in Myanmar must once again be able to carry out their activities and functions without threat of intimidation, without threat of harm or imprisonment, and without any other undue restriction. The Employer members would like to stress that sustainable enterprises, investment, the creation of jobs, and the creation and maintenance of prosperity and peace can only thrive in a free environment which includes freedom of association. Turning now to the issue of labour law reform, the Employers note that the membership requirements for the registration of trade unions and the eligibility restrictions for trade union office under the Labour Organization Law, raise compliance issues with Article 2 and Article 3 of the Convention. We expect Myanmar will review these matters in close consultation with the social partners at the national level to ensure full respect for the requirements of the Convention, including Articles 2 and 3, and will provide clarification where necessary and information on action taken in this regard in its next report.

To conclude, the Employer members express serious concern about the ongoing situation in Myanmar and urge the Member State to restore democracy, to restore the rule of law and to restore the civil liberties that are a fundamental prerequisite for the exercise of freedom of association under the Convention. More specifically, the Employer members call on Myanmar as a matter of urgency to first take all measures necessary to ensure full respect in law and practice for the basic civil liberties for the exercise of freedom of association including freedom of personal security, freedom of opinion and expression, freedom of demonstration and assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial judiciary so that workers’ and employers’ organizations can carry out their activities and functions without the threat of intimidation, harm, or imprisonment or any other undue restriction.

The Employer members also call upon Myanmar as a matter of urgency to review as soon as conditions permit, the Labour Organization Law within the framework of the legislative reform process in full consultation with the national social partners to ensure that the rights of workers and employers are fully respected under this Convention.

Worker members – The Governing Body at its 344th Session in March 2022 took the unanimous decision to establish a Commission of Inquiry on Myanmar concerning serious violations of this Convention and Convention No. 29. It is our expectation that the discussion in this Committee, as well as the previous discussion in the March Governing Body, will give effective guidance to the Commission in the carrying out of its work and we fully expect that the military regime in Myanmar will allow the Commission to enter the country and to carry out its work unimpeded.

The Worker members take note of the detailed observations made by the Committee of Experts in this case. The situation in the country is indeed extremely dire. The fundamental rights of workers and employers and their physical integrity and freedom is in jeopardy. In many instances irreversible harm has occurred and is ongoing. The Committee of Experts’ decision to designate this as a double-footnoted case seems very appropriate.

And indeed, since the decision two months ago to establish the Commission of Inquiry, the military regime has engaged in further violations of the right to freedom of association. For example, on the afternoon of 20 April of this year, members of the Myanmar Labour Alliance, the Confederation of Trade Unions of Myanmar (CTUM), and the Industrial Workers’ Federation of Myanmar (IWFM), joined a demonstration protesting the regime. When the short demonstration was over, two union activists Khaing Thinzar Aye and Ei Phyu Phyu Myint hailed a taxi to go back to where they were staying. A military vehicle crashed into their taxi, six soldiers came out, beat them, and arrested them. This shocking attack on two union sisters underscores how serious this situation continues to be.

Workers are abducted and, in some cases, murdered. On 25 May of this year, just before the start of this Conference, two members of a Myanmar workers’ union were abducted by the military in the southern Saigon region and killed! And their villages burnt to the ground.

The Worker members join the Committee of Experts in deploring the serious and systematic violations committed by the military junta. We appreciate the important steps that have been taken by some ILO Members States, as well as by some of the social partners, to pressure the junta to desist from its current course but recognize that these actions have so far been insufficient. Clearly, more needs to be done.

We would like to make some observations to underscore the systematic nature of the violation of the Convention and the dire situation prevailing in the country. The Worker members remind the Committee that since the coup in February 2021, over 1,500 people, including several trade unionists, have been murdered by the military and the police in the context of the demonstrations calling for a return to democracy and in the course of industrial disputes. We feel a profound loss when reading the long list of murdered trade unionists as set forth in Case No. 3405, in the 397th Report of the Committee on Freedom of Association.

We remain in shock at the brutal massacre which took place in the Hlaingtharyar industrial zone in March 2021 when the military opened fire on peaceful and unarmed protestors, including several trade unionists who lived and worked in the zone. The regime’s claim that the military has only responded with force to terrorist acts is totally unfounded and misplaced.

We also deplore the issuance of arrest warrants and arrest of numerous trade union leaders and activists merely for having exercised their fundamental rights to freedom of speech, assembly and association. Further the continued threat of violence, and/or arrests has forced many union leaders to flee the country, though many continue to work to sustain their unions from exile.

Further the forced exodus of union leaders and members to the Thai border is contributing to an increasing humanitarian crisis with no systematic effort to regularize their status in Thailand. For security reasons, most cannot return to Myanmar and these unionists come from all unions and all sectors. To make matters worse, the passports of many senior leaders of the CTUM have been revoked leaving some leaders stranded outside of the country, including the Workers’ delegates who will speak to the Committee later on today.

The regime argues that the passports were revoked under section 505 of the Penal Code for the crime of treason because the leaders have allegedly spread news to discredit the military and the State Administrative Council. The charges again lack any foundation and are totally misconceived. Trade unions have denounced the military group and called for a restoration of democracy, the exact opposite of treason, as they have not betrayed their country but are in fact defending it and its duly-elected Government.

It is also more than clear that had the leaders remained, there was absolutely no likelihood of due process and a fair trial. Further we know that the military, this year, revoked the citizenship of 11 prominent activists, thus rendering them stateless in violation of international law.

The regime has declared at least 16 unions illegal and has threatened to take legal action against them if they continue with their activity. The police and the military have raided union offices and the homes of union leaders and have seized documents and equipment in response to their participation in strikes and demonstrations calling for the restoration of democracy in Myanmar.

Workers report that factory owners are intentionally and systematically busting unions with impunity in all sectors and unions cannot perform their union activities or duties at the respective workplaces. Effectively, all channels for industrial relations and dispute settlements have been shut down. The arbitration mechanism and labour courts are not being used as parties have lost all faith that these institutions can function effectively in the current context of state repression.

Unions report that industries, such as the garment industry, are taking advantage of the absence of the rule of law to drive down the wages and working conditions guaranteed in law or in established collective agreements. There has been a significant increase in unjust dismissals and factory management are dismissing monthly paid workers and replacing them with day labour. Systematic attacks on healthcare workers and facilities are ongoing across the country. Similarly, workers in the civil service, public sector and teaching professions are routinely being threatened for engaging in protests calling for democracy activities.

In sum, it is impossible to exercise freedom of association is in the country and least not without significant real risk of arrest or worse. In addition to these most pressing matters, we also take note of the many legislative matters which also create serious concern with respect to the exercise of the right to freedom of association. The Worker members bring these matters to the attention of the Committee though no legislative reform should be undertaken until there is a return to democracy and the duly elected legislature can introduce and adopt the necessary legislation. These laws include the Electronic Transaction Acts adopted on 15 February 2021, the Law on the Right to Peaceful Assembly and Peaceful Procession adopted in 2016, the Labour Organization Law and the Settlement of Labour Disputes Law, and the Special Economic Zone Law which raises concern regarding its contradiction with the full application of the Labour Organizations Law and the Settlement of Labour Disputes Law in the special economic zones.

What we see today in Myanmar is a terrible tragedy. We all had much hope after decades of military rule that, the formal dissolution of the military junta in 2011, and the elections in 2016 would open the door for a process of democracy. Unfortunately, these hopes were destroyed and in 2021 the military coup firmly closed the door on this process. So we are really looking forward to have thorough and formal discussion in the Committee in order to bring this situation back on the right track.

Government member, France – I have the honour of speaking on behalf of the European Union (EU) and its Member States. The candidate countries North Macedonia and Albania, and the European Free Trade Association countries Iceland and Norway, Members of the European Economic Area, as well as Georgia and Türkiye, align themselves with this statement.

Since the military coup, the situation in Myanmar has continuously and gravely deteriorated. This act halted the country’s democratic transition with disastrous humanitarian, social, security, economic and human and labour rights consequences. We are deeply concerned by the continuing escalation of violence and the evolution towards a protracted conflict with regional implications. More than 1,723 people have been killed, including more than 100 children; over 10,800 are currently under detention and 80 people sentenced to death.

The EU and its Member States stand with the people of Myanmar and with all those advocating for and working towards an inclusive democracy and respect of human rights, including labour rights, civil liberties, and fundamental freedoms. In line with the resolution for a return to democracy and respect for fundamental rights in Myanmar adopted last June, we believe it is vital that tripartite constituents continue to show their joint commitment to the protection of human rights, including labour rights in Myanmar.

The EU and its Member States condemn in the strongest terms the continuing widespread human and labour rights violations and abuses perpetrated by the Myanmar military and security forces across the country, including the unlawful persecution of civil society organizations and its activists, violence against peaceful protestors and arbitrary arrests and detentions, intimidation and harassment, unjustified dismissals, threats and acts of grave violence and torture, including killings, against trade unionists and human rights defenders and acts of sexual and gender-based violence.

We fully share the Committee’s calls for all measures to be taken to restore and ensure full respect for the basic civil liberties necessary for the exercise of freedom of association, including freedom of opinion and expression, freedom of assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal.

We continue to urge Myanmar to uphold fully and without delay its obligations under the Convention, and to ensure that workers and employers and their organizations are able to exercise their rights without threat of intimidation or harm and in a climate of complete security.

Our calls are even more saddening, as while there were still many outstanding decent work challenges before the coup and serious concerns with regard to freedom of association and forced labour, we had noted some advancements. However, since the 2021 coup, this progress was destroyed by the military and we had to reprogramme our activities.

In order to support workers in the garment sector, our ongoing and planned responsible business conduct projects continue to aim at improving working conditions, promoting labour and environmental standards and reducing labour rights abuses in the garment industry.

The EU and its Member States reiterate our calls for an immediate cessation of all hostilities, an end to the disproportionate use of force by the Myanmar armed and security forces as well as an end to the state of emergency and the restoration of the legitimate civilian government.

We continue to support the Association of Southeast Asian Nations (ASEAN) efforts in finding a peaceful solution to the crisis. We also reiterate our support for the decision of the ILO’s 344th Session of the Governing Body to establish a Commission of Inquiry in respect of the non-observance of the Convention in question as well as the Forced Labour Convention, 1930 (No. 29).

Government member, Canada – I am speaking today on behalf of Canada and the United Kingdom of Great Britain and Northern Ireland.

It has now been over one year since the military coup in Myanmar. The ILO and other United Nations human rights bodies have since presented credible and consistent reports on widespread human rights violations in the country, including violence against workers, trade unionists, labour leaders, and the civilian population at large. The international community has been clear in calling on military authorities in Myanmar to halt this violence, and Canada and the United Kingdom deplore that there has been no progress in this regard.

Canada and the United Kingdom again urge the military to immediately cease violations of international human rights obligations and halt all violence against civilians, including the specific targeting of trade unionists, human rights activists, peaceful protesters, and foreigner citizens. We also urge Myanmar to uphold its obligations under the Convention and immediately and fully implement the recommendations of the Committee of Experts.

More specifically, we call on Myanmar to:

- undertake full and independent investigations into the circumstances of the killings of Chan Myae Kyaw, Nay Lin Zaw and Zaw Htwe and report to the ILO on the investigations’ findings;

- release all trade unionists still being detained or imprisoned for having peacefully exercised their trade union rights protected under the Convention, including their engagement in the Civil Disobedience Movement;

- ensure full respect – in both law and practice – for basic civil liberties necessary for the exercise of freedom of association, including freedom of opinion and expression and freedom of assembly; and

- finally, ensure that workers, employers and their respective organizations are able to exercise their rights under the Convention in a climate of freedom and security, without threat of intimidation, violence, arbitrary arrest or imprisonment.

We also call on the international community to protect civilians in Myanmar by halting the sale and transfer of arms, military equipment, material, dual-use equipment and technical assistance to Myanmar’s armed and security forces – through state-to-state arrangements or other means. Preventing the military from having access to the weapons and equipment it is currently using to commit such violence is essential.

Lastly, we call on the military to cooperate with the upcoming ILO Commission of Inquiry and allow it to carry out a full and independent investigation of the complaint.

Worker member, Netherlands – I speak on behalf of the Swiss and German Workers’ delegation and Building and Wood Workers International (BWI).

One year after the military coup, the Civil Disobedience Movement in Myanmar has continued to grow into a massive movement resisting the military junta. It is the systematic violence that prevents unions and their leaders to exercise their fundamental labour rights. I will now mention some of the most severe examples of repression.

The military uses Penal Code section 505A to charge many workers for their support of the Civil Disobedience Movement, like at least 71 education workers and 864 healthcare workers. By now at least 301 trade union leaders and members from various sectors have been arrested by the military for taking part in the Civil Disobedience Movement. Some of them have been sentenced in military tribunals, including a professor from the University of Yangon, also the President of the University Teachers Association.

Some 400,000 civil servants, teachers and healthcare workers supporting the Civil Disobedience Movement have been coerced to return to work, tens of thousands have been terminated. Railway workers and their families have been forcibly evicted from their dormitories and their homes in the workers’ communities were pulled down by the military. Fifty-five trade unionists have been killed by the military in association with the peaceful Civil Disobedience Movement protests. Some have died of COVID-19 infections while in hiding from military arrests.

We are seriously concerned about the wellbeing of Thet Hnin Aung, the General Secretary of the MICS-TUsF and a member of the Mandalay Civil Disobedience Movement Committee. He was arrested on 18 June 2021 and tortured in prison. We demand his release.

The military-led State Administration Council killed trade unionists, de-registered 16 labour organizations, invalidated the passports of trade unionists and revoked the citizenship of dissidents including CTUM’s president Maung Maung. The violations are too long to name here. Time is too short.

We strongly condemn the military junta under the State Administration Council for severe repression of Myanmar trade unions’ peaceful exercise of their rights for restoration of democracy and freedoms as a condition for social justice.

We demand the unconditional release of all trade unionists, protesters, civilians and political leaders imprisoned under the coup. We call for the respect of workers and civil rights to freely associate and to strike, for the restoration of the labour organizations and the citizenship rights of the trade unionists.

Government member, Switzerland – Switzerland remains gravely concerned about the current situation in Myanmar. Switzerland continues to strongly condemn the military takeover and calls for the immediate resumption of dialogue and the democratic process aimed at achieving lasting peace and development in the country.

We remain deeply concerned about the serious violations of international law committed since 1 February 2021, which may constitute crimes against humanity and war crimes. The immediate cessation of all violence and respect for international humanitarian and human rights law are essential for a lasting peace. This includes, of course, the fundamental right to freedom of association and the protection of the right to organize as stipulated in the Convention. Employers and workers must be able to exercise their right to freedom of association in a climate of freedom and security.

Switzerland is extremely concerned about acts of intimidation, threats and serious violence, including murder, against trade unionists who have exercised their rights. Full and independent investigations will be necessary to restore justice.

Switzerland is also concerned about the broad and potentially arbitrary interpretation of legislation, such as the Electronic Transactions Act, sections 505A and 124A of the Penal Code, and the law on the right to peaceful assembly and peaceful procession of 2016. Under these laws, a significant number of trade unionists have been detained while exercising rights protected under the Convention.

In conclusion, Switzerland supports the people of Myanmar, the workers and employers, in their quest for democracy, freedom, peace and prosperity. We are convinced that international cooperation is essential for this. Respect for fundamental international labour standards is the basis for this. We urge the military authorities to guarantee these rights, and to resume dialogue and the democratic process immediately.

Worker member, France – The illegitimate authorities in Myanmar have amended a number of laws to expand the powers of the military and further restrict the fundamental rights and civil liberties of the people.

Sections of the law guaranteeing the protection of private life and the security of citizens have been removed, enabling the security forces to arrest and detain workers, trade unionists and citizens.

The Ward or Village-Tract Administration Law has re-established the requirement for the registration of overnight stays by non-locals, guests and visitors. The CTUM has reported that night-time sweeps for union leaders by the military and the police have intensified. The military are searching for union leaders in wards and villages based on a list of names and the enterprises where they work.

The charge of treason, under section 505 of the Penal Code, has been amended to include attempts to incite resistance and restore a civilian government. The prohibition of public gatherings of five or more people and the curfew between 10 p.m. and 4 a.m. for an unlimited period has been extended in accordance with section 144 of the Code of Criminal Procedure.

A cybersecurity alibi bill will have the effect of prohibiting the use of virtual private networks (VPNs). The de facto prohibition of the unrestricted use of VPNs will further hamper freedom of expression and the free communication of trade union leaders with their members and with international organizations, without fear of being identified, monitored and criminalized.

From the start of 2022, a new ordinance requires citizens of Myanmar to carry and present their national registration card whenever they travel. This new order restricts the freedom of movement and the activities of trade unionists still further, with the specific goal of tracking them down.

On 31 January 2022, the army’s National Defence and Security Council extended the state of emergency for another six months. In anticipation of demonstrations to mark the anniversary of the coup d’état on 1 February, the State Administration Council threatened sanctions of up to life imprisonment for public demonstrations, strikes and expressions of support. In the event, a silent strike was successfully organized throughout the country. Demanding a more favourable environment for the exercise of freedom of association and civil liberties has become a crime in Myanmar.

The Committee cannot remain silent in the face of such excesses and strongly condemns them.

Government member, United States of America – The United States shares the Committee of Experts’ deepest concerns on the systemic violence against workers and the harsh suppression of civil liberties by Myanmar’s military authorities.

Since the military coup, the military regime has killed over 1,800 people and arbitrarily detained close to 14,000 people. At least 290 people have died in detention, and over 600,000 people have been displaced internally and another 36,100 out of the country. Trade unionists have been specifically targeted. Earlier this year, the regime revoked the citizenship of CTUM President U Maung Maung, a former ILO Governing Body member who has long been instrumental in the struggle for democracy and workers’ rights in Myanmar.

The regime continues to exploit vague and broad Penal Code provisions to levy treason charges against trade unionists exercising their fundamental labour rights. The military has also banned 16 major labour union organizations, forcing many of their leaders into hiding. Employers, too, report an environment that is not conducive to sustainable enterprises and the exercise of freedom of association.

The military authorities’ written submission to this Committee denies knowledge of named victims and the existence of specific organizations the regime has deprived of lawful registration. This is unacceptable.

The United States strongly supports the consensus decision of the Governing Body to establish a Commission of Inquiry to investigate non-observance of ILO Conventions Nos 87 and 29. We echo the Committee of Experts’ view that the killing, disappearance, or serious injury of trade unionists requires the institution of independent judicial inquiries to ensure the responsible parties are held accountable. The Commission of Inquiry should investigate ongoing labour rights violations under both Conventions and also provide recommendations to address deficiencies in the country’s legal framework for freedom of association and its enforcement.

We look forward to a time when a democratically elected government in Myanmar can reconstitute its tripartite mechanisms for the purpose of ensuring freedom of association is fully protected and promoted under Myanmar law, in line with the recommendations of the Committee of Experts.

Worker member, Australia – I am speaking on behalf of the Australian Council of Trade Unions (ACTU) and the Irish Congress of Trade Unions (ICTU) and the All Indonesian Trade Union Confederation (KSBSI) Indonesia. As the Committee of Experts notes, “freedom of association can only be exercised in conditions in which fundamental human rights are fully respected and guaranteed”. It is clear that since the military coup in Myanmar in February 2021, fundamental rights and civil liberties have been under attack:

As of today, the junta has killed 1,876 people. It has arrested, charged or sentenced 10,847 people for participating in the Civil Disobedience Movement, which has been going on for over a year, despite the repression, and at least 1,979 charged workers, trade unionists, activists and protesters have been forced into hiding since the start of the coup. The crimes against humanity committed by the military include murders, persecutions, imprisonments, sexual violence, enforced disappearance and torture. They are systematic and may qualify as war crimes.

Since November 2021, the military has intensified airstrikes and ground attacks in regions where the Civil Disobedience Movement protesters, workers, and trade union activists are taking refuge to avoid arrest. United Nations agencies have confirmed that the military deploys heavy artillery, tanks, helicopters, jet fighters and surveillance drones in ground attacks and airstrikes to indiscriminately kill civilians, as well as to shell and destroy civilian villages, churches and refugee camps.

The military have occupied public hospitals, attacked healthcare workers, damaged, raided and confiscated medical equipment, drugs and oxygen cylinders. More and more healthcare staff have gone into hiding as the military has revoked the licences of doctors and health workers who have joined the Civil Disobedience Movement, and cancelled the business licences of the clinics and hospitals they work in.

The military have attacked freedom of expression and attempted to restrict access to information by cutting access to mobile data at night and ordering internet service providers to suspend wireless broadband services, leaving intermittent fixed line connection as the only avenue to access the internet. Freedom of the press is non-existent, following the cancellation of five independent media licences on 8 March 2021, and the outlawing of organizations documenting the military’s atrocities such as the Assistance Association for Political Prisoners Burma for supposedly inciting public panic, riots and harming state stability. The junta has killed at least three journalists and imprisoned 26 journalists since the coup.

These are just a few examples of the violations of civil liberties perpetrated by the military authorities, that show the State Administration Council’s complete disregard for human and labour rights. Attacks on workers and civilians and the violations of human rights must cease immediately. The international community must hold the State Administration Council accountable for the gross violations of human rights, including the right to freedom of association; enact sanctions and cease the flow of arms to Myanmar to stop the atrocities; and recognize the National Unity Government as the official and legitimate Government of Myanmar.

Worker member, Japan – I speak on behalf of the Japanese Trade Union Confederation and IndustriALL Global Union. Since the coup d’état by the military in Myanmar, the repression of workers has been unrelenting. The military junta has committed flagrant violations of human rights and trade union rights, including violence, arbitrary arrests and detentions. Hundreds of thousands of workers have lost their jobs in different industrial sectors. In the garment sector alone, more than 250,000 workers lost their jobs. Many garment factories closed without paying their workers, and employers ignore collective agreements. Whenever workers organize protests, employers bring in soldiers to repress workers.

Freedom of association and the right to organize are under attack. We would like to show specific examples from the garment sector that we are aware of: maternity leaves are denied, and women fear job loss over taking legally entitled leave; a worker lost three fingers at the workplace due to a lack of occupational safety and health measures, he was fired and received only 20,000 Myanmar kyats as compensation for the injury; a factory recruited child labour paying below minimum wage, and child workers are put into hiding when audits come to the factory. At one garment factory, production targets were set high, and if they do not meet the target, workers were beaten to the chest, punched in the ear and hit on the head by the supervisors and managers. Supervisors shouted obscenities at young women workers from the edge of the line. Workers are treated as slaves to meet the target. Young women workers are asked loudly “Are they born by humans or dogs”. Women workers feel they are in hell at the workplace.

In a workplace where people can work as human beings and protect their livelihoods, there is always freedom of association, and labour rights are protected. The Myanmar military has brutally taken these rights away from workers and trade unions. The companies involved are complicit in violating the rights under the Convention. Businesses should divest from Myanmar with such hostile environments when freedom of association cannot possibly be respected.

Government member, Australia – Australia condemns, in the strongest terms, the ongoing human and labour rights emergency in Myanmar. The 1 February 2021 military coup has intensified and deepened the already serious human rights situation in the country.

We call on the military to cease all violence and release all those arbitrarily detained, including Australian professor Sean Turnell. We further call on the military to allow immediate and unimpeded access for the delivery of humanitarian assistance for all people in need and to engage inclusive dialogue on a peaceful return to democracy.

The allegations and issues contained in the Report of the Committee of Experts are extremely grave and Australia deplores the lack of any progress to address these. As a Member of the ILO, we urge Myanmar to uphold its obligations under the Convention to protect freedom of association and the right to organize and immediately implement the recommendations of the Committee of Experts.

We affirm our support for the work of the ASEAN and United Nations special envoys and call for the full and timely implementation by Myanmar of the ASEAN five-point consensus, including to cease violence, facilitate humanitarian access and engage in constructive dialogue with all parties.

We urge the military regime to cease impeding the activities of the ILO and other international agencies and civil society organizations in their efforts to safeguard labour rights in Myanmar and to fully cooperate with the upcoming ILO Commission of Inquiry.

Worker member, Italy – I am talking on behalf of the Trade Union Confederation of Workers’ Commissions (CCOO). Despite the international pressure and the overall condemnation over the brutality of the Myanmar military dictatorship, the junta continues to perpetrate war crimes and crimes against humanity. The world observes, but we feel we are not doing enough and we are not moving with the necessary speed and strength to defeat the junta and bring Myanmar back under the control of a civil democratic federal government where workers have their fundamental rights respected.

The Burmese trade unions – we heard a lot already – are among the leaders of the democratic opposition and they are a principal and main target. We deplore the junta’s decision to suspend their passports and citizenship. This violates the most basic human right. For this reason, today we urge the ILO to work for the immediate release of the leader of the MICS-TUsF and all other unionists still detained for having exercised their trade union rights enshrined in the Convention, and for their participation in the Civil Disobedience Movement. Just as the Committee on Freedom of Association, we call for the repeal of section 505-A of the Penal Code and call for the amendment of section 124A.

The economic sanctions against the military conglomerates decided by the European Union and the United States and other governments are important, but they are not sufficient. There is no more time to wait. Strong multiple and cohesive sanctions on the political, financial and economic interests of the junta should be adopted by the United Nations and governments, including the suspension of the SWIFT codes. Italian unions have been demanding this to the European Union and also to the UN.

Myanmar is facing war crimes and crimes against humanity throughout the country but also profound violation of United Nations and ILO Conventions by multinational companies and brands, among which 61 EU and Italian well-known fashion brands. The respect of United Nations norms and labour Conventions are conditions for maintaining the European Union European Banking Authority Regulation.

To come to conclusion, Italian unions together with the International Trade Union Confederation (ITUC), strongly support the conclusions of the Worker spokesperson and reiterate the call for strong and immediate action to restore the respect of human rights and the rule of law in Myanmar.

Observer, International Trade Union Confederation (ITUC) – I am the executive committee member of the ITUC – Myanmar. I speak about the atrocities committed by the military regime under the coup. Since 1 February 2021, the ITUC and its affiliates support prison visits, for over 30 CTUM members and have suffered four funerals of the Mining Workers’ Federation of Myanmar (MWFM), an affiliate of the CTUM. The prison visit includes brother Thet Hnin Aung, the General Secretary of the MICS-TUsF, a Workers’ adviser to the International Labour Conference in 2019.

On 27 March 2021, brother Chan Myae Kyaw, a CTUM member, was the first union member to be shot to death. He was a truck driver of a Copper Mine. On 7 December 2021, brother Tint Naing, brother Hein Thu of another Copper Mine, brother Zin Min Tun, brother Win Kaw and brother San Ko of a copper mining Project in Letpadaung were burnt to death in Done Taw village.

On 20 April 2022, sister Khaing Thinzar Aye, sister Ei Ei Phyu, and brother Nyan Sein were arrested in Yangon. On 23 May, brother Moe Gyi, an executive of the Agriculture and Farmers Federation of Myanmar was arrested in Hkhamti, Sagaing region. On 27 May, trade union members brother Chit Thein Zaw and brother Kyaw Nyein of another military and Chinese copper mine joint venture were arrested in Done Taw village. On the way to the police station, they were shot and killed.

On 7 December, military troops burned alive 11 persons near Done Taw village; 5 of them were members of the MWFM union.

The military regime showed that they do not care for workers’ rights, human rights or freedom of association. The two extrajudicial killings and the arrest of brother Moe Gyi took place after the ILO Commission of Inquiry was announced at the 2022 March Governing Body.

The burnings and killings of our members are the tip of the iceberg, compared to what is taking place all over the country. The military regime attacks all kinds of workers all over the country. It is crystal clear that any kind of revenue to the regime, from investors, fashion brands, or from the extractive industries, and all the companies’ registration fees support the workers’ killings in other industries.

The CTUM is encouraged that the Commission of Inquiry is taking place. We will do our best to collaborate with such a Commission.

The extrajudicial killings of our brothers from a joint venture copper mine are on record. The holding companies will be held responsible, as the junta, for the burning alive members of the MWFM union. They will be prosecuted internationally, even before democratization is restored in Myanmar.

Observer, International Transport Workers’ Federation (ITF) – I speak on behalf of the ITF and the Korean Confederation of Trade Unions. As we have heard from sister Khaing-Zar, the egregious violations of the Convention committed by the military junta over the past 16 months have made it increasingly dangerous, if not impossible, for trade unionists to operate in full freedom.

Not only have the Committee of Experts double footnoted this case, Myanmar is now the only State in the history of this Organization to be subject to two Commissions of Inquiry, in addition to being the only country to have ever received article 33 sanctions. With such heinous violations of the Convention and other internationally recognized human rights, it is imperative that the business community steps up to the plate.

In this regard, we would like to recall the corporate responsibility to respect human rights and the process of human rights due diligence under Pillar II of the United Nations Guiding Principles on Business and Human Rights. Human rights due diligence is of course now reflected in both the Organisation for Economic Co-operation and Development’s Guidelines for Multinational Enterprises and the ILO’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, with the latter stating that this process should take account of the central role of freedom of association. Human rights due diligence is also firmly anchored in statute in several jurisdictions.

The United Nations Guiding Principles on Business and Human Rights call on businesses to conduct enhanced due diligence to identify, prevent and mitigate these risks and treat them as a matter of legal compliance due to the heightened risks of gross rights abuses associated with operating in conflict-affected areas, as is the case with Myanmar.

Businesses must therefore map the major risks that come with any vacuum in protective host state legislation or practice, such as the abuse of emergency powers following a military coup.

Indeed, earlier this month, the Ethical Trading Initiative advised companies to not only urgently reassess their presence in Myanmar, but to also refrain from making any additional investments and to continue to meaningfully engage with unions with respect to their presence in the country.

The Myanmar Labour Alliance, with the support of global unions, have called on businesses to cease placing new orders and disinvest. This demand is part of the wider call by the Myanmar labour movement for comprehensive economic sanctions.

For companies sourcing from or operating in Myanmar, the question really is whether even enhanced human rights due diligence is sufficient when there is such a dire human rights protection vacuum. Indeed, several leading brands have already withdrawn from the country.

We therefore implore brands and investors alike to follow the call of the Myanmar trade union movement and make a responsible exit now. Now is the time for all supply chain actors to step up.

Employer members – We have listened closely to the contributions of the speakers today and thank the Government and Worker representatives for taking the floor.

We share the general view regarding the gravity of the situation expressed by the majority of the room. The most important issue in our view is the immediate restoration of fundamental civil liberties in Myanmar without which freedom of association and thus compliance with the Convention, quite simply, is impossible. In respecting these freedoms, Myanmar must be guided by the ILO’s human-centred approach and focus on the interests, jobs and livelihoods of the people of Myanmar.

In this light, the Employer members continue to urge Myanmar to quickly work to restore democracy and uphold its obligation under the Convention. It is of particular importance to do the following: first, take all measures necessary to ensure full respect in law and practice of basic civil liberties for the exercise of freedom of association, including freedom of personal security, freedom of opinion and expression, freedom of demonstration and assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent, impartial judiciary, so that both workers’ and employers’ organizations can carry out their activities and functions without the threat of intimidation, harm or imprisonment or any other undue and impermissible restriction.

We also note the importance, when conditions permit, of a review of the Labour Organization Law within the framework of an overall legislative reform process, in full consultation with the national social partners to ensure fully that the rights of workers and employers under the Convention are respected.

Worker members – We thank also all the participants for the interventions which echoed unanimously in this room. Since the 2001 military coup, the International Labour Conference and the Governing Body have spoken in clear and principle terms of the situation in Myanmar, including to call for an immediate restoration of democracy and respect for fundamental rights. Unfortunately, our appeals have not been heeded and instead the situation in Myanmar has only worsened. The Governing Body took decisive action in March 2022 and decided to establish a Commission of Inquiry making Myanmar the first country in the history of the ILO to be the subject of two Commissions of Inquiry and it is still the only country to have been the subject of article 33 measures.

We have heard from the Worker representative from Myanmar, who herself is in exile as the regime revoked her passport, describe in detail the horrors that workers are facing in the country and we extend our full solidarity to her but also to all other workers and trade unionists in the country, who over the last ten years have fought hard to rebuild a trade union movement and to build a consolidated democratic institution and practice. We share both their loss and their resolve to see democracy once again restored to the country.

In light of the observations of the Committee of Experts and the discussion in this Committee, the Worker members deplore the current situation in the country and urge the regime to:

(1) immediately cease acts of violence against workers and trade unionists who are exercising their right to free speech, peaceful assembly and free association, hold those in the police and military responsible for these acts and pay reparations for the victims and their families;

(2) immediately release all workers and trade unionists who have been arrested and detained for exercising their right to free speech, peaceful assembly and free association and cancel any outstanding warrants for the same;

(3) immediately return passports and reinstate citizenship to those trade unionists who have had them revoked;

(4) immediately reinstate the registration of unions whose registration has been revoked and allow trade unions to undertake their activities without interference and without fear of retaliation;

(5) immediately cease all acts limiting the full exercise of the right to freedom of association.

In light of the serious nature of the violations in this case we request the conclusions of this case to be put in a special paragraph of the Committee’s report.

Conclusions of the Committee

The Committee deplored the removal of the civilian Government by the military coup in Myanmar on 1 February 2021 and the subsequent declaration of the state of emergency depriving citizens of their civil liberties.

The Committee deplored the total disregard for human rights, civil liberties and the rule of law in Myanmar.

The Committee expressed its grave concern at the lack of progress in restoring civilian rule and the failure of the military authorities to implement:

- the resolution for a return to democracy and respect for fundamental rights in Myanmar adopted by the International Labour Conference at its 109th Session (2021); and

- the decision establishing a Commission of Inquiry adopted by the Governing Body at its 344th Session (March 2022).

Taking into account the discussion, the Committee urges the military authorities to:

- fully implement the resolution of the International Labour Conference and the decision of the Governing Body adopted in 2021 and 2022, respectively;

- refrain from the arrest, detention or engagement in violence, intimidation or harassment of workers and trade unionists exercising their rights to freedom of expression, association and peaceful assembly, and immediately and effectively undertake independent investigations into these crimes with a view to establishing the facts, determining culpability and punishing the perpetrators, including members of the police and the armed forces, and pay reparations to the victims and their families;

- release unconditionally all workers and trade unionists who have been arrested and detained for having exercised their rights to freedom of expression, association and peaceful assembly, and cancel any outstanding warrants for the same;

- immediately return passports and reinstate the citizenship to those trade unionists who have had them revoked;

- immediately reinstate the registration of trade unions whose registration has been revoked since the military coup;

- ensure that workers are able to carry out their trade union activities without interference, and without threats of violence or other violations of their civil liberties;

- revoke all decrees and laws introduced by the military authorities following the coup of 1 February 2021; and

- ensure that the ILO Commission of Inquiry established by the Governing Body in March 2022 is allowed to enter the country and carry out its mandate freely without interference.

The Committee decided to include its conclusions in a special paragraph of the report.

Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)



A Government representative indicated that the Government had set the following priorities for the country and the people: rule of law, the improvement of the socio-economic life of the people, national reconciliation and peace, and amending the Constitution to build a democratic federal republic. Undoubtedly, the tasks were not easy in the face of various internal and external challenges. In dealing with such challenges, the Government had adopted a path consistent with the needs and situation of the country, while respecting the views and opinions of the international community and bearing in mind Myanmar’s international responsibility. Improving the socio-economic life of the people, including workers, had always been high on the agenda. Labour law reform was well under way, and a culture of tripartite dialogue had been successfully introduced and developed. Progress made included upgrading skills, establishing the National Skills Standard Authority, opening migrant resource centres, and, for the first time in history, setting the minimum wage. In close cooperation with the ILO, considerable progress had been made in eliminating the practice of forced labour. A new chapter had opened for the workers with respect to their right to associate and organize. Since the adoption of the Labour Organization Law of 2011, many workers’ and employers’ organizations as well as three federations and one confederation were in place and functioning. In response to the request for information made by the Committee of Experts concerning the chapter on Rules and the corresponding chapter on Offences and Penalties, the speaker indicated that the Law on the Right to Peaceful Assembly and Peaceful Procession of 2016 allowed for a wider democratic space for all Myanmar citizens, including workers, in their exercise of freedom of association. It also allowed them to assemble and hold a procession without prior permission by providing a 48-hour notice to the relevant authority. Penalties for offences had also been reduced substantially, for instance for holding a procession without notice. Directives, rules and regulations were being developed to implement the Law on the Right to Peaceful Assembly and Peaceful Procession in its letter and spirit. In the meantime, its section 26 provided that rules, notifications, orders, directives and procedures issued under the previous version of the law might continue to apply in so far as they were not contrary to the 2016 version. The Labour Organization Law and the Settlement of Labour Disputes Law of 2012 were currently being reviewed and their amendment was under consideration in close consultation and cooperation with all stakeholders including workers, employers, members of Parliament, and ILO experts. In fact, the ILO had been involved in developing the draft text since the beginning of the process, and the Government would continue informing the Committee on the progress made in the labour law reform. With regard to the Labour Organization Law, the Government had constantly sought the outcomes of discussions among the social partners, as well as comments, views and suggestions of labour federations, employer organizations, the Union of Myanmar Federation of Chamber of Commerce and Industry, and the ILO, and had taken them into consideration in the review process. The question of the 10 per cent membership requirement and the impact of the pyramidal structure formed part of the Government’s considerations under the labour law reform process. The requirements for the eligibility to trade union office set out in the Rules to the Labour Organization Law sought to preserve local ownership, and to capture adequate and genuine representation of workers in the body which would be entrusted to promote and protect the interest of workers. Disputes in the special economic zones (SEZs) were settled by respective Management Committees in accordance with Chapter 16 “Matters relating to Labour” of the Special Economic Zone Law of 2014 (SEZ Law). A labour officer from the Ministry of Labour, Immigration and Population (MOLIP) was attached to such committees, and provided advice and guidelines in the dispute settlement process. If no settlement was reached within the Management Committee, such dispute would be settled pursuant to the Settlement of Labour Disputes Law, although the SEZ Law currently referred to the repealed Trade Disputes Act. The right to freedom of association in Myanmar continued to be strengthened. With the political will of the Government, close tripartite cooperation, technical assistance of the ILO and the support of the international partners, the speaker was confident that workers and employers would increasingly be able to enjoy their fundamental rights, and that such progress would eventually lead to decent work and sustainable development.

The Worker members recalled the circumstances under which the case of Myanmar had last been discussed in the Committee in 2011 and considered that much had changed since then: the Labour Organization Law and the implementation regulations had been enacted; independent unions had been allowed to form and carry out activities for the first time in decades; the Federation of Trade Unions of Burma (FTUB) had returned home from exile, had begun to organize thousands of workers and obtained registration as the Confederation of Trade Unions of Myanmar (CTUM); and trade unionists had been released from prison and had continued their union activities. However, despite such important steps, the situation for unionists was deteriorating and many serious issues remained. Although unions had welcomed the Government’s decision to amend the Labour Organization Law and the Settlement of Labour Disputes Law, a draft of the Labour Organization Law prepared by the MOLIP failed to address most of the concerns raised by the Committee of Experts and the International Trade Union Confederation (ITUC) and was worse than existing laws in several respects. Furthermore, completed applications for union registration had been denied for arbitrary reasons or on the basis of unpublished Government directives. In some cases, the police had violated workers’ civil liberties, including through physical harassment or arrest, in response to the exercise of trade union rights, including strikes. Workers attempting to organize were routinely fired with impunity due to a broken dispute resolution system, and blacklisting was a common practice in the industrial zones. With regard to legislation, they stated that since the Government had ignored much of the technical advice of the ILO, the Labour Organization Law restricted the fundamental rights of workers’ and employers’ organizations, as had been repeatedly confirmed by the Committee of Experts. The following concerns were raised: the minimum membership requirement of 30 workers to form a basic labour organization combined with the additional support of 10 per cent of the workplace was too high, particularly in large workplaces; a requirement for labour organizations at all levels to be composed only of workers of the same trade or activity had limited the ability of unions to determine their own membership, and a narrow interpretation of the terms “trade” and “activity” had led to narrowly defined unions; union structure was strictly organized and mirrored the administrative structures of the Government leading to workers being unable to form unions that corresponded to their needs; burdensome requirements for the formation of higher-level organizations; restrictions on the eligibility of executive committee members who must be Myanmar citizens or foreigners legally residing in the country for at least five years, 21 years of age, and workers in the relevant trade or activity for at least six months; a prohibition on strikes without first proceeding through the steps of the dispute resolution mechanisms thus limiting strikes to industrial disputes and prohibiting sympathy strikes and strikes over economic and social policy; and a list of workplaces in the law where a 500-yard perimeter must be respected, which could render ineffective the strike by locating it far from the employer. While the Government had initiated a process to reform the Labour Organization Law and the Settlement of Labour Disputes Law, the numerous tripartite meetings over the past year and a half had been superficial, had not led to meaningful progress, and it was clear from the Government’s statements and its draft proposals that it had no intention of addressing workers’ concerns or complying with the Convention. Although a later draft of the Labour Organization Law withdrew the minimum membership number to form a union, it failed to address many other concerns and created several new problems. In particular, the draft excluded informal economy workers, which would lead to the dissolution of the majority of unions in the country (unions of self-employed agricultural workers); provided that there could be no more than three basic unions in a trade; kept the rigid trade union structure, and established overly high minimum numbers to form higher level unions; provided for “acknowledgment” of trade unions instead of registration, which would only last two years and would have to be renewed; created new and illegitimate reasons for the chief registrar to deregister unions; and included a new and expansive provision on interfering with or obstructing workers from coming to work which could be easily used to frustrate strikes. The Government must therefore engage in a meaningful process of consultations with workers and employers and should request the ILO to provide detailed comments on the drafts to assist it in developing amendments that would bring the laws into compliance with the Convention.

With regard to registration, it was stated that despite clear rules about registration requirements, registrar officials had denied complete applications for arbitrary reasons, referring in some cases to “directives” from the Ministry which contained additional registration requirements, without however providing them to the unions and claiming that they were not public. According to unionists, the directives required, for instance: all executive committee members to submit their curriculum vitae; all union members to submit photocopies of identification cards (many workers were unable to obtain government-issued identification cards); and the union to obtain a letter from the employer acknowledging that it had informed the management of its intent to register, thus giving employers the ability to veto the union’s registration by withholding the letter. More recently, unions had reported a supposed requirement to obtain signatures and photocopies of identification cards from at least 10 per cent of the workforce who were not union members so as to show their support for union formation, thus distorting section 4 of the Labour Organization Law (itself in violation of the Convention) and giving non-union members a veto. Such new and secret requirements clearly frustrated what should be a simple, administrative process. The Government must prohibit registrars from requesting anything beyond the Labour Organization Law and its regulations, and if the abovementioned directives did in fact exist, they should be withdrawn immediately. Turning to the issue of strikes, the Worker members noted that in addition to the obvious flaws in the legal framework governing strikes, workers had been unable to exercise their right to strike freely, and had often faced dismissal, harassment and lawsuits for raising workplace concerns. For example, a strike had been staged by union members at a sock factory in Industrial Zone 3 in January 2018 after the employer’s refusal to reach a collective agreement which had responded to the union’s demands. Even though the arbitration body to which the dispute had been submitted had ordered the employer to sign the agreement and negotiate over the remaining issues, the employer had dismissed the 48 workers involved in the strike, filed a lawsuit against 13 of the strike leaders and subsequently dismissed another 25 workers. In other cases, workers had been arrested or threatened with legal proceedings for their role in strikes or had reported threats by the police, security guards or employer-hired thugs, sometimes leading to serious injuries. In most cases, law enforcement officers took no action in response to such attacks, complaints submitted to the police were often not accepted and such an approach had become a normalized way of dealing with unions. Concerning deregistration, the Worker members had been informed that labour officials in some areas had ordered union leaders to report to their offices every Sunday, as failure to do so could result in the union’s de-registration. Such a requirement constituted serious interference in trade union activity and would infringe upon workers’ ability to conduct union activities, and deregistration in those circumstances would constitute an extremely serious violation of freedom of association.

The Employer members recalled that the fundamental Convention had been ratified by Myanmar in 1955, and that its application had been the subject of 18 discussions in the Conference Committee and 26 observations by the Committee of Experts. Myanmar was in the process of re-establishing a democratic system of government after many years of military rule. As part of the process, legislation had been adopted on a range of issues within the purview of the Convention, for instance the Law on the Right to Peaceful Assembly and Peaceful Procession. Since the advances were relatively new, there had been limited ability to assess their effectiveness and compliance with the Convention, as reflected in the report of the Committee of Experts. Nonetheless, the Employer members noted that the Committee of Experts had raised the following issues bearing the potential for breaches to occur: (i) one possibility that the chapter on Rules and the corresponding chapter on Offences and Penalties of the Law on the Right to Peaceful Assembly and Peaceful Procession could allow for serious restrictions on the right of organizations to carry out their activities without interference, as contemplated by Article 3 of the Convention; (ii) the lack of information on the labour law reform process seeking to address potentially onerous and non-compliant requirements for the establishment of trade unions, restrictive eligibility criteria for union officials and a residency threshold for foreign workers to be able to join a union; and (iii) a lack of guaranteed coverage of the Convention for workers in SEZs. In that regard, the Employer members observed that the Government had assured the Committee of Experts that its new Law on the Right to Peaceful Assembly and Peaceful Procession was in full conformity with the Convention, requiring only 24-hour advance notification and repealing sanction provisions. However, they noted that the Committee of Experts continued to express the concern that the law might still permit serious restrictions on the right of organizations to conduct their activities without interference. With respect to the labour law reform process, a draft law to amend the Settlement of Labour Disputes Law had been discussed with the tripartite partners at the Labour Law Reform Technical Working Group in July 2017. While noting the Government’s indication that it was reviewing the penalties in the draft law and drafting amendments, the Employer members also noted the concerns of the social partners over the lack of information from the Government about the process and over instances of resistance to making amendments. It had led to fears that the result might be worse than the current situation, in particular in view of the Government’s reluctance to grant informal workers the right to organize, despite the fact that thousands had already formed unions under the Labour Organization Law.

Furthermore, the Committee of Experts had expressed concern over threshold requirements for unions to have 30 members as well as 10 per cent affiliation in the same trade or activity before being able to establish a basic labour organization, the eligibility requirement for union officials to have been working in the same trade or activity for six months and the requirement for foreign workers to be resident in the country for five years to be able to join a union. Subject to the caveat that certain threshold criteria were appropriate, for instance the basic criteria to establish any incorporated body, the Employer members endorsed the latest request formulated by the Committee of Experts in that regard, since dual or overly restrictive criteria could have the effect of inhibiting the freedom to form and join organizations and to elect representatives as provided in Article 3 of the Convention. Emphasizing also that the Convention applied equally to workers’ and employers’ organizations, they suggested that unions should not be treated differently to employers’ organizations with respect to the freedom to establish organizations. The Employer members further recalled the 2015 Government’s statement, which recognized that the right to strike was a matter for national regulation. With respect to SEZs, concerns had been expressed around the fact that dispute procedures for workers in SEZs were more cumbersome than for other workers, and that labour inspector powers had been delegated to SEZ management bodies. In response, the Government had indicated that the labour inspectorate was permitted to coordinate and cooperate with SEZ management to have jurisdiction, and that the Labour Organization Law could be enforced in SEZs. The Employer members echoed the request of the Committee of Experts that the Government take the necessary steps to ensure that SEZ workers were treated in the same way as other workers as well as provide information on the actual practice of dispute settlement and the results of labour inspectorate activities in SEZs. The Employer members believed that the current situation in Myanmar could be described as one of concern that things might go wrong rather than of certainty that things had gone wrong. In many ways, Myanmar was standing at a new beginning, which rendered the task of establishing labour laws in conformity with international standards all the larger. It was time to consider carefully and thoughtfully how the future should look with respect to labour relations, using a careful and highly consultative approach that involved all the social partners and took into account independent expert advice from the ILO when appropriate. They noted that, in February 2018, the ILO had briefed Parliament and the tripartite constituents on the application of international labour standards in Myanmar, with a view to gathering support for the development of a strategic approach on promoting international labour standards for the upcoming Decent Work Country Programme. The subsequently developed proposals were now under consideration. In conclusion, in the Employer members’ view, nothing was too late at the present juncture. It was the right moment for the Government to take heed of the concerns expressed by the Committee of Experts and the Conference Committee, and to collaborate with the social partners in the development of a sound platform for the conduct of labour relations. The Employer members therefore urged the Government: (i) to continue to avail itself of the expertise and technical assistance of the ILO with a view to completing the development and introduction of labour laws in line with the explicit standards and guarantees set out in the Convention; (ii) to consult with the social partners with the aim of ensuring that workers were able to elect their officers freely as envisaged by Article 3 of the Convention; (iii) to apply the Convention without distinction between workers’ and employers’ organizations; and (iv) to provide information, as soon as it was available, on the steps taken to ensure that SEZ workers were treated in the same way as other workers as well as on the actual practice of dispute settlement and the results of the labour inspectorate activities in SEZs.

The Worker member of Myanmar expressed the hope that with the significant changes recently implemented, including the enactment of the Labour Organization Law, Myanmar would enter a new era, where workers would enjoy their trade union rights in full freedom and would be included in the economic and social development of the country. Workers were still struggling for the development of an independent and strong labour movement, and organizing in the country remained severely hindered by major shortcomings in the legislation and the lack of an enabling environment. The Labour Organization Law contained numerous provisions that hindered union formation and registration by setting excessive requirements and thresholds. It also interfered with the right of workers’ organizations to elect their officers freely and to formulate their programmes and activities. In practice, trade union density remained extremely low, and workers were deprived of their fundamental right to organize and defend their interests. In the absence of protection against anti-union discrimination, many workers who had formed or joined labour unions had subsequently been dismissed or subjected to other forms of reprisal by their employers. Furthermore, workers and unions were prohibited from taking industrial action. The Labour Organization Law required that a majority of workers voted for strike action to be undertaken, a threshold that excessively restricted the exercise of industrial action. In addition, permission from the relevant federation to go on strike was required, which was a severe infringement of unions’ right to organize their activities freely. Even when a strike action was staged, its impact was severely hampered by the 500-yard picketing restriction, as demonstrations were prohibited within 500 yards from hospitals, schools, religious buildings, airports, railways, bus terminals, ports or diplomatic missions and military or police installations.

The 2018 series of amendments to the Law on the Right to Peaceful Assembly and Peaceful Procession, as passed by the Upper House, had been denounced by labour and human rights organizations. Among the many contentious provisions, a new section provided that anyone who supported a protest either financially, materially or through other means would be deemed in breach of national security, the rule of law, public order, or public moral, and could face up to three-year imprisonment and a fine. Such a vague formulation could be used by the authorities to curb industrial action and suppress unions. The previous law had already been used to arrest and jail students, farmers, journalists and other activists. The Committee of Experts had repeatedly emphasized the need to bring the national legislation into full conformity with the principles and rights enshrined in the Convention; but the Government had failed to take into account the concerns raised. In fact, the amendments proposed by the Government to the Labour Organization Law and the Settlement of Labour Disputes Law would further restrict freedom of association and trade union rights. The last draft proposal maintained a strict control over the formation of unions, which would only be “acknowledged” and not registered, and also increased the powers of the chief registrar to deregister unions. Myanmar had been undergoing a major political transformation, while opening the country to investments which fostered economic development. It was crucial to ensure that workers were included from the start in the process of structuring the economic change in the country, and a solid labour movement led by independent and strong unions was therefore necessary. Such changes could only be achieved in an environment conducive to the exercise of the right to freedom of association. The current legislative framework highly restricted trade union rights, and it appeared that the draft amendments proposed by the Government would not improve the situation. To implement the decision of the ILO Governing Body urging the Government to further engage in the process of the labour law reform to promote freedom of association through tripartite dialogue, it was important that the ILO renew the related project and provide support to all the tripartite partners. In conclusion, she urged the Government to engage in a meaningful and constructive process of consultations with workers and employers, and to amend the current labour laws in a way that would guarantee to all workers the right to freedom of association and the right to organize freely.

The Employer member of Myanmar highlighted the significant growth of the private sector over the last five years. The private sector of Myanmar was a major contributor to the gross domestic product (GDP) of the country. Over the past years, the country had experienced a steady GDP growth pattern (5.9 per cent in 2016; 6.4 per cent in 2017; and a 6.8 per cent forecast for 2018). The growth constituted evidence of employment creation, productivity output and harmonized co-operation between employers and workers. In recent years, hundreds of thousands of new jobs had been created by the private sector. In the labour-intensive manufacturing sector alone, the jobs created had doubled from 2013 (approximately 200,000) to date (over 400,000). Moreover, according to the 2017 Annual Labour Force Survey, child labour participation in the workforce had decreased significantly, thanks to the tripartite partners. Recently, the Government had developed the Myanmar Sustainable Development Plan, in line with the national economic policy as well as the Sustainable Development Goals (SDGs), which aimed at ensuring inclusive and sustained growth of the country and its people. In that context, the private sector had been identified as a prominent contributor to the development of the country. She considered that the Labour Organization Law, which provided for the establishment of labour organizations as well as their rights and responsibilities, was in line with the Convention. In her view, the country knew best the needs of the society based on the culture and customs of the country, and the Conference Committee should not be micro-managing national legislation. After all, Article 8 of the Convention clearly stated that, in exercising the rights provided for in the Convention, workers and employers and their respective organizations, like other persons or organized collectivities, should respect the law of the land. The speaker indicated that employers, workers and the Government had been meeting for the tenth time since 2015 during the National Tripartite Dialogue Forum, openly discussing the needed reforms of the laws, based on reality and practice. The Government’s proposed revision to the Labour Organization Law included a new chapter on the formation of employers’ organizations, which represented a positive step. To date, there was only one township-level employers’ organization and one employer federation in the whole country.

Regarding the Committee of Experts’ observations on penalties, she noted that the issue should not be limited to penalty levels and penalties against employers. The lack of significant penalties to deter illegal activities of unions had a significant, negative impact on industrial peace in Myanmar. While noting the right of workers under national law to engage in legal industrial action, she stated that union members had repeatedly carried out strikes using illegal tactics, such as fully blocking the entrance to factories, in violation of national law and international best practice. Such actions inevitably had resulted in physical confrontation, including instances where unionists had assaulted factory management and other non-union workers. Violations of the Labour Organization Law and regulations on strikes were also observed. She called on the Government to devise, through tripartite dialogue, ways and solutions to deter such actions, or else industrial relations and the rule of law would be undermined. The anarchy currently characterizing industrial action was not in accordance with national law and not conducive to positive labour relations. Illegal industrial action was detrimental to current and potential foreign investment and could negatively affect job creation. Moreover, she denounced the repeated calls by national trade unions during labour law reform meetings for prison sentences against employers for minor, administrative labour law infractions, contrary to the recommendations of the ILO supervisory bodies. A punitive system of labour relations would be unhelpful to the promotion of harmonious labour relations. Furthermore, she highlighted the lack of employer confidence in the arbitration system. Although it was created for collective disputes and even though the law stated clearly that individual cases were for the competent courts, the Government insisted on sending individual cases to the arbitration system (currently over 80 per cent of the total number of cases). Tripartite dialogue on establishing a proper dispute resolution system had taken place but results remained uncertain. Arbitrators were not required to have a legal background and, at the conciliation and first arbitration phase, members of unions and employers’ organizations could act as conciliator or arbitrator themselves. The lack of knowledge and conflicts of interest often yielded verdicts that were clearly against the law and undermined employer confidence in the arbitration system. Lastly, she indicated that, under the Factories Act, only two types of businesses were regulated: continuous work where the law allowed for 48 working hours in a week (eight industries) and non-continuous work with 44 hours per week (all other industries). Such rigid working hours were not in tune with the flexibility needs of the newly developed industries (such as the security service, oil and gas, garment, and food processing industry) and rendered them uncompetitive. In conclusion, she emphasized that, for a young democracy like Myanmar, the journey was long, and it would undoubtedly take time to get where all stakeholders wanted to be. The social partners needed to work together constructively.

The Government member of Bulgaria speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Montenegro, Norway and Serbia, attached great importance to the respect, protection and fulfilment of human rights, including freedom of association of workers and employers and the right to organize, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The EU and its Member States were engaged in the promotion of the universal ratification and implementation of the eight fundamental Conventions. The speaker welcomed the positive steps made by the Government to improve labour rights in a number of areas. The ILO’s involvement was also welcomed, particularly with respect to the recent development of a Decent Work Country Programme outline which included freedom of association as a priority. It should be implemented swiftly. Together with the Governments of Denmark, Japan and the United States, as well as with the ILO, the EU had actively provided support for the Myanmar Labour Rights Initiative to Promote Fundamental Labour Rights and Practices, notably through funding the last Stakeholders’ Forum which had taken place in Nay Pyi Taw on 17 January 2018 to discuss the progress and challenges in labour market reforms including labour law reform. In view of the constructive dialogue on the way forward during the event, the speaker reiterated the need for the Government to continue its efforts to bring national law in line with international labour standards, to foster tripartite dialogue, and to ensure freedom of association. Noting with interest that tripartite dialogue was being strengthened through the National Tripartite Dialogue Forum, she encouraged the Government to finalize the Labour Organization Law in consultation with the social partners. Observing that the first draft amendment to the Settlement of Labour Disputes Law had been discussed on the basis of tripartite consultations in July 2017, she encouraged the Government to move forward with the reform process in close consultation with the social partners. With reference to the concerns raised about some provisions in the Rules to the Labour Organization Law which included restrictions on eligibility to trade union office, and a requirement for the affiliation of 10 per cent of the workers in order to establish a basic labour organization, she requested the Government to take measures to amend the Rules to ensure that workers were able to elect their officers freely, and to form and join organizations of their own choosing. Lastly, the Government was requested to ensure that the rights under the Convention were also guaranteed in SEZs, where specific laws might apply. The EU would remain committed to close and constructive engagement and partnership with the Government.

The Government member of Thailand speaking on behalf of the Association of Southeast Asian Nations (ASEAN), recognized the positive developments in the country, including the demographic reform process, and noted with appreciation the information provided by the Government. The ILO had provided technical assistance on the promotion and protection of labour rights, and tangible results had been achieved in that regard. Moreover, the Decent Work Country Programme outline endorsed by the national tripartite body would be implemented. He called upon the ILO to recognize the abovementioned positive developments.

An observer representing the IndustriALL Global Union emphasized that the Labour Organization Law deprived workers of their right to establish and join organizations of their own choosing. Section 4 of the Labour Organization Law imposed restrictions on the structure of trade unions, required that workers worked in the same trade or activity to form a union, and set strict requirements to form higher-level organizations. With respect to the restrictions related to the structure of trade unions, section 4 of the Labour Organization Law required unions to strictly follow the administrative structure of the country. Specifically, unions could only be formed as: (i) basic level unions that covered a single workplace; (ii) township level unions which brought together unions in the same township; (iii) regional or state-level unions, comprised of township unions; (iv) federations formed of state-level unions; and (v) confederations. Under that scheme, it was impossible for example to create an enterprise-based union, if the employer was in more than one township. Instead, each workplace of that employer would have a separate union. It was also impossible to form an industry or occupational union at the national level, without having created intermediate structures such as township and state-level unions. This pyramidal structure did not serve the interests of workers or employers. The requirement that workers be in the “same trade or activity” to form a union, created silos from bottom to top. As a result, unions could not be formed among workers in similar or even unrelated “trades or activities”. Moreover, registrars had narrowly interpreted the law and regulations. For example, workers in the transport sector had been forced to form separate unions for truck drivers, train drivers, inland waterways, taxis, etc. It had led to the creation of basic township unions of workers from the same township performing the same task. With regard to higher level organizations, township unions could only form a state-level union of workers performing the same task. Similarly, federations were made up of state-level unions of workers performing the same activities. There could be no structure representing workers of different trades or activities. The Committee on Freedom of Association had held that any restriction, either direct or indirect, on the right of unions to establish and join associations of unions belonging to the same or different trades, on a regional basis, would not be in conformity with the principles of freedom of association. Finally, she urged the Government to rethink the system, together with the unions, so as to ensure respect for the workers’ right to freedom of association.

The Government member of Switzerland supported the statement made by the EU. Regarding the right to peaceful assembly and demonstration, he encouraged the Government to make amendments reducing restrictions on the right to assembly and welcomed the consultations with the social partners led by the Government with regard to the Settlement of Labour Disputes Law. Labour relations based on a smoothly functioning social partnership and confidence in social dialogue were a key factor for sustainable economic development. Freedom of association and protection of the right to organize and collective bargaining formed part of the foundations of a democracy and laid the groundwork for negotiations between the social partners in other areas. He therefore called on the Government to consider ratifying the other fundamental Conventions. He encouraged the Government to take the necessary steps to ensure that the new Law on the Right to Peaceful Assembly and Peaceful Procession was fully aligned with the provisions of the Convention and that the process of labour legislation reform was undertaken in collaboration with the social partners and conformed to international standards. Offering his Government’s expertise regarding the involvement of the social partners in important reforms, he expressed support for ILO cooperation projects in Myanmar that aimed to improve social dialogue in business.

The Worker member of Japan drew attention to the increasing discrimination against union leaders in Myanmar, which made it difficult for unions to organize or conduct activities and went against the core ILO principles of freedom of association and the right to organize. She reminded the Government of the Decision taken on the ‎‎follow-up to the resolution concerning remaining measures on the subject of Myanmar taken by the ILO Governing Body in March 2018, in which the Government had been urged to engage in the process of labour law reform to promote freedom of association through genuine and effective tripartite dialogue and in line with international labour standards. The reality of the trade union situation was bleak. Although the formation of unions had been progressing rapidly since the Labour Organization Law’s enactment, so had cases of union-busting and discrimination against trade union leaders, in clear violation of the Convention. Since 2017, the CTUM had reported 29 cases of unfair dismissal as a result of trade union organizing that had led to the termination of 3,424 union leaders and members. In many cases, the Arbitration Council had ordered their reinstatement; but to no avail. Moreover, multiple problems surrounded the dispute process: the arbitration process was time-consuming; fines provided by the Labour Organization Law for non-compliance with the Arbitration Council decisions were so low (amounting to US$750) that employers often opted to disregard them; employers’ failure to enforce agreements concluded with unions went unpunished, and as a result, many unfair dismissal cases reached the court as individual cases. In an environment where legal enforcement was weak and collective bargaining non-existent, workers could be subjected to criminal punishment for industrial actions. She requested the Government to take concrete measures to guarantee freedom of association, including the amendment of the Labour Organization Law and the Settlement of Labour Disputes Law, in order to protect trade union activists from employers’ discriminatory treatment and dismissals.

The Government member of the Bolivarian Republic of Venezuela welcomed the fact that the Government had reaffirmed its commitment to guaranteeing labour rights set within the context of political and economic changes in the country. Under the Labour Organization Law, trade unions and federations were being set up and registered increasingly more often. That trend should continue, given the commitment that the Government had made. In addition, a process of reforming labour legislation was under way on the basis of tripartite consultations. In that regard, he encouraged the Government to strengthen relations with social partners. The Committee should therefore take note of all the positive aspects arising from the clarifications provided, as well as of the Government’s goodwill, and should adopt objective and balanced conclusions. The Government would then be able to consider and assess those conclusions as it applied to the Convention.

An observer representing Building and Wood Workers International (BWI) speaking on behalf of the Building and Wood Workers Federation of Myanmar, stressed that the unions in the construction sector were discriminated against and referred to the specific situation of two unions. First, a union created in a Special Economic Zone had been denied its registration application on the ground that a special order from the Ministry of Labour, Immigration and Population had been issued to deny registrations from unions in the construction sector. Officers of the Ministry had argued that the country was not ready for the registration of unions in the informal economy. The second case concerned the denial of a union’s registration on the ground that the applicants had not been employed by the company for more than six months. The requirement was impossible to meet in the construction sector where work was intermittent and informal. In conclusion, he urged the Government to end discrimination against unions in the construction sector, and to stop using arguments such as informality and intermittence of the work to deny registrations. In particular, the legal requirement of the six months of service had to be lifted.

The Government member of the United States indicated that although union density remained low, since the 2011 enactment of the Labour Organization Law, more than 2,400 basic labour organizations had been registered at various levels specified in the law. Still, according to the ILO Liaison Officer, restrictions on freedom of association continued in both law and practice. The Government and the social partners had committed to reform the Labour Organization Law and the Settlement of Labour Disputes Law of 2012, and a Technical Working Group on Labour Law Reform had been established and convened to hold tripartite consultations on potential amendments. However, the amendments circulated by the Government in September 2017, while lifting some restrictions on the formation of workers’ and employers’ organizations, would not address the issue of lowering the minimum membership requirements for basic labour organizations and removing the eligibility requirements for executive committee members. Furthermore, the following issues were also raised: the slowing down of the registration rate of trade unions; the imposition of registration requirements not set out in the law by some local labour offices, thus frustrating trade union registration; reprisals against workers during and after union formation, as well as the lack of penalties against violating employers; the low number of registered employers’ organizations (27 basic employers’ organizations, one township organization and one employers’ federation); and low organizational density amongst employers, partly caused by structural restrictions in the law, that inhibited the growth of strong industrial relations in the country. The Government was therefore urged to take full advantage of the tripartite consultative process on labour law reform to bring the laws into compliance with the Convention, in full consultation with the social partners, and in particular to: reduce the minimum membership threshold; remove eligibility requirements for executive committee membership; protect workers from unfair labour practices during trade union formation, including by prohibiting all forms of retaliation; revise the tiered structural requirements so that both workers’ and employers’ organizations could form and federate more freely; and ensure that penalties for non-compliance with the law were sufficiently dissuasive, including by explicitly prohibiting non-compliance with Arbitration Council decisions. To conclude, he urged the Government to enact legal reforms through tripartite consultations and encouraged the tripartite partners to avail themselves of ILO technical assistance in that regard.

The Worker member of the Republic of Korea speaking also on behalf of the Australian Council of Trade Unions and the Canadian Labour Congress, clarified that procedures for dispute settlement within the SEZs were more cumbersome because, although required by the SEZ Law, no procedure had been established for parties in a dispute to notify the Management Committee so that it could mediate. SEZs aimed to attract foreign investment, and the law offered incentives for export-oriented businesses. Many Korean companies were operating in the SEZs, and although no concrete information was available about working conditions, due to a denial of access for trade unionists, the numerous cases of violations by Korean companies of labour law and of freedom of association indicated that SEZs must be given special attention. For instance, in November 2017, unionized workers in a Yangon sock factory had gone on a 21-day strike to obtain the employer’s respect for labour law; the employer had not only disregarded the regional arbitration body’s award, but had also dismissed 73 workers and filed a lawsuit against 13 union leaders for leading the strike. In another instance at a wig factory, the arbitration body had ordered the reinstatement of the union president and a central committee member who had been dismissed; instead the employer had dismissed 60 union members and threatened to sue the workers for defamation and unlawful strike. The Government of the Republic of Korea had recently announced that, under its New Southern Policy, it would tighten economic ties with ASEAN countries, including Myanmar. She expressed concern that increased Korean investment would prove very harmful for Myanmar’s workers and would undermine fundamental labour rights. The ILO principles were clear: all workers should enjoy fundamental labour rights, including those working in SEZs. She urged the Government to take all necessary measures to fully guarantee rights enshrined in the Convention to workers in SEZs, and to ensure that the SEZ Law did not interfere with the application of other laws.

The Worker member of Turkey stated that in March 2018, the Upper House had approved amendments to the Law on the Right to Peaceful Assembly and Peaceful Procession which would include: a potential three-year jail term for anybody deemed to have supported, financially or otherwise, a protest that had the intention to “disrupt national security, rule of law, public order or public morals”; and a new obligation for those seeking permission to hold a rally to inform the relevant local authorities of how much money would be used to fund the gathering and who would fund it. Thousands of people had protested against the proposed changes, and some parliamentarians had considered that they would diminish protection for the rights of workers, farmers, ethnic groups, as well as the rights of citizens to protest against corruption. If adopted, the amendments would stifle freedom of expression and peaceful assembly and would mark a significant shrinking of democratic space in the country. The Government must therefore repeal or amend the Law. The right to free assembly and the right to strike were inalienable rights for workers and their families, including those that had been displaced. However, in practice, the Labour Organization Law had weakened the trade union movement, and support was therefore expressed for the call by the Worker members and the CTUM to amend the Labour Organization Law to ensure its compliance with the Convention on the right to strike. He also expressed solidarity with the Worker member of Myanmar regarding the goal to ensure that the right to organize was fully protected.

The Government representative indicated that he had carefully listened to all concerns, views and suggestions raised during the discussion, which would be brought back to the capital for due consideration with a view to ensuring better compliance with the Convention. The Convention had been ratified in 1955, but the Labour Organization Law had been adopted in 2011. Since then, more than 20,000 employers’ and workers’ organizations had been established. More organizations would mean more collective bargaining. As Myanmar continued to improve the Law on the Right to Peaceful Assembly and Peaceful Procession, it was heartening to note that tripartite spirit, which was the hallmark of the Committee, was taking root and developing in Myanmar. That should be viewed as progress. Based on a tripartite spirit, three Technical Working Groups relating to a Decent Work Country Programme, labour law reform and communication had been established. All suggestions received in the Committee would be discussed by the Labour Law Reform Technical Working Group. Three Stakeholder Forums on Labour Law Reform had also been held in 2015, 2016 and 2018, thanks to the Governments of Denmark, Japan and the United States, as well as the ILO. Local and international partners had participated to exchange views and experiences, and the forums had produced the intended outputs. The Labour Law Reform Technical Working Group and tripartite participants were constantly interacting. The achievements so far could be seen as a glass half empty or half full. A lot had been done compared to the labour law situation in the past, but more needed to be done for gradual progress towards compliance with the Convention. For that purpose, assistance from the international partners and technical cooperation from the ILO would be necessary with a view to achieving compliance with the Convention.

The Employer members indicated that fixing a threshold per se did not amount to a violation regarding the right to establish organizations. Many countries fixed thresholds for establishing organizations, and some even aligned the thresholds with those for forming enterprises. Many interventions had underlined, however, the cumbersome nature of the process of establishing organizations in Myanmar, due to additional and unnecessary thresholds. In that context, the Employer members also drew attention to the need to ensure equality between workers’ organizations and employers’ organizations as far as conditions for the establishment of organizations were concerned. On the other hand, the right of workers to establish organizations of their own choosing also involved the risk of creating a multitude of scattered unions, which would give rise to serious problems and would entail the need for a better organization of the trade union movement. In that regard, the Government must be mindful of lessons that could be learned from others. Furthermore, the Employer members stated that many interventions had referred to repressive activities concerning strikes, although the gatherings rather amounted to public protests. They wished to emphasize that the Law on the Right to Peaceful Assembly and Peaceful Procession was a general civil law applicable to all and not only to trade unions, whereas the Labour Organization Law and the Settlement of Labour Disputes Law were of a distinct nature and genuinely belonged to the area of labour legislation. The Employer members urged the Government to take heed of all requests related to labour legislation and the SEZs. In their view, Myanmar was still at the beginning of the implementation process. There were concerns, but as yet, nothing was broken to the extent that it could not be fixed. Social dialogue was the way forward, and Myanmar had the platform to succeed in this regard.

The Worker members stated, in reply to some of the comments made, that the question of trade union plurality was a challenge for workers in many countries, as there were different models and different solutions, but it was for the workers to decide on their own form of organization. The issue of the Law on the Right to Peaceful Assembly and Peaceful Procession was a question for democracy, democratic space and social movement, and organized labour unions formed part of it. They further indicated that starting in 2012, interest in investment in Myanmar had grown considerably, largely because the country had been (and continued to be) the world’s next low-cost manufacturing hub, with wages among the lowest in Asia. At the time, workers had warned that, in the absence of a demonstrated commitment to the rule of law and coherence in economic and social policy, there had been no guarantee that the generated employment would constitute decent work. Indeed, interest in foreign investment had waned, which was partly due to the poor legal environment for social dialogue and the absence of coherent labour relations policies and of the rule of law, particularly for workers. Since both employers and workers had agreed that the dispute settlement system was broken, more tripartite social dialogue was needed as the law was being reformulated. In March 2018, trade associations representing the major United States apparel and footwear brands had sent an urgent letter to the State Counsellor explaining that the potential to initiate, maintain, and expand business relationships in Myanmar would be greatly enhanced by the ability to engage with workers who enjoyed freedom of association and collective bargaining, and the ability to address any grievances through predictable, transparent channels, enforced by the Government, that had the confidence of all stakeholders. The brands had noted, however, that the existing labour laws were not fit for that purpose and that the Government had so far failed to enforce even those flawed laws. They had further found that factory managers had routinely intimidated workers, had urged them not to form unions and had called the police during work stoppages as an intimidation tactic to break strikes. Rather than following a high road development strategy, it would appear that Myanmar was racing to the bottom. The Worker members had expected much more from the Government. However, if it pursued truly authentic social dialogue that could be seen in results, put in place the proper laws and invested in developing a mature industrial relations strategy, Myanmar could still distinguish itself and attract more and more responsible businesses. Consequently, the Government was requested to: engage in meaningful dialogue with Worker and Employer representatives to ensure that the Labour Organization Law and the Settlement of Labour Disputes Law complied with the Convention; ensure that workers’ and employers’ organizations were able to register through a simple, administrative process – any directives containing additional requirements to those contained in the Labour Organization Law and its Rules should be withdrawn immediately, and all registrar officials should be instructed not to request any such additional documentation; ensure that workers were able to carry out their trade union activities without threat of violence or other violations of their civil liberties by the police or private security; address the shortcomings in law and practice regarding labour rights in the SEZs; accept a technical mission as soon as possible to develop an industrial relations system based on freedom of association and collective bargaining, including to review all drafts of the Labour Organization Law and Settlement of Labour Disputes Law; recommend amendments consistent with the Convention; and inform the Committee of Experts at its next session on the progress made in the implementation of the Convention in law and practice.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee regretted the absence of progress with respect to the long-awaited legal framework in which workers and employers may freely exercise their rights under the Convention.

Taking into account the Government’s submissions and the discussion that followed, the Committee urged the Government to:

- ensure that the Labour Organization Law and the Settlement of Labour Disputes Law are brought into full compliance with Convention No. 87 by availing itself of ILO technical assistance during the legislative reform process;

- ensure that workers are able to carry out their trade union activities without threat of violence or other violations of their civil liberties by police or private security;

- ensure that the registration of workers’ and employers’ organizations is not subject to unreasonable requirements to guarantee that the right to join or establish organizations of their own choosing is not hindered in practice;

- ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set forth in the law; and

- bring the labour legislation in Special Economic Zones (SEZs) into conformity with Convention No. 87, with full consultation of the social partners.

The Committee urged the Government to accept a direct contacts mission before the next International Labour Conference and to report on progress made on the above mentioned recommendations to the Committee of Experts for its meeting in November 2018.

The Government representative took the opportunity to thank his country’s international partners which had engaged in the discussions and expressed gratitude for their readiness to provide assistance to Myanmar in its efforts to ensure compliance with the Convention. He further indicated his Government’s intention to work closely with the ILO in order to advance with the Convention’s implementation as completely as possible and as quickly as possible.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative stated that a legal reform was currently under way in order to bring the national legislation in line with international legal instruments to which Myanmar was a party. One of the new laws under consideration by the Parliament in this process was the draft Labour Organizations Law. The Attorney General and the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) were involved in the drafting process. ILO’s technical advice had been sought on multiple occasions. Through this process, every effort was made to bring the law in conformity with the Convention. He indicated that, once the drafting process was completed, the text would be shared with the ILO on a confidential basis, while it would be promptly submitted to the Parliament. The speaker indicated that in Myanmar there were many social organizations and they were allowed to organize, assemble, march and make public talks. For example, workers of Weng Hong Hunt and Opal garment factories and Taiyi shoes factory had staged strikes in February 2010. The workers’ demands had been met through tripartite meetings. The Government had not prohibited anything nor taken any punitive action against anyone. This demonstrated that the rights of civil liberties and freedom of association were not hampered or violated.

As regards Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Min and Myo Min, the speaker stated that they had never worked in any factories or other establishments and were neither workers nor trade unionists. Action had been taken against them for their violation of existing laws. They had been tried in a fair manner while respecting their rights to a lawyer, presenting supporting witnesses, and cross examination by their lawyers. Detailed information would be provided to the Committee of Experts. He also mentioned that, since 1988, the Government had granted amnesty on five occasions, including the one given under section 204(b) of the Constitution, and had suspended the execution of sentences 11 times in accordance with the Criminal Procedure Section 401(1). As a result, 114,950 persons had been released and capital punishments had not been carried out to date. Prisoners had the opportunity to suspend their sentences and to be released early on the basis of good conduct.

The 2008 Constitution guaranteed, under section 354, citizens’ rights, including freedom of expression, assembly and association. It was believed that this section was in line with the Convention. President U Thein Sein had indicated, in his inaugural address on 30 March 2011, that the Government was determined to improve the living conditions of workers. He also indicated that laws on employment opportunities and the safeguarding of rights of workers would be reviewed in order to bring them in line with today’s needs, circumstances and commitments. He concluded by stating that much remained to be done, but immediate efforts would be undertaken to fully implement the Convention.

The Employer members recalled that Myanmar had ratified this Convention 56 years ago, that this case had been discussed 14 times by the Conference Committee since 1992, and that there had been 21 observations made by the Committee of Experts on the application of this Convention by Myanmar. Last year, the Government representative had admitted that there were no trade unions in Myanmar. The conclusions of the Conference Committee highlighted the gravity of the allegations made. There were fundamental divergences between the requirements of the Convention and the law and practice in the country: free and independent trade unions did not yet exist. They noted the new element in the Government representative’s statement, i.e. the draft labour organization law, but regretted that no indication was given as to its content. With regard to the complaint filed under article 26 of the ILO Constitution by Workers’ delegates in June 2010, and the examination by the Governing Body of the possibility of the creation of a Commission of Inquiry on the non-observance by Myanmar of this Convention, the Employer members recalled the position of the Employers’ group in the Governing Body which had considered it more appropriate first to ask the Government to provide more information on the allegations contained in the complaint. They deplored that the Government missed, today, the opportunity to provide such information.

Noting the numerous examples given in the report of the Committee of Experts of union activists and sympathizers sentenced to lengthy prison terms, the Employer member recalled their statement made two years ago that respect for the right to life and other civil liberties was a fundamental prerequisite for the exercise of the rights contained in the Convention. Moreover, the Committee of Experts’ observations highlighted several legislative provisions which restricted or prohibited freedom of association. Freedom of assembly and speech were not permitted. Making reference to this year’s discussion on the application of the Forced Labour Convention, 1930 (No. 29), by Myanmar, they concluded that the Government was very far away from drafting and enacting legislation in line with the Convention, much less implementing it in law and practice. In the absence of action from the Government, this case was a continued failure to implement.

The Worker members said that the same discussion had been repeated for the past 20 years. The Committee of Experts reiterated, with regret, the same observation, the Government reiterated without regret the same replies, which were off the subject, and the Conference Committee continued to regret the murders, arrests of trade unionists and multiple other violations of freedom of association. The report of the Committee of Experts once again contained an extensive, but not exhaustive list of persons who had been murdered, detained or tortured for absolutely ordinary trade union activities, such as speeches made on socio-economic issues or the mere communication of information to the trade union movement. For each person cited, the fundamental rights and essential civil liberties provided for in the Convention, had been violated by the authorities. In such cases, there was no special complaints mechanism, as for forced labour. That was when the regime showed its real face. Each time, the same excuses were trotted out, such as the commission of illegal acts, the existence of terrorist organizations or interference in the country’s internal affairs. While, in accordance with Article 8 of the Convention, trade unions had to respect the law, the same Article provided that the law of the land shall not be such as to impair the guarantees provided for in this Convention. Over recent years, the Conference Committee had emphasized the intrinsic links between freedom of association and democracy. However, the Government had proceeded to hold elections without establishing the basic conditions necessary for reliable elections, namely freedom of association, including the right to organize. Indeed, there was still no legal basis for the right to organize in Burma/Myanmar. The new Constitution made the right of association subject to “the laws, enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality”. Furthermore, several legislative provisions contained important restrictions on the right to organize. Order No. 6/88 required permission for the establishment of any organization. Order No. 2/88 prohibited the gathering, walking or marching in procession by a group of five or more people. The Unlawful Association Act of 1908 provided for prison sentences. The 1926 Trade Union Act made the recognition of trade unions subject to membership by 50 per cent of the workers concerned. Finally, the 1964 Act established a compulsory system for the representation of workers and imposed a single trade union. Last year, the Government had indicated that the Orders and the Unlawful Association Act would be repealed after the elections in 2010 and that new legislation on trade unions was being prepared. The Government had just repeated that statement. However, none of the announced measures had been adopted. Declaration 1/2006, which qualified the Federation of Trade Unions of Burma (FTUB) as a terrorist organization, had not been repealed and the repression of seafarers for exercising freedom of association was continuing, including abroad. There was still no tangible information on the new legislation on labour organizations, which would be in conformity with the principles of the Convention. In short, there was still no freedom of association in Burma/Myanmar.

The Government member of Hungary, speaking on behalf of the Governments of Member States of the European Union (EU) attending the Conference, as well as the candidate countries (Croatia, The former Yugoslav Republic of Macedonia, Montenegro and Iceland), the potential candidate countries (Albania, Bosnia and Herzegovina and Serbia), Norway, the Republic of Moldova, Armenia and Ukraine, acknowledged the commitment of the Government of Burma/Myanmar to respect the Convention and to cooperate with the ILO. She noted with deep regret, the serious allegations presented in the report of the Committee of Experts concerning the grave violations of human rights, murder, arbitrary arrest and long-term imprisonment of trade unionists for the exercise of ordinary trade union activities. Noting that it was estimated that there were still more than 2,000 political prisoners in the country, she renewed the call on the Government to release, without delay, all persons detained for exercising their fundamental human rights, including freedom of expression and freedom of association. The speaker welcomed the visit to the country of the ILO high-level mission in February 2011, and took note of the presentation of a draft labour organization law, encouraging the Government to provide a copy and to engage in meaningful consultations for its effective implementation. Revision of the national legislation with a view to complying with the Convention, should be a priority. Taking note of the recent information provided by the Government of Burma/Myanmar and the ILO high-level mission, the speaker was in favour of deferring the decision to appoint a Commission of Inquiry in light of further developments, including the continuation of the cooperation of the Government with the ILO.

The Government member of the United States recalled that the ILO supervisory bodies had used, on many occasions, the strongest language available to them to deplore the persistent failure of the Burmese Government to guarantee the fundamental and inalienable right to freedom of association. Free and independent trade unions still did not exist in Burma. Recalling the Government representative’s statement, during the special sitting on the application of the Forced Labour Convention, 1930 (No. 29), that there had been many recent changes in Burma as well as the expression by the Government of its renewed political will and firm commitment to cooperate with the ILO, she called on the Government of Burma to use these changes and new attitude to establish, at long last, the necessary legal basis for the respect for, and realization of, freedom of association and the right to organize. The speaker expressed the hope that the Government would soon adopt trade union legislation in line with the Convention and enforce it so that, in the future, workers would be able to exercise their rights to freedom of association without fear, intimidation and threats of violence. With reference to the deferred decision to establish a Commission of Inquiry to review Burma’s application of the Convention, the government action in response to the request by the Governing Body to transmit to the Office the draft law on labour organizations would be an important consideration for the Conference Committee and the Governing Body in November 2011. The speaker also called for the extension of the ILO presence in Burma so that it could provide advice and assistance in matters relating to the exercise of freedom of association.

The Worker member of Italy agreed with the Employer members that the Government of Burma missed the opportunity to provide the Conference Committee with adequate information on the changes implemented in the country. She deplored the fact that, despite having been ratified 56 years ago, the Convention was still not implemented in Burma. On 17 August 2010, the Government had declared that “the drafting process of legislation for the formation of workers’ organizations will be based on three pillars, namely, the new Constitution, the continued assistance and advice from the ILO standards department, and Convention No. 87 itself”. But, three days later, a decree allowed the firing and blacklisting of workers who launched or participated in industrial protests for better working conditions. This allowed the Burmese authorities to prevent industrial actions. In addition, the Government gave instructions with a view to forming committees to supervise workers, reducing the number of protests and demonstrations and not allowing the formation of labour unions. The speaker referred to the discussion by the Human Rights Council, of the outcome of Burma’s Universal Periodic Review of January 2011. The Government was buying time by serving the old story that Burma was a country in transition putting in place the requested changes. The basis for the Burmese legal order remained the highly flawed Constitution which could not enable the formation of independent trade unions. She called on the ILO Governing Body to establish a Commission of Inquiry on the violation of the right to freedom of association and the crimes committed by the military junta and the new Government. The Conference Committee should request the Government of Burma to change the Constitution, to establish, through open consultation, a new law allowing free trade union organizations and stating that nobody should be punished for exercising the rights of freedom of association, opinion and expression, and to give real signs of change as a matter of urgency, such as to free all prisoners of conscience, including labour activists. The first sign of change should be to withdraw the charges of terrorism against the FTUB and its General Secretary and to allow this organization to operate freely in Burma. The speaker called on the ILO to strengthen its action and to avoid falling in the trap of “wait and see” which the military regime used for years to avoid effective decisions by international institutions. She looked forward to the extension of the ILO presence to cover, in full cooperation with workers and employers, the matters related to the implementation of the Convention.

The Worker member of Sweden deplored the absolute non-compliance of the Burmese Government with the Convention and the high number of imprisonments, long jail sentences, killings, disappearances, arrests and torture of trade unionists and workers, all brutal testimony of the Government’s policy and action. The Committee on Freedom of Association and the Conference Committee had repeatedly recalled the serious cases of violation of the Convention by Burma. Presently, 54 workers’ representatives and labour activists were in jail. Workers in Burma knew the risks associated with trade union activity but they also knew that informing each other and the international community on such violations was crucial. She called on the military regime of Burma, firstly, to recognize the FTUB as a legitimate trade union and to secure its freedom to carry out its work without interference and, secondly, to change the Constitution so as to guarantee full freedom of association.

The Government member of the Russian Federation said that his country recognized that it was important for ILO Members to meet the international obligations that they had assumed. Myanmar had undertaken wide-reaching constitutional reforms. General elections had been held and its new parliament was functioning. The reforms had aimed in particular at granting trade unions fundamental rights. Those rights were enshrined in the new Constitution, and a new labour organization act would be adopted with a view to bringing legislation into line with the Convention. In that context, it was essential to strengthen cooperation between the Government and the ILO to ensure the success of the reforms undertaken throughout the country.

An observer representing the International Trade Union Confederation (ITUC), cited the case of a strike at the Tailor Garment Factory in the Hlaingtharyar industrial zone as well as the recommendation from the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) to its members not to recruit workers at higher wages as it could encourage claims in other factories leading to demonstrations, and underlined that these issues, attitude and practice were the same as those reported in his intervention in 2009. The notable difference was that the price of basic commodities had risen significantly since then while workers had no right to organize and to bargain collectively to obtain decent work. Orders Nos 2/88 and 6/88, the Unlawful Association Act and Declaration No. 1/2006 were still applied and 54 FTUB members and workers’ rights activists were still in detention. The fact that none of the six persons, the immediate release of whom the Conference Committee had requested in its 2010 conclusions, had been included in the so-called “amnesty” granted by the new Government, raised questions as to its attitude towards the ILO. Burma needed to reform in a comprehensive manner, the Constitution and the legislation in order for workers to be protected. In addition, workers needed to be provided with education on their rights. However, drafting a trade union law while 54 workers’ activists were in jail, would be totally unacceptable. The speaker called on the ILO, in consultation with the Worker members, to issue clear recommendations on time-bound steps the Government should take to meet its obligations. Enforcement actions should be prepared by the ILO to prevent further delays on the part of the Government. He called for the recognition of the FTUB as a legitimate trade union and considered it was time for a Commission of Inquiry to be established to verify the allegations of violations of fundamental rights in Burma, so as to provide the input for the needed changes in the country.

The Government member of Cuba reaffirmed her Government’s support for the principles of the Convention and observed that the statement by the Government of Myanmar illustrated the most recent efforts made by the country and its Government to implement the Convention. She considered that, in examining the case, the results achieved by the Government so far should be taken into account and recognized. They were the fruit of technical cooperation and bilateral dialogue between the Government and the ILO. She concluded by encouraging further technical cooperation, continued open and unconditional dialogue, and an appropriate analysis of the situation and internal conditions in the country, which would contribute to achieving the objectives set out in the Convention.

The Government member of Canada indicated that her country remained greatly frustrated and discouraged by the Government’s lack of commitment to address and rectify the serious allegations made against it. She joined the international community in calling for a transition to genuine democracy and, in this regard, strongly underlined the importance of freedom of association. No country can claim to aspire to the goals of the ILO, or to meet its commitments towards it, if its workers and employers cannot freely associate and discuss their rights. She called on the authorities of the country to immediately release all persons imprisoned for the exercise of trade union activities. In this regard, the regime’s action against persons exercising basic freedom of association rights ran contrary to its commitment to democracy and securing the rights associated with freedom of association. The speaker stated that Canada is anxiously awaiting the completion of the legislation to bring the trade union law in line with the Convention. The authorities should avail themselves of the ILO’s technical assistance by providing it with an opportunity to comment on the actual text of the draft legislation in order to ensure complete conformity with the Convention. Furthermore, the implementation of new legislation must be supported by a policy of active application if it is to have any real meaning. Finally, the speaker hoped to be informed in the near future of the authorities’ positive response to extend the ILO presence in the country with a view to covering matters related to the Convention and reiterated that the decision regarding the appointment of a Commission of Inquiry was postponed to November 2011 in order to assess progress and the extent to which the authorities had met their promise of early implementation and application of the new legislation, as well as the provision of a copy of the draft legislation to the ILO, and that Canada would be looking for serious progress to be reported in November.

The Worker member of Japan recalled that, despite the very serious discussions that had repeatedly taken place in the Conference Committee on this case, no concrete measures had been taken to enact legislation guaranteeing all workers the right to establish and join organizations of their own choosing, or to repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act. These being the pieces of legislation most seriously impairing the right to organize, there was no other way than to repeal them. The Constitution, on which the Government relied to give effect to the provisions of the Convention, had broad exclusion clauses in its controversial section 354 and should be amended to be brought in line with the Convention. A new law on freedom of association, enabling the creation of trade unions without previous authorization in all sectors, with the right to affiliate to federations, confederations and international organizations, should be adopted and its draft text should be discussed with the ILO, including its Bureau for Employers’ Activities (ACT/EMP) and its Bureau for Workers’ Activities (ACTRAV). The speaker recalled that the Committee on Freedom of Association had declared the FTUB a legitimate trade union, whereas the Government had qualified it, and its General Secretary, as terrorists. The Government should understand that the society was not sustainable without free and democratic trade unions and that genuine freedom of association could not be realized without civil liberties and respect for civil society. In view of the lack of progress on these issues for more than two decades, she called for additional and stronger measures, namely the appointment of a Commission of Inquiry on the issue of freedom of association, as well as an extension of the ILO presence in the country to cover matters related to the Convention.

The Government representative thanked the speakers who had made objective and constructive remarks on the implementation of the Convention by Myanmar. He reiterated the request that in future deliberations of the Committee, all delegates use the correct name of his country – the Republic of the Union of Myanmar – as recognized throughout the United Nations system. The statements alleging that persons associated to the Supplementary Understanding mechanism had been the subject of reprisals and that labour activists were detained due to their trade union activities were unfounded. Those arrests were solely based on the violation of existing laws. Although there was no particular law yet in place concerning labour organizations, the speaker asserted that the workers’ rights in Myanmar were not compromised, as illustrated by recent strikes, where tripartite meetings were held to find mutually acceptable solutions and no worker was apprehended. Finally, the Government representative pledged to continue to cooperate with the ILO in all aspects and called upon the international community to understand the practical constraints of the Government, to acknowledge its efforts and encourage constructive engagement with the ILO. He cautioned that any action that could possibly lead to coercive measures would be counterproductive.

The Worker members denounced anew, the murder, torture and detention of trade unionists for ordinary trade union activities. The Government had referred to the release of prisoners, but they had only been released at the end of their sentences. Furthermore, no trade unionist detained had been freed. Unless respect for fundamental civil liberties was re-established, continual violations of freedom of association, both in law and in practice, would occur for many years to come. In that regard, the Worker members reiterated their call for the Constitution, particularly section 354, to be amended; for orders and acts on so-called illegal associations to be repealed; and for the accusation of terrorism against the FTUB and its General Secretary to be retracted. Additionally, the Worker members once more called for instructions to be given to the authorities to cease all anti-union discrimination against seafarers and to revise the model agreement concerning Myanmar seafarers, to release Myo Aung Thant and all trade union activists and political prisoners who had exercised their rights to freedom of expression and association, and, in the meantime, to provide them with access to legal and medical assistance. Lastly, impunity for both acts of violence against trade unionists and the use of forced labour needed to end. New legislation on trade unions, both concise and simple, should be adopted. Such an act needed to recognize the right of both workers and employers freely to form organizations of their own choosing and to join those organizations. It should give organizations, including those in exile, the freedom to operate and to defend the interests of their members. By virtue of the principles laid down in the Convention, such legislation should not impose specific conditions on the exercise of freedom of association, providing only for a simple act of registration and prohibiting interference in organizations’ internal affairs. The Government had stated its willingness to work on a draft act behind closed doors, with support from the Office. The draft should, however, be prepared overtly, with respect for the principles of social dialogue arising from the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In order to make progress towards those goals, the Worker members proposed that all available ILO instruments and measures, both legal and practical, should be considered and implemented. A specific liaison officer should be named to examine complaints relating to the exercise of the rights enshrined in the Convention, and regular information on the liaison officer’s programme of work should be provided. In addition, a new Commission of Inquiry on the application of the Convention should be established, in accordance with the procedure set out in article 26 of the ILO Constitution.

The Employer members believed that, since no information had been supplied that would change the basis for the 2010 conclusions of the Committee on this case, the starting point for this year’s conclusions should be the 2010 conclusions. Two new elements should be added: (i) the Government should be requested to respond, as soon as possible but in time before the next session of the Governing Body (November 2011), to the allegations contained in the complaint submitted by Worker delegates in 2006, under article 26 of the ILO Constitution; and (ii) the Government should be requested to closely consult the ILO on the draft trade union legislation and to establish a timeline for its enactment, once it would have been verified by the ILO that the legislation was in conformity with the Convention. In this regard, the Employer members wished to highlight that the enactment of a law was not the end but rather the beginning. Once adopted, that trade union law would need to be implemented in law and in practice with access to an independent judiciary for enforcement. They remained sceptical about the condition of this case in spite of the change of Government and the new quasi-parliamentary system. There were no apparent indicators of change: there was no democracy, no tripartism, no civil liberties, no freedom of association, but rather a climate of fear, violence and intimidation. The Employer members reiterated their request to include the conclusions of this case in a special paragraph of the Committee’s report.

The Worker members supported the proposal made by the Employer members to include the conclusions of the present case in a special paragraph of the Committee’s report.

Conclusions

The Committee took note of the statement made by the Government representative and the detailed discussion that followed. The Committee also recalled that it had discussed this serious case on numerous occasions over the last two decades and that its conclusions had been listed in a special paragraph for continuous failure to implement the Convention since 1996.

The Committee took note of the commitment made by the Government representative that the Government would provide the draft labour organizations law to the ILO on a confidential basis once it was finalized. As regards the practical application of the Convention, the Government had repeated its previous statements that people were free to protest without fear and that the detained persons named in the Committee of Experts’ comments were not workers and their sentencing was totally unrelated to trade union rights.

The Committee observed that once again it had for discussion grave comments from the Committee of Experts who had been obliged to deplore that no progress had been made with respect to any of the outstanding areas of non-compliance with the Convention, nor were there any meaningful replies to the serious allegations of arrest, detention, long prison sentences, torture and denial of workers’ basic civil liberties.

The Committee deplored the long-standing absence of a legislative framework for the establishment of free and independent trade union organizations and took note of the article 26 complaint brought against the Government in June 2010 for non-observance of this Convention.

The Committee regretted that it had no detailed information on the draft legislation referred to by the Government, despite the assurances given last year that progress would be made in this regard following the elections in November 2010. In light of the information available to it, the Committee could only conclude that the Government remains very far away from drafting and enacting legislation in conformity with the Convention, much less implementing it. In addition, the Committee regretted that there were no mechanisms available in the country permitting complaints of serious violations of trade union rights such as those mentioned above.

The Committee once again urged the Government in the strongest terms to adopt immediately the necessary measures and mechanisms to ensure all workers and employers the rights provided for under the Convention. In this regard, it once again urged the Government to repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act and to ensure an effective constitutional and legislative framework for the full and effective exercise of trade union rights.

The Committee once again highlighted the intrinsic link between freedom of association and democracy and observed with regret that the Government still had not ensured the necessary environment for freedom of association that would give credibility to the stated transition to democracy. It therefore once again called upon the Government to take concrete steps to ensure the full and genuine participation of all sectors of society, regardless of their political views, in the review of the legislative framework and practice so as to bring them fully into line with the Convention without delay. It further recalled the importance for the effective application of the Convention of access to an independent judiciary for enforcement of the legislation.

The Committee emphasized that it was crucial that the Government take all necessary measures immediately to ensure a climate wherein workers and employers can exercise their freedom of association rights without fear, intimidation, threat or violence. The Committee continued to observe with extreme concern that the numerous detained persons referred to in previous discussions remained in prison, despite the calls for their release and without even benefiting from the recent wide amnesty granted by the Government. The Committee was therefore once again obliged to call upon the Government to ensure the immediate release of: Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights. The Committee once again recalled the recommendations made by the Committee of Experts and the Committee on Freedom of Association for the recognition of trade union organizations, including the Federation of Trade Unions of Burma and the Seafarers’ Union of Burma, and urged the Government immediately to put an end to the practice of persecuting workers or other persons for having contact with workers’ organizations, including those operating in exile.

The Committee further recalled the link between freedom of association and forced labour and reiterated its previous request to the Government to accept an extension of the ILO presence to cover the matters related to the Convention and to establish a complaints mechanism for violation of trade union rights.

The Committee urged the Government to transmit to the ILO the draft law referred to as well as a full reply to all matters raised in the article 26 complaint. It expected that the Government would also provide this information and a detailed report on the concrete measures taken and the adoption of a timeline for the enactment of the necessary legislation for examination by the Committee of Experts at its meeting this year. The Committee considered that it had been discussing this grave matter for far too long without any visible, meaningful and concrete progress. In view of its continuing frustration, the Committee urgently called upon the Government to take the steps that would enable the Governing Body to be in a position to observe significant progress on all the above matters at its November 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.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative stated that Myanmar was fully cognizant of its obligations under Convention No. 87. During the visit of the ILO Executive Director for Standards and Fundamental Principles and Rights at Work to Myanmar earlier in 2010, the Government Working Group had had the opportunity to discuss with the Deputy Director of the International Labour Standards Department matters relating to freedom of association, particularly in the process of drafting legislation for the formation of workers’ organizations. The drafting process would be based on three pillars: the new Constitution of Myanmar, continued assistance and advice from the International Labour Standards Department and the Convention itself.

Citizens’ rights were guaranteed in the new Constitution under Chapter VIII on Citizenship, Fundamental Rights and Duties of Citizens. Citizens’ rights included the right to express their convictions and opinions freely, the right to assemble peacefully and the right to form associations and organizations. There could be no doubt that workers’ organizations would soon come into existence once the new Constitution came into legal effect. Myanmar was in transition and was in the process of being transformed into a democratic society. Even at this critical juncture, all efforts were being made in order to lay the foundations for observance of Convention No. 87. After the elections scheduled for later in 2010, the Pyidaungsu Hluttaw (parliament, which would comprise two houses: Amyotha Hluttaw and Pyithu Hluttaw) would be formed. In accordance with the Constitution, draft legislation to implement the Convention would be presented to the Pyidaungsu Hluttaw. This was just a matter of time. In this legal process, promulgated laws that were not contrary to the Constitution would remain in force unless they were repealed or amended. The Constitution, as in all countries, was the supreme law of the land. This process, however, would not open the door to any unlawful association or terrorist organization. There was no place for them.

With regard to the alleged cases of grave violations mentioned by the Committee of Experts in its report, the Government had provided written information on previous occasions. The speaker reiterated that no one had been or was apprehended in Myanmar for their implicit or explicit exercise of rights that might derive from the Convention. However, the rights that might derive from the Convention could not be abused or used as a pretext to violate the law. Any person who violated the law would be dealt with according to the law.

In conclusion, the speaker noted that the situation of the observance of Convention No. 87 by Myanmar did not warrant any urgent attention by the ILO. It would be misleading to listen to some quarters that wanted to exploit the current, important political process of Myanmar to their advantage, for personal motives. The ILO should not be seen by the outside world as a platform to meet the political objectives of some on the pretext of workers’ rights. The speaker emphasized that the efforts by Myanmar to put in place domestic legislation that was in line with Convention No. 87 was not a question of “if”, it was just a matter of time.

The Worker members said that the same situation had been occurring without change for 20 years. The Committee of Experts expressed its regret at having to raise the same issues in its report, the Government repeated the same information and the Worker members were obliged to denounce murders, arrests of trade unionists and violations of freedom of association.

The Worker members indicated that they were once again under the obligation to list the persons arrested, imprisoned or murdered merely for having exercised trade union or political activities. Six workers, Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, had been sentenced to imprisonment for having participated in the 2007 May Day demonstration, and for their association with the Federation of Trade Unions of Burma (FTUB). The Committee on Freedom of Association had called for their release. A member of the Petro-Chemical Corporation Union, Mr Myo Aung Thant, had been imprisoned for 12 years for maintaining contacts with the FTUB. The Committee on Freedom of Association had called for his release. An FTUB member, leader of the Education Workers’ Union, Mr Saw Mya Than, had been killed by the army in retaliation for acts that it claimed amounted to a rebel attack. The Committee on Freedom of Association had called for an independent inquiry into the circumstances of his death. Mr U Tin Hla, a railway electrician, had been arrested with his whole family on 20 November 2007 and sentenced to seven years’ imprisonment for the possession of explosives, which were in fact merely a harmless toolbox, but in reality for having incited railway workers to support the popular uprising of September 2007. Ms Su Su Nway, who had lodged a complaint for forced labour with the ILO which had resulted in the conviction of four guilty persons, had been arrested in November 2007 and detained by reason of her support for the September 2007 movement. Two trade union activists, Ms Lay Lay Mon and Ms Myint Soe, had disappeared at the end of September 2007 after having participated actively in the protest. Moreover, in 2006, FTUB activist Thein Win had been arrested with seven members of his family. Three of his children had been sentenced to 18 years in prison. One of his children had been tortured and had become mentally unstable. Ms Naw Bey Bey, a member of the Karen Health Workers’ Union (KEWU), had been sentenced to four years hard labour. Mr Saw Thoo Di, an activist in the Karen Agricultural Workers’ Union, had been arrested, tortured and murdered on 28 April 2006 by Infantry Battalion 83. On 30 April 2006, the village of Pha had been shelled with mortars and grenades because the authorities considered that the FTUB and the Federation of Trade Unions – Kawthoolei (FTUK) had been holding a demonstration. In June 2005, ten FTUB activists had been arrested and then tortured and sentenced by a special court set up in the prison, and prison sentences of between three and 25 years had been imposed for having used satellite phones to convey information to the ILO and to the international trade union movement through the FTUB.

The Worker members affirmed that it was the responsibility of the Conference Committee to denounce these serious cases of arrest, long prison sentences and murders to suppress the mere exercise of ordinary trade union activities, such as public speeches on socio-economic issues, the commemoration of May Day, or sending information to the trade union movement. The authorities of Myanmar had never granted those concerned any of the fundamental rights envisaged in Convention No. 87, nor any public freedom. There was no right of appeal in these cases, as in cases of forced labour, and the authorities claimed that they consisted of illegal acts, terrorist organizations or interference in domestic matters.

While Article 8 of Convention No. 87 established the obligation for trade unions to respect the law of the land, the same provision provided that national legislation should not impair the guarantees provided for in the Convention. Every member State of the ILO was under the obligation to comply with the Conventions that it had ratified freely.

The previous year, the Conference Committee had emphasized the intrinsic links between freedom of association and democracy. However, the Government was now organizing elections without first having created the required conditions for their reliability, namely the recognition of freedom of association and trade union rights. The truth was that there was, at present, no legal basis in Myanmar for freedom of association. The new Constitution subjected the right to freedom of association “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. Several legislative provisions directly or indirectly restricted freedom of association: Order No. 6/88 requiring prior authorization for the establishment of an organization; Order No. 2/88 prohibiting the gathering, walking or marching in procession by a group of five or more people; the Unlawful Association Act of 1908; the 1926 Trade Union Act; and the 1964 Law instituting an obligatory system of organization and representation of workers. In short, there was still no freedom of association in Myanmar.

The Employer members recalled that Myanmar had ratified the Convention 50 years ago, that this case had been discussed at the Conference Committee for 20 years, and that the previous year the Committee of Experts had marked the extreme gravity of this case through a double footnote. The Committee of Experts had included in its report serious acts of murder, arrest, detention, torture, and sentencing to many years imprisonment for exercising normal trade union activities. The Committee of Experts had stressed, and the Employer members had also highlighted during last year’s discussion, the fundamental impact of the right to life and other civil liberties as fundamental prerequisites to the implementation of Convention No. 87. The Government had mentioned that it was evolving into a democracy, but it was hard to see this as really being the case. The legislative issues raised by the Committee of Experts constituted fundamental violations of the Convention. The Government had referred, as in 2009, to the adoption of the new Constitution but it had not mentioned any steps to adopt legislation allowing for the establishment of trade unions. There was obviously a need for ILO assistance in drafting legislation which would be in compliance with the Convention, whether or not the Constitution provided an adequate basis for freedom of association.

It was clear that independent and free trade unions did not exist in Myanmar. The Credentials Committee had found, again this year, that the delegation was not tripartite. The non-government delegate was not therefore entitled to vote at the Conference. The Employer members emphasized that tripartism was the cornerstone of the ILO and of a fully fledged freedom of association system. This was a serious case which needed to be placed in a special paragraph of the report like last year.

The Worker member of Indonesia expressed regret at the lack of progress in this serious and long-standing case. Although the ASEAN countries had decided two years ago to take the big step of promoting human rights by establishing the ASEAN Human Rights Committee, Myanmar remained the only country in the region which was still considered a dictatorship. Despite some answers by the Myanmar Government, it was difficult to believe that any progress had been made in this case, given that arrests, disappearances, intimidation and imprisonment of labour and democratic activists had continued. Evidence of just some of the killings by the military which had taken place in 2010 included the following: Saw Mya Kaw Htoo, member of KEWU, killed on 17 January 2010 by SPDC soldiers at Keh Der village, Kyauk Kyi district, Taungoo; Saw Aye Mu, a member of Karen Agriculture Workers’ Union, was shot and killed on 19 January 2010 by the same infantry. In addition, excessive sentences had been imposed on many labour and democratic activists, including Myo Aung Thant, FTUB central committee member, who had remained imprisoned since 1996, and Pho Toke, an organizer of FTUB, whose sentence had been extended by eight years, on top of the 24 years he had already received, simply for protesting to a prison officer.

Having participated in the FTUB congress at the Thailand border at the end of 2008, the speaker could testify that the policy and action plan of the FTUB constituted normal trade union activity and that there was not a single FTUB activity directed against the country and its people. The speaker therefore wondered why the Myanmar Government kept accusing the FTUB of being a terrorist organization. The ITUC unanimously supported the full membership of the FTUB in the ITUC, the recognition of the Seafarers Union of Burma (SUB) within the International Transport Workers’ Federation (ITF) and the inclusion of the FTUB as a new member of the ASEAN Trade Union Confederation. The Myanmar Government should therefore immediately change the 1964 Law that imposed a single trade union and the 1929 Trade Disputes Act which contained numerous prohibitions on the right to strike and recognize the FTUB.

The Government member of China observed that the Government had reported on its efforts to apply the fundamental principles of freedom of association, the drafting of revised legislation, and technical assistance received from the ILO. It should be acknowledged that concrete and effective measures had been taken by the Government to promote and give effect to trade union rights. The Government of Myanmar should continue its dialogue and cooperation with the ILO with a view to promoting Convention No. 87.

The Worker member of India expressed his deep, heartfelt anguish at the way the ruling junta had been curbing the minimum rights of the working people of Burma for ventilating and demonstrating their woes. Strike was the universal democratic action of the aggrieved workers to express their sufferings and obtain improvements when all other avenues had been closed. It was a sacred right, like those of freedom of association and collective bargaining, guaranteed under various instruments of the ILO and hailed as cornerstones of democracy. From December 2009 to March 2010, 22 workplace disputes had taken place in Burma in the industrial zones of the suburbs of Rangoon. Almost all the cases related to unfair pay, denial of public holidays, basic workplace amenities, compulsory overtime, lack of compensation for workplace injuries, and the issues that workers faced all over the world. Contrary to workers in most other countries, however, these striking workers had no organized representation or legal assistance, as workers had learned the hard way that it was too dangerous to select union leaders or worker representatives. Thus, negotiations with management were very difficult. By denying the workers the right to organize or to go on strike and thus the right to collective bargaining, the junta was condemning the Burmese people to live in sheer poverty and slavery. These recent reports of strikes were just the tip of the iceberg in a country where fundamental workers’ rights were being violated on a daily basis. Burma should adopt legislation allowing for free trade unions in the country and protect the right of the workers to organize and bargain collectively.

The Government member of the United States observed that once again, the Committee of Experts had used the strongest language available to it to deplore the persistent failure of the Government to guarantee the fundamental and inalienable right of freedom of association. It was deeply disturbing that people in Burma were punished for exercising their basic human rights and that even the most ordinary trade union activities were considered to be criminal offences, subject to severe punishment. Worse yet, were the alleged acts of murder and torture as the result of trade union involvement. As noted by the Committee of Experts, there was no legal basis for the respect for, and realization of, freedom of association in Burma. The speaker called on the Government to take the necessary steps to remedy this situation.

Recalling the link between freedom of association and the elimination of forced labour, the speaker was pleased to note that a meeting on freedom of association had been held in the context of the ILO mission to Burma last January, and that the Government had requested further exchanges and advice on the issue. She hoped that these discussions would lead to an extension of the ILO presence in Burma to cover matters relating to freedom of association. In the meantime, however, the speaker called upon the Government to urgently address the concrete measures recommended by the Committee of Experts. The Government should rectify the complete absence of freedom of association and cease the systematic persecution of those who attempted to exercise the right to organize.

An observer representing the International Trade Union Confederation (ITUC) stated that the Credentials Committee of this year’s session of the International Labour Conference had decided that, due to incomplete and non-accredited delegations, the Myanmar non-governmental delegate should be excluded from voting in accordance with article 4(2) of the ILO Constitution. This underlined the fact that there were no trade unions or workers’ organizations in the country and that the Government ignored the long-standing recommendations by the Conference Committee and the Committee of Experts in this regard.

From December 2009 to March 2010, 22 strikes had taken place in factories in industrial zones, as reported by the FTUB to the ITUC. All these cases had been resolved through talks under the orders of the local military commander and not through regular negotiations. Despite the denial of freedom of association, many FTUB members and trade union activists tried to raise awareness on basic trade union rights and develop underground trade unions. The junta had arrested 34 FTUB members, eight of whom were women, for attempting to hold May Day events, host discussions on organizing, and raise awareness and disseminate documentation on basic trade union rights, workers’ rights and human rights. These were according to the junta, criminal activities. The speaker called for the immediate release of these trade unionists. The speaker also called for the immediate release of Myo Aung Thant, who had been arrested in June 1996 and remained in Myitkyina prison, having reportedly developed mental problems. Many other political prisoners who had been arrested at the same time had been released, but he had not.

In March 2010, certain persons from Burma had been arrested with arms in a neighbouring country and were reported to have been sent by the SPDC Military Intelligence to assassinate the FTUB leaders. The Constitution, which had been forced on the people immediately after Cyclone Nargis, did not guarantee freedom of association. Article 354 of that Constitution stated that trade unions could only be formed if they assembled peacefully in processions and did not disturb tranquility and security. This left no room for freedom at all. In accordance with the resolution adopted under article 33 of the ILO Constitution in 2000, the ILO and its constituents should consider implementing targeted sanctions on the junta and its income. Sanctions could focus on areas that would not hurt the general population, who did not have any kind of involvement in international investments. An example was the insurance sector, which, if targeted, would have an immediate impact on international trade and investment controlled by either the junta or its cronies.

The Government member of India expressed appreciation for the ongoing collaborative efforts between the Government of Myanmar and the ILO, acknowledged the process of transition that Myanmar was undergoing towards a democratic society, and welcomed the new Constitution, the rights of citizens and the intention to enact laws for labour organizations in line with Convention No. 87. These steps were progressive, indicating the commitment of the Government of Myanmar to address the issues arising out of the Convention and further encourage a climate of dialogue that facilitated constructive cooperation between Myanmar and the ILO. He concluded by commending the technical assistance which was being rendered by the ILO in this direction.

The Worker member of Colombia reaffirmed that the case was particularly serious for at least three reasons, and necessitated the adoption of special measures to contribute to the restoration of freedom of association in Myanmar and to give credibility to the ILO standards system. The first reason related to the extremely serious situation with regard to political and civil liberties in which those who attempted to organize in trade unions were murdered, detained, tortured and sentenced to imprisonment. The ITUC had documented these cases fully over the years. The second reason was that freedom of association did not exist in Myanmar in law or in practice, since it was a State which, through violence and institutional means, prevented workers from being able to exercise freedom of association. He recalled that the Committee of Experts had once again called for guarantees of the right to associate freely, to organize programmes, and to affiliate with federations and international confederations without any interference. The third reason why the case was serious was that these and other situations in relation to Myanmar had been raised for many years and the situation had still not been resolved. Total failure to comply with Convention No. 87 persisted and this seriously prejudiced the credibility of the ILO supervisory bodies. For these reasons, he reiterated the need for special measures to unblock the situation. He noted that the Committee of Experts had requested Myanmar to accept an extension of the ILO presence in the country, but he hoped that the Committee would be able to propose other measures.

The Government member of the Russian Federation said that his country recognized the importance of ILO member States respecting ILO Conventions, particularly Convention No. 87. In the present case concerning Myanmar, it must be observed that a wide-reaching constitutional reform was under way and that national elections were planned for the end of the year. The policy of reform was aimed at guaranteeing freedom of association for independent trade unions, as enshrined in Chapter VIII of the new Constitution of Myanmar. The Government had also reported that a new act on trade unions was being drafted, with ILO assistance. In such circumstances, it was important to strengthen cooperation between the Government and the ILO in order to ensure the success of the legislative reforms being undertaken. It was also to be hoped that the reforms referred to by the Government representative in his opening speech would become reality.

The Worker member of Japan observed that despite the recurrent examination of this case by the Committee and the repeated inclusion of its conclusions in a special paragraph, trade unionists were still under the threat of acts of murder, arrest, detention, torture and sentencing to many years of imprisonment for the exercise of ordinary trade union activities, including the mere sending of information to the FTUB and participation in May Day rallies. Still no concrete measures had been taken to enact legislation guaranteeing all workers the right to establish and join organizations of their own choosing, or to repeal Orders Nos 2/88 and 6/88 as well as the Unlawful Associations Act, which constituted the most serious obstacles to the right to organize. The Government was confined to repeating that several sections of the Constitution would give effect to the provisions of the Convention and that new laws would be drafted. However, the Constitution should be amended as it contained broad exclusionary clauses in its controversial article 354 which would lead to continued violations of freedom of association in law and in practice.

The workers could not wait much longer. This very serious situation was a persistent breach of the Convention which had been going on for several decades. The words by the Government were empty, fundamental human rights were given no importance and even the dignity of life was being treated like a mere commodity by the Government. The Government should understand that society was not sustainable without free, independent and democratic trade unions and that genuine freedom of association could not be realized without civil liberties and respect for civil society. In this regard, Aung San Suu Kyi and more than 2,100 political prisoners, including labour activists, should be released immediately. Faced with the Government’s failure to implement the recommendations of this Committee after many years of discussion on this alarming case, the speaker felt strongly that additional and stronger measures were necessary.

The Government member of Cuba expressed appreciation for the presentation given by the Government of Myanmar, which had illustrated the efforts made to apply Convention No. 87. Technical cooperation and bilateral dialogue between the Government of Myanmar and the ILO were fundamental tools for the effective implementation of the Convention, and he therefore encouraged further technical cooperation and open and unconditional dialogue, along with analysis of the domestic situation.

The Worker member of France stated that Burma continued to commit grave violations of the Convention. National laws on freedom of association should be reformed urgently and, in any case, before the forthcoming elections. Appropriate pressure should be maintained on the regime to carry out such reform, which was of fundamental importance both for trade unions and democratic political movements. While the ILO continued to condemn the grave violations of the Convention, it should also remind multinational companies that operated in Burma and their unions that they had an important role to play in bringing about respect for the Convention in the country. Many such multinationals had their head offices in OECD countries covered by the OECD Guidelines for Multinational Enterprises which included reference to fundamental principles such as the fundamental ILO Conventions. The National Contact Points (NCPs) set up in each OECD country, including in several Asian countries, acted on these companies when they breached labour standards in Burma. The governments, unions and employers’ organizations, together with the NCP, could and did condemn the practices of multinationals operating in Burma which did not respect Convention No. 87. They should play an active role in relation to Burma in this respect and the ILO should closely follow developments. Multinationals must keep persuading the Burmese regime that trade unions were not scary, by showing that they had trade union structures in their companies, that social dialogue did take place and resulted in freely negotiated collective agreements, and that worker participation could exist on issues such as health and safety in the workplace. Observing that the country exported every year tens of thousands of metric tons of gas and timber, the speaker called for economic pressure to be exerted on Burma in a targeted manner so that it did not affect the population but effectively made the regime change the Constitution and allow for free and fair elections.

The Government member of Canada expressed continuing concern about the critical human rights situation in Burma and referred to the real concerns reported regularly by the ILO and other United Nations bodies in this regard. The speaker underlined the importance of respecting and implementing commitments to freedom of association as it was the condition sine qua non for the realization of all labour rights and commitments to the ILO made by the Government. The Government had announced plans to implement legislation on freedom of association after the adoption of the Constitution pursuant to the 2010 elections. This presented a historic opportunity to commit to legislation that incorporated the best international standards. To this end, it was important that the authorities took advantage of the wealth of knowledge and experience that the ILO possessed and could share with them. The speaker therefore urged the Government to invite a tripartite ILO delegation to engage in dialogue on the review of national legislation and the drafting of new laws in line with Convention No. 87. Such an invitation would send a clear signal and further demonstrate the Government’s commitment to labour rights. Although the commitment to legislation after elections was to be welcomed, some reforms were needed immediately. The speaker also urged the Government, as part of its renewed commitment to freedom of association and labour rights, to take immediate steps to release labour activists currently imprisoned.

The Worker member of South Africa emphasized that the FTUB was a genuine trade union fighting for workers’ rights, including the right to freedom of association. Yet, it was a banned organization wrongly accused of terrorism. Freedom of association and worker representation could only be meaningful if workers’ organizations were allowed to exist in conditions of freedom. Free and fair elections were an essential step towards meaningful democracy, genuine social stability and dialogue, and progress towards the eradication of forced labour.

The military junta in Burma had characterized the upcoming elections as a fifth step on its “road map to democracy”. But how could there be democracy when the Government was based on the rule of military might; the regime had identified workers as one of the key and prime targets of state terrorism; when the election law had been deliberately designed to exclude several parties from the election process, especially the National League for Democracy (NLD) led by Daw Aung San Suu Kyi; when the design by the junta ensured that the military and the junta’s political creation, the Union Solidarity and Development Association (USDA), would each take 25 per cent of the parliament seats, effectively excluding all other parties from political power.

These sham elections should not be allowed to justify business with Burma and the FTUB should be supported on a continuous basis in its struggle for legal recognition and the right to represent workers of Burma. Coming from a country where sanctions had finally led to the dismantling of the Apartheid system, the speaker expressed support for the call for disinvestment in Burma. All ILO constituents were already under an obligation to review their economic ties with the military junta, under the resolution adopted under article 33 of the ILO Constitution in 2000. This should apply not only with regard to forced labour but also freedom of association. The resources brought into this country through multimillion investments by large corporations unfortunately went directly to the military junta which trampled on the people’s rights and were reportedly also funding a nuclear project.

Twenty years after the last democratic elections in Burma, the junta should urgently revise its action and finally allow for full and free elections. The authorities should be urged to reflect on a national process of genuine, meaningful and lasting dialogue, as well as cessation of aggression against the people and workers, so as to advance towards the restoration of democratic civilian rule and meaningful workers’ representation.

Another Government representative categorically rejected all comments not relevant to the ILO’s work, as well as all comments and criticism concerning his country’s political process. He viewed these comments as attempts to interfere in his country’s internal affairs. He believed that the destiny of Myanmar should be decided by its own people. The democratization process was moving forward steadily. Democratic elections would take place later in the year, as the fifth step of the road map to democracy. Laws necessary for the elections had already been promulgated and 32 political parties had been registered and permitted for the upcoming elections. The Constitution had been approved by 92.48 per cent of eligible voters. This overwhelming support had clearly reflected the will of the people and should be respected by all. The new Constitution had been thoroughly discussed with the participation of all interested parties. Its section 354 adequately captured the spirit of the Convention, and the process for promulgating new legislation would begin once the Constitution came into legal effect. Meanwhile, the drafting process had already begun and any legislation ensuing from this process would be in accordance with the Constitution and the Convention.

With regard to the FTUB, he referred to what had already been said in the statement by the Permanent Representative of Myanmar, Ambassador U Wunna Maung. In accordance with the Constitution, a drafted legislation to implement the Convention would proceed to the Pyidaungsu Hluttaw. Promulgated laws not contrary to the Constitution would remain in force. This process, however, would not open the door for any unlawful association or terrorist organization. A fictitious account relating to a criminal by the name of Maung Maung and his associate Thein Win had been dramatized and made important. These persons were not Myanmar nationals and were residing outside Myanmar. The Government had no interest in them or responsibility for them. Perhaps the insecurity of living abroad illegally as fugitives and hiding from the law over decades had compelled them to such a story, to draw attention and generate sympathy. These persons were endangering and violating the security of Myanmar’s people by plotting, financing and carrying out several bomb attacks leading to loss of lives and numerous injuries. His Government had reported their terrorist acts to Interpol and the Executive Directorate of the Counter-Terrorism Committee, guided by Security Council Resolutions Nos 1373 (2001) and 1624 (2005).

The Worker members denounced the killings, tortures, detentions and arrests of trade unionists for activities that would pose no problems in other countries. These persistent violations of freedom of association, in law and in practice, would continue as long as the basic civil liberties were not restored and respected. It was therefore appropriate to request the following five measures: (1) the revision of the Constitution, especially the articles on freedom of association and forced labour; (2) the repeal of ordinances and laws on illegal associations; (3) the legalization and recognition of the FTUB; (4) the immediate release of Ms Aung San Suu Kyi and all trade union activists and political prisoners who had exercised their freedom of expression and freedom of association rights; and (5) the cessation of impunity for criminal acts of violence against trade unionists and acts of forced labour. They requested the Office to use all legal and practical means at its disposal, including the designation of a liaison officer dealing with complaints relating to the exercise of the rights contained in the Convention. In conclusion, given the gravity and persistence of the situation, the Worker members considered that all means available to the ILO should be used, including the establishment of a new commission of inquiry, as well as the designation of a liaison officer responsible for dealing with complaints relating to the exercise of the rights enshrined in Convention No. 87.

The Employer members expressed scepticism with regard to this case. There appeared to be no democracy, no civil liberties, no tripartism and no freedom of association in the country, where a climate of fear, violence and intimidation prevailed. The existing legislation violated freedom of association. The Government urgently needed the help of the ILO: it needed to submit the text of section 354 of the new Constitution to the Committee of Experts and to adopt specific legislation which would guarantee the application of the Convention. They concluded by stating that the case should be noted as a case of continued failure to implement the Convention.

Conclusions

The Committee took note of the statement made by the Government representative and the detailed discussion that followed. The Committee also recalled that it had discussed this serious case on numerous occasions over the last two decades and that its conclusions had been listed in a special paragraph for continuous failure to implement the Convention since 1996.

The Committee observed that the Committee of Experts had for many years now deplored the gravity of the allegations of arrest, detention, long prison sentences, torture and denial of workers basic civil liberties, as well as the long-standing absence of a legislative framework for the establishment of free and independent trade union organizations.

The Committee took note of the statement made by the Government representative in which he stressed that, in accordance with its road map, Myanmar was committed to pursuing its transformation to a democratic society. Freedom of association rights, as well as other basic civil liberties, were provided for in the new Constitution and would set out the framework within which new trade union legislation would be developed. The Government representative added that no one has been or is apprehended in Myanmar for implicit or explicit exercise of the rights derived from the Convention. As regards requests for recognition of a certain organization, the Government representative reiterated that the Ministry of Home Affairs had declared the FTUB to be a terrorist organization and it could therefore not be recognized as a legitimate workers’ organization.

Recalling the long-standing and fundamental divergences between the national legislation and practice, on the one hand, and the Convention, on the other, and observing that the Government itself has admitted that there can be no legal trade unions in the country as yet, the Committee once again urged the Government in the strongest terms to adopt immediately the necessary measures and mechanisms to ensure all workers and employers the rights provided for under the Convention. It once again urged the Government to repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act.

The Committee once again highlighted the intrinsic link between freedom of association and democracy and observed with regret that the Government had yet to ensure the freedom of association ground rules necessary for any credible transition to democracy. The Committee therefore called upon the Government to take concrete steps prior to the upcoming election process to ensure the full and genuine participation of all sectors of society, regardless of their political views, in the review of the legislative framework and practice so as to bring them fully into line with the Convention. It emphasized that it was crucial that the Government take all necessary measures to ensure a climate wherein workers and employers could immediately exercise their freedom of association rights without fear, intimidation, threat or violence.

The Committee continued to observe with extreme concern that many people remained in prison for exercising their rights to freedom of expression and association, despite the calls for their release. The Committee was bound once again to call upon the Government to ensure the immediate release of: Thurein Aung, WaiLin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights. The Committee once again recalled the recommendations made by the Committee of Experts and the Committee on Freedom of Association for the recognition of trade union organizations, including the FTUB, and urged the Government immediately to put an end to the practice of persecuting workers or other persons for having contact with workers’ organizations, including those operating in exile.

The Committee recalled its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize. It reiterated its previous request to the Government to accept an extension of the ILO presence to cover the matters relating to Convention No. 87 and to establish a complaints mechanism for violation of trade union rights.

The Committee urged the Government to transmit any relevant draft laws as well as a detailed report on the concrete measures taken to ensure significant improvements in the application of the Convention both in law and in practice to the Committee of Experts at its meeting this year. In light of the assurances provided by the Government, the Committee expected that it would be in a position to observe significant progress on all the above 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.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

The Government communicated the following written information.

In 2007, the Myanmar Workers' delegate to the ILC was elected from the Basic Worker Association which covered 11 sectors. A first-level organization had never been formed before. Even though the appointed Workers' delegate, represented most of the workers and had been elected from the sector in which the majority of workers were working, the ILO raised an objection to the Myanmar Workers' delegate. This time, in accordance with the advice of the ILO, the Workers' delegate was elected from the textile industrial sector, where the majority of the workers were working, most of whom were well organized.

The referendum for approval of the Constitution of the Republic of the Union of Myanmar was successfully held in the whole country with massive approval (92.48 per cent). The provisions on the organization of labour organizations were contained in paragraph 96 of Chapter IV, paragraphs 353, 354 and 355 of Chapter VIII and Schedule One, Union Legislative List, in Chapter XV of the Constitution. Once the Constitution came into force, labour organizations would emerge in line with these provisions and would be able to carry out their activities in the interests of the workers.

With regard to the recognition of the Federation of Trade Unions of Burma (FTUB) as a legitimate organization as indicated in paragraph 1093(b) and (e) of the 349th Report of the Committee on Freedom of Association and in the report of the Committee of Experts of 2008, there was no comment about the affiliation of the FTUB to the International Trade Union Confederation (ITUC) or having associated status with the ITUC, but there was strong and firm evidence of the FTUB committing a series of terrorist activities and bombing in Myanmar. The FTUB supported financially and took part in these terrorist acts and supplied explosive materials to cause unstable situations in the country. As these terrorist acts were forbidden by the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism, the Ministry of Home Affairs announced that the FTUB was a terrorist group in Declaration No. 1/2006 of 12 April 2006. It was therefore not possible to accept the FTUB as a legitimate organization.

Concerning the five persons arrested, including Ma Shwe Yee Nyunt, after investigation of the matters contained in the letters from Mr Guy Ryder, General Secretary of the ITUC, and the ILO, it was found that they admitted being neither workers of nor representing the Myanmar workers. Although they breached section 13(1) of the 1974 Immigration Act for illegally entering and re-entering the country, the Government did not take action against them because they admitted their fault honestly, telling the truth and saying openly that there was no trade union in the country. They also said that they had accepted financial assistance by pretending to be members of trade unions. The five persons, including Shwe Yee Nyunt, were illegally entering and re-entering the country and made contact with Ei Shwe Zin Nyunt, the personal assistant to Maung Maung and accepted 42 lakhs in Myanmar currency (kyats) by pretending to be trade union members. Actually, it was found that they were neither representing the Myanmar workers nor genuine workers, but a group of relatives, making this type of incident with the intention of receiving international financial assistance on the basis of false information.

With regard to the situation of Myanmar workers and their workers' rights under existing labour laws, the legislation respecting workers' associations, collective bargaining and tripartite consultation had been mentioned in the Constitution of the Republic of the Union of Myanmar with a view to being in line with Convention No. 87. Myanmar workers were aware of collective bargaining and practised it under the existing labour laws. Disputes between employers and workers were settled through conciliation and negotiation. Some 411 cases in 2007 and 365 cases in 2008 were settled under tripartite principles with the Township Workers Supervisory Committee playing a role as the Government representative and employers and workers also participating. Such conciliated dispute cases concerned over 2,000 or 3,000 workers.

With regard to the allegations of the murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, action had been taken, not because of the exercise of trade union activities, but because of the breach of the existing laws of the country and attempts to incite hatred or contempt of the Government. Once the State Constitution came into force, labour organizations would emerge in line with the Constitution and the ITUC's comments and the observations of the Committee would automatically be solved at the appropriate time.

In addition, before the Committee a Government representative stated that Myanmar was in the process of transforming into a democratic society and had made significant progress in the implementation of the seven-step road map to democracy. The new Constitution, which was the fourth step in this process and had been approved by 92.48 per cent of the voters, clearly demonstrated the support of the people for this Constitution. The fifth step in implementing the seven-step road map would be free and fair elections to be held in 2010 in accordance with the Constitution.

The rights of citizens, including the right to express their convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions were clearly laid down in article 254, subparagraphs (a), (b) and (c), of the new Constitution. Article 96 of the new Constitution stipulated that the legislative body were to enact laws on labour organizations included in the Union Legislative List, Schedule One, paragraph (r). The new promulgated law would be in line with Convention No. 87, as well as with the Constitution. He was confident that workers in Myanmar would be able to form their own associations and enjoy the fundamental rights as provided for in Chapter VIII, article 354, when the new Constitution would come into operation after the 2010 elections. There was therefore no legal basis to ask for an amendment of the Constitution.

The speaker added that Myanmar had been cooperating with the ILO with a view to fulfilling its obligations under various Conventions ratified by Myanmar. This became clear from the detailed and regular information provided in response to requests or clarifications sought by the ILO.

In addition to the written information provided by his Government, the speaker wished to highlight, with respect to the six workers arrested on May Day in 2007, that those workers had not been arrested for holding a May Day event but for breach of existing laws and for their involvement in unlawful activities and attempted terrorist acts in the country. There was solid evidence that those persons had been receiving instructions, training and financial assistance from the so-called Federation of Trade Unions of Burma (FTUB), an exile terrorist group and unlawful association which masterminded bombings and terrorist acts, to incite public unrest in the country. Any request to release them immediately was an act of interference in national law and constituted an infringement of the legal system of a sovereign State. It was a contradiction to the basic principles of public international law and Article 8 of Convention No. 87, which stipulated that the law of the land should be respected.

Turning to the case of Tin Hla, he considered that time and resources would be wasted if action were to be taken based on fictitious and fabricated facts or incidents. Tin Hla was neither a leader nor a member of a labour union but had worked as a supervisor for Myanmar Railways, which had no union. He had been caught by the police when committing the crime of possessing ammunition and had been subsequently charged and sentenced.

Recently, there was a sham conference which was organized by Maung Maung at Mae Sok, Thailand. In fact, there was a group of four persons including Ma Shwe Yi Nyunt who attended the meeting. In reality, none of them was a worker nor did they represent any workforce. They were a group of relatives who eventually had personal links to Maung Maung. For this group, their association with Maung Maung was punishable under existing laws of Myanmar and under laws of any country countering terrorism. Following an investigation after they had returned, it was revealed by them that they were neither workers nor representing any Myanmar workers and they had been asked to visit Maesot for a different purpose and accepted 4.2 million kyats in Myanmar currency. The purpose of their crossing the border was nothing but a gathering of relatives and friends funded by Maung Maung. These facts were also revealed by them during their meeting with the ILO Liaison Officer on 25 April 2009. The Government had complete records pertaining to the facts mentioned above. As they were the victims of a sham conference masterminded by Maung Maung and they had admitted what they did unwittingly, the Government stopped the investigation and condoned them in the best spirit of cooperation with the ILO.

With respect to the FTUB, he considered it unfortunate that Maung Maung, a fugitive from law who had escaped to a neighbouring country and who had joined anti-government organizations, could take part in the proceedings of the ILO. He was the Secretary-General of the so-called FTUB and the National Council of the Union of Burma (NCUB), an alliance of the Democratic Alliance of Burma and the National Democratic Front (NDF), composed of terrorist groups in exile, which had been resorting to violent acts such as bombings of public places. As their activities were harmful to the population and to the peace, stability and the rule of law of the country, they had been outlawed. These terrorist acts were also forbidden by the United Nations Convention for the Suppression of the Financing of Terrorism, to which Myanmar was a party, and the Ministry of Home Affairs had therefore issued Declaration No. 1/2006 of 12 April 2006, stating that the FTUB and Maung Maung were a terrorist group.

In conclusion, he stated that Myanmar was fully cognizant of its obligations under Convention No. 87 and that measures were being taken to review the existing legislation with a view to examining its compliance with international human rights law and the Constitution, including Chapter VIII. Given the nature and volume of the work, results could not be expected overnight. Myanmar was taking measures and doing its best to comply with the obligations contained in Convention No. 87; meeting this challenge was only a matter of time.

The Worker members stated that the present Committee had rarely had an occasion to assess such an overwhelmingly bad record of arrests, imprisonments and killings of persons for as simple a reason as the exercise of their trade union or political activities. Currently, 91 persons were still in prison following the repression by the Government of the September 2007 uprising. Six workers - Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min - were sentenced to imprisonment for having participated in a 2007 May Day manifestation and for association with the FTUB. The Committee on Freedom of Association called for their immediate release. A member of the Petro-Chemical Corporation Union, Myo Aung Thant, was sentenced to almost 12 years imprisonment for maintaining contacts with the FTUB. The Committee on Freedom of Association had called for his immediate release. Mr Saw Mya Than, an FTUB member and leader of the Education Workers' Union, had been murdered by the army in retaliation for acts, presented by the latter, like a rebel attack. The Committee on Freedom of Association had requested the institution of an independent inquiry. Mr U Tin Hla, a railway electrician, had been arrested along with his entire family on 20 November 2007 and sentenced to seven years in prison for possession of explosives which were, in fact, a harmless toolbox. In reality, he had been sentenced for inciting railways workers to support the popular uprising in September 2007. Ms Su Su Nway, the activist who had brought a forced labour complaint to the ILO which subsequently resulted in the successful conviction of four local officials, had been arrested in November 2007 and detained in jail for her actions in supporting the September 2007 uprising. Two trade union activists, Lay Lay Mon and Myint Soe, had disappeared at the end of September 2007 after having actively participated in the September uprising. In 2006, the FTUB activist Thein Win had been arrested together with seven members of his family. Three of his children had been sentenced to 18 years in prison. One of his children had been tortured and had become mentally unstable. Five political and labour activists, U Aung Thein, Khin Maung Win, Ma Khin Mar Soe, Ma Thein Thein Aye, and U Aung Moe, had been arrested in March 2006 and sentenced to long prison terms for having provided information to the FTUB and other pacifist organizations considered as illegal by the regime. Concerning 934 workers of Haw Wae Garment factory who had gone on strike on 2 May 2006, demanding better working conditions, 48 had been brought before the authority and had been forced to sign a written statement that indicated that there had been no problems at the factory. Ms Naw Bey Bey, an activist member of Karen Health Workers' Union, had been sentenced to four years of hard labour. Mr Saw Thoo Di, an activist of Karen Agricultural Workers' Union had been arrested, tortured and killed on 28 April 2006 by Infantry Battalion 83. On 30 April 2006, the Pha village had been shelled with mortars and rocket-propelled grenades because the authorities had considered that the FTUB and the Federation of Trade Unions-Kawthoolei (FTUK) were holding a demonstration. In June 2005, ten activists of the FTUB had been arrested and then tortured and sentenced, by a special court established in the prison, to prison sentences from three to 25 years for having used satellite phones to convey information to the ILO and to the international trade union movement through an intermediation by the FTUB.

The Worker members stated that it was up to the Conference Committee to denounce all these serious facts of arrest, sentencing to long imprisonments or murders suppressing the exercise of ordinary and normal trade union activities, such as speeches on socio-economic issues, commemorating May Day or sending of information to the trade union movement. The authorities of Myanmar had systematically denied any violations of Convention No. 87. They took pleasure in invoking the provisions of Article 8 of Convention No. 87, indicating the obligation for trade unions to respect the law of the land, but they ignored that the same Article provided that the law of the land should not impair the guarantees provided for in this Convention. All member States of the ILO had the obligation to respect freely ratified Conventions. The truth was that there was currently no legal basis providing for freedom of association in Myanmar. The new Constitution subjected freedom of association "to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality". Several legislative provisions were restricting, directly or indirectly, freedom of association: Order No. 6/88 requiring permission to form an organization; Order No. 2/88 prohibiting the gathering, walking or marching in procession by a group of five or more people; the Unlawful Association Act of 1908; the 1926 Trade Union Act; and the 1964 Law instituting an obligatory system of organization and representation of workers. The Worker members concluded by stating that freedom of association did not exist in Myanmar.

The Employer members recalled that the Government had ratified the Convention over 50 years ago. The present case had been discussed since 1991 (last time in 2005), and had, for many years, made the object of a special paragraph due to the continuous failure of the Government to implement the Convention.

This year's extensive observation carried a double footnote and referred to the severe repression of the 2007 uprising; the arrest, heavy-handed interrogation and long prison sentences imposed on six workers who participated in the 2007 May Day event; the significant harassment of their lawyers which had prompted them to withdraw from the case; and several additional convictions to further prison terms for associating with the FTUB and for illegally crossing the border. Concerning the relevant case, the Committee on Freedom of Association had concluded in its 349th Report that it was "undeniable that the six persons were punished for exercising their fundamental right to freedom of association and the freedom of expression". The Committee of Experts had further noted the detention and incarceration of a long list of other trade union activists contained in the observations submitted by the ITUC.

In view of the above, the Employer members agreed with the Committee of Experts that there was a lack of civil liberties in Myanmar, in particular freedom of movement, freedom of expression, freedom of assembly, freedom of association and the right to a fair trial. All those civil liberties were fundamental for making Convention No. 87 a reality. The Employer members expressed their conviction that there were no free and independent trade unions in Myanmar, given that all trade union activities constituted punishable offences under the law, which the Government did not deny.

The Employer members expressed doubts as to the Government's statement that the constitutional amendment concerning freedom of association would give effect to the Convention. In the absence of legislation implementing the rights contained in the Convention, any imparted civil liberties would lack protection. They therefore urged the Government to communicate to the Committee of Experts, as soon as possible, drafts of the texts of the long-overdue laws and regulations implementing the rights contained in the Convention, for analysis.

With reference to a credentials claim regarding the current Worker representative of the delegation of Myanmar, the Employer members recalled that, last year, the Workers' delegate was found to be a management official. Moreover, the Employer members believed that the discrepancy between the large Government delegation and the representation of employers and workers by only one delegate each, illustrated a lack of true tripartism, which was an essential part of a viable freedom of association.

The Government member of the United States recalled that the Committee of Experts had used the strongest language available to it to deplore the persistent failure of the Burmese authorities to guarantee freedom of association in both law and practice. In her view, it was undeniable and deeply disturbing that people in Burma were punished for exercising their fundamental rights of freedom of association and freedom of expression, and that the most ordinary trade union activities were considered to be criminal offences subject to severe punishment. The Committee of Experts and the Committee on Freedom of Association had condemned many instances where the fundamental civil liberties of trade union members, officials and supporters had been violated, including intimidation, arrest, torture, imprisonment and murder. The supervisory bodies had repeatedly stressed that a genuinely free and independent trade union movement could only develop where fundamental human rights were being respected.

She referred to the broad and long-standing legal restrictions on the right of workers to establish, join, and participate in organizations of their own choosing. While the Burmese authorities contended that a legislative framework had been established by the new Constitution and that steps were being taken for the establishment of trade unions at the basic level, the Committee of Experts noted with deep regret that the new provisions gave rise to continued violations of freedom of association in law and practice. It further noted with regret the lack of any meaningful consultation of the social partners and civil society to create a legal framework that would guarantee respect for, and realization of, freedom of association.

The speaker regretted the failure of the Burmese authorities to give serious consideration to the views of the ILO supervisory bodies regarding the authorities' continued and baseless refusal to recognize the FTUB as a legitimate trade union organization. She further regretted the persistent failure of the Burmese authorities to respect international legal obligations that had been voluntarily accepted over 50 years ago. It was therefore difficult to conclude that there had been any genuine progress to remedy the serious and urgent situation that the Committee of Experts had been examining for so many years.

In 2005, the Conference Committee had concluded that the persistence of forced labour in Burma could not be dissociated from the prevailing absence of freedom of association. If the Burmese authorities were truly serious about eliminating forced labour, they would need to recognize that strong and independent workers' organizations could play a significant role in accomplishing that goal. The speaker expressed the hope that the Burmese authorities would avail themselves of the ILO's assistance and advice in taking the necessary steps to bring law and practice into conformity with Convention No. 87.

An observer representing the International Trade Union Confederation (ITUC), stated that in 2008, one able-bodied Burmese seaman had died and another had been seriously wounded in an accident. The Seamen's Employment Control Division (SECD), the section of the junta's administration branch for seafarers from Burma, had pressured the families of these seafarers not to contact the International Transport Federation (ITF) that covered seafarers around the world, or ask for compensation directly from the company, but to wait for compensation to be awarded in accordance with standards implemented by the State Peace and Development Council (SPDC). This was not an isolated case. It was but one example of the methods used by the SPDC systematically to control Burmese workers and deprive them of their rights.

The seafarers of Burma worked through company contracts that provided less than 50 per cent of the ITF standard pay. Should the seafarers receive more pay than the company contracts allowed, the seafarers were required by the SECD to return the extra pay to the companies, or the SECD banned them for up to three years.

The Federation of Trade Unions of Burma (FTUB) member who worked on the "Global Mariner" education ship of the ITF had now become an ITF inspector in Houston, Texas, and was handling these cases on behalf of the SIU/ITF and their families. His greatest challenge in assisting the seafarers and their families came not from the companies for which they worked, but from the SECD, or the SPDC, which controlled the SECD.

In Burma, freedom of association and freedom of expression were strictly prohibited. Organizing of any kind, whether among workers or among public citizens, whether openly or behind closed doors, was quickly quashed through the SPDC's extensive network of informers, the regular use of brutal force, and the overt manipulation of the legal system using fabricated charges.

The shop-floor workers in industrial zones of the textile and garment industries, worked eight hours a day, five days a week for the equivalent of 50 cents per day. Only with compulsory overtime and work on the weekends did they earn up to $1 a day. Even if the workers were able to earn that $1 per day, pay was frequently late. If workers tried to organize to ask for their rightful pay collectively, once the dispute was over, the workers who took the initiative to organize were dismissed, through some alternative reason that was found to justify their dismissal.

Workers in agriculture were often ordered to grow government project crops for example, biofuel crops and sugar cane that did not benefit them. In the process, many were evicted from their land with no possibility to oppose this, in violation of the ratified Right of Association (Agriculture) Convention, 1921 (No. 11).

In 1988, when the FTUB had begun forming trade unions and participating in efforts to highlight the social and economic problems in Burma, the workers had been dismissed from their jobs and been attacked by the military regime and either forced to leave the country or face arrest. Trade union members had been persecuted and arrested by the regime, their families pressured and isolated by the SPDC and its thugs. At present, there were 38 workers' rights activists under detention - all with fabricated charges imposed after their arrests.

The SPDC's pressure had made labour organizing in Burma quite impossible. The FTUB had had to work 18 years in order to hold its first congress in March 2009. The delay was due to the fact that the SPDC continued to enforce Orders Nos 2/88 and 6/88, which, respectively, prohibited meetings of five or more persons and required the SPDC's permission to form any type of organization. The arrests of FTUB delegates after the congress was proof of that. These Orders were clear violations of the SPDC's obligations under ratified ILO Conventions.

Burma needed to comprehensively reform both the Constitution and legislation in order for workers' rights to be protected. Not only should workers be guaranteed basic rights, such as freedom of association and expression, but they should also be provided with education on their rights. The junta had now orchestrated voting for a workers' representative. Having workers vote for a representative without knowing why they were voting, and having a representative who did not understand the responsibilities, was not the way to introduce freedom of association or the means to develop independent trade unions. Nor should it be allowed to be the way to avoid implementing the recommendations of the ILO, as the SPDC was doing.

As reported by the Committee of Experts, section 354 of the junta's new Constitution, imposed under duress, would give rise to continued violations of freedom of association in both law and in practice. Section 354 was but one reason why the FTUB had rejected the SPDC's Constitution.

The speaker asked that the ILO, in consultation with the Worker members, issued clear recommendations to the SPDC on steps it should take to meet its ILO treaty obligations, so that its legislation would provide for freedom of association and be brought into compliance with international standards, and these steps should be timebound. Enforcement actions should be prepared by the ILO to ensure no further delays by the junta. He called for the full recognition of the FTUB as the legitimate trade union, working through peaceful and non-violent means inside Burma. The speaker called on the ILO and all of its members to do everything in their power to work with the ILO, particularly on the needed reviews of the junta's Constitution before it would be imposed on the people in 2010.

The Government member of India had listened carefully to the statement made by the Government representative and expressed his satisfaction over the tangible progress made and the further strengthening of cooperation between the Government and the ILO. It was a matter of satisfaction to note that the mutually agreed mechanisms between the Government and the ILO were functioning effectively.

The Government had reaffirmed that the new Constitution guaranteed the rights of citizens, including the right to express convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions. The Government had further affirmed that the new laws to be enacted concerning labour organizations would be in conformity with Convention No. 87, and that hundreds of domestic laws were currently under review so as to ensure their compliance with the provisions of the new Constitution and international human rights standards. Under these circumstances, India once again encouraged continued dialogue and cooperation between Myanmar and the ILO.

The Worker member of Indonesia expressed full support for the recommendation, made by some members, that the FTUB be recognized as a legitimate trade union. Having participated in the first FTUB congress - which took place from 22 to 24 March 2009 and included as participants representatives from 20 ASEAN country trade unions, the General Secretary of ITUC Asia-Pacific, and representatives from the European unions FNV and CISL - he stated that he was impressed by the entire proceedings and outcomes.

He refuted the Government's allegation that the FTUB was not represented anywhere in the country's workforce. The FTUB congress was attended by 150 delegates, the majority of whom worked inside the country, in such sectors as transport, education, textile and garments, public services, agriculture, health, and mining. It was clear from discussions with these delegates that a genuine trade union such as the FTUB was necessary to protect workers' rights and promote decent work in Burma. Despite the restrictions it faced, the FTUB's membership continued to grow, as more workers contacted them in order to register. Furthermore, more workers were listening to FTUB radio, which was broadcast inside the country. As ITUC Asia-Pacific and the ASEAN Trade Union Council (ATUC) had expressed their commitment to accepting FTUB as an affiliate, he hoped that the Government would similarly extend recognition to the union.

He recalled that the FTUB congress had issued several declarations, including calls for the immediate release of Aung San Suu Kyi and all political prisoners, including ethnic and trade union leaders, as well as for the recognition of the ILO's fundamental role in the fight against forced labour and the promotion of freedom of association. Finally, he stressed that there was no evidence to support the claim that the FTUB was a terrorist organization. An organization that struggled against dictatorship and protected workers' rights through democratic, non-violent means could not be considered a terrorist one.

The Government member of the Russian Federation recognized that it was essential for ILO member States to respect their obligations with regard to implementing international labour Conventions. After having listened attentively to the Government representative, he had noted that the country was in the process of large-scale constitutional reform. The new Constitution sanctioned the right to freedom of association. Furthermore, a new law on trade unions was going to be adopted. It was essential to strengthen cooperation between the ILO and the Government in order to ensure the success of labour reforms. He strongly hoped that such cooperation would bring about successful results.

The Worker member of Sweden, speaking on behalf of the workers of the Nordic countries, stated that countries which did not permit free and democratic trade unions would never attain sustainable growth, or social justice. Burma was such a country; the absence of freedom of association therein had led to widespread poverty, social exclusion, and negative growth overall. Deploring that no progress in the national situation had been witnessed, though the Committee had dealt with this case year after year, she urged the Government to ensure respect for freedom of association and put an end to the period of repression that had lasted for over 50 years. She further expressed support for the ITUC's and the FTUB's calls for the adoption of more effective measures against the Government in order to bring about change.

The branding of the FTUB as an illegal terrorist organization was entirely unacceptable. She maintained that the FTUB was a democratic, representative workers' organization, which only a few months ago had successfully convened its first congress, and commended the latter for this achievement. She stated that next year's national elections, which were to be based on the new Constitution, would not improve the country's situation. Ethnic groups were excluded from the elections, the military was to keep 25 per cent of the allotted seats in Parliament, and people of Burmese nationality who had lived outside Burma for more than five years were not allowed to vote. The election was, as such, not free. She urged the Government to amend the Constitution to allow all people and parties to participate in the process as well as to allow for free and independent trade unions, in line with the comments of the Committee of Experts.

She stated that after more than five decades of dictatorship, the country's population was now overwhelmingly a poor one. The military and its leaders had enriched only themselves, whereas for workers the situation was extremely grave; the cost of food, shamefully, was such that families would often go hungry unless both parents worked every day. She concluded by declaring that allowing democratic unions such as the FTUB to exercise the rights enshrined in Convention No. 87 was the only way to change this deplorable situation, and instead embark on the road to prosperity and social justice for the entire nation.

The Government member of China stated that the challenges that Myanmar faced should be taken into consideration. Progress towards democratization had been noted. The Government was considering the measures that would be needed in its domestic policies in order to conform to the Conventions that it had ratified while new laws had been adopted with regard to labour. Such action reflected the will of the Government to promote human rights and to protect workers. He hoped therefore that the ILO would continue its dialogue with the Government. Technical assistance from the Office was essential for the people of Myanmar.

The Government member of Cambodia expressed his appreciation regarding the progress in Myanmar relating to the adoption of a new Constitution which included a chapter on fundamental rights and duties of citizens and ensured the right to freedom of expression, the right to assemble peacefully and the right to form associations and unions. Many domestic laws and regulations were currently under review to determine compliance of the new Constitution with international human rights standards. This new progress clearly proved the commitment of the Government to comply with the provisions of Convention No. 87. Even though there was a need for a clear change on this issue, the speaker was convinced that given the excellent cooperation between the Government and the ILO, compliance with Convention No. 87 would gradually improve in the country. In this context, Cambodia strongly encouraged cooperation between the Government and the ILO, especially in the context of the process of the revision of laws and regulations at issue.

The Worker member of the United States stated that perhaps no country was more guilty of violating fundamental human rights, as reflected in the UN Charter, the Universal Declaration of Human Rights, and the ILO's Conventions, than Burma. In September 2007, the Burmese people mobilized their largest social and political uprising since 1988, when the military massacred 3,000 people. The crackdown of 2007 left at least 110 persons dead and thousands injured. Given that Burma's persecution of its citizens for attempting to exercise fundamental human rights was well documented, and in turn inspired condemnation from all over the world, year after year, it was sobering to realize that violations of human rights - including those rights enshrined in Convention No. 87 - continued to occur at an unrelenting and unrepentant pace. He recalled that Convention No. 87 guaranteed workers freedom of association rights, free from fear of discrimination, harassment, imprisonment or torture, and that Article 3 of the Convention specifically prohibited the public authorities from interfering with this right or impeding its lawful exercise. Such interference, however, was precisely the kind of conduct the Government continued to display with respect to the exercise of freedom of association.

He noted that the Committee of Experts' report contained such information as the arrest and interrogation of six workers for participating in a 2007 May Day event at the "American Center" in Rangoon. Serious interference with the parties' legal representation had taken place, moreover, and they were handed down prison sentences of 20 years for sedition, while four others were convicted and sentenced to five years in prison for association with the FTUB. Such actions represented a profound assault on human rights. They also served to intimidate all those who wished to exercise their rights under Convention No. 87 and sent a clear message to workers that any attempt to exercise the fundamental human right to freedom of association would incur stiff penalties - including being labelled a terrorist. He called for the immediate release and full restitution of all political prisoners, including all human rights and trade union activists. The Government needed to send a clear and unequivocal message that it would not use imprisonment or forced labour to interfere with the right of freedom of association.

He deplored that the 2008 Constitution enabled the Government to continue to impair the guarantees provided for under Convention No. 87. The provisions on freedom of association in the new Constitution were woefully inadequate, vague, and lacked procedures for their implementation or enforcement. Moreover, the vague rights referenced in the new Constitution were further weakened by gross exceptions, such as the limitation of those rights to the "laws enacted for state security, prevalence of law and order, community peace and tranquillity or public order and morality". Such exceptions rendered the principle of freedom of association virtually meaningless. Moreover, Burma's history of sustained human rights violations cast serious doubt as to whether these "law and order" exceptions would be legitimately and narrowly applied; the exceptions did little to create trust in a regime that had demonstrated time and time again, in rhetoric and in deeds, that it had yet to recognize the rights enshrined in Convention No. 87. Recalling that in last year's conclusions the Committee had expressed serious concerns over the restrictive provisions in the Constitution, and further observing that the Government had failed to act in respect of this matter, he emphasized the need to once again call for amendment of the Constitution in the Committee's conclusions. He concluded by urging the Office to monitor and report all violations of Convention No. 87 in Burma.

The Government member of Cuba stated that, in view of the statement of the Government representative, it was important to stress, in the current case, the principles of Article 8 of Convention No. 87: trade unions should respect the law and national legislation should not impinge upon the guarantees provided in the Convention. She noted the adoption of a new Constitution, which sanctioned trade union activity. The willingness expressed by the Government to make efforts to establish a peaceful nation should therefore be encouraged, as should cooperation and dialogue between the Government and the ILO, with the aim of putting into practice Convention No. 87 on freedom of association. To conclude, she expressed support for the request made by the Committee of Experts that the Government should report on its progress in implementing the Convention with regard to the provisions of the new Constitution.

The Worker member of Japan, in supporting the previous statements made by the Worker members, noted that this was one of the most serious cases under examination, which had been discussed over and over again and had been subject to a special paragraph repeatedly. She pointed out that still no concrete measures had been taken to enact legislation in order to guarantee to all workers the right to establish and join organizations of their own choosing. On the contrary, the Government indicated it would maintain for some more time Orders Nos 2/88 and 6/88, which the Committee of Experts and the Conference Committee had repeatedly urged the Government to repeal immediately. These two Orders were most seriously impairing the right to organize, and had to be immediately repealed by all means.

The Government indicated that the new Constitution provided for freedom of association. However, she profoundly regretted that a broad exclusion clause had been added, as pointed out by the Committee of Experts, which stipulated that the exercise of freedom of association was subject to the laws enacted for state security, prevalence of law and order, community peace and tranquillity of public order and morality. It was peculiar to have such a long list of exclusions and it was therefore likely that even under the new Constitution, violations of freedom of association in law and practice would continue.

The Committee on Freedom of Association had ruled that the FTUB was a legitimate trade union aimed at defending and promoting the rights and interests of Burmese workers. However, the FTUB had been forced to operate in a clandestine manner and was the object of very serious suppression from the Government, who impeded the FTUB from existing freely and carrying out its activities as a full-fledged union.

The Government also had to understand that genuine freedom of association could not be realized without civil liberties and respect for civil society. In this regard, a first step had to be the immediate release of Ms Aung San Suu Kyi and the more than 2,100 political prisoners including labour activists. She urged the Committee to come up with the strongest possible message to the Burmese authorities to immediately recognize, guarantee and promote freedom of association and the right to organize.

The Government representative of Myanmar stated that he had listened carefully to the interventions made and thanked those speakers who had spoken in an objective and constructive way. His Excellency U Wunna Maung Lwin had clearly spelled out the present political situation of Myanmar and what Myanmar was doing and would do with regard to the application of Convention No. 87. There were divergent views on what Myanmar was doing to meet its obligations under Convention No. 87. There had been some speakers who were living in glass houses and throwing stones at others. There had also been some who could provide nothing but words for the benefit of workers in Myanmar. Some of them were acting as champions for the cause of workers in Myanmar, and had to disguise themselves for their own survival.

As the economic crisis was affecting all countries these days, the challenge of providing global jobs was an immediate issue to be taken up. In discussing global solutions, he urged those who had a genuine desire to improve the lives of many workers in Myanmar to do so most effectively by working towards removing the economic sanctions imposed on Myanmar. This would be one of the best ways to assist those who had lost their jobs because of sanctions to return to employment, because sanctions hurt workers' jobs.

The new Constitution had been adopted by over 90 per cent of voters and the Government had clearly declared that free and fair elections would be held in 2010 in accordance with the new Constitution. Citizens' rights were guaranteed in the new Constitution under Chapter VIII, entitled Citizenship, Fundamental Rights and Duties of Citizens. Citizens' rights included the right to express convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions. There could be no doubt that once the new Constitution came fully into effect, workers' associations would soon come into existence.

The legal action against Ms Aung San Suu Kyi was an internal affair of Myanmar taking action through its legal system in accordance with domestic law. He referred in this context to the universal legal principle that no one is above the law. Only when this legal principle was upheld, put into practice and encouraged would there be rule of law in a country. His only comment on what had been said concerning the trial of Ms Aung San Suu Kyi was that all had been done and would be done in accordance with the law, applying well-accepted principles of justice.

It was regrettable that Mr Maung Maung, who had a criminal and terrorist record, had been permitted to make a presentation before the Committee. His activities, past and present, had done nothing to improve the situation of the Myanmar workers and he was trying to damage the peace and stability of the country. Through an examination of his records and credentials it could be found that he was not a genuine labour activist. It was hard to believe that a fugitive or a group of fugitives with refuge abroad could represent workers residing in a country which was thousands of miles away. They had not set foot on Myanmar territory in decades and it could therefore reasonably be asked how they could possibly share and advance the lives of workers in Myanmar. Mr Maung Maung was a fugitive from the law and the so-called FTUB had never existed in any form at any time within Myanmar. The Government had repeatedly pointed out that there was solid evidence that Mr Maung Maung and the FTUB had masterminded a number of bombings in Myanmar. In short, Myanmar would never recognize the FTUB, a terrorist group in exile, run by an outlaw. His Government would thus continue to object to his attendance at ILO conferences.

Some speakers had been referring to the name of his country incorrectly. The official communications from the United Nations and its agencies addressed the country correctly as Myanmar, as well as ASEAN, BIMSTEC, FEALAC. Even the letter addressed to the Director-General of the ILO by ITUC signed by Director Raquel Gonzalez on 4 June 2009 observed the correct usage. There were just a handful of groups and nations who disregarded the real situation and intentionally and disrespectfully referred to his country by a different name. Their action was in contempt of the Chair and should be considered a serious matter.

The Employer members wished to note at the outset the substantial difference in tone in the discussion, especially in the final statement by the Government representative as compared to the constructive atmosphere which had prevailed during the special sitting on the observance by Myanmar of Convention No. 29. All those who had participated in the Committee came with goodwill and had differing points of view because of their differences in background, origins, etc. Past experience in the Committee had shown that when faced with differing points of view, a disparaging approach by governments was not successful in addressing the problems. The issues raised in this case went to the root of democracy and civil liberties of people. The case had a clear and substantial history which, even with the prospect of the adoption of a new Constitution, naturally made one sceptical as to whether this Constitution could really make a difference. The question was what could make this Constitution real in the face of the continuous failure to implement the Convention, which should be reflected once more in a special paragraph in the Committee's report. If the Government wanted to show some goodwill, it would agree that the Liaison Officer in Myanmar facilitated education on freedom of association. The Employer members asked the Government whether it would agree to such facilitation, as it would be an important first step. They concluded by noting that this was a serious case and deserved serious treatment.

The Worker members stated that they should once again denounce the murders, torture, arrests and imprisonment of trade union members for involvement in union activity that was considered completely normal in other countries; those violations, as well as the terms used by the Government representative to describe an honest trade union member, warranted the creation of a commission of inquiry. The ongoing violations, in law and in practice, of freedom of association would continue for a long time if respect for fundamental civil liberties was not restored. It was for that reason that the Worker members had made the following requests: that the Constitution be revised, particularly the articles on freedom of association and on forced labour; that the rulings and laws on illegal association be repealed; that the FTUB, whose representativeness had been attested to by a number of speakers, be both recognized and legalized; that Aung San Suu Kyi and all other trade union leaders and political prisoners who had exercised their right to freedom of speech and of association be released immediately; and that impunity for acts of violence against trade union members or for imposing forced labour be put to an end. To that end, the Worker members requested the Office to designate a Liaison Officer in the country who would be responsible for handling complaints filed in relation to exercising those rights cited in Convention No. 87. They also requested that the conclusions of the Committee be included in a special paragraph on the continued failure to implement the Convention.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the detailed discussion that followed. The Committee also recalled that it had discussed this serious case on numerous occasions over the last two decades and that its conclusions had been listed in a special paragraph for continuous failure to implement the Convention since 1996.

The Committee deplored the gravity of the information provided to the Committee of Experts by the International Trade Union Confederation (ITUC) with respect not only to the long-standing absence of a legislative framework for the establishment of free and independent trade union organizations, but also of the grave allegations of arrest, detention and denial of workers basic civil liberties, some of which had been examined by the Committee on Freedom of Association.

The Committee took note of the statement made by the Government representative in which he stressed that Myanmar was in the process of transforming to a democratic society and that freedom of association rights, as well as other basic civil liberties, had been provided for in the new Constitution. Once the Constitution came into force, labour organizations would emerge in line with it and would be able to carry out activities for the interests of workers. With regard to the question of the recognition of the Federation of Trade Unions of Burma (FTUB), the Government reiterated its previous statement that the Ministry of Home Affairs had declared the FTUB to be a terrorist organization in 2006; it was therefore not possible to recognize it as a legitimate organization. As regards the allegations of murder, arrest, detention, torture and sentencing of trade unionists, the Government explained that action was not taken because of the exercise of trade union activities, but rather due to breaches of existing laws and attempts to bring hatred and contempt upon the Government. The Government also provided information on the role played by the Township Workers Supervisory Committee in dispute settlement.

Recalling that fundamental divergences had existed between the national legislation and practice and the Convention ever since it had been ratified more than 50 years ago, the Committee once again urged the Government in the strongest terms to adopt immediately the necessary measures and mechanisms for the full assurance to all workers and employers of the rights provided for under the Convention. It once again 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.

While taking note of the Government's statement that its Constitution had been overwhelmingly approved through a referendum by over 90 per cent of the population and that it included respect for freedom of association and basic civil liberties, the Committee wished to highlight the intrinsic link between freedom of association and democracy and observed with regret that the Government had embarked upon a road map for the latter without ensuring the basic requisites for the former. The Committee was obliged once again to stress that respect for civil liberties was essential for the exercise of freedom of association and called upon the Government to take concrete steps urgently, with the full and genuine participation of all sectors of society regardless of their political views, to ensure that the Constitution, the legislation and the practice were fully brought into line with the Convention. It urged 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 continued to observe with extreme concern that many people remained in prison for exercising their rights to freedom of expression and association, despite its calls for their immediate release. The Committee therefore once again called upon the Government to ensure the immediate release of: Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights. The Committee once again recalled the repeated recommendations made by the Committee of Experts and the Committee on Freedom of Association for the recognition of trade union organizations, including the FTUB, and urged the Government to put an end to the persecution of workers or other persons for having contact with workers' organizations, including those operating in exile.

The Committee recalled its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize and called upon the Government to accept an extension of the ILO presence to cover the matters relating to Convention No. 87.

The Committee urged the Government to transmit all relevant draft laws and a detailed report on the concrete measures taken to ensure significant improvements in the application of the Convention, including as regards the serious matters raised by the ITUC, to the Committee of Experts at its up-coming session. The Committee expressed the firm hope that it would be in a position to observe meaningful progress in this regard 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.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A government representative 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 include 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 was not at all prepared 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 organization. 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 unauthorized organizations would not be permitted to be formed or continue to exist and pursue activities. This Order also provided for five years' imprisonment for persons who violated it, and up to three years' imprisonment for persons found guilty of being members of, or aiding and abetting or using the paraphernalia of unauthorized organizations.

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' organizations. 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 leaders, 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 US$4-5 a month, and working time was 48 hours per week, plus 12 to 15 hours of overtime, which would be paid at US$ 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 noted that these associations 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. The Employer members agreed with the Worker members that this case be included in a special paragraph.

A representative of the International Confederation of Free Trade Unions (ICFTU) stated that the Myanmar regime presented the physical release of Mr. Shwe Mahn as a step forward, but this person, as well as Messrs. Nai Min Kyi, Aye Myint and 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.

The 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, speaking on behalf of governments of Member States of the European Union, as well as of 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.

The 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 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 the Committee of Experts with 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 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, as in the case of Convention No. 29, the Government had demonstrated its disregard for obligations that it freely assumed 50 years ago when these two Conventions were ratified. 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.

The 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, 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 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 a.i. as recognized by the Understanding and necessary to the discharge of his functions should be fully respected.

The Workers members were of the opinion that if the tasks of the Liaison Officer were to include also a support to the Government of Myanmar for the implementation of Convention No. 87, the Liaison Office should be appropriately reinforced and adequate resources and means should be provided. This would be necessary so as not to weaken the already difficult work of the Liaison Officer on Convention No. 29. For this reason, the Worker members would have preferred the inclusion in the conclusion of the two paragraphs of the conclusions of the Special Sitting on Convention No. 29, concerning the need to strengthen the ILO Liaison Office. The Employer members associated themselves with the statement made by the Worker members.

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 Workers members were of the opinion that if the tasks of the Liaison Officer were to include also a support to the Government of Myanmar for the implementation of Convention No. 87, the Liaison Office should be appropriately reinforced and adequate resources and means should be provided. This would be necessary so as not to weaken the already difficult work of the Liaison Officer on Convention No. 29. For this reason, the Worker members would have preferred the inclusion in the conclusion of the two paragraphs of the conclusions of the Special Sitting on Convention No. 29, concerning the need to strengthen the ILO Liaison Office. The Employer members associated themselves with the statement made by the Worker members.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative supported the proposals made by a group of countries from the Non-Aligned Movement regarding the Committee's methods of work. Some member States had been asked to appear before the Committee for two or three consecutive years which proved that there was a need for fair and objective criteria for the selection of cases. While the Government fully supported these proposals, it would not try to evade the issue of its observance of the Convention. He recalled that some members of the Committee had previously queried when a new Constitution would be drawn up. In this regard, he emphasized that Myanmar was a country in transition. With this vision, the Prime Minister, General Khin Nyunt, had proclaimed a seven-step Road Map on 30 August 2003. This Road Map had been welcomed by countries in the region and beyond. The Ninth ASEAN Summit and the Seventh ASEAN +3 Summit, held in Bali in October 2003, had welcomed it as both a pragmatic approach and an important programme. The first step of the Road Map was the reconvening of the National Convention to lay down the basic principles for drafting a new Constitution. The speaker was pleased to inform the Committee that the National Convention was currently in session. The first step of the Road Map was thus being implemented. On 20 May 2004, the National Convention had held deliberations on the basic principles for the social sector, including the rights of workers. These deliberations had also dealt with the basic principle of forming workers' organizations. These basic principles would provide the framework for drafting detailed provisions in the process of drawing up the new Constitution.

The speaker recalled that workers' organizations that came quite close to the basic principles of the Convention already existed in the country. As an example, he mentioned the Myanmar Writers' and Journalists' Association. Its president, a well-known writer, had not been appointed by the Government, but freely elected by the members of the Association. The same applied to its secretary and other members of the Central Executive Committee of the Association. On a historical note, he stated that Myanmar writers had formed an association on 8 March 1944, during British colonial rule. It had been formed by writers of their own free will to look after their interests in the light of financial and other difficulties faced by most Myanmar writers at the time. In 1993, this Association was reconstituted as the "Myanmar Writers' and Journalists' Association" (MWJA). The same basic principles of independence and autonomy, non-compulsory affiliation, voluntary nature and the absence of intervention from central authorities had been preserved until now. The MWJA was an association of intellectual workers, freely formed by Myanmar writers and journalists. It was a nationwide confederation at the central level, with associations or branches at township or sub-township levels throughout the country. The Executive Committees at various levels were freely elected by members of their respective associations. Moreover, the MWJA was freely organizing a wide range of activities on its own. One noteworthy activity, peculiar to Myanmar, was the celebrating of Writers' Day. On Writers' Day, members of the MWJA organized lectures, talks and traditional gatherings of writers where junior writers paid homage and offered donations in cash and kind to senior veterans. Furthermore, the MWJA had contacts and cooperated with writers' and journalists' associations in other countries. The speaker believed that the MWJA was one of the organizations of intellectual workers that came quite close to the basic principles of the Convention. The existing workers' organizations such as the MWJA were the forerunners of trade unions, safeguarding and promoting the interests of workers as much as possible under prevailing circumstances. It was possible to further develop workers' organizations of a similar character, and take further appropriate interim steps. This was the preparatory work, leading to the formation of workers' organizations in accordance with the new Constitution and relevant laws of the country. The MWJA could well be a pilot project that could be instrumental in exploring ways and means to make further progress in this respect.

With regard to Myanmar's cooperation with the ILO, the speaker recalled the technical assistance provided with regard to the Convention in 1995 and 1996. In addition, the Government was fully cooperating with the ILO in the implementation of Convention No. 29. This cooperation had very much advanced, with a landmark agreement reached between the Government and the ILO on a Joint Plan of Action for the eradication of forced labour in the country. Similar cooperation could and should be extended to Convention No. 87. If the ILO was willing to assist in respect of Convention No. 87, this could open new possibilities for cooperation. In the meantime, the Government would frequently consult with ILO officials, including those from the International Labour Standards Department and the InFocus Programme to Promote the Declaration. He concluded by emphasizing that his Government believed in dialogue and cooperation. Name calling, blaming and censuring a member State which was doing its utmost to advance the cause of workers under the prevailing circumstances would not be helpful. Nor would any attempt to isolate or pressure a member State serve any useful purpose. He hoped that the Committee would understand Myanmar's constraints and appreciate the genuine good will and intentions of the Government as well as the aforementioned developments and significant steps taken by it.

The Worker members recalled that the case had been discussed 16 times in the last 23 years. They mentioned that the Committee of Experts' comments had been supplemented by information contained in the Committee on Freedom of Association Case No. 2268, in which a comprehensive and disturbing picture of the total absence of freedom of association in Burma emerged.

They observed that the Committee of Experts had felt "obliged to recall that it had been commenting on the Government's failure to apply the Convention, both in law and practice, essentially since its ratification 50 years ago". The pattern of abuse in Burma was unique, and the Government's failure to apply the Convention took place in the face of a concerted effort by the ILO standards enforcement machinery to encourage it to do so. The Committee of Experts had once again noted "with deep regret the total lack of progress in providing a legislative framework in which free and independent workers' organizations can be established". In addition, the Committee of Experts had taken note of the Government's contention that the country was in transition to democracy - a transition which the Worker members found hard to detect - and that it was doing its utmost to promote the rights, interests and welfare of workers, as well as to find ways to take the appropriate interim steps before the drafting of a Constitution. In this context, the Government referred to the workers' welfare associations as the forerunner of trade unions. Concerning the Government's contention that these associations were embryonic workers' organizations, the Committee on Freedom of Association had examined the matter in paragraphs 739-742 of its 333rd report (document GB.289/9, March 2004) indicating that at the very least such associations should enjoy guarantees of independence in order to be considered embryonic workers' organizations. The Committee on Freedom of Association had concluded after examining the information provided that these associations "are not substitutes for free and independent trade unions" (paragraph 742). Similarly, the Committee of Experts had reiterated that "these associations have none of the attribute characteristics of free and independent workers' organizations". The Committee of Experts had estimated that the "Government's continued insistence on the role of the welfare associations in respect of the application of the Convention, without any other real progress in this application, is simply an indication of the lack of seriousness given to the fundamental matters raised by the Committee over these many years".

The Worker members noted that the Government representative had informed the Committee, as he had during the special sitting to examine the observance of the Forced Labour Convention, 1930 (No. 29), that a discussion had already taken place on 20 May 2004 at the National Convention on the inclusion of freedom of association principles in the new Constitution, upon which new legislation could be drafted. They indicated that in fact they had no idea what exactly had been discussed in the National Convention. In regard to the National Convention, the Worker members recalled from the special sitting discussion that the international community, including the United Nations, had uniformly condemned the National Convention process. Ms. Aung San Suu Kyi remained under house arrest. The regime was so concerned about her influence that she was being prohibited from making any statement to the National Convention. There was no effective participation in the National Convention by the political party, the National League for Democracy (NLD), which had won 82 per cent of the parliamentary seats in the 1990 national elections, nor by any of the ethnic political parties that had won seats in those elections. Furthermore, there were no credible worker representatives among the 1,000-plus hand-picked participants. In addition, the fact that the ILO was not asked to provide advice in the drafting of any constitutional provisions protecting freedom of association at the National Convention, cast serious doubt on any claim by the regime that it intended to include freedom of association in a new Constitution. There were many examples of the ILO playing such a role at the request of a government, Brazil and Timor Leste among them.

The Worker members also recalled that many legislative decrees had been issued over the years despite the absence of a Constitution. The failure to do away with offending legislation and issue a new decree protecting freedom of association had always been a deliberate act of will on the part of the regime. However, even without such action and as the best way to demonstrate its good will, the Government could inform the Committee that it would not enforce any of the old colonial laws and military decrees that undermined freedom of association. It could even agree to recognize the right of Burmese workers to form and join organizations of their own choosing, such as the Federation of Trade Unions of Burma (FTUB), for the furtherance and defence of their interests inside the country. They observed, however, that the Committee knew what the regime thought of the FTUB General-Secretary. The Government had slandered him many times in the Committee and would probably do so again. But the Government could not plausibly argue that every Burmese worker associated with the FTUB was a terrorist. They stated that the Committee on Freedom of Association in paragraph 743 of its 333rd Report (Case No. 2268) indeed made a similar request after coming to the conclusion that any organization freely chosen by the workers would be considered to be unlawful by the Government. In the absence of legislation protecting freedom of association, the Committee on Freedom of Association had asked the Government to refrain from any acts preventing the free operation of any form of organized collective representation of workers, freely chosen by them to defend and promote their economic and social interests. The Committee on Freedom of Association's request "includes workers' organizations which operate in exile, since they cannot be recognized in the prevailing legislative context". They added that the Committee on Freedom of Association was clearly referring to the FTUB, which had been forced to operate clandestinely since its inception in 1991. The FTUB maintained structures both inside and outside the country. It was the effective voice of over 1.5 million Burmese migrants working in Thailand. But it also maintained underground unions in key industrial sectors in Burma proper, and operated in all the major cities of the country. It actively collected evidence of violations of workers' rights and monitored the denial of collective bargaining rights in industrial sectors, as well as evidence of forced labour, which it communicated to the ILO and to the international labour movement. FTUB members caught doing so, incurred the death penalty. The Government's propaganda apparatus regularly and virulently attacked the FTUB calling it an expatriate terrorist gang. The ICFTU itself had been accused of assisting and encouraging the FTUB to commit terrorist acts.

The Worker members recalled that the General-Secretary of the FTUB Mr. Maung Maung, had to leave the country at the time of the 1988 military coup, owing to his involvement in the democratic trade union movement. The Government had never denied that he was involved in trade union activity at his workplace during those years. He was under constant attack from the regime, which accused him of leading a terrorist organization, and he had been convicted of high treason in absentia. In paragraph 751 of its 333rd Report (Case No. 2268), the Committee on Freedom of Association had expressed its concern about the link between Mr. Maung Maung's alleged criminal activities and his trade union work. The Committee on Freedom of Association had requested the Government to provide all evidence, including copies of the court's decisions, illustrating that the grounds on which the criminal charges were pressed had no connection to his trade union activities. The Worker members supported the Committee on Freedom of Association's request and asked the Government to provide this information to the Committee of Experts for its review. They looked forward to learning the Committee of Experts' assessment of any evidence produced and whether it would conclude next year, as expected, that he was a victim of his legitimate trade union activity. They asked the Government once and for all to stop the accusations and threats against him and other FTUB leaders, and added that there were other worker activists under detention in Burma for legitimate trade union activity, including providing information to the ILO on forced labour. The Worker members raised the case of the three workers who were convicted of high treason for having contacts with the ILO and FTUB. The ILO Director-General in his letter of 2 June 2004 to the Minister of Labour expressed his serious concern about obvious freedom of association issues raised by the Supreme Court judgement against Shwe Mahn, Min Kyi and Aye Myint. The judgement clearly indicated that Shwe Mahn's major crime was his association with the FTUB. In fact it specified that he had already been sentenced to two years' imprisonment in 1990 on these grounds. Apart from the fact that these convictions raised preoccupying issues of double jeopardy, they cast light on the absurdity of the legal system in Burma. As long as the authorities failed to recognize legitimate trade union activities, trade unionists would be threatened by the highest criminal penalties, which was in blatant violation of freedom of association. The criminal character could spread to all presumed accomplices and could include all Burmese workers in contact with the FTUB. The case of these three trade unionists confirmed once again the utmost importance for the Committee to urge all organs of the Government, including the judiciary, to implement the Committee on Freedom of Association's recommendation in paragraph 743 of its 333rd Report (Case No. 2268) to refrain from any act preventing the free exercise of FTUB activities. Finally, the Worker members said that it was clear that the accused had not benefited from the assistance of legal counsel of their own choice nor had they had the benefit of a public hearing in an open court. The absence of both was a common thread running through all of the worker detainee cases back to 1997 and went against all principles of international law and freedom of association. The second Supreme Court review of the conviction of Shwe Mahn and the other eight persons convicted of high treason, should ensure the minimum guarantees of judicial fairness, that the defendants be informed of the charges against them, enjoy sufficient time to prepare their cases and benefit from defence counsels of their own choosing. The Committee should strongly urge the Government to take all the necessary measures to ensure these guarantees as a matter of urgency.

The Employer members recalled that since 1993, this Committee had repeatedly dealt with this case which had also been repeatedly mentioned in special paragraphs of the Committee's report as a case of continued failure to apply the Convention. Summarizing the facts of the case, the Employer members stated that no free and independent trade unions existed in the country, a situation that was not denied by the Government. While the Government had once again referred to the future Constitution, indicating that the prevailing situation was provisional, the Employer members recalled that in fact the Government had failed to apply the Convention ever since its ratification some 50 years ago. Therefore the Committee of Experts had noted the total lack of progress in providing a legislative framework in which free and independent unions could be established. In this respect, the Employer members recalled that all trade union activities constituted punishable offences due to the fact that under national legislation trade unions were illegal organizations. The information provided by the Government representative did not indicate any change in this regard. The Committee of Experts had consistently stated that the welfare associations, which the Government considered to be forerunners of trade unions, were not substitutes for trade unions in the meaning of the Convention. The Employer members were not against the activities of these associations, but they agreed with the Committee of Experts that they did not satisfy the requirements of the Convention. Against this clear factual background, the Committee should urge the Government to finally apply the Convention to ensure that workers and employers could fully exercise their right to freedom of association. While in substance the Committee's conclusion should remain unchanged, the resolution of this case had become increasingly urgent.

The Government member of the United States said that this case was perennially disturbing and that her Government remained concerned about the total lack of progress by the Myanmar authorities in providing a legal framework in which free and independent workers' organizations could be established. The Government of the United States deplored the lack of seriousness the Myanmar authorities had given to a fundamental right that should have been guaranteed in the 50 years since Myanmar had ratified this Convention. Recent events in the country and the discussion held in the Committee served to dramatically illustrate the high price workers were paying for attempting to organize trade union rights, or even making contact with independent trade union organizations. Despite promises, the fact remained that law and practice were in stark contrast to the requirements of the Convention. Civil liberties were trampled. Due process was ignored. As her Government had already noted, strong and independent workers' organizations could provide significant help in the effort to eradicate forced labour and would make a valuable contribution to the transition to democracy. But genuine freedom of association did not exist in Myanmar. She asked the ILO to send the strongest possible message to the authorities to recognize, guarantee and promote freedom of association and the right to organize.

The Worker member of Italy stated that the 1964 legislation and other laws and orders, which had been the subject of comment by the Committee of Experts over many years, as well as military decrees and orders, had strangled all forms of democratic organization and collective bargaining in Myanmar. On 18 September 1988, the date of the military coup which abolished all state organs, the SLORC issued Order No. 2/88 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, of committing a crime or not. Order No. 2/88 was further strengthened by the 1988 Unlawful Association Act, which stated that a member of an unlawful association would be punished with imprisonment of not less than two years. On 30 September 1988, Order No. 6/88, known as the Law on the Formation of Associations and Organizations was issued. It had been considered by the Conference Committee for many years. The Order stated that all organizations had to apply for permission to the Ministry of Home and Religious Affairs, provided that organizations that were not permitted could not form or continue to exist and pursue activities. This Order applied to workers' and employers' organizations. The reasons to deny an organization permission to be established were extremely broad and there was no mechanism for appeal against a decision denying permission. Violation of the Order could be punished with imprisonment of up to five years, while persons found guilty of being a member of an unlawful organization could be jailed for up to three years. The speaker recalled that in 1989, the Government had indicated that major political changes were under way in Burma and that the former single-party system was in the process of being transformed into a multi-party system. In 1991, after the March 1990 democratic elections, won by the NLD, the Government communicated to the Committee that although there had been no formal amendment or repeal made to Act No. 6 of 1964 and Regulation No. 5 of 1976, they had become automatically defunct.

The Government representative declared also that "general elections had been recognized as one of the most free and fair elections, and recognized that "the provisions of the law concerning the formation of workers' organizations in his country restricted the creation of trade unions to a single trade union structure, which was contrary to the provisions of Articles 2, 5 and 6 of the Convention". In 1992, the Government indicated that the Trade Union Act would have been redrafted to meet the new trends prevailing in this country, so trade union rights will prevail. The Government declared that in conformity with Declaration No. 11/92 of 24 April 1992 after the convocation of a national Convention, the new Constitution would incorporate the rights of all workers to form their own independent trade unions in conformity with the democratic system. In 1993, the Government had stated that after the emergence of the new Constitution, various laws would have to be reviewed to bring them in line, but during the transitional period, workers' rights had been ensured by legislation still in force. The speaker said that nothing had changed although more than a decade had passed since the democratic elections. The new National Convention, which had begun in May 2004 with democracy absent both in terms of participants and procedures and the number of workers in jail condemned to rigorous work (which is a way to define forced prison labour), should oblige the Government of Burma to put into practice, immediately and without any further delay, the conclusions of the Committee on Freedom of Association, thus using the expertise of the ILO Freedom of Association Branch. She concluded by asking the Government to implement without delay the recommendations of the Committee on Freedom of Association.

An observer of the International Confederation of Free Trade Unions (ICFTU) said that the Committee of Experts, the Committee on Freedom of Association and previous speakers had described the complete lack of freedom of association in Myanmar from the legal point of view. As General-Secretary of the Federation of Free Trade Unions of Burma (FTUB), he said that it was impossible for his organization to function freely or register officially and that activities had been conducted underground. Working for, cooperating with or simply being in contact with his organization could lead to the harshest possible sentence, i.e. the death penalty. The FTUB maintained structures both inside and outside the country, and activities inside Burma included organization and training, collecting evidence of worker's rights, involvement in labour disputes, and monitoring the denial of collective bargaining rights. Trade unions had also collected evidence of forced labour, which had been communicated to the ILO and the international trade union movement. As evidence of denial of freedom of association he pointed to four cases described in Case No. 2268 of the Committee on Freedom of Association, concerning the Motorcar Tyre Factory, Unique Garment Factory, Myanmar Texcamp Industrial, and Myanmar Yes Garment Factory, the last three being located in the Hlaing That Ya industrial zone. The pattern of these cases was identical: on demanding their rights, workers faced threats, dismissals and arrests as police or army intervention was standard practice. In all the cases the FTUB had also written official letters to both the employer concerned, including, where necessary, to the foreign owners of the companies, for example in the United States, and to the Ministry of Labour. Despite these actions, FTUB members had been accused of high treason simply because they had been in contact with the ILO. Shwe Man, Min Kyi and Aye Myint had been in prison since July 2003. He appreciated the efforts deployed by the ILO, including visits to the prison where his three colleagues were detained, and asked the Committee to urge the authorities to release them. He drew the Committee's attention to another major case concerning three FTUB leaders and members, which was similar to that of the three other members detained since 1997 under life sentences: U Myo Aung Thant, Khin Kyaw and Thet Naing. He stressed the striking similarity between the cases of two of them, Myo Thant and Khin Kyaw, and those of the three other colleagues who had been sentenced to death in November 2003 and whose cases were not well known to the Committee. Like the three new cases, the colleagues detained since 1997 had not benefited from a fair trial and had been sentenced for alleged possession of terrorist equipment, whereas in fact they had been sentenced for having been in contact with the FTUB. U Myo Aung's conviction rested on a confession obtained through torture. He asked the Committee to demand their immediate release. Thet Naing was imprisoned for strike action, though the exact sentence was never announced. He expressed the hope that the Committee would demand the release of all detained trade union members, activists and leaders, and that the Government would fully respect the Convention both in law and in practice.

The Government member of Norway also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, expressed once again deep concern about the trade union situation in Myanmar and recalled that this Committee had been commenting upon the Government's failure to apply this Convention for several years. He noted with deep regret the total lack of progress in providing a legislative framework in which free and independent workers' and employers' organizations could be established, and considered this as an indication of the lack of seriousness given to these fundamental matters by the Government. He welcomed the information contained in the Government representative's letter to the Director-General of 3 June 2004, in which it was mentioned that, on 20 May 2004, the National Convention had discussed the basic principles relating to the rights of workers, including basic principles concerning labour organizations. However, he reminded the Government representative that these principles comprised the basic rights of workers and employers to form and join organizations of their own choosing, without previous authorization, and the right for these organizations to organize their activities freely and to affiliate with international organizations without any impediment. He again urged the Government to immediately take the necessary measures to ensure that workers and employers could fully exercise their rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear. Finally, he asked the Government to provide the necessary information in reply to the serious matters raised by the ICFTU.

The Worker member of Thailand observed that up to two million migrant workers from Myanmar lived in Thailand. The FTUB organized these workers in cooperation with Thai organizations and assisted workers deported back to Myanmar where they ran the risk of being arrested. The FTUB and his union were discussing possible membership of migrant workers in Thai unions in order to protect their rights. Thai trade unions also helped Myanmar seafarers to organize.

The Worker member of Japan noted that the case had been discussed for many years and that it was one of the worst ever recorded. The statement by the Government representative did not in any way improve matters. The main reason why the Committee of Experts' recommendations were discarded was due to political support from countries mainly in the Asian region, but he was pleased to note that Malaysia had declared that it might no longer defend Myanmar against international criticism if Aung San Suu Kyi was not released. A second factor was continuing foreign economic support, which amounted to US$7,400 million at the end of March 2001. The ten major foreign investors in order of importance were: Singapore, United Kingdom, Thailand, Malaysia, United States, France, Indonesia, Netherlands, Japan and Republic of Korea. China also supported the Government of Myanmar. He especially pointed to serious violations of ILO principles in EPZs, where workers could not establish or join trade unions, and had no protection of their interests and rights. A primary purpose of anti-union policy was to attract foreign direct investment in EPZs.

The Government member of Cuba stated that her Government assigned great importance to solving the difficulties faced by Myanmar with respect to the application of the Convention. The Government had already provided, during the examination of the application of Convention No. 29, indications of its will to cooperate. She firmly trusted that the Government would make progress in relation to the application of the Convention through dialogue and cooperation. She noted the need for the Government of Myanmar to adopt a legislative framework favourable to the application of the Convention, a task for which the technical assistance of the ILO would be extremely useful.

The Government representative wished to respond to comments made during the discussion of the three individuals with an ILO connection who had been convicted of high treason. He stated that he had already informed the Committee during the special sitting on Myanmar, about the positive outcome of the first appeal lodged by these individuals before the Supreme Court, which had reviewed and commuted their sentences to much lighter ones. He emphasized that this was the first time that the judiciary had taken into account the views and concerns expressed by an international organization. Not only these three individuals but also the remaining six persons who had been convicted of high treason had received commutations of their sentences. He added that a letter which he had sent to the Director-General on 3 June 2004, addressed the crux of the problem. In that letter, he had conveyed the following points: (1) Min Kyi (a) Naing Min Kyi, Aye Myint (a) Myint Aye Maung and Shwe Mann (a) Zeyar Oo still had the right to a second appeal to the full bench of the Supreme Court for a further review of their cases. (2) On 28 November 2003, the judge of the Yangon Northern District Court, in passing judgement on Min Kyi (a) Naing Min Kyi and Aye Myint (a) Myint Aye Maung, had made an inadvertent and incorrect reference to the ILO; this was one of the reasons why the review of the cases of nine individuals including Min Kyi (a) Naing Min Kyi, Aye Myint (a) Myint Aye Maung and Shwe Mann (a) Zeyar Oo, had to be undertaken. (3) He provided assurances once again, that under no circumstances, did contact and cooperation by a Myanmar citizen with the ILO constitute an offence under the existing Myanmar law. (4) He expressed the hope that these points, including points (2) and (3) would be duly reflected in the judgement on the second appeal by the Supreme Court. In that letter, he had also brought attention to the fact, that the Facilitator designated by the ILO, as provided in the Formal Understanding concluded to this effect, had already been accorded "free access to the said person(s) and witnesses at every stage of the procedure", and that he had enjoyed the full cooperation of the Myanmar authorities in the performance of his duties, as had been demonstrated by the role he had played in the case of the three individuals. The Government representative assured the Committee that the Facilitator designated by the ILO would continue to enjoy the same kind of free access and cooperation in the future.

As to the issue of the National Convention, the Government representative emphasized that the responsibility of the present Government, which was interim in nature, was to pave the way for the adoption of a new Constitution and for the emergence of a government in accordance with the Constitution. Accordingly, it had been striving for the successful implementation of the Road Map. The National Convention was composed of all strata of society, representatives of political parties, national races, selected persons and representatives from different walks of life. Since the announcement of the date for reconvening the National Convention, the Government, through various contacts, demonstrated its willingness to accommodate the participation of the NLD in the National Convention. The NLD delegates had left the National Convention of their own accord in 1996 and were barred from participation by the standing rules and regulations. The Government had manifested its good will by sending invitations to the NLD delegations concerned, even without waiting for them to formally appeal. This demonstrated the Government's sincerity. The Government not only allowed the NLD headquarters to be reopened but had also lifted restrictions placed on five senior party officials as a gesture of magnanimity. Furthermore, the Government, through its contact person, had urged Daw Aung San Suu Kyi on several occasions to permit NLD delegates to participate in the National Convention. At the request of the NLD, arrangements had also been made to enable the Central Executive Committee members to meet with Daw Aung San Suu Kyi and freely discuss among themselves. He emphasized the crucial importance of successfully convening the National Convention. The maintenance of peace and stability was of utmost importance to the success of the National Convention. One thousand and eighty-eight delegates were now participating in the National Convention and only 54 from the NLD; the Shan NLD and a small Kokang party had decided to stay away. In his view, it was evident that the NLD and its partners were placing the interests of the party and the individuals above that of the nation. The speaker finally protested against the abuse of the Committee by Mr. Maung Maung, a fugitive from justice, and recalled that he had already handed over a letter on this matter to the Chairperson of this Committee on 10 June 2004.

The Worker members noted that the Government representative had presented little new information. Despite claims of cooperation between the Government and the ILO, no progress had been made and there was a growing urgency to resolve this case. With regard to the Supreme Court's review of the cases concerning three individuals accused of high treason, mentioned in the Government's recent letter to the Director-General, the Worker members requested the Government to ensure their right to legal counsel of their choice and to a public hearing. The Committee should also request the Government to implement fully the recommendations of the Committee on Freedom of Association.

The Employer members stated that the Committee had dealt with the issues relating to the judiciary already under Convention No. 29. Finally, they reiterated that the facts constituting a violation of the Convention in this case were clear and not denied by the Government.

The Government representative stated that a certain confusion had prevailed as to the exact number of persons concerned by the discussion. Moreover, he indicated that his country would consider the inclusion of this case in a special paragraph as a denial of the fundamental ILO principles and that, if this decision were confirmed, his Government would draw the appropriate conclusions.

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 during 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 was nevertheless obliged to point out once again that despite the repeated examination of this case, there had been no progress with respect to the adoption of a legislative framework which would allow for the establishment of free and independent trade union organizations. The Committee noted with great concern the information provided about nine persons, including three persons who had been convicted of high treason for having maintained contacts with the ILO or having been affiliated to the Federation of Trade Unions of Burma. The Committee took note of the urgent and serious case before the Committee on Freedom of Association, the allegations of which referred to the conviction of three persons, two of whom were serving prison terms, for having exercised trade union activities. The Committee urged the Government to liberate those who remained in prison and to provide it with the text of a judgement which had convicted a trade union official in absentia. The Committee took due note of the information provided by the Government according to which the National Convention was preparing a Constitution and that once the Constitution was promulgated, it would make efforts to establish a legislative framework for the recognition of freedom of association. Recalling that fundamental divergences had existed between the national legislation and practice and the Convention since the Government had ratified the Convention 50 years ago, the Committee urged the Government in the strongest terms to urgently adopt the necessary measures and mechanisms to guarantee in law and in practice to all workers and employers the right to establish and join organizations of their own choosing without previous authorization, as well as the right of these organizations to affiliate with federations, confederations and international organizations, without interference from the public authorities. Moreover, the Committee underlined that respect for civil liberties was essential for the exercise of freedom of association and urged the Government to take the necessary measures so that workers and employers could exercise the rights guaranteed by the Convention in a climate of complete freedom and security, free from violence and threats. 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 comments presented by the ICFTU, so that this report could be examined by the Committee of Experts this year. The Committee expressed the hope that in the coming year it would be in a position to observe significant progress in this respect.

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 Government representative stated that a certain confusion had prevailed as to the exact number of persons concerned by the discussion. Moreover, he indicated that his country would consider the inclusion of this case in a special paragraph as a denial of the fundamental ILO principles and that, if this decision were confirmed, his Government would draw the appropriate conclusions.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative stressed that Myanmar, as a country in transition, was doing its utmost to promote the rights, interests and welfare of its workers while at the same time taking appropriate steps until the adoption of a strong and enduring State Constitution. He refuted the claim that the Government had done nothing to apply Convention No. 87 and had been using delay tactics for the past 40 years. The Revolutionary Council had assumed power in 1962 and a socialist State had been instituted by referendum in 1974 and workers had been allowed to establish organizations according to the State Constitution at the time and had operated until 1988. He stressed that the fundamental political transformations and transition from one political system to another were bound to impact developments in all sectors of the country, including labour affairs. During the socialist era, the foremost priority of the people of Myanmar had been the emergence of a State Constitution, and the creation of workers' organizations could only take place afterwards. The Government was striving to establish a modern, peaceful and developed democracy according to the aspirations of the people of Myanmar. After having restored peace and stability, the State Peace and Development Council (SPDC) was turning its efforts towards political, economic and social development in order to lay down the foundations for the emergence of a strong and enduring Constitution. Reminding the Committee that all laws arose from a country's Constitution, the Government representative stressed that this included laws that aimed at the creation of fully-fledged trade unions. Therefore, all the Government could do in the period of transition was to take interim measures and build on existing mechanisms for these associations to look after the rights and interests of workers to the extent possible under the prevailing circumstances. As evidence of the steps the Government had taken in this direction, he cited the following Workers' Welfare organizations which were allegedly operating in Myanmar, including the Myanmar Guston Molinel Garment Factory Workers' Welfare Association, the Textcamp Garment Factory Workers' Welfare Association, the Yes Garment Factory Workers' Welfare Association and the Tarshin Garment Factory Workers' Welfare Association. Professional associations cited included the Myanmar Overseas Seafarers' Association, the Myanmar Women Entrepreneurs' Association, the Myanmar Dental Surgeons' Association, the Myanmar Engineers' Association, the Myanmar ASEAN Women Friendship Association, the Myanmar Writers' and Journalists' Association and the Myanmar Construction Enterprises' Association. The Government representative claimed the organizations mentioned were forerunners of trade unions, which operated in the interest of workers and to the best of their abilities under the prevailing conditions. Taking the Myanmar Overseas Seafarers' Association as an example, he pointed out that the organization had been freely formed by the overseas seafarers, had freely elected officers on its Executive Committee and freely exercised its activities in the interests of its members. He likened it to a trade union and stated that the Government had deposited a copy of its Constitution with the ILO. He maintained this was a major step towards implementing Convention No. 87.

The Government representative stated that the existing mechanisms for the safeguarding of workers' rights were working well in Myanmar and that complaints of trade disputes had been dealt with effectively and peacefully through conciliation and negotiation. He explained that, in 2002, the Department of Labour had received 92 complaints of trade disputes from 60 factories and workplaces with a combined total of 29,054 workers, 14,202 of whom had been directly involved, and that all the cases had been settled through negotiation and conciliation processes.

Reiterating the fact that the Government was doing all in its power to progress towards implementation of the Convention, the speaker pointed out that the Government had been receiving technical assistance from the ILO in this respect, including the visit to Myanmar of Standards Department officials. The speaker stated that the Government was cooperating with the ILO in the implementation of the Forced Labour Convention (No. 29), 1930, and had been making great progress, citing the agreement, recently concluded with the ILO, on the Joint Plan of Action for the elimination of forced labour. This agreement, in the speaker's view, was a model in the field of human rights and should be applied to Convention No. 87. ILO technical assistance in this matter would make way for further positive ILO-Myanmar cooperation.

The speaker explained that the Government had consulted the ILO on how to strengthen workers' welfare associations and on other ways of advancing the matter. On 20 May 2002, the Myanmar delegation had discussed Convention No. 87 with the Director-General and other ILO staff, and since then, there had been regular contacts with the Standards Department.

In conclusion, the Government representative emphasized the importance of the role of the ILO in helping member States implement core ILO Conventions and said that it should refrain from censuring States which were genuinely attempting to comply with the Conventions. The speaker hoped that the Committee understood the position of the Myanmar Government and that discussions and cooperation with the ILO would lead to fruitful results towards implementing their obligations.

The Worker members stated that, although the Committee of Experts' observation was brief, the case of Myanmar was well known given that it had been discussed at the Conference 15 times in the past 22 years, and even before the Commission of Inquiry had been established concerning the violation of Convention No. 29 by Myanmar. On Convention No. 87, a special paragraph had been set aside on the case on eight occasions, five of which were for continued failure to apply the Convention. They pointed out that this was the only case, among many concerned with the application of Convention No. 87, which focused on the total absence of freedom of association over a prolonged period of time. These violations of freedom of association occurred in a political climate of severe repression by the military regime, of human rights and other fundamental freedoms, as the tragic events of the last two weeks had shown. Many of these violations had been brought to the attention of United Nations bodies, including the ILO, and the situation was being followed closely by the Commission on Human Rights, the UN Secretary-General, the General Assembly and the Committee on the Rights of the Child, which deplored "the pattern of gross and systematic violations of human rights in Myanmar, including extra-judicial, summary and arbitrary executions, enforced disappearances, rape, torture, inhuman treatment, denial of freedom of assembly, association, expression, religion and movement" (Commission on Human Rights resolution 2002/67, paragraph 5(a), General Assembly resolution A/RES/56/231, paragraph 4). In February 2003, the General Assembly expressed again its grave concern "at the ongoing systematic violation of the human rights, including civil, political, economic, social and cultural rights of the people of Myanmar; extra-judicial killings, renewed instances of political arrests and continuing detentions, including that of prisoners who had served their sentences; denial of freedom of assembly, association, expression and movement; wide disrespect for the rule of law" (General Assembly resolution A/RES/57/231, paragraph 3(a) and (b)).

The Worker members recalled that on 28 May 2003, the ICFTU had filed a 33-page complaint with the ILO, with over 150 pages of attachments, against the regime for violations of freedom of association. In its first section the complaint focused on the legislative framework used by the regime to suppress freedom of association and, in its second part, denounced new cases of violations which confirmed the military regime's persistent and systematic pattern of violations of the right to freedom of association. They requested the Committee of Experts to review the detailed information provided by the ICFTU for its report next year, as well as any response the Government might provide. They also pointed out that because of arbitrary and artificial restrictions of time, some Workers' delegates would refrain from intervening. In due time, the interested organizations would submit their observations to the Committee of Experts and the Government should also respond to their concerns.

The Worker members also urged the Committee of Experts, to devote special attention to the section of the ICFTU comments, which had not yet been completely reviewed by them, on new information concerning a legislative framework for the suppression of freedom of association. They reiterated that, despite the repeated statements of good intention by the Government that drafting of new legislation allowing the free and independent establishment of workers' organizations, was under way, absolutely no progress had been made.

The Worker members recalled that Mr. Maung Maung, the General Secretary of the Federation of Trade Unions of Burma (FTUB), together with other workers who had attempted to organize an independent union in a state-owned mining company in the late 1980s, had been dismissed, threatened and forced to flee the country after the military crackdown of August 1988. The FTUB was considered by the military regime to be a subversive organization and any worker linked to it was at tremendous personal risk. Nevertheless, the FTUB continued to function underground around the country, and helped to organize and expand relations with new independent trade unions in a number of diverse ethnic communities, giving rise to some of the first democratic structures in these communities. The fact that the FTUB, which was recognized as a legitimate trade union around the world, was considered to be a subversive organisation by the regime, dramatized the total absence of freedom of association in Burma. Although the Government representative claimed that the Workers' Welfare Association and the Workers' Supervisory Committees were a form of freedom of association, the Committee of Experts agreed with the Worker members that neither of these could substitute for the fundamental right to organize provided for in the Convention.

The Worker members recalled that the two FTUB representatives, who had been arrested in 1997 and convicted for high treason at secret trials, had not been seen since, and therefore requested the Government representative to provide a report on their whereabouts and well-being. They were still waiting for a response regarding Saw Mya Than, another FTUB member, whose murder, on 4 August 2002, had been reported to the ILO and raised by the ILO liaison officer before the Government Implementation Committee on 9 November 2002, to which there had been no response from the Government.

The Worker members stressed that they would consider any attack on Mr. Maung Maung in the context of the violent crackdown of the last two weeks as a threat to his well-being and requested the Committee to stress in its conclusion that such attacks were unacceptable. In conclusion, the Workers informed the Committee of the approval by the United States Senate, of the Burma Freedom and Democracy Act, in response to the ambush of Ms. Aung San Suu Kyi on 30 May 2003 and the subsequent crackdown on the National League for Democracy (NLD) countrywide. The Bill was on its way to becoming law and the Worker members called on other nations to take similar actions until the military regime in Burma released all political prisoners, provided a full account of the 30 May 2003 events, and returned to a path of political reconciliation. Only then would there be a climate for progress towards the protection of workers' and employers' rights to freely organize in accordance with Convention No. 87.

The Employer members recalled that the Committee had dealt with this case eight times in the last ten years and that the Government had claimed for eight years that it was in the process of elaborating a new Constitution and new laws, including a trade union Act. However, no factual development had been noted so far and the Government had also failed to provide such information at the present session of the Committee. The Government representative once again referred to a number of existing organizations which, as he admitted, were only surrogates to real trade unions as provided for in the Convention. There was no freedom to join and establish organizations without interference and prior authorization. Noting that no information had been submitted on the manner in which the legislative measures were undertaken, the Government was requested to submit existing draft laws to the Committee of Experts. If the Conference Committee considered the statement of the Government representative to express its willingness to take further measures, this should be noted. In response to the Government representative's referral to Convention No. 29, in respect of which the ILO had to take measures under article 33 of the ILO Constitution, the Employer members hoped that it would not be necessary to follow such a stony path with regard to Convention No. 87. However, changes in law and practice to bring it in conformity with the Convention had not yet been achieved and restrictions and interference by the State continued. The Committee should therefore urge the Government once again to take the necessary measures.

The observer of the International Confederation of Free Trade Unions (IFCTU) informed the Committee that in 1988, he was elected President of the Myanmar Gems Corporation Union and President of the All Burma Mining Union. He had participated in the All Burma Workers' Union Congress held at Htan Ta Bin high school in Rangoon on the 30 August 1988. On 18 September 1988, the military staged a coup and announced that all workers on strike should return to work and issued Order No. 6/88 which denied Freedom of Association by imposing a penalty of five years' imprisonment. The speaker declared that he returned to work with the rest of the members, but on 24 October 1988, the corporate administration called in six leaders of the union, including himself, and informed them not to go to work the following day. The speaker left the country to avoid arrest, imprisonment and torture as the Military Intelligence had been looking for him. He stressed that although independent trade unions existed in Burma, their members had been forced into exile. Furthermore, unions were denied the right to register, could not operate openly, and had to work underground. Trade union members risked reprisal, arrest and detention by the authorities if their activities were discovered. In October 1990, U Maung Ko, the secretary-general of the Port Workers' Union had been arrested and imprisoned at Insein Jail. On 9 November 1990, his family had learned of his death through the workers at the Rangoon General Hospital. The authorities claimed that he had taken his own life after confessing to his activities, but neither the confession nor the circumstances under which it had been extracted have been revealed. An FTUB eyewitness who had seen U Maung Ko's body before burial asserted that the many marks were proof of torture. The speaker also indicated that the cases of Myo Aung Thant, Khin Kyaw, Thet Naing and Myint Maung Maung, that had been discussed at the Conference Committee in 1999 and 2001, had not yet been resolved. They were still in prison for trade union activities. He also mentioned the case of Aye Aye Swe who was arrested in 1998 and sentenced to seven years in prison for trade union activities.

The speaker stressed that in Burma, any form of labour organizing was immediately repressed and labour disputes were settled through the immediate intervention by the police and the military imposing harsh criminal actions on the pretext of national security. Workers were intimidated, threatened or violently repressed. Workers were accused of being the communist tools of imperialists and terrorists. Military and police interventions usually led to violations of basic human rights, including beatings, torture, arrests and detentions with no guarantee of a fair trial. The speaker insisted that in such a climate of violence and repression and in the absence of the right to organize, forced labour could not be eliminated. He called upon the ILO to help them build independent representative trade unions to contribute to the well-being of the population of Burma.

The Government member of China encouraged the Government of Myanmar to cooperate with the ILO to comply with Convention No. 87.

The Government member of Norway, speaking on behalf of the Government members of the Nordic countries as well as of the Netherlands and Canada, expressed their continuing deep concern over the trade union situation in Myanmar and recalled that the Conference Committee had commented on the Government's failure to apply Convention No. 87 for several years. No real progress had been made in providing a legislative framework under which free and independent workers' organizations could be established. The speaker urged the Government to adopt the necessary measures to fully ensure the fundamental right to organize and to send, with its next report, copies of any proposed revisions of the Trade Union Act.

The Government member of the United States stated there was an inextricable link between the fundamental right to freedom of association and the issue of forced labour discussed during the special sitting of the Committee. The High-Level Team, which visited Myanmar in September 2001 with respect to Convention No. 29, had reported that if strong and independent workers' organizations, as required by Convention No. 87, existed in Myanmar, these could provide individuals affected by forced labour with the framework and collective support necessary to help them make the best possible use of all remedies available to defend their rights. It was thus crucial for the international community to remain focused on Myanmar's failure to apply Convention No. 87. The Government representative noted that, in response to the repeated appeals to the Government to take the necessary measures, the Committee once again heard promises regarding revised laws and a new Constitution, as well as explanations about workers' associations that are a surrogate of trade unions. Nonetheless, the fact remained that no real progress had been made. Her Government deplored the continuing lack of will to respect obligations freely undertaken and the recent events in Myanmar further demonstrated the Government's unwillingness to respect freedom of association. The Government of the United States called for the immediate release of Ms. Aung San Suu Kyi and other detained NLD members, and for the reopening of the NLD offices without delay.

The Government representative wished to clarify the circumstances of the death of Mr. Saw Mya Than. The Myanmar authorities had carried out a thorough investigation into this case. The investigation found that Saw Mya Than was from the village of Kalaikatoat in Ye Township. He did not belong to any lawful association of education workers. The Kawthoolei Education Workers' Union was an unlawful underground organization affiliated with the Karen National Union (KNU) which was the only remaining insurgent group in the country. He was not an elected headman of the village, as claimed by the FTUB. In fact he was employed by the army as a guide, not as a porter. On 4 August 2002, Saw Mya Than was accompanying an army column as a guide. When the army column reached a location about five miles from the village, a small group of KNU insurgents detonated a Claymore mine by remote control. In that incident, Saw Mya Than was killed instantly. The army column retrieved his dead body and handed it over to his family. It also assisted in organizing the funeral service for Saw Mya Than. Moreover, it gave due compensation to the members of his family. In fact, members of the bereaved family were quite satisfied with the kind assistance and sympathetic gesture extended to them by the army. It was therefore crystal clear that the allegation from the FTUB was an unfounded allegation, fabricated with political motivations.

With regard to Mr. Maung Maung, the Government representative alleged that he had once again abused the Committee. The same had happened at the meeting of this Committee on 7 June 2003. At that time he had informed the Committee that Mr. Maung Maung was a criminal, fugitive from justice and a terrorist. The speaker wished to place on record, once again, a strong protest of his delegation against the abuse of this Committee by the same person.

Turning to recent events, he stated that since the lifting of restrictions on Daw Aung San Suu Kyi on 6 May 2002, she had been allowed to travel freely through the length and breadth of the country. Between June 2002 and April 2003, Daw Aung San Suu Kyi had visited 95 townships. On 30 May 2003, she and her supporters in a long motorcade with over 100 motorcycles drove with high speed and ploughed through the crowd at a location outside Depeyin Township, resulting in injuries to many people. This led to clashes between the local populace and her supporters. Four persons were killed, and 48 persons injured. After she made a second trip to the Shwebo region after her visit to Mandalay, disturbances occurred at a location outside Depeyin Town on 30 May. He maintained that there was premeditation on the part of Daw Aung San Suu Kyi, but not on the part of the Government.

He recalled that, during the course of the present session of the Committee, he had said that Daw Aung San Suu Kyi was unhurt and that she did not have even a bruise. He indicated that Mr. Razali Ismail, Special Envoy of the United Nations Secretary-General, had said in a press interview that "I can assure you that she is well and in good spirits ... no injury on the face ... no scratch, nothing". He wished to stress that the authorities had to take necessary measures to ensure the safety of Daw Aung San Suu Kyi and other members of the NLD. These measures were temporary in nature. The Government would continue its policy of national reconciliation and its policy of transition to democracy in a systematic and step-by-step manner.

In conclusion, the Government representative stated that Myanmar's track record on the elimination of forced labour had shown sustained and significant progress. The role of the International Labour Organization should be to assist its member States in the implementation of the ILO core Conventions, and not to assume the negative role of censuring a member State which had a genuine intention to implement the core Conventions of the ILO but had to overcome certain constraints and difficulties.

The Worker members requested that the Government provide the Committee of Experts with all the legislative texts pertaining to freedom of association. Furthermore, in the light of recent events in the country, they once again pleaded with the Government for the release of Ms. Aung San Suu Kyi and to allow the reopening of all the offices of the NLD so that a dialogue of national conciliation could be taken up again. They requested that the new conclusions contain the same elements as those adopted in 2001. In response to the arguments of the Government representative that change takes time and that things cannot change overnight, they reminded the Committee that it had been making the same comments for more than 40 years regarding the failure to apply Convention No. 87 in law and in practice. Based on these observations, they requested the conclusions be included in a special paragraph of the report and that, furthermore, they reflect the continuing failure to apply the Convention.

The Employer members noted that, while there were some signs of incipient progress with regard to the application by Myanmar of Convention No. 29, which had again been discussed during a special sitting of the Committee, this was not at all the case for Convention No. 87. The Government again provided only general information and had not referred to any specific measure taken. The Employer members therefore agreed with the Worker members that a special paragraph on this case should be included in the Committee's report, making reference to the continued failure to apply the Convention.

The Government representative stated that in the light of the full cooperation and genuine good will expressed by the Government of Myanmar, the Committee should not have decided to include this case in a special paragraph. The Government representative reserved his delegation's position on the conclusions adopted, in particular on the elements concerning the political situation in the country.

The Committee noted the statements by the Government representative and the discussion which followed. It recalled that the Committee had discussed this serious case on many occasions in the last ten years and that its latest conclusions had been included in a special paragraph because of the continued failure of the Government to apply the Convention.

Notwithstanding, the Committee was once again obliged to note the lack of real progress towards the establishment of a legislative framework for the creation of free and independent organizations. The Committee profoundly deplored the persistence of serious discrepancies between national legislation and the provisions of the Convention which had been ratified almost 50 years ago. The Committee regretted that the information provided by the Government on the existence of workers' associations had not solved the problems raised by the Committee of Experts towards implementing the Convention.

Concerned about the total lack of progress towards implementing this Convention, the Committee strongly insisted once again that the Government urgently adopt the necessary measures and mechanisms for guaranteeing, both in law and in practice, the right of workers and employers to affiliate themselves with the organizations of their own choosing, without previous authorization, and the right for these organizations to affiliate themselves with federations, confederations and international organizations without the interference of state authorities. The Committee emphasized that respect for civil liberties was crucial for the exercise of freedom of association and therefore urged the Government to take the necessary measures so that workers and employers could exercise the rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear. Furthermore, the Committee urged the Government to provide the Committee of Experts, next year, with all relevant draft legislation and existing legislation so that it could be studied, and to provide a detailed report on the concrete measures taken to ensure improved compliance with the Convention. The Committee expressed the firm hope it would be able to note significant progress next year.

The Committee decided to include its conclusions in a special paragraph in its report. It also decided to mention this case as a case of continued failure to apply the Convention.

The Government representative stated that in the light of the full cooperation and genuine good will expressed by the Government of Myanmar, the Committee should not have decided to include this case in a special paragraph. The Government representative reserved his delegation's position on the conclusions adopted, in particular on the elements concerning the political situation in the country.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative indicated that, as a party to the Convention, his Government had reported on the progress made towards its application as much as possible and the information provided had been duly reflected in the reports of the Committee of Experts. However, there had been times when it had not been possible to submit reports due to unavoidable circumstances. He recalled that, following the adoption of the resolution by the ILO against his country concerning Convention No. 29, his Government had decided to disassociate itself from this decision, which it considered unfair and biased. In doing so, it had also decided to disassociate itself from Convention No. 87, in view of the unwarranted allegations made concerning its application. This explained the absence of reports on the Convention in recent years. In view of the political will of his Government, and the good cooperative approach adopted between Myanmar and the ILO, supported by many well-meaning Members of the ILO, it had been possible to register good progress in the application of Convention No. 29. With a view to demonstrating its good intentions, the Government had therefore decided to appear before the Committee, rather than submitting a written response to report on the application of Convention No. 87 from which Myanmar had already disassociated itself, despite the practical difficulties that it was facing. In earlier reports on the application of the Convention, information had been provided on the genuine efforts made and the difficulties experienced. The principal reason was that Myanmar was going through a period of transition from a socialist society to a peaceful modern democratic society. He added that when the new Constitution, which was currently being drafted, was adopted, it would duly reflect the rights of workers, including the rights required under the Convention. In the absence of the new Constitution, it had been endeavoured to protect the rights of the workers with the existing laws. It had been reported that labour laws had been reviewed systematically. For example, the Trade Unions Law of 1926 had been reviewed and redrafted to bring it into conformity with the new political and economic system. Indeed, a team from the ILO had visited the country in 1994 to hold discussions on matters relating to the Convention. This had been followed up by a visit of an ILO official in 1995. Although these visits had not concretized the application of the Convention, they had been very useful and amply demonstrated the political will of the Government. He emphasized that the Government was taking concrete measures to put in place democratic institutions, including the rights of workers to form their own unions, and that the existing machinery contained provisions to protect the rights of workers. The right of association had been granted by the Government and workers' welfare associations had been formed in various industries and establishments. There were also several professional and trade organizations which were functioning well. Indeed, there were now over 2,000 such welfare associations, which included mechanisms to promote and protect the rights and privileges of fellow workers. It might be said that these organizations constituted forerunners of trade unions, which would emerge later in accordance with the new Constitution. Before being able to fully comply with the Convention, he reiterated that the Government would protect the rights and privileges of workers to the fullest extent possible. However, he regretted that it would not be possible to provide the draft text of the revision of the Trades Union Law at the present time, but hoped that he would be able to do so as soon as possible.

The Worker members thanked the Government representative for appearing before the Committee and for his comments. At the outset, they noted that they had been surprised and troubled by his comments, that conveyed anything but an attitude of cooperation. Especially concerning were the representative's comments regarding his Government's repudiation of its treaty obligations under Convention No. 87. This was a very serious development that, if the Worker members had correctly interpreted his statements, cast a serious pall over the Committee's discussion. There was really very little more to say than what had been said repeatedly over the past 20 years. However, with all the attention given to the forced labour issue, the Committee should not overlook the fact that the violation of Convention No. 87 by the Burmese Government was clearly one of the most serious cases reviewed by the Committee over the last decade. This was the 14th time the Committee had discussed the case during the past 20 years, in fact, including ten out of the past 11 years. On seven of the most recent occasions, its conclusions had been set aside in a special paragraph of its report, the last four of these as cases of "continued failure to comply with the Convention". They regretted that this continued to be a record of dubious distinction, a record that would be worsening, given what the Government had told the Committee today. The Worker members reminded the Committee of the record of a government that had repeatedly expressed its "sincere" desire to cooperate with the ILO as the Committee had heard during its special sitting on Burma's application of Convention No. 29 earlier in the week, although it was not what the Committee had heard today. The language used by the Committee of Experts concerning the nature of the Government's cooperation was strong and clear. The Committee of Experts recalled that they had been "commenting upon the continued failure to apply the Convention, both in law and practice, for over 40 years". Regarding the submission of reports, the Committee of Experts "deeply deplored the lack of cooperation on the part of the Government, manifested in particular by a total absence of reports under this Convention over the past years, despite a serious failure in applying its provisions". They also recalled that a direct contacts mission had been abruptly cancelled in 1996 without any explanation whatsoever. The Government representative conveniently ignored this in his comments. Therefore, five years later, the commitment to allow a direct contacts mission was seemingly forgotten. In expressing the Workers' position, he wished to state clearly that there was absolutely no freedom of association inside Burma today, either in law or practice. This had been the situation for many years and any attempt to freely associate was dealt with quickly and in the severest terms. In regard to the law, as the Committee had stated many times in the past, there was no operating trade union law in Burma nor any legal structure to protect freedom of association. The Committee had discussed Decree No. 6/88, issued after the military crackdown of 1988. They did not wish to repeat what was said in previous years. Suffice it to say that this was a broad decree that required all associations and organizations in Burma to be approved by the Ministry of Home and Religious Affairs before being established. This was clearly a violation of Article 2 of the Convention that stated: "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their choosing without previous authorization". The Committee had also heard once again about plans for a new Constitution. It had heard about this for many years, but noted that a process accepted by the people to draft a new Constitution had never been put in place. The Committee had also heard about plans to draft a new labour law, as it had for many, many years, and once again there appeared to be absolutely no progress. The Government had been asked repeatedly to supply drafts to the ILO and to accept ILO assistance, such as a direct contacts mission, to ensure that it complied fully with Convention No. 87. The requests from the Committee of Experts and the Committee had been repeatedly ignored and the Committee had heard today that such requests would continue to be ignored. In regard to the actual practice inside the country, the Worker members informed the Committee that one of their Worker colleagues, Brother Maung Maung, had been present at the Conference this year and was present at the meeting today. Thirteen years ago, Brother Maung Maung was a leader of the All Burma Mining Union inside Burma. Together with six colleagues, he was dismissed under Decree No. 6/88 for participating in the 1988 pro-democracy demonstrations. He was forced into exile shortly afterwards and helped to establish the Federation of Trade Unions of Burma (FTUB). He was currently its general secretary. With offices in a number of countries, the FTUB had supported the organization of Independent Trade Unions in a number of the ethnic areas and against tremendous odds. The FTUB had even been able to organize workplaces inside the country. Of course these units were considered illegal and dangerous by the regime since the FTUB was banned in Burma as a terrorist organization. Anyone caught belonging to one of these units would be severely punished. The Worker members drew the attention of the Committee once again to two FTUB leaders, Khin Kyaw and Myo Aung Thant, both arrested in 1997. Khin Kyaw, an official of the Seafarers' Union of Burma, was serving a 17-year prison sentence for his trade union activities and Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, was serving a life sentence for relaying information to union and pro-democracy organizations in exile. His wife was also arrested and sentenced to ten years in prison. The Government was not very pleased that Mr. Maung Maung was present at the Conference. It seemed, when one read the official press, that the Government blamed him for, among other things, fabricating the thousands of pages of documentation supplied to the ILO confirming the existence of forced labour. He had often been the target of vicious personal attack in the official media. The Worker members noted that the Government had tried to block Mr. Maung Maung's attendance at this year's Conference by challenging his ICFTU credential claiming, among other things, that his organization was not legally registered in Burma, presumably, under Decree No. 6/88. This challenge had been summarily dismissed in the Credentials Committee. Such cases of chronic non-compliance over many years were extremely frustrating and could expose, unfortunately, the limits of what the Committee could achieve. Nonetheless, as the Worker member of the Netherlands and others had said on a couple of occasions this year, the Committee members were a patient lot and would continue to do whatever was necessary for as long as it might take to compel the Government to do what it clearly had no intention of doing, namely, to comply fully with its treaty obligations under Convention No. 87. Judging by the Government representative's comments, the Committee's patience would continue to be sorely tested. In conclusion, they recalled the comments of the Employer members during the discussion of Swaziland, that it was not within the mandate of the Committee to deal with broader political matters. And of course the Committee typically structured its discussions around the comments made by the Committee of Experts regarding the violation of a particular Convention by a particular country. However, often the Committee could not divorce its discussions from the broader political context existing in the country at issue. Surely, the Employer members were quite aware of this. Regarding Burma, the Commission of Inquiry made quite clear in paragraph 542 of its report that the problem of forced labour would not be addressed until a process of political normalization occurred. It went without saying that the same could be said about freedom of association. Given the total lack of progress over two decades towards bringing law and practice into compliance with Convention No. 87, a fundamental change in the nature of the regime would be necessary before the Committee would see any real progress. As noted during the special sitting on Burma's application of Convention No. 29, the Worker members sincerely hoped that the current talks between the regime and Aung San Suu Kyi would result in a political normalization, a transfer of power back to the elected civilian leaders and a return to the rule of law. They considered that a release of a few National League of Democracy (NLD) leaders from imprisonment during the past few days was a good sign, and hoped that these releases would result in the reopening of NLD offices around the country so that the current secret talks could develop into a full-blown dialogue. They did not know, however, what the outcome of the talks would be. At this point, they could only hope, and for the Workers, their hopes had been dashed a bit by the comments from the Government representative repudiating freedom of association. If these talks failed, history had shown that it was only a matter of time before workers would drop their tools, leave their workplaces and farms, and exercise their right to strike in defence of their most basic human rights. This was precisely what had happened in 1988 and was only put down by massive military force. In closing, they wished the Committee to know that if this ever happened again, the Workers would stand in solidarity with their sisters and brothers in Burma, as they did in 1988 and as they did with the workers of Poland, South Africa, Chile and elsewhere. Given the context of the discussions this year, they hoped and expected that the Employers, too, would rally to the support of the Burmese people in their greatest time of need.

The Employer members recalled that the Committee of Experts had been commenting on this case for over 40 years. The Conference Committee had also discussed this matter repeatedly. In fact, the Conference Committee had placed its conclusions regarding Myanmar in a special paragraph on at least seven occasions. The crux of the problem was that workers in Myanmar had no right to establish trade union organizations without previous authorization. This was a clear violation of the right of freedom of association contained in the Convention. In the past, the Government had indicated that it was in the process of drafting a new Constitution and reforming its labour laws. Today, the Government representative indicated Myanmar's intent to move away from the Convention because it considered that it had been unfairly treated by the Conference Committee. This was the reason why the Government had not submitted a report to the Committee of Experts. If this statement was intended to be a denunciation of the Convention, then it was in contradiction with the Government representative's statements regarding his Government's cooperative relationship with the ILO. The Government representative had referred to the existence of more than 2,000 social welfare associations which were, according to his definition, precursor organizations to trade unions. It was clear that these organizations were not trade unions. This statement created the impression that the Government feared the inhabitants of its own country, since it gave them no freedom to freely establish organizations to further and defend their interests. It was evident that the right of freedom of association did not exist in Myanmar either in law or practice. In addition, the Government representative had clearly manifested his Government's unwillingness to cooperate with the Committee. Under these circumstances, the Employer members had no alternative but to simply acknowledge this situation. The Government had taken a political position in this matter. However, the ILO and the Conference Committee could not influence this political decision. Their mandate was to address the consequences of this political decision, namely the manner in which the Government complied with its obligations arising out of its ratification of the Convention. This case was regrettable since governments normally cooperated with the Committee and made efforts to bring their legislation and practice into conformity with the provisions of the Convention. However, this Government had clearly shown its lack of will to take the necessary measures to guarantee fully freedom of association in the country. Accordingly, this regrettable situation of the Government's continued failure to implement the Convention should be reflected in the Committee's conclusions.

The Worker member of Pakistan agreed fully with the statements made by the Employer and Worker members in this case. He recalled that Myanmar had repeatedly assured the Committee that it intended to revise its labour laws. In fact, the Committee had been hearing the same promises since 1980. Referring to the Government representative's statements concerning social welfare associations, he considered that there was a clear distinction between trade unions and these associations. He also pointed out that, regardless of the constitutional framework of a country, when a member State ratified a Convention, it undertook to bring its laws into conformity with that instrument pursuant to basic principles of international law. Therefore, the Government's excuse that its laws would be amended in the future was unacceptable. Moreover, the Government had repeated the same excuse for the past 20 years, but had taken no action in this regard. He recalled that the Conference Committee had repeatedly recognized the gravity of the situation in Myanmar and had repeatedly urged the Government to amend its legislation to provide for freedom of association. The Committee had stated this in a special paragraph in 1995, 1996, 1997 and 1998. The Conference Committee once again deplored the Government's lack of cooperation, manifested by its lack of response to the Committee of Experts. He pointed out that the principle of freedom of association was the life blood of the ILO and that, for this reason, the principle of freedom of association was set forth in the Preamble to the 1919 ILO Constitution as well as in the 1998 Declaration on Fundamental Principles and Rights at Work. He deplored and condemned the situation in Myanmar and urged the Government to take special measures to bring its law into conformity with the provisions of both Conventions Nos. 29 and 87. He expressed the hope that the situation for working men and women in Myanmar would improve.

The Worker member of Senegal stated that the indifference of the Burmese Government vis-à-vis the Committee was clear. He recalled that the mandate of the Committee of Experts consisted in monitoring the application by member States of Conventions they had ratified. The case of the application of Convention No. 87 by Myanmar was a recurrent item, regularly registered on the agenda of the Committee of Experts' sessions. He noted the declaration made by the Government representative according to which he indicated that a new Constitution and new labour legislation were under discussion. In that context, he recalled that it was not the first time that the Government made such announcements which were not followed up by action. According to the information made available to the Committee of Experts, the violations of the Convention continued to be made on a larger scale, and the right of workers of Burma to establish trade union organizations without previous authorization, which constituted one of the basic principles specified in the Convention, remained an objective to be attained. The obstacles encountered were numerous, and constituted yet another impediment in the application of the very essence of the fundamental Conventions of the ILO. The preservation of the public social order could not adapt itself to such violations. He reiterated the need to reaffirm the position of Convention No. 87 in the legal system of Myanmar. The non-observance by the country of the provisions of Convention No. 87 topped a long list of violations. He considered that the examination of such a case for a number of years by the Committee without any positive action taken by the Government, dealt a blow to its relations with the Committee. A State that ratified a Convention was obligated to apply its provisions including the amendment of relevant legislation, if necessary, to repeal or modify the provisions contrary to the ratified Conventions. In the case under examination, the Government had promised to adopt legislation which had not seen the light of day. He concluded by reiterating that the "warning signal" which lay in inscribing a special paragraph on the case in the conclusions of the Committee had not yielded any results so far. The reason was simply due to the deliberate choice made by the Government to operate outside the system. He therefore considered that the Government of the country in question should be condemned with firmness. He concluded by expressing his appreciation of the "knights of a just cause" represented by the trade unionists of Myanmar who were participating in the deliberations of the Committee, in spite of the difficulties encountered.

The Government member of Norway, speaking on behalf of the Governments of Denmark, Finland, Iceland, Norway and Sweden, expressed the regret of the Nordic countries that the Government had not submitted the required reports to the Committee of Experts. In this context, he recalled that the Committee of Experts had been commenting upon the Government's continued failure to implement Convention No. 87 in law and practice for over 40 years. The Nordic Governments urged Myanmar to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join - subject only to the rules of the organizations concerned - unions, federations and confederations of their own choosing, for the furtherance and defence of their interests. The Nordic Governments requested that Myanmar adopt the necessary measures to guarantee fully the right to organize and requested it to supply with its next report a copy of the most recent draft revision of the Trade Unions Law, so that the ILO might assess its conformity with the provisions of the Convention.

The Government member of the United States noted that the Worker and Employer members had outlined this case well, and he concurred with their views in this matter. He wished to point out that this was a serious case and a long-standing one. The Government representative's intervention had also been extremely disappointing. It was unfortunate that, for 40 years, the Government had failed to take any action to guarantee the rights of its workers to establish and join trade unions. While the Government had repeatedly promised that new legislation and a new Constitution were being drafted, no evidence of this had been presented to the Conference Committee. The Government's conduct demonstrated a total disregard for its international obligations arising from its ratification of Convention No. 87, as well as for the rights of its workers. The situation in Myanmar constituted a clear violation of a fundamental ILO Convention and his Government concurred with the Committee of Experts that the situation was totally unacceptable.

The Government representative of Myanmar stated that his delegation had listened attentively to the statements made by the Employer and Worker members, as well as by other speakers. His delegation had explained to the Committee the efforts made by his Government and the practical difficulties that it had experienced in the application of the Convention. At this point, he had no more to add, since he had already mentioned the revision of the Constitution of Myanmar and the role played by the various social welfare associations in protecting workers. These were the steps taken by the Government to comply with the Convention. He stressed that his delegation had appeared before the Conference Committee to demonstrate his Government's political will to cooperate with the ILO, as well as to hear the concerns of the Committee. He considered that the discussion had been useful. He had listened carefully to the comments made and his Government would take these into account in the future. However, he stressed his Government's strong objection to the reference made to the Free Trade Union of Burma by the Worker members.

The Worker members protested against the Government representative's statement regarding the Free Trade Union of Burma, an organization with which the Workers' group had a long-standing relationship. They defended its integrity and credibility and looked forward to the day that the FTUB would be allowed to operate in Burma and represent those workers that chose it to represent them. The Worker members concurred with the sadness expressed by the Employer members in connection with Burma's continued non-compliance and hoped that their sadness and anger would be reflected in the Committee's conclusions. They assured the Government that the Committee would continue to discuss this case until such time as the Government had effected the requested changes.

The Employer members stated that the Conference Committee's work had begun with the case of forced labour in Myanmar and ended with Myanmar's failure to apply the provisions of Convention No. 87. The Employer members had not heard anything new in the concluding statements of the Government representative. They recalled the Government's statement that it would address the issue of freedom of association in the future and considered that this demonstrated the Government's lack of political will to take the measures necessary to guarantee the right of freedom of association in Myanmar. At this time, this right did not exist in either law or practice in the country. They indicated that the deplorable situation of Myanmar's continued failure to implement the Convention should be reflected clearly in the Conference Committee's conclusions.

The Committee noted the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee on many occasions during the last decade. The Committee shared the concern expressed by the Committee of Experts that the Government failed to send a report and found itself obliged once again to deeply deplore the total absence of cooperation on the part of the Government in this regard. In these circumstances, the Committee could not but once again continue to deplore the fact that no progress had been made towards the application of this fundamental Convention, despite the fact that very serious violations had already been noted over 40 years ago. The Committee was also once again obliged to express its profound regret for the persistence of serious discrepancies between the national legislation and practice and the provisions of the Convention. These discrepancies concerned the basic principles of the Convention. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly insisted that the Government adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, the right to join organizations of their own choosing, without previous authorization, and the right of these organizations to affiliate with federations, confederations and international organizations, without interference from the public authorities. It also urged the Government to supply to the Committee of Experts for examination this year any relevant draft legislation, as well as a detailed report on the concrete measures taken to ensure fuller conformity with the Convention. 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.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative of Myanmar stated that since the discussion of this matter before the Committee in 1998, the Ministry of Labour had provided a draft Trade Union Law to the Central Laws Scrutiny Body. After legal review by that Body, the draft Trade Union Law was sent back to the Ministry of Labour for consideration by its Law Review Committee, and for inter-departmental circle discussions that took into account the comments of the Central Laws Scrutiny Body. He emphasized that in order to properly draft the Trade Union Law, it was essential to discuss its provisions with employers' and workers' organizations during the year 1998-99, namely:

-- from the Employers' side: Union of Myanmar Federation of Commerce and Industry;

-- from the Workers' side: Workers' Welfare Association (numbering 2,242): Myanmar Cultural Association, Union of Myanmar Films and Musical Association, Myanmar Literature Workers' Association, Myanmar Construction Workers' Central Association, Myanmar Video Producers' Association, Myanmar Women Entrepreneurs' Association, Myanmar Maternal and Child Welfare Association, Myanmar Medical Association, Myanmar Indigenous Medical Association, Artists' and Sculptors' Association, Myanmar Nurses' Association, Transport Workers' Association.

For this reason, discussions were held with a considerable number of such organizations, which were named by the Government representative. Included among these organizations were employers' associations (separate entities that were independent of employers), the Federation of Commercial and Industrial Employers, and many workers' organizations at every level. These discussions were held for the benefit of such organizations and the various existing structures of workers. In taking into account their input on the draft Trade Union Law, it was also necessary for the Ministry of Labour to consider that at the time of the discussions there was a financial crisis in the region that was having an impact upon foreign investors. Moreover, it was also important when drafting the new Law to consider both the changes that were taking place as a result of the country's decision in 1998 to move toward a market economy system, and the ongoing preparation of a new State Constitution. He stressed that the greater the amount of discussions and input regarding the draft Law, the better it would be drafted. The Government representative proceeded to emphasize that there could be no mechanical approach to preparation of new legislation, as each country had its own situation and circumstances, and that an approach that was effective in one country might not be appropriate for another country. In this regard, he quoted the comments of the Director-General to the Plenary of the International Labour Conference on 1 June 1999 that: "We must understand the specific context of regions and subregions as well as the specific circumstances of the Eastern and Central European countries in transition and countries that are going through a crisis because of the impact of the international financial system, or the forces of nature. It is essential to support a retuned ILO that can be sensitive to differences and can respond with subtleness to the different ways in which the same problem can manifest itself in different societies. It seems to me absolutely indispensable to develop this institutional capacity. I believe it is important to foster a sensitivity about the culture of development. You cannot really understand problems of development so long as you have a somewhat mechanical approach and solutions cannot be proposed simply because they work in other countries. We need a richness of outlook, an ability to differentiate, to understand the specific situations to respond to the real problems and propose new solutions." The Government representative stressed once again that no two countries were alike and that each should be assessed based on its own situation and facts. In his view the Committee should therefore be sensitive to and take into account the different cultures and levels of development of member States. In conclusion, he stated that progress had indeed taken place since the examination of this matter by the Committee in 1998, in view of the drafting of the new State Constitution and of the Trade Union Law, and the extensive discussions regarding its content, and that this progress should be taken into account by the Committee.

The Worker members noted that in spite of the rather brief comments made by the Committee of Experts this year, the repression of freedom of association in Myanmar was one of the most long-standing and serious cases of non-compliance with the Convention before the Committee. Given the complete lack of progress over the years, there was really very little more for the Committee of Experts to say. The seriousness of the case, however, was evidenced by the fact that this would be the 13th time in the past 18 years that the Committee discussed the case and the ninth year in succession. On six occasions, the Committee had placed its conclusions in a special paragraph of its report and, for the past three years, the Committee had cited Myanmar as a special case of continued failure to comply with the Convention. This was quite a dubious record for a Government that continually claimed to be cooperating with the ILO as heard once again today. The Worker member recalled that a direct contacts mission was abruptly cancelled in 1996 without any explanation from the Government. For the past three years, there did not appear to be any momentum behind rescheduling this mission; the Worker member asked the Government representative whether he was able to commit his Government to rescheduling this direct contacts mission for later this year. Such a commitment would have more meaning than the mere issuing of an order in relating to Convention No. 29 just before the opening of the ILO Conference.

The speaker stated that for a number of years, the Government had failed even to submit reports, as noted with profound regret by the Committee of Experts last year. This year, the Government had finally submitted a report reminding the Committee of Experts that a new Constitution was being drafted as well as a revised labour code. Only when this process was completed and a new labour code enacted -- the Government seemed to be saying -- could it demonstrate in practice its new-found respect for freedom of association. The Committee of Experts had noted that the drafting of new labour legislation and a new Constitution had now been in progress for many years, yet "no specific progress or developments have been communicated ... in this regard". The Government representative did not mention any timetable and the Worker members asked the representative whether his Government was prepared to indicate when this task would be completed. Also, it would be extremely helpful if the Government would submit draft texts to the Committee of Experts before the end of the year.

For Workers members, there did not exist any operating trade union law in Myanmar nor any legal structure to protect freedom of association. As noted last year, there was a Decree issued in 1988 by the military called the Law on the Formation of Associations and Organizations (No. 6/88) under which such associations and organizations had to obtain permission from the Ministry of Home and Religious Affairs before being established. This Law stated that the associations and other organizations would be disbanded if they attempted, incited, encouraged or assisted in undermining law and order, local peace and security and the smooth and secure operations of transport and communications. The Worker members wondered whether this was one of the laws now under revision and, if so, whether the Government could provide information about its revision to the Committee of Experts.

The Worker members informed the Committee that the General Secretary of the Federation of Trade Unions of Burma (FTUB), Mr. Maung Maung, was in the Committee's room. It was precisely Law No. 6/88 which was used 11 years ago by the then State Law and Order Restoration Council (SLORC) to fire Mr. Maung Maung and six other members of the All Burma Mining Union. The Worker members observed that the Government representative continued to remind the Committee that enacting new legislation could take time. On this point, the Worker members agreed especially when the legislature that was elected ten years ago had never been allowed to convene. Many elected Members of Parliament had been arrested repeatedly over the years. The Worker members recalled that the Government representative characterized the State Peace and Development Council (SPDC) -- the successor to the SLORC, or in other words the ruling military junta -- as a legislative body. How could a military junta transform itself into a legislative body? More importantly, how much longer would the Government need to revise its laws in order to put it into conformity with the Convention?

The Worker members considered that a change in law -- if it ever were to take place let alone in conformity with the Convention -- was only a first step towards protecting freedom of association in law and in practice. There were no independent unions in Myanmar today and any attempt to organize one was dealt with ruthlessly. The courageous few who had tried to exercise their rights under the Convention did so at great personal risk. As was mentioned earlier, representatives of the FTUB still languished in prison serving long prison terms. They were considered terrorists by the regime. The Worker members observed that the Myanmar Worker delegate was listed as an oilfields and worksites supervisor for the Myanmar Oil and Gas Enterprise. He was not even identified with any worker association or organization. In fact, it was precisely this state enterprise which had been associated for many years with the alleged use of forced labour to build the notorious Yadanar gas pipeline.

In conclusion, the Worker members noted that the Committee was once again asked to accept in good faith the Government's promises that, after 40 years, changes were coming. However, the Committee should not be worn down by the lack of any real progress for yet another year, as disappointing as this was. Rather the regime's continuing defiance should make the Committee more resolute in insisting in the strongest terms possible once again that Myanmar live up to its treaty obligations under the Convention. This was not a matter of singling out or picking on Myanmar as stated by the Government on a number of occasions. The Government should be reassured that the Committee would drop this case from the list the minute its obligations under the Convention were met. But until this happened, the Committee would continue to bring up the matter, year after year for another 40 years if necessary.

The Employer members thanked the Government for the information provided to this Committee. They considered that the context of this particular case was important. They recalled that 44 years ago the Government of Myanmar had ratified Convention No. 87 and that its failure today to enact legislation on freedom of association was a fundamental violation of its international obligations. There was simply no right to organize in Myanmar and over the years, the Government had showed utter disdain for the supervisory machinery of the ILO as well as for this Committee. Since 1980, this case had been discussed over a dozen times and there had been numerous special paragraphs as well as continued failure to implement the Convention.

They considered that there was a connection between this case and the case concerning the Forced Labour Convention, 1930 (No. 29). Indeed, if freedom of association existed in the country, a vibrant trade union movement would be fighting to eliminate forced labour. Furthermore, there was an absence of real legislation on the right to organize and there was no way to evaluate the true nature of organizations. They asked the question of what was the timetable of the Government in order to address these problems. In the view of 44 years of failing to implement the Convention, they expressed their scepticism with regard to the Government's commitment. This scepticism was reinforced by the Government's abstention on the Declaration.

The Worker member of Japan expressed his support for the views of the Worker members reiterating that this case was one of the worst cases examined by the Committee of Experts. The Committee had been commenting on violations by Myanmar in law and in practice of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), for 40 years focusing on violations in practice, the speaker asked the Government representative to provide information regarding the situation with respect to two labour union leaders, Mr. Myo Aung Thant and Mr. U Khin Kyan. He inquired whether they had been released from prison and were able to participate in trade union activities. Furthermore, according to information provided by Amnesty International, Mr. Than Naing had been arrested in 1977 following a demonstration, and he was sentenced to five years' imprisonment. After his release in 1982, he was not reinstated in his position as a government official, but became a shopowner and a writer. Following social unrest in 1988 Mr. Than Naing had been arrested again and without a proper trial he was sentenced to life imprisonment. The Government of Myanmar was requested to provide information whether Mr. Than Naing had been released from prison in 1998 in application of the law of 1992, pursuant to which all sentences for life imprisonment were commuted to ten years imprisonment. The speaker further requested the Government to explain why no trade union delegate had been accredited to the Conference this year. In his view the person designated as a Workers' delegate did not seem to be affiliated to a trade union. Finally, the speaker asked the Government to provide a list of the trade unions that were authorized to operate freely in Myanmar and to explain why the Federation of Trade Unions of Burma (FTUB) was compelled to operate outside the country.

The Worker member of South Africa spoke in full support of the statements made by the Worker members. He pointed out that, for the past ten years, the Government representative of Myanmar had stated that Myanmar was in the process of revising its legislation, but that no progress had been made in this regard. The Government representative was making the same statements given ten years ago. It was an "off the shelf" speech upon which the Government representative of Myanmar made no substantive changes. There were no legally functioning trade unions in Myanmar and no legal structure to protect trade unions. There was no legal framework to protect collective negotiation or to protect workers from acts of anti-union discrimination. The Federation of Trade Unions of Burma (FTUB) was forced to operate outside of the country. He recalled that the FTUB was founded in 1991 by trade unionists who were subsequently fired from their jobs by the military regime. The FTUB coordinated its activities with the banned National League for Democracy, which won the 1990 elections, but was prevented from taking office by the military regime, who nullified the election results. The FTUB remained under the constant surveillance of government police and military intelligence agents. He drew the Committee's attention to the fact that Myanmar had been discussed year after year, but no progress had been made. Instead, the Government had continued to make promises and denials and to violate the provisions of the Convention. Referring to the earlier discussions held in the Committee on the use of forced labour in Myanmar, he indicated his belief that this issue bore a direct relationship to the Convention.

He cited a report of the International Confederation of Free Trade Unions (ICFTU), referring to the arrest and detention of certain trade unionists who remain imprisoned. In light of the continued violations of the Convention, the Committee should impose upon Myanmar the severest sanctions possible under the ILO Constitution.

The Worker member of India stated that the description given by the Government representative of Myanmar of the situation in the country was not borne out by reports received from travellers between India and Myanmar. His organization had repeatedly attempted to establish contact with trade unions in Myanmar, without success. If there were free trade unions operating in Myanmar, why was it impossible to establish contact with them? Moreover, none of the trade unions in his country had been able to establish contact with any Burmese trade unions. He considered that this raised a question which the Government of Myanmar must answer. He also pointed out that Myanmar could draft new legislation, but the question remained whether such a law would ensure a true right to organize and freedom of association for the working class. He underscored the need to ensure that trade unions are able to operate openly in the country. He requested the Government representative of Myanmar to supply a list of operating trade unions so that India could establish contact with them. The Government of Myanmar should adopt laws allowing the right to organize and guaranteeing the right of association with international organizations. He called upon the Myanmar Government to respect and restore the long tradition of democracy in Myanmar and urged it to accept the recommendations of the Committee in regard to the Convention.

The Government member of the United Kingdom declared that he was more disappointed than surprised that this Committee should again be discussing Burma's continued failure to comply with this fundamental Convention. Once again, this reflected the regime's disregard for the ILO and for the welfare of the people of Burma. He fully supported the Committee of Experts' call for the Burmese authorities to take immediate steps to guarantee genuine freedom of association without further delay. In light of the special paragraph and of the discussion on Convention No. 29, he trusted that this Committee would send the strongest possible signal to the Burmese delegation that this Committee would no longer tolerate their refusal to honour their international human rights obligations.

The Government representative explained that the associations previously mentioned were quasi-trade union associations. They were registered with the Ministry of Home Affairs, and were independent of the government structure, operating independently of the Government. In response to the request from the Worker members that the Government provide a timetable for completion of the revision of Myanmar's legislation, he indicated that it was necessary to take account of the country's circumstances, as well as of the discussions being held in the context of the revisions. The Government would be reporting regarding progress made in amending its Constitution and laws, as stated in its last report to the Committee of Experts, but its ability to do so was dependent upon these circumstances. He, therefore, asked that the matter be given time and noted that the draft legislation would become law in due course. The copy of the draft legislation cannot be given as all draft laws are under the Official Secrets Act (India Act XIX, 1923.) (2nd April, 1923.), substituted by the Union of Burma (Adaptation of Laws) Order, 1948, which was an Indian Act given under adoption by Myanmar when it received its independence. Further, responding to comments made by the Worker member of Japan regarding actions taken by the Government against certain persons, including those persons not allowed to re-enter the civil service, he stated that those actions had been taken because those persons had violated criminal laws, such as by the commission of terrorist acts. No terrorist will be condoned under any system of law in any country, even in Japan. Myanmar does not condone such action also. Civil service in all countries have their own regulation also. In Myanmar, like in most countries, when a civil servant commit a crime and sentenced, he is not allowed to re-enter the civil service. The draft law was being prepared, but its contents could not be provided to the Committee of Experts, because draft laws are Official Secrets under the law already explained. Prior to its submission to the Myanmar legislature, the legislation constituted an official secret; however, the Government would be glad to provide a copy of the new law at the appropriate time. In response to the comments of the Worker member of India, he indicated that his Government had full information regarding the person detained, and that the Government was ready to provide this information. He said that there has been a good relationship between India and Myanmar. There are even businessmen to invest in Myanmar. Certain business activities are going on. At the same time, the Worker member of India should write and contact the various employers' and workers' associations that we have mentioned. Regarding the credentials of the Workers' representative from Myanmar, reply has already been made to the Credentials Committee and he quoted letter No. 223/3-20/26 dated 7 June 1999, addressed to the Chairman, and said reference is made in the said letter. He recalled that the ILO was now persuading countries to ratify a number of fundamental Conventions that they had not previously ratified. In this positive atmospshere, it would be unfortunate if one country, such as Myanmar, were singled out unfairly. He cautioned that this would signal a warning to other countries, dissuading them against ratifying additional Conventions.

The Worker and the Employer members requested that this case be mentioned in a special paragraph.

The Committee noted the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade. The Committee could not help but once again deplore the fact that no progress had been made toward the application of this fundamental Convention, despite the repeated calls upon the Government made by the present Committee and the Committee of Experts. The Committee was also once again obliged to express its profound regret that serious divergences between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other hand, continued to exist. It could not help but once again deplore the absence of genuine cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing, to protect their occupational interests and the right to affiliate with federations, confederations and international organizations, without interference from the public authorities. The Committee strongly urged the Government to make, without delay, substantial progress in the application of the Convention, in law and in practice, and urged the Government to supply a detailed report to the Committee of Experts this year.

The Committee decided that its conclusions would figure in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

The Government has supplied the following information:

This report is to fulfil the Government's reporting obligation in relation to the above Convention for the past years ending 1 September 1997. With regard to the above Convention, the Government informs the Committee of Experts that the Draft Trade Union Laws have been reviewed at several sittings of the Central Laws Scrutiny Body. Further action will be taken after the draft legislation has been returned to the Ministry of Labour from the Central Body along with its views and recommendations. The existing labour law reviewing process should be totally demarcated from that of the Socialist era which took place from 1962 to 1988.

In addition, a Government representative drew the attention of the Committee to the progress report submitted by his delegation at the 85th Session of the Conference. He said that, in compliance with the remarks and recommendations made by the Central Laws Scrutiny Body on the draft trade union law submitted to it by the Department of Labour, the Labour Law Reviewing Committee of the Ministry of Labour had made the necessary modifications and redrafting over the past year. Moreover, as recommended by the Central Laws Scrutiny Body, the Department of Labour had extensively sought views and comments on the redrafted trade union law from the concerned parties, which included workers' welfare associations and employers' organizations, such as the Union of Myanmar Chamber of Commerce and Industry, and various representatives from public and private enterprises. The numerous technical points in the redrafted version of the trade union law evidently required thorough consideration by the concerned parties. The replies which had been received from some of these organizations had been compiled and collated. When replies had been received from all the organizations, a revised draft would be submitted by the Labour Law Reviewing Committee to the Central Laws Scrutiny Body. The review and redrafting process was being undertaken in anticipation of the emergence of a new state Constitution which would ensure the protection of workers through the enactment of the necessary labour laws. However, he warned that the process of adopting legislation took time, especially in the case of labour laws, which required tripartite consultations. He emphasized in that connection that the workers in the country were currently well protected by the existing laws, which had been enacted several decades ago but still reflected the provisions of the ILO Conventions ratified by the country. Although, as pointed out by the Committee of Experts, there existed a few discrepancies between the Convention and national laws, these could be rectified in the new labour laws. With regard to the right to freedom of association, there were more than 2,000 workers' welfare associations in the country, which were grass-roots level associations that looked after the general well-being and interests of the workers. In conclusion, he stated that the efforts to review and redraft existing labour laws were directed towards the observance of the provisions of the Conventions which had been ratified by the country.

The Workers' members noted with sadness that, in taking up this case once again on the 50th anniversary of the Convention, it dramatically illustrated the distance that still needed to be travelled in many countries throughout the world for freedom of association to be truly respected in both law and practice. It was hard to believe that the Committee had felt it necessary to review Myanmar's failure to apply the Convention on 12 occasions in the last 17 years, and now for the eighth year in succession. On five occasions, the Committee had been compelled to place its conclusions in a special paragraph of its report. Moreover, in 1996 and 1997, the Committee had cited Myanmar's continued failure to apply the Convention in a special paragraph. It should not be forgotten that Myanmar had also merited three other special paragraphs since 1982 for failure to apply other ratified Conventions, that an article 24 representation on forced labour had been accepted by the Governing Body in 1993, followed by the establishment of a Commission of Inquiry in 1997 to investigate an article 26 complaint concerning the widespread use of forced labour by Myanmar. This very dubious record set Myanmar apart as one of the most long-standing, widespread and egregious violators of basic workers' rights and international labour standards in the history of the ILO. Furthermore, the Government continued to show its utter disdain for the application of the standards machinery by its refusal to submit reports to the Committee of Experts, despite repeated requests. The Committee of Experts had expressed its "profound regret" at not having received a single report from the Government for over three years. In addition, a direct contacts mission, which was to have taken place in May 1996, had been cancelled by the Government at the last minute with no real explanation as to why. The Government had expressed no interest whatsoever in rescheduling the mission. The same lack of cooperation had been exhibited by the Government earlier this year when it had refused to allow the Commission of Inquiry to enter the country to investigate the allegations of forced labour. Finally, Myanmar's continuing disdain for the proceedings of the supervisory bodies was in evidence once again today, given the total lack of sincerity and substance contained in the Government representative's remarks, which amounted to no more than a repetition of what it had said in the past.

The Committee of Experts had noted that for the past 40 years it had been urging the Government to take the necessary measures to ensure the right of workers to establish, without previous authorization, and join first-level unions, federations and confederations of their own choosing for the furtherance and defence of their own interests, and to ensure that such union structures had the right to affiliate to international organizations. However, all this had been to no avail. The fact remained that, notwithstanding the comments of the Government representative, there was no trade union law in Myanmar and no legal structure whatsoever to protect freedom of association. Although the adoption of the necessary legislation evidently took time, as pointed out by the Government representative, no progress in this respect had been made for the past 40 years. The military junta had issued a decree in 1988, shortly after it had massacred several thousands of its own citizens, called the Law on the Formation of Associations and Organizations, under which unions had to obtain permission from the Ministry of Home and Religious Affairs before they could be established. The Law stated that the associations and other organizations that it covered would be disbanded if they attempted, incited, encouraged or assisted in undermining the prevalence of law and order, local peace and security, and the smooth and secure operations of transport and communications. The consequence for workers in the country was the total lack of any legal protection concerning freedom of association. Indeed, in June 1997, within days of the examination of the case by this Committee, two members of the Executive Committee of the Federation of Trade Unions -- Burma, namely Myo Aung Thant and Khin Kyaw, had been arrested in the country, both of whom had been designated prisoners of conscience by Amnesty International. Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, formed during the 1988 pro-democracy movement, had been arrested at the airport in Rangoon, along with his wife and children. Amnesty International reported that it was not known if they were still in custody. Myo Aung Thant had been charged with high treason among other things. At a secret trial conducted last August, he had been convicted to transportation for life, plus ten years, three years of which was for violating the Law on the Formation of Associations and Organizations. Another trade unionist, Khin Kyaw, from the underground Seamen's Union of Burma, had not been seen since his arrest a year ago by his family or his lawyer, and his whereabouts were unknown. Amnesty International had written that it feared for his safety given the harsh conditions and high incidence of torture in Myanmar's prisons. The Workers' members called on the Government representative to provide the Committee with an account of the situation of Khin Kyaw. For many years, the Workers' members had been raising the matter of the seafarers of Myanmar and had been asking the Government to confirm that they were no longer forced to sign contracts obliging them not to contact international trade union organizations and that they would no longer be harassed and intimidated if they exercised their rights in accordance with the Convention. The response of the Government could be seen in the arrest of Khin Kyaw.

There were reports of growing worker unrest throughout the country, due to the increasing economic hardship and the absolute refusal of the Government to allow workers to organize unions, rather than workers' welfare associations, as mentioned by the Government representative. Attempts to organize unions had been made at a number of workplaces and the Workers' members had been shown a list of workers who had been dismissed for their efforts. However, this information could not be shared with the Committee out of concern for the safety of these courageous workers. In conclusion, the Workers' members warned the Government that changing the name of the military junta that ran the country from the State Law and Order Restoration Council to the State Peace and Development Council, hiring expensive public relations firms to improve its international image or retaining well-known lobbyists in Washington and elsewhere in an attempt to influence policy towards Myanmar would not end the country's pariah status as one of the world's worst abusers of human and workers' rights. What was needed was profound change without any further delay which recognized the will of the Burmese people, as expressed in the 1990 parliamentary elections, and which respected once and for all the right of workers to organize into unions of their own choosing in compliance with the Convention. Anything less would be simply unacceptable and the Workers' members urged the Committee, as it had in the past, to express this view in the strongest possible terms.

The Employers' members agreed with the Workers' members in noting the absence of any progress in a case which had already been discussed several times, had been the object of a special paragraph in the report of the Committee on several occasions and had been cited last year as a case of continued failure to apply the Convention. The facts remained unchanged and the Government's reporting had become increasingly meaningless, even when it provided a report which it had not done for the past three years. The Government had very clearly demonstrated its refusal to cooperate with the supervisory bodies. It had, moreover, cancelled a direct contacts mission which had been planned. The situation remained unchanged in law and in practice. The cases cited by the Workers' members amply demonstrated that the Government was not prepared to allow workers to join organizations of their own choosing or to let organizations affiliate to national or international federations. When reminded of the obligations set forth in the Convention, the Government responded in bad faith. The Government representative had referred to a draft law which it said had been distributed to many bodies for comments. It had already claimed many years ago that a draft law would correct the situation; such a statement now was very hard to believe. The Committee should therefore note once again that the situation remained very far from complying with the requirements of the Convention and regretted that it could not note any progress. It should once again require that measures be finally taken by the Government to honour its commitments.

The Government member of the United Kingdom, also speaking on behalf of the Government members of Austria, Canada, Denmark, Finland, Germany, Iceland, Italy, Netherlands, Norway, Portugal and Sweden, expressed his dissatisfaction with the written information submitted by the Government. The submission of such an inadequate document at such a late stage could only be seen as an attempt to frustrate the work of both the Committee of Experts and the Conference Committee and to delay a detailed and up-to-date examination of the case. This behaviour reflected the flagrant disregard of the Government for its international obligations and was one more symptom of the lack of democratic reform and respect for human rights in the country. He noted in this respect the recent resolution adopted by consensus in the United Nations Commission on Human Rights (resolution 1998/63) which highlighted the widespread use of forced and child labour in the country. He therefore urged the ruling State Peace and Development Council to cooperate fully in allowing the ILO access to the country to monitor and advise on the labour situation. He strongly supported the conclusion of the Committee of Experts that the national authorities should take immediate steps to guarantee genuine freedom of association. Bearing in mind the special paragraph adopted by the Committee on the case last year, he asked the Government representative to account for his Government's continued failure to implement this fundamental Convention.

The Worker member of France regretted that it was possible to be brief on the subject of freedom of association in Myanmar since, as in the case of all other basic freedoms, it did not exist. Workers were extremely concerned at the systematic repression of the military regime. Its methods included forced labour, imprisonment, torture and disappearances. Under such circumstances, the Government representative referred to the consultations which had been taking place for one-and-a-half years for the elaboration of a new Constitution. However, those being consulted had been designated by the Government itself. Those elected in the 1990 elections were the only legitimate representatives with the right to adopt a new Constitution and the argument advanced by the military regime that a legislative process had been launched with a view to the observance of the ratified Conventions fooled no one. The statement of the Government representative had been vague and contained no new information. In view of the practices of the authorities, as described in the report of the Committee of Experts, these were not in good faith. Faced with massive and systematic violations of human rights and a non-responsive Government, it was undoubtedly necessary to look beyond the law and express solidarity with the peaceful and courageous people of the country, and help them recover the freedom which had been taken from them and put an end to their suffering.

The Worker member of Italy emphasized that no change, however slight, had occurred in the country, except in the name of the ruling Council. The situation in which the basic trade union rights of workers were constantly violated gave rise to great concern by trade unions throughout the world at the national and international levels. It was totally intolerable that a Member of the ILO refused to supply reports on the implementation of fundamental Conventions relating to freedom of association. Moreover, the country also violated other basic human rights through the persecution, arrest and torture of workers. The national authorities should therefore take immediate concrete steps to resolve the unacceptable situation. She recalled that trade unions at the European and international levels had been exerting pressure for practical measures to be taken and had succeeded in obtaining the suspension of the European system of preferences for the country. Governments and employers throughout the world should show consistency with the position adopted in this Committee and should take such concrete measures as discontinuing their business and other relations with the country. The European Community should also maintain the withdrawal of its system of preferences.

The Government member of the United States expressed strong support for the statement by the Government member of the United Kingdom and reaffirmed her Government's long-standing grave concern about the situation as regards freedom of association in the country. It was an understatement to say that this was a serious case. For years, the members of the Committee had been hearing from the Burmese Government about its commitment to uphold the principles of the ILO, its intention to revise its labour legislation to bring it into conformity with the Convention or, on other occasion, its desire for ILO assistance. However, its commitment had not been translated into practice, its intentions had never turned into reality and it had largely avoided ILO assistance and monitoring. Once again, as on so many occasions in the past, it was necessary to note with deep regret that there was in effect no genuine freedom of association in the country. Those who wished to undertake independent trade union activities were kept under constant surveillance by the police and the military and lived in permanent fear of arrest and torture. It was sad to note that there was a fundamental absence of respect for human rights in the country which went well beyond trade union rights. The inevitable conclusion in these circumstances was that the Burmese authorities had complete contempt for their international obligations under the Convention, no concern for the recommendations of the ILO, the United Nations General Assembly, the United Nations Commission on Human Rights and, worst of all, that they displayed utter disregard for the rights of their own citizens. It was difficult to conceive of a conclusion that could motivate the Government to take the sincere, concrete measures that had been recommended for over 40 years. She therefore trusted that the Committee would not fail to note in the strongest possible terms its profound concern at the Government's persistent and deplorable failure to implement the fundamental right of freedom of association in law and in practice.

The Worker member of Japan noted that, as in the past, the Government representative had provided no new information or examples to support its claims that action was being taken. Its statement amounted to no more than contempt for the ILO supervisory system. There was no freedom of activity for the trade union movement in the country and indeed the Federation of Trade Unions of Burma, set up in 1991, had no choice but to remain outside the country. Amnesty International and the ICFTU had confirmed that trade union activists were always under surveillance by the police and military intelligence services and that they lived under the threat of arrest and torture. Yet, when the Convention had been drafted 50 years ago, the Government had served as a member of the Committee which drafted the Convention and had at that time played a role of which it could be proud. In contrast, it was now one of the most serious violators of international standards. The Government therefore needed to regain its pride of 50 years ago and make far-reaching changes to the situation as rapidly as possible.

The Worker member of Pakistan recalled that Myanmar was a beautiful country with a hard-working people. Unfortunately, its denial of fundamental trade union and human rights was affecting the development of the country. On the many occasions that the Committee had discussed the case, the Government representative had stated that specific measures were being taken to give effect to ratified Conventions. However, these statements were placed in their proper context by the failure even to supply the necessary reports. Moreover, serious violations continued to occur in the country of other fundamental Conventions, such as Convention No. 29 on forced labour. The previous year, the Government representative had expressed the hope that amendments would be adopted to the relevant legislation, but trade unionists were still held in detention and their rights denied. At the end of the twentieth century, it was no longer possible for countries to deny public opinion and refuse to establish democratic systems. He therefore urged the Government to take the necessary measures to establish a democratic system which would enable the people of the country to participate in economic and social development.

The Government representative said that he had listened with great patience to the views that had been expressed. He appealed for the understanding of the members of the Committee. It took time to enact the necessary legislation, particularly where tripartite consultation was required, as in the present case. Laws which were passed hastily would not stand the test of time or changing circumstances. As he had stated, the draft trade union law had been submitted to the Central Laws Scrutiny Body. It was therefore going through the legislative process which had to be followed, as in every other country. Once adopted, the new law would take into account the provisions of the Convention and the principles of the new state Constitution that was currently being formulated. If the Government had had no intention of complying with the provisions of the Convention, it would not have undertaken the process required for the formulation of such legislation in consultation with the parties concerned. In response to a number of the specific cases raised by members of the Committee, he reaffirmed that, as in every other country, when persons were in breach of the law the necessary measures needed to be taken under the terms of the Penal Code, which had been drafted in his country in the late nineteenth century, before independence. He also stated that the issues relating to seafarers had been resolved in 1996. It should therefore be understood that the Government was doing its best, within the confines of national procedure, to comply with the recommendations made and should therefore be entitled to the benefit of the doubt. It was undertaking major programmes, such as the development of a new state Constitution, in consultation with the representatives of all strata of society. Finally, he recalled that the official name of his country, as recognized by the United Nations, was the Union of Myanmar.

The Committee noted the written information communicated by the Government, the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade in 1987, 1989, 1993, 1994, 1995, 1996 and 1997. The Committee could not but deplore the fact that no government report had been received by the Committee of Experts on the application of this fundamental Convention for over three years, despite the repeated calls upon the Government by this present Committee including, in the last two years, in special paragraphs for continued failure to apply the Convention. The Committee was once again obliged to express its profound regret that serious divergencies between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other, continued to exist and deplored the absence of cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing to protect their interests and the right to affiliate to federations, confederations and international organizations, without interference from the public authorities. The Committee also strongly urged the Government to make, without delay, substantial progress in the application of the Convention in law and practice in the very near future and urged the Government to supply a detailed report to the Committee of Experts this year. With the agreement of the Employers' and Workers' members, the Committee once again decided that its conclusions would figure in a special paragraph of its report and to mention this case among the cases of continued failure to implement Convention No. 87.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

A Government representative recalled that, in previous sessions of the International Labour Conference, information relating to the application of Convention No. 87 had been provided to the Conference Committee, some members of which had commented on the continued efforts of his Government to enact a new trade union law. He reaffirmed the interest of his Government in promoting and protecting the legitimate rights of all workers. A total of 17 labour-related laws were still in force in his country. Half of those laws had been enacted during the British colonial days, while the remaining half had been adopted after the attainment of independence nearly five decades ago. The Department of Labour under the Ministry of Labour was mainly responsible for reviewing and redrafting all laws to ensure that they were in conformity with changing circumstances. In the process of reviewing and redrafting laws, priority had been given to the Trade Union Law, the Workman's Compensation Law, the Factories Law, the Leave and Holiday Law, the Minimum Wages Law and the Employment and Training Law. Other labour laws were also scheduled to undergo the same process.

Focusing on the draft trade union law, he stated that the Department of Labour and the Office of the Attorney-General had approved the draft and submitted it to the Central Laws Scrutiny Body. After scrutinizing the draft, the Central Body had returned it to the Labour Ministry with remarks and recommendations for modifications and redrafting. One important recommendation by the Central Body was that, following the necessary drafting, the revised text should be tabled and subjected to extensive consultation with all the parties concerned, namely employers' organizations, such as the Union of Myanmar Chamber of Commerce and Industry, representatives of public and private enterprises and workers' welfare associations. Taking into consideration the recommendation of the Central Laws Scrutiny Body, which was to be implemented this year, it was hoped that it would be possible to submit the revised draft to the respective supervisory body at an appropriate time.

The Workers' members recalled that Myanmar was a persistent violator of the Convention and had therefore frequently come before the Committee. The case had been discussed in 1987, 1989, 1993, 1994, 1995 and 1996. For over 40 years, the ILO had been requesting the Government to respect the fundamental principles of freedom of association. The Committee had requested it to ensure the right of workers to freely establish and to join first-level unions, federations and confederations, without previous authorization, subject only to the rules of the organization concerned, and to freely affiliate to international workers' organizations, in accordance with Articles 2, 5 and 6 of the Convention.

Over the years, the Government had bluntly refused to cooperate with the Committee and had once again failed to supply the report requested, despite the inclusion of the case in a special paragraph last year. The case had been mentioned by the Committee in a special paragraph in 1993, 1995 and 1996 and deserved to be placed in a special paragraph once again this year. The message from the Government of Myanmar was clearly that it considered it more important to deny the workers in the country freedom of association than to live up to the obligations deriving from the Convention. This amounted to an insult to all ILO constituents and the Government rightfully deserved worldwide condemnation for its behaviour.

In 1996, the Government representative had reaffirmed his Government's firm commitment to the principles of freedom of association and to a multi-party democratic system, a free market economy, justice and human rights for all. However, the Government's conception of what this implied appeared to differ enormously from that of the Workers' members. The continued repression and violation of human rights, including the right to freedom of association and democracy, by a military regime showed that the Government had no intention whatsoever of complying with its obligations or the requests of the Committee. The Workers' members recalled that a Commission of Inquiry had been set up to investigate a complaint under article 26 of the Constitution concerning the non-observance of the Forced Labour Convention, 1930 (No. 29). Moreover, the Government representative had requested technical assistance from the ILO on the application of Convention No. 87, but the ILO representative had been prevented by the authorities from undertaking the mission.

For some years, the Workers' members had been raising the matter of seafarers in Myanmar and had been requesting the Government to confirm that they were no longer forced to sign contracts obliging them not to contact international trade union organizations and that they were no longer intimidated if they exercised their rights in accordance with the Convention. Regrettably, the question had to be repeated once again this year.

The Workers' members expressed surprise that Myanmar had recently been admitted to become a future member of the Association of South East Asian Nations (ASEAN). This constituted a setback for the democratic forces in Myanmar and had been criticized by the Nobel Prize winner, Aung San Suu Kyi. The Workers' members were concerned that the demands concerning respect for freedom of association in the country might be relaxed and that, in reality, the ILO Constitution might be set aside. The Declaration of Philadelphia stated that all national and international policies and measures, in particular those of an economic and financial character, should be judged and accepted only if they promoted the fundamental principles of the Organization, including freedom of expression and association. The Workers' members questioned whether the acceptance of Myanmar as a future member of ASEAN would be seen as an example of applying ILO principles with objectivity, impartiality and transparency at the regional level as had been actively advocated in the ILO by some of those Governments concerned.

In conclusion, the Workers' members urged the Government to immediately accept the right of workers to organize freely in trade unions without prior authorization and to affiliate freely with international trade union organizations. However, as no action had been taken by the Government, the Committee should express its dissatisfaction in the strongest possible terms and mention the case in a special paragraph for continued failure to implement the Convention.

The Employers' members observed that the comments made by the Committee of Experts on the case of Myanmar were getting shorter. This was due to the fact that, after repeated examinations of the case, there was almost nothing new to be said. The ILO supervisory bodies had been examining the continued non-existence of freedom of association in the country for decades. Since the early 1980s, the Conference Committee had been placing its conclusions on this case in a special paragraph of its report due to persistent violations of the Convention. When the case had been examined by the Conference Committee the previous year, the Government representative had had nothing new to report and had merely repeated his statements from previous years. There had briefly been some hope that an ILO mission might have been able to assist in addressing the problems related to application of the Convention. However, although the mission had been invited, it had not been received by the authorities in Myanmar and had not therefore been able to provide the necessary assistance. For the past 40 years it had been impossible to establish a trade union or an employers' organization without prior authorization from the national authorities and there were no federations at higher levels. In effect, there was no freedom of association in the country. Although the Government had referred in general terms to certain draft Bills on a number of issues of labour law, there had been no clear indication that any of these would lead to the development of freedom of association. Moreover, once again the Government had not submitted the requested report to the Committee of Experts. This was a very clear indication of a lack of cooperation, and indeed non-cooperation on the part of the Government. The Conference Committee was therefore bound to repeat what it had stated last year and express its regret even more profoundly that, despite its observations, not the slightest progress had been made. Its conclusions should be included once again in a special paragraph of the Committee's report.

The Workers' member of Japan pointed out that this was one of the oldest and most serious cases of violation of Convention No. 87 before this Committee. The Government had accepted to receive a direct contacts mission to the country. Its subsequent failure to do so showed a complete lack of respect for the supervisory machinery and the requirements of the Convention. He further pointed out that freedom of association could not exist without freedom of speech, freedom of expression and freedom of assembly all of which were absent in Myanmar. People who had participated in peaceful demonstrations were regularly arrested and detained, and more than 2,000 had been arrested in 1996. Students and fellow workers who participated in these demonstrations were unfortunately forced to seek asylum. He insisted that the Government bring, without delay, its legislation into conformity with the requirements of the Convention, and announce a scheduled time frame for doing so. He urged the Committee to have Myanmar placed in a special paragraph.

The Workers' member of Pakistan regretted that the Government representative had not bothered to reply to the observation of the Committee of Experts concerning the prevalence of the denial of freedom of association in Myanmar. Basic human rights, including freedom of association, as incorporated in ILO core Conventions, were fundamental to all persons and if they were denied these rights, in any country, no social justice could exist. He, along with the Workers' members, fully supported that freedom of association principles be immediately respected in Myanmar.

The Workers' member of the United States stated that the absolute denial of freedom of association must be viewed in the context of the absolute denial of all basic human rights and freedoms by the military regime. Freedom of association received particular attention, however, for the leaders of the military regime understood all too well that freedom of associaion - the right to come together, to organize - was a necessary prerequisite for the protection of all other rights. This case came before the Committee only a few weeks after 316 followers of Nobel Peace Prize Laureate, Daw Aung San Suu Kyi, were arrested in order to keep them from meeting with each other on 27 May, the seventh anniversary of the landslide victory of her party, the National League for Democracy, in national elections. He pointed out that this case had been examined by the Committee of Experts and this Committee on numerous occasions, for many reasons. The most obvious was the hope that, despite the long history of no progress, the unrelenting pressure of the ILO to ensure that the Government respect its obligation, taken together with a growing international campaign to force the military regime to step down and allow civilian self-government, would one day begin to have an impact. Secondly, despite the fact that nothing of substance had been heard from the Government representative thus far, this was yet another opportunity to communicate directly to the representatives of the military regime, the condemnation of the international community. Finally, it provided this Committee with an opportunity to bring to the attention of the Committee of Experts even more information on the violations of freedom of association by the military regime.

The speaker wished to ask the Government representative, given the vague statements that the latter had made earlier on, about the regime's respect for the rights of workers in Myanmar, and why the Free Trade Unions of Burma (FTUB) was not allowed to function inside the country. Moreover, he wondered why workers who were identified with the FTUB were under constant surveillance by the police and the military intelligence, and why they lived in permanent fear of arrest and torture. He strongly supported the view of both Employers' and Workers' members that this Committee had to find a way to express its extreme displeasure over the lack of progress and cooperation from the military regime in even stronger terms than the previous year. The Committee's conclusions should be contained, once again, in a special paragraph of its report as a case of continued failure to apply the Convention.

The Government member of Denmark, speaking on behalf of the Governments of Austria, Belgium, Canada, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Sweden, Switzerland and the United Kingdom, expressed his deep regret that the Committee, once again, had to examine the violations by Myanmar of the Convention. In addition to the fact that the Government had not sent a report to the Committee of Experts, it regrettably had not been possible for an ILO mission to visit the country, due to the lack of cooperation on the part of the Government. Although the Government representative had told the Committee, the previous year, that it was his Government's intention to apply the Convention, nothing had happened with regard to the right for workers in Myanmar to establish and join independent trade unions. Reference also had to be made to Resolution 1997/64 of the United Nations Human Rights Commission, which had been adopted by consensus. The Government of Myanmar had been asked to "fulfil its obligations as a State party to the Freedom of Association Convention No. 87 of the ILO, and to cooperate more closely with the ILO". He firmly hoped, that it would be possible to agree on a date for a mission to Myanmar in the near future, that it would be undertaken before the next Conference and that the Government would take the necessary measures to ensure fully the right to organize and join independent trade unions.

The Government member of the United States stated that the situation of the rights of workers in Myanmar was, quite simply and very sadly, deplorable. There were no functioning trade unions. Workers continued to be unable to organize freely. Efforts by the ILO to offer technical assistance had proved fruitless and were at present suspended. In addition, seafarers from Myanmar who had attempted to receive fair treatment and wages for their services on international vessels were intimidated and harassed when they returned home. Those who did speak of free trade unions, dared not return to their country for fear of imprisonment by the Government and were obliged to live in exile. Although Myanmar had freely ratified the Convention in 1955, the Committee of Experts and this Committee were obliged to conclude that it was not applied and that freedom of association just did not exist in Myanmar. There were no adequate explanations for this horrible situation. The only appropriate answer was swift and concrete action to fully restore trade union rights in Myanmar. In the meantime, he joined the overwhelming call in the Committee for the strongest possible conclusions in this case.

The Workers' member of Greece invited the members of the Committee who were not familiar with this case to consult the reports adopted by this Committee during its 1994, 1995 and 1996 sessions. In those reports, the Committee had noted the commitment of the Government to bring its legislation and practice into conformity with the provisions of the Convention. The Government representative had just made the same statement again this year. The Employers' members were quite right when they stated that everything had been thoroughly discussed regarding this case. The Committee of Experts also noted the absence of any new element. The list of delegates for this Conference revealed an interesting aspect of the trade union situation: the Workers' member appeared in that list in his capacity of controller of oil wells and sites in the petroleum company. Although Myanmar was a third world country, it had an abundance of resources. By forbidding workers and citizens to organize themselves, a minority was only trying to prevent the majority from organizing itself to defend its own interests. The means available to incite a change of attitude by the Government were unfortunately limited to the adoption of a special paragraph. As we move towards the twenty-first century, other means should be envisaged to deal with such a serious case where a regime did not respect the most fundamental human rights.

The Government representative indicated that an interesting dialogue had taken place in the Committee for improvement in the application of the Convention, both in law and in practice. He stressed that the present Government was building the country into a peaceful, modern and developed nation, after having laid down clear-cut political, economic and social objectives, which reflected the aspirations of its citizens and the objective situation of the country. In this context, efforts for national reconsolidation and the emergence of an enduring new State constitution were being met with success as a result of the goodwill of the Government. It was to be recalled that Myanmar was a union of more than 100 ethnic groups, and that the Government, through its goodwill, had been successful in bringing 15 out of 16 armed groups back into the legal fold. This meant that peace reigned in the country after almost half a century of internal conflict that had held back development.

He stressed that the other important task to which his Government was firmly committed to was the establishment of a genuine multi-party democratic system and the enjoyment of the principles of justice, liberty and equality. At this juncture, although there were no trade union organizations in the actual sense of the term, workers' welfare associations in various industries and establishments were functioning on a tripartite basis. There were more than 2,000 associations of this kind. Workers' supervisory committees at the township level also looked after matters relating to industrial relations. These were clear indications that the Government never neglected the well-being and welfare of workers. The labour administration system was as strong as ever in terms of protecting the legislative rights of workers. There was no doubt that trade unions' rights would prevail within the framework of a new constitution. Stability and national reconsolidation were the prerequisites to reach this desired goal in the shortest possible time. His Government had learned from the painful events that had recently occurred in some countries that hasty changes lead to disorder and instability that resulted in suffering for the citizens. Therefore, it was making efforts at gradual and stable progress towards the goal of a genuine democratic society.

The Committee took note of the statements made by the Government representative and of the wide discussion which had taken place. It recalled that this case has been discussed by the Committee on numerous occasions in 1987, 1989, 1993, 1994, 1995 and 1996. In 1995, the Committee put its conclusions in a special paragraph of its general report and, in 1996 it also mentioned this case in a section of its general report highlighting the continued failure to implement, taking into account that for many years and in spite of various appeals, serious discrepancies with the Convention continued to exist in legislation and practice. The Committee could not but deplore the fact that no Government report had been received by the Committee of Experts and expressed its profound regret that serious divergencies between the national legislation and the Convention continued to exist. It also deplored the fact that the Government failed to cooperate. Being greatly concerned with the total absence of progress in the application of the Convention, the Committee once again urged the Government to adopt, as a priority, the measures and mechanisms necessary to guarantee, in legislation and practice, to all workers and employers, without any distinction and any prior authorization, the right to join organizations of their own choosing to protect their interests. The Committee insisted also on the need for those organizations to have the right to affiliate with federations and confederations and with the international organizations, without any interference from the public authorities. The Committee expressed a firm hope that substantial progress in the application of the Convention might be noted in the very near future and urged the Government to supply a detailed report to the Committee of Experts. The Committee decided that its conclusions would figure in a special paragraph of its report and to mention this case among cases of continued failure to implement Convention No. 87.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative of Myanmar reaffirmed his Government's firm commitment to freedom of association principles. His Government was committed to a multi-party democratic system, a free-market economy and a modern and developed State in which all segments of society would enjoy justice and human rights. To this end, representatives of the people were discussing and setting out the basic and fundamental principles that would have to be embodied in the new Constitution. Workers' representatives were included in this exercise. The Laws Scrutiny Central Body was reviewing a draft trade union law so as to protect the rights of workers. In the not too distant future the body of laws pertaining to freedom of association in Myanmar would be in line with Convention No. 87. It was a critical time for the country and the Government was doing all it could given the complex prevailing situation. He recalled once again that the Government had formally requested the ILO for technical assistance in the drafting of the trade union law. The ILO mission was welcome to visit Myanmar at a mutually convenient date so that its input could be incorporated in the new legislation.

The Workers' members pointed out that Convention No. 87 had been the subject of discussion in this Committee on nine occasions since 1981. The Committee of Experts had commented on its application in Myanmar in 12 of its last 15 reports. Yet, the ILO had not received any report from the Government as requested by the Committee in a special paragraph of its report in 1995. This was despite the assurances given by the Government at last year's Conference of a willingness to obtain advice from the Office with regard to its draft Trade Unions Act. To date, no developments whatsoever, either in law or in practice, had been conveyed to the Office. This was a clear demonstration that the Government lacked the political will to comply with Convention No. 87.

The events of recent days moreover suggested that freedom of association was not a high priority for the military regime which had threatened peaceful gatherings of people who did no more than listen to a Nobel prizewinner. In such an environment it would be an enormous step towards social harmony to allow, in accordance with the Convention, the creation of unions established by workers in defence of their social and economic interests. However, this year, rather than sending a Workers' representative to the ILO Conference, the Government had brought a railway supervisor. The very plain and simple fact was that there were no trade unions in Myanmar at the present time. Although the Committee was told of national conventions, new constitutions and new labour laws year after year, it was never provided with any evidence of freedom of association.

The Workers' members felt strongly that the Government should act on the intention it had professed in 1995. It should, as a matter of urgency, accept the right for unions to organize without prior authorization and to affiliate freely with international organizations. Pending such efforts, the Committee should take the strongest possible measures in this case, including a special paragraph for continued failure to implement the Convention.

The Employers' members stated that the situation was very negative since the Government of Myanmar had not fulfilled the requirements of the Convention it had ratified. The establishment of organizations of workers or employers in this country required in effect prior authorization from the authorities at each stage. Despite the long discussions on this case, the Government representative had merely confined himself to making a general statement that the country was in a state of transition and that changes would occur in the future without giving any specific information on legislative reforms. As this statement contained no room for optimism, the Employers' members believed it would be appropriate to ask for specific measures in view of the fact that the situation had remained static for many years. Since the Government representative had stated that he was willing to accept ILO technical assistance, the Employers' members wished to receive some clarification from the Office on its position on this matter. They reiterated their deep concern over this case.

The representative of the Secretary-General recalled that in the Committee's conclusions of last year, there was a possibility mentioned of a direct assistance mission by the Office to Myanmar. On 4 April of this year the Office received a letter from the Government of Myanmar requesting such technical cooperation. The Office responded that it was ready and willing to undertake a mission to Myanmar indicating the names and the dates on which designated persons would be present in Myanmar. A high-level official from the Standards Department did indeed travel to Myanmar, but while he was in Bangkok, at a stopover, he received a fax from the Government of Myanmar informing him of the postponement of the mission due to unexpected circumstances. Naturally, the Office immediately acknowledged receipt of this message and expressed regret that the mission could not take place.

The Workers' member of Sweden stated that, without any confirmation on actual measures being taken in Myanmar, he had no alternative but to conclude that the Government had no intention in reality of complying with the Convention. At the discussion in this Committee last year, the Government representative indicated some changes concerning freedom of association for Myanmar seafarers following the recommendations of the Committee on Freedom of Association. Unfortunately there was no evidence that actual changes had taken place. He therefore hoped that the Government representative could confirm, for instance, that Myanmar seafarers no longer had to sign contracts obliging them not to contact international trade union organizations and that no intimidation or sanctions whatsoever were applied against seafarers who exercised their rights in accordance with Convention No. 87. This year the Government representative made a reference to the work of the national body concerned with the formulation and revision of the Trade Union Act. The speaker doubted, however, its success since the workers' representatives on this body were selected and controlled by the Government. Due to the continued serious violation of the right to freedom of association in Myanmar, this Committee had to express its strong dissatisfaction with the present situation in a special paragraph.

The Workers' member from Togo stated that last year the case of Myanmar was already in the report of the Committee of Experts under Convention No. 87, which was certainly a fundamental instrument. This year, the situation was worse in that the Committee of Experts had not received the Government's report requested by the present Committee. Since Myanmar ratified Convention No. 87 in 1955, it had regularly been the subject of comments by the Committee of Experts, and for 40 years had shown its inability to align its legislation and practice concerning Convention No. 87. The necessary measures had not been taken in order to ensure workers the right, without prior authorization, to form organizations of their choice to effectively defend their interests, and to guarantee organizations of workers and employers the right to affiliate with international organizations of the same kind, as provided in Articles 2, 5 and 6 of the Convention.

In Myanmar, human rights violations - of which union rights were a part - were notorious. For 40 years there had not been a single union worthy of this name. Under these conditions, any request by Myanmar for an ILO mission must be ignored and be considered as a manipulating tactic. The speaker considered that this case was not making any progress and requested a special paragraph to remind Myanmar of its commitment to bring its law and practice into conformity with the Convention.

The Workers' member of Greece, associating himself with the previous speakers from the Workers' bench, underlined that the case of Myanmar was unfortunately a very simple one: no progress had been accomplished. It was hardly believable that the ILO technical assistance to Myanmar had not finally taken place. He understood, from the explanations given by the Government representative, that the Office had not been able to provide the required technical assistance because of budgetary restrictions.

Referring to the declaration that seafarers had to sign under oath, the speaker stressed that it contained the following statement: "I declare being fully aware of the danger which prevents any intervention by the International Federation of Transport Workers". There was no trade union in Myanmar and the workers didn't even have the possibility to go to the international trade union organization to ensure that their wages be paid correctly by the employers. The same declaration also stated: "I hereby declare that the following information is correct: the number of the bank account, the property that I own". This sort of thing was equal to reducing people to slaves. This case was horrible and the conclusions should stress profound indignation at this continuous situation rather than express only profound preoccupation.

The representative of the Secretary-General provided additional information in connection with the Office mission to Myanmar stating that there was absolutely no budgetary limitation affecting missions that might be undertaken by the Standards Department with respect to matters involving the application of ratified Conventions. The restrictions which did affect the Standards Department were applied to other areas but they did not in any way apply to the supervisory system for the application of Conventions.

The Workers' member of India recalled that Myanmar had been under military rule for a long time, and now not only trade union rights but political and social rights were also being suppressed. The Government should feel ashamed to be accused of such an oppression of rights. The statement made by the Government representative did not carry any conviction with this Committee and the speaker requested him to convey these sentiments to his Government so that it would restore the freedom of trade unions in the country.

The Workers' member of Japan stated that this was a very serious but a very clear cut case of a violation of a fundamental human rights Convention which had already been the subject of a special paragraph last year. However, no progress whatsoever could be noted. On the contrary, the reports which had come out of the country despite the suppression of the free press and freedom of speech, indicated that cruel suppression of freedom of association had not only been continued but also had been aggravated in recent days by massive and arbitrary arrests of the people who just wanted a certain degree of freedom of assembly and speech. This had happened just a month ago and hundreds of these people were still in prison. The Government had repeatedly made a promise to harmonize law and practice with Convention No. 87 but these promises remained empty words, except in one specific area. It promised to abolish the single trade union system and kept this promise by replacing the single trade union system with no trade union system. The persistent refusal by the Government over many years to do anything at all about the observations made by the Committee of Experts deserved another special paragraph in the strongest possible wording expressing great concern and condemnation.

The Government member of Norway spoke on behalf of the five Nordic Governments represented on this Committee. These Governments had made a similar statement on this case, both in 1994 and 1995, expressing great concern for the lack of progress in implementing this Convention in Myanmar. The Nordic countries could only reiterate their great concern as regards the situation in question in the country. They once again urged the Government to adopt as a matter of urgency the necessary democratic measures to ensure fully the right to organize and the right to affiliate with international organizations without impediment.

The Government member of the Netherlands supported the observations made by the previous speaker. It was clear that the present question was an extremely serious one, and one could only ask how many interventions were still needed in order for the situation to improve. It was virtually unbelievable that a country could remain so insensible to the opinion of the Committee. Some people would like perhaps to see trade measures being adopted, but this would not be an appropriate solution. Rather, what was needed was that the Government of Myanmar realized that it could no longer ignore world public opinion and that declarations of goodwill were not sufficient any more. He once again urged the Government to undertake concrete efforts to put its legislation in conformity with Convention No. 87.

The Government member of the United States stated that this case was a basic flagrant long-standing violation of a ratified Convention. There were no trade unions in Burma as there was no freedom of association. Just as with Convention No. 29, the Government's failure to apply Convention No. 87 had been recognized not just by the various ILO supervisory bodies, but also by the United Nations General Assembly and the Human Rights Commission. The Government said one thing and then did another. Last year, it had expressed a "genuine" desire to cooperate with the ILO and to obtain technical advice from the Office. It wanted to invite another mission from the Office to their country. That mission had never happened and this year the Government had not even sent a report on the Convention. The Committee of Experts had been expressing the very same concerns about this Convention for 40 years now, and over the past 15 years in this Committee, it was the tenth time that it had discussed this case with special paragraphs adopted on three occasions. Was the Government trying to mislead the Committee? That was the inevitable conclusion that it must reach in the face of repeated promises and a persistent failure to turn any of those words into actions. The speaker deplored the Government's deliberate campaign to wipe out democracy and the rule of law in the country. Therefore, as for Convention No. 29, she believed that this case merited the Committee's strongest conclusions in order to draw the attention of the Conference to the continued failure of the Government of Burma to apply Convention No. 87.

The Workers' member of Panama believed that this was yet one more case of very clear manipulations by the Government of Myanmar. The very fact of having suspended the ILO mission after the official conducting the mission had already left Geneva, clearly pointed to a deliberate manipulation. There was no intention on the part of the Government to correct the violations of trade union rights in the country. The new request for assistance that had been made by the representative of the Government was simply an attempt to once again fool the Committee. This Conference should take a very firm stand against the Government of Myanmar which had shown so much disrespect for the ILO, including its failure to submit the requested reports.

The Committee took note with great concern of the statement made by the Government representative which only repeated, as in previous years, the Government's intention to apply the Convention without giving an account of any positive development in law and in practice. The Committee deplored that the Government had not yet adopted any specific measure to give effect to the observations which the Committee of Experts had been formulating for many years. The Committee deeply regretted the fact that very serious and persistent violations of the fundamental principles of the Convention were continuing in Myanmar. The Committee could only observe that there were no trade unions in the country whose objective was the defence and the promotion of the interests of the workers in the sense of the Convention. The Committee urgently requested the Government to take all necessary measures to guarantee the workers and the employers the right to set up the organizations of their choice, without previous authorization, as well as the right of the organizations to become affiliated to international workers' and employers' organizations.

The Committee regretted that the ILO mission which had been scheduled by common agreement for May 1996, could not finally be received in Myanmar. It expressed the firm hope that the Government would now cooperate more intensively with the ILO so that the very serious discrepancies between the law and practice on the one hand, and the Convention, on the other hand, will be eliminated in the very near future.

The Committee had decided to mention this case in its report as a case of continued failure to apply Convention No. 87, taking into account that since many years and despite many encouragements there were very serious and persistent discrepancies in law and in practice.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

Recent developments with regard to the application of this Convention included an ILO mission by the international labour standards specialist for the Asia region in May 1994. The Ministry of Labour decided to take steps to translate into English the draft Trade Unions Act which was written in the national language in order to facilitate discussions between government authorities and experts from the International Labour Office. The Government sought further assistance from the International Labour Office to obtain technical advice with regard to its efforts to apply this Convention. A further ILO mission was carried out by the Director of the ILO Office for the Asia region and a specialist from the International Labour Standards Department in January 1995, at which time meetings were held with the Minister of Labour and the Director-General of the Department of Labour. The Government regretted the cancellation of a further ILO mission, which might have provided advice with regard to the amendment of the Trade Unions Act of 1926 to adapt the Act to the new political and economic system, and hoped that discussions with the International Labour Office regarding the Act would take place at a later date.

In addition, a Government representative stressed that the Government had a genuine desire to cooperate with the ILO whose technical assistance would be welcomed in the drafting of the new trade union law. Further to the mission led by the Technical Adviser of the Asian region of the ILO on matters relating to Convention No. 87 in May 1994, the Ministry of Labour had decided to take steps to translate the draft trade union law into the English language to facilitate discussions between the Myanmar authorities and the ILO. A follow-up visit to Yangon was carried out in January 1995 by officials from the ILO Bangkok office. During the course of discussions with the ILO mission, Myanmar authorities were informed that another ILO mission from the Freedom of Association Branch would be arriving in Yangon in April or May 1995. The Ministry of Labour had been looking forward to welcoming this mission. Unfortunately, this mission could not visit Myanmar as scheduled. However, the Government was of the view that further contacts should be continued with the ILO in order to obtain technical advice that would contribute towards its effort to apply freedom of association principles. The authorities hoped that discussions in this respect would take place at a mutually convenient date. The speaker stressed that significant progress had been made by the National Convention whose task it was to lay down basic principles to be embodied in a new Constitution. Currently, the contents of the chapters on the state structure, heads of state and self-administered areas had been agreed upon. Chapters on the legislature, executive branch and judiciary would be discussed in October 1995 when the National Convention reconvened. As proceedings followed their course, basic principles in connection with citizens' fundamental rights, as well as the rights of workers, would be discussed in detail. Amongst the basic principles to be enshrined in the new Constitution, the following dealt with workers from different sectors: in connection with workers in general, it was laid down that the State would enact the necessary laws to protect the rights of workers; in connection with rural and farm workers, it was laid down that the State would enact necessary laws to protect the rights of the peasantry; in connection with intellectuals, it was laid down that the State would help promote their interests; in connection with civil servants, it was laid down that (a) state service personnel would be free from involvement in party politics while retaining the right to vote for the party of their own choice, and (b) the State would enact necessary laws for state service personnel to have due security in service and sufficiency of food, clothing and shelter.

The Workers' members recalled that this case had been in existence for almost 40 years. There had been 11 observations by the Committee of Experts, seven long discussions in this Committee, and two special paragraphs on this Convention in 1982 and 1983. Year after year there had been promises of new constitutions, new labour laws and courts. This year the Committee of Experts had additionally drawn attention to the Committee on Freedom of Association's Case No. 1752 of November 1994 concerning seafarers. However, there was no point in going into detail about the nature of the various infringements at issue. The very simple and plain point was that there were no trade unions in Myanmar at the present moment. There were some bodies under the total control of the Government which under no circumstances would ever qualify as trade unions.

With regard to the National Convention which was drawing up a new Constitution, the Workers' members pointed out that the Workers' group within this Convention and, indeed, the Convention itself was selected and totally controlled by the Government. As for the request by the Government representative for an ILO technical mission to his country, it was the view of the Workers' members that extreme caution should be exercised by the Office before it sent further missions to this country. Until there were material changes, requests for a mission should be ignored since there were no trade unions and the minimum conditions for a mission were just not there. Any ILO mission could be exploited or abused by the Government in order to be seen in a better light by the world. ILO staff should not be put in this position and exploited, for example, by having anything they said quoted out of context. The Workers' members considered that there was no point in discussing this case any more since the Government was not going to be convinced by words. Its persistent refusal over many years to do anything at all about the observations made by the Committee of Experts with regard to the application of this Convention meant that a special paragraph was justified.

The Employers' members considered that the serious differences between national law and practice in Myanmar and the requirements of Convention No. 87 had been a continuing preoccupation of this Committee since 1981; this would be the ninth time that the case had been discussed here. They considered, however, that as long as the Government's request for ILO technical assistance was not a delaying tactic but a sincere effort to correct the situation, then the possibility of a technical assistance mission could be looked into. Of course, it remained to be seen whether there was actually a piece of legislation that had been drafted and submitted to the legislature and whether this legislation would be enacted. They wished to establish a real legal basis for freedom of association which currently did not exist. They thought that it was a fundamental matter that both workers and employers be entitled to form organizations of their own choice and be able to affiliate with federations and confederations.

The Workers' member of Japan believed that at the heart of the matter lay a fundamental lack of respect for human rights by the Government of Myanmar. As Amnesty International had reported in detail, the infringement of human rights in Myanmar was such that it damaged human dignity itself. This was well demonstrated by the house arrest of Ms. Aung San Suu Kyi. He further referred to the list of the Workers' delegation from Myanmar to the Conference. The fact that the Workers' delegate was not a member of any kind of union clearly showed the current situation of the trade union movement in that country. He called on the Government to change its oppressive political stance and to fully guarantee freedom of association as an essential basis for democracy.

The Government member of Norway, speaking on behalf of the Government members of the five Nordic countries and the Netherlands, noted with interest the Government's statement that deliberations relating to labour issues, including the right of association for workers, would be undertaken. He therefore expressed the firm hope that, with the assistance of the ILO, the necessary measures would be taken as soon as possible to bring the country's law and practice into conformity with the Convention.

The Workers' member of Sweden considered that in view of the total lack of freedom of association in Myanmar and the fact that basic human rights were continuously violated, this Committee should ask itself if in reality there existed a political will of the Government to change the current situation and to conform with Convention No. 87. The Committee of Experts had noted with concern the conclusions of the Committee on Freedom of Association in Case No. 1752, approved by the Governing Body in November 1994. Here the right of seafarers to form independent trade unions or to affiliate with an international federation was just another example of the manner in which freedom of association was denied in Myanmar. Myanmar's seafarers on flag-of-convenience ships were under the strict control of the State and had to sign contracts obliging them not to contact international trade union organizations. In addition, if these seafarers' wages were to be raised to a more decent level, their contracts stipulated that such additional wage increases should be handed back to the State upon their return, otherwise they risked being penalized. In view of this and the long and serious neglect of granting freedom of association in Myanmar, this Committee had to express its strong dissatisfaction with the present situation in a special paragraph.

The Workers' member of Greece pointed out the discrepancies that existed between the Government representative's statements, according to which real progress had been made, and the reality. In this country, trade unions did not even exist, and the Government was obviously trying to buy time through meaningless speeches. As in all military regimes, it allowed itself to suppress the liberty of others. While it was appropriate for the Committee not to rule out any other alternative by refusing a new ILO mission, it was not appropriate either to leave the door open in giving too much credibility to a government which persisted in violating the most elementary rights and freedoms.

The Government representative, referring to Case No. 1752 of the Committee on Freedom of Association, pointed out that recent developments had taken place, as had been indicated in a letter by the Director-General of the Department of Labour of Myanmar, to the Director of the ILO International Labour Standards Department. These developments included the following points. Since the Government had been very concerned about the recommendations of the Committee on Freedom of Association, the Ministry of Transport had taken the following steps with regard to Myanmar seafarers. The Seamen's Control Department, under the Ministry of Transport, had promptly revoked the requirement of Myanmar's seafarers to sign an affidavit before leaving the country, with effect from 9 February 1995. Moreover, 25 per cent of Myanmar seamen's salaries, which they had previously been required to remit to their families back home, would no longer be deducted with effect from 1 December 1994. In addition, according to Notification No. 146/94 of the Ministry of Finance and Revenue, issued on 16 November 1994, Myanmar's seamen and overseas workers were liable to pay only 10 per cent as income tax on the declared total foreign exchange earnings with effect from the same date mentioned above.

The Employers' members concurred with the Workers' members' proposal that this case should be placed in a special paragraph since it clearly met the Committee's traditional criteria for serious, long-standing cases that did not seem as if they would be resolved without additional attention being given to them. However, they did think that the ILO could provide technical assistance which in turn should be converted into tangible, concrete and legislative action by the Government of Myanmar in the near future.

The Workers' members considered that the information on the recent developments regarding Case No. 1752 should be sent to the Office for examination by the Committee on Freedom of Association. They considered that if a government request was made to the Office for a technical assistance mission then it could be carried out provided the Office considered that this was worthwhile.

The Committee took note of the statement of the Government representative indicating his Government's commitment to harmonize law and practice with Convention No. 87. The Committee, however, felt serious concern that the Government had not acted on the observations of the Committee of Experts over many years despite mention of the matter in special paragraphs twice over, and that no trade unions in the true sense of the term existed. The Committee urged the Government to adopt, as a matter of urgency, the necessary measures to guarantee that in law and in practice workers and employers had the right to join organizations of their own choice and without previous authorization outside the existing structure, and that such organizations had the right to join federations and confederations and to affiliate with international organizations without impediment. The Committee expressed the firm hope that it would be in a position to register concrete and substantial progress in the application of the Convention in law and in practice, in the near future, considering the assistance of the ILO mission which had already taken place, and it requested the Government to send a detailed report to the Committee of Experts about further developments on the matter. The Committee noted that a further request might be made for ILO technical assistance by the Myanmar Government, but it would leave the question of whether an ILO mission would be appropriate, and the timing of such a mission, to the Office. The Committee decided to mention this conclusion in a special paragraph of its General Report.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

The Government supplied the following information:

In an observation on the labour laws in the Union of Myanmar, the Committee of Experts expressed its concern that no progress had been made with respect to the legislation, nor in practice, and urged the Government to take the necessary measures. The Myanmar Government is taking positive and concrete steps to put in place institutions that will establish, promote and nurture democratic principles and practices. With these objectives in view, a broad-based national convention comprising some 700 delegates representing the whole strata of Myanmar society was held. This convention has by consensus adopted 104 basic principles which will serve as the basis for a new State Constitution. Among these principles, the national convention has laid down that the State shall enact laws to protect the rights of the workers in the country. In May 1994, an opportunity was afforded by the relevant technical services of the International Labour Office for a brief preliminary discussion of some aspects of the new draft legislation to allow workers to establish trade unions, federations, etc., of their own choosing. These discussions took place between the ILO Technical Adviser based in New Delhi and the authorities in the Ministry of Labour, Government of the Union of Myanmar. The Government is of the view that further contacts should continue to be held between the Government and the International Labour Office to obtain technical advice that would contribute considerably towards its efforts in applying this Convention and the principle of freedom of association, etc. The Government is looking forward to these contacts with the International Labour Office and, subject to mutually convenient dates, preparations are being made to receive a technical assistance mission in Myanmar from the International Labour Office some time before the next session of the Committee of Experts. The Myanmar Government is making every effort to take further action with the technical assistance of the International Labour Office.

In addition, a Government representative recalled the transformation of the political and economic system of his country, including measures to draft a new State Constitution. The speaker quoted one of the basic constitutional principles laid down by the National Convention that "the State shall enact the necessary laws to protect the right of the workers". While measures were being taken to put in place democratic institutions including the rights of the workers to form their own unions, he considered that the present machinery for the protection of the rights of the workers was as strong and effective as ever: for example, the workers' welfare associations and several other professional and craft organizations were the forerunners of the trade unions to be established in the country. He further stated that a body known as the Laws Scrutiny Central Body was formed in 1990 to review the existing national legislation including labour laws, and that a law reviewing committee headed by the Minister of Labour was also formed. The relevant labour laws including the Trade Union Act of 1926 had been reviewed and redrafted in the national language since the advent of the State Law and Order Restoration Council (SLORC). The draft laws including that relating to the trade union had been forwarded to the Attorney General's office for a preliminary review and would be later submitted to the Laws Scrutiny Central Body. The Government representative also recalled the visit made in May 1994 by an ILO technical adviser on standards for an initial round of discussions on some aspects of the draft legislation. He stressed that such contacts should be continued to assist the Government in its efforts to ensure the application of the Convention. He concluded by confirming that the fundamental rights of workers continued to be the major concern of his Government which would make every effort to take further action with the assistance of the International Labour Office.

The Workers' members described this case as one of almost total despair, considering that the Convention had been ratified 40 years ago by the Government. Since then there had been ten observations by the Committee of Experts regarding the complete lack of progress in fulfilling obligations under the Convention; six long discussions of this case and the lack of any progress in the Conference Committee; no progress recorded in the report of the Committee of Experts; and mention of the case in a special paragraph of the report in both 1982 and 1993. Although there had been promises of a new Constitution respecting fundamental rights including freedom of association, and of new labour laws to replace old ones, there had been no concrete action and no real progress. The Convention was a cornerstone of human rights but it was neither complex nor difficult to implement if the Government really wished to meet its obligations. With regard to the current situation in Myanmar, they had learned from a reliable source that repression of trade unions existed, and that there was a climate of fear in which grave human rights violations continued. Moreover, the existence of independent trade unions was still illegal, and those who promoted them were punished. To show real progress, the Government needed to provide more specifics such as texts of new laws under consideration and the dates when they were planned to come into effect. They recognized that the 1994 intervention by the Office in the form of technical assistance represented an opportunity to move forward, and that a future meeting between the ILO staff and the Government administration might help the situation. Laws must be adopted that would permit the establishment of first-level unions as well as federations and confederations for workers of their own choosing, independent of previous government authorization. As this case was so deplorable, and as there had been a total lack of real progress, it was necessary for the Committee to express the need to act urgently and the need for discernable progress.

The Employers' members endorsed most of the declarations of the Workers' members. They noted that this case had been dealt with on seven occasions since 1987 and every year since 1991, and that in 1982 and 1993 it had been referred to in special paragraphs. The case had been around for a very long time, and there had been far too little action. They were concerned that the law provided for a trade union monopoly and that basic freedom of association was not guaranteed. In reference to the draft legislation under preparation which if enacted would constitute a substantial change, and the information from the Government regarding the technical assistance provided by the Office in May 1994, they said that usually one would be glad when requests were made by countries for technical assistance, as they often were a sign of determination to bring their legislation into conformity with the Convention. However, in this case, they felt that this was simply a delaying tactic, and that although the Government referred to 104 basic principles for the planned Constitution that had been adopted by consensus, in fact legislative preparation was at a very early stage. The Employers' members were less concerned with the finer details than with the establishment of the very basis of freedom of association. While the Government only referred to its plans to give workers the freedom to form trade unions, they urged that everyone, including employers, be entitled to form organizations of their choice as provided for under the Convention. They agreed with the Workers' members that the Committee had waited far too long for progress and they urged the Government to act quickly as it was a matter of urgency that changes be made.

The Government member of the United States said that upon reviewing the history of this case, she noted that since 1989 the Government had repeatedly said that there were political changes taking place in the country, that a period of transition was under way, and that there would be a new Constitution and new legislation that would conform to the Convention. However, these repeated promises had a hollow ring. Although the basis of the case had been a problem of trade union monopoly, she now considered that it was actually a total lack of freedom of association. While the legislation was not in conformity with the Convention, the practice was even worse as workers were not free to join organizations of their own choosing, and there were reported violations of civil liberties. In the past few years, not only the ILO but the United Nations Committee on Human Rights and the General Assembly had expressed their urgent concern regarding the lack of freedom of association in the country. It was encouraging that the Government had entered into discussions with the Office about this matter, and had requested future technical assistance. She supported any measures the Office and this Committee considered appropriate to ensure that the actions of the Government would, in the near future, match the promises made.

The Workers' member of Pakistan noted the great concern expressed in previous special paragraphs regarding this situation which urged the Government to bring its legislation into conformity with the Convention. Regulation No. 5 of 1976 did not permit the existence of independent unions freely chosen by workers. The Government had been making similar promises for several years, but there was no real progress in legislation and practice. He hoped that the Government would not merely confine itself to receiving advice from the Office, but that it would have the political will to protect freedom of association, as there could be no social justice without it.

The Government member of the Netherlands supported the statement of the Government member of the United States. He noted that the Government had been promising new labour laws to replace old ones for a very long time, but that no concrete progress had yet been made. Although one of the aims of the Convention was to create a level playing field, this was far from being achieved in Myanmar. He urged the Government to bring the legislation into conformity with the Convention, so that there could be true tripartism in which employers and workers played their proper roles.

The Workers' member of the Netherlands asked the Government representative to provide information on the existing practice with regard to the exercise of trade union rights in Myanmar in the absence of conforming legislation.

The Workers' member of Japan noted that the Government had made repeated assurances year after year regarding its intention to establish legislation in compliance with the Convention. However, he emphasized that empty assurances were no substitute for concrete progress. In his view, the case under consideration indicated a complete lack of freedom of association. Although the statement of the Government indicated that there were functioning workers' organizations in the country, he pointed out that the Workers' delegate for Myanmar at the Conference was a person who, in actual fact, did not represent any workers' organization.

The Government member of Norway, speaking on behalf of the Governments of the Nordic countries, noted with great interest the proposed laws that were intended to conform with the Convention. However, he pointed out that no real progress had been made in this respect in legislation or in practice. He hoped that there would soon be legislation in force that would permit independent trade unions, and that democratic rights would be established in Myanmar.

The Government representative stated that he had listened very attentively to the comments made by the delegates to the effect that there had been a lack of progress and repression of workers in his country. However, he insisted that concrete and positive steps had been taken and that there was a distinct improvement in the situation. In his view, the Workers' members had failed to take into proper consideration the second part of the letter of 9 June 1994 to the Office from the Director-General of the Myanmar Labour Department requesting technical assistance in which he had underlined the need for further contacts with the ILO to obtain technical advice that would contribute to the efforts of the Government in applying Convention No. 87 and the principles of freedom of association. He stressed that it was more productive to talk about the future rather than the past and stated that this letter and its contents were evidence of his Government's forward-looking attitude, and that there had been active consultation with the Office on some aspects of the draft trade union law. There was a misconception that trade union monopoly existed in Myanmar, as the one-party system had been abolished in 1988, and with it the trade union monopoly. Moreover, a Chamber of Commerce and Industry, whose chairman was an Employers' delegate at this Conference, existed in his country and was functioning effectively. The Government was making every effort to establish democratic institutions including trade unions, and was in the process of revising its legislation on trade unions to conform with the new political and economic system. This was testimony to the efforts being made by his Government in good faith and with sincerity to take further necessary measures with the assistance of the ILO.

The Workers' member of the Netherlands reiterated his previous request for information about the current practice in Myanmar, and in particular details about the functioning of trade unions and employers' organizations, and their ability to freely form and elect their leaders, and to engage in collective bargaining.

The Employers' members could not see that any progress had been made in the immediate past. Although it was true that one should look to the future, expectations for the future were based on past experience, which in this case was very negative. They reiterated that it was favourable that there had been a preliminary mission by the Office and that further technical assistance had been requested. However, it seemed that the Government was engaging in tactics that would lead to further delay in taking measures. In view of the 40 years that had passed since ratification of the Convention, they asked that rapid measures be taken, and urged that substantive changes be made.

The Workers' members strongly reiterated what they had said in their previous statement, and stood solidly on their statements about the actual practice in Myanmar, which contrasted sharply with the promises of reform. They also agreed entirely with the insistence of the Employers' members on employers' rights to freedom of association.

The Committee noted the written information provided by the Government and the statement made by the Government representative as well as the discussion which took place in the Committee. The Committee regretted that despite the assurances made by the Government to the effect that it was involved in the process of changing legislation in order to guarantee trade union rights, no tangible sign of improvement had been visible to the Committee of Experts. The Committee noted, however, that since the meeting of the Committee of Experts, a preliminary discussion with the ILO took place in the country relating to certain aspects of draft legislation. In addition the Committee noted that the Government requested a technical assistance mission to be sent to the country before the next session of the Committee of Experts. While reiterating its deep concern with the situation, the Committee urged the Government to adopt at an early date all the necessary measures urgently needed to guarantee that in law and in practice, employers and workers, without distinction of any kind and without previous authorization, may have the right to associate and that workers have the right to join trade unions of their choice outside the existent trade union structure, and trade unions the right to establish federations and confederations without impediment. The Committee expressed the firm hope that in the very near future it would be in a position to register real substantial progress in the application in law and in practice of the Convention, and it requested the Government to send a detailed report to the Committee of Experts so as to allow it to make an assessment of progress made by next year.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative first referred to the oral and written communications which the Government had provided to this Committee in 1992, and added that a National Convention composed of some 700 delegates, including elected representatives as well as representatives of the political parties, the national races, civil servants, workers, peasants, the intelligentsia and other invited persons had been convened and started on 9 January 1993. The purpose of the National Convention was to lay down the basic principles of a new Constitution that would ensure fundamental rights, including those of workers. After the emergence of the new Constitution, various laws would have to be reviewed so as to be brought into line with it. However, during the transitional period the workers' rights were being ensured by the legislation still in force. At the same time, labour laws reflecting the democratic principles pertaining to workers had been drafted. He stated that new labour laws reflecting the principles of the Convention, to which the Government had referred in last year's report, and which replaced old ones concerning the formation of workers' organizations, had been submitted to the appropriate authorities and were now under consideration. His Government would inform the ILO in due course of progress in the framing of the new Constitution and the new labour laws.

The Workers' members, after expressing their wish to discuss this Convention regarding Myanmar next year, pointed out that this was a long-standing case and recalled that a Government representative had mentioned two years ago the "drastic" change from socialism to multi-party democracy which had taken place in 1988. They thought that the people of Myanmar had been "freed" from the single-party system into a system under martial law, where human rights violations, such as murder, torture, imprisonment and forced labour, were tolerated and perhaps even sanctioned. They noted that the Government representative's statement did not differ from the statement at the Committee in 1992 regarding the drafting of the Constitution and the redrafting of the Trade Union Act. They were of the opinion that there was no freedom of association in the country or hardly any trade union movement; trade unionists who criticized the Government were imprisoned, the Members of Parliament elected in May 1990 had not been allowed to convene, many of whom were in prison, disqualified or had fled the country. In view of the seriousness of the case and the fact that no progress had been made since 1989 and that there was no commitment to the required changes, the Workers' members proposed to mention the case in a special paragraph of the Committee's report.

The Employers' members pointed out that the subject here was the legislation of 1976 which provided for a monopoly of trade union rights and the corresponding practice, which both represented a clear infringement of the Convention. They also recalled that the case had been discussed for a long time and that the Government representative had repeated that the country was in the process of transition and of revising the legislation. They considered such a comment too general and too weak in light of the gravity of the situation. They were of the opinion that more specific commitment to changing not only the legislation but also the practice was needed. Given the little progress made in the length of time, the Employers' members agreed to the proposal of recourse to a special paragraph.

The Workers' member of the United States emphasized the urgency of the case, referring to the violation of human and trade union rights in the country including arrests of labour activists. He expressed concern about the ideas of some Asian countries that economic development should precede the development of human and trade union rights. He noted that despite the difficult circumstances a free union was operating in those areas where government control was weak, and clandestinely in other areas. He supported the call for a special paragraph in view of the serious situation.

The Workers' member of Japan pointed out that the Workers' representative of Myanmar to the present Conference was a "supervisor" and not a trade union representative. He noted that no progress had been made despite the repeated assurances by the Government, and he supported the inclusion of this case in a special paragraph.

The Workers' member of Pakistan agreed with the previous speakers in noting little progress and in requesting a special paragraph. He urged that the Government should inform the Office of any developments in this matter.

The Government representative first denied that workers were arrested or tortured for trade union activities. He stated that the so-called trade union operating on the border areas was a creation of terrorist groups outside the territory of Myanmar and did not represent any worker in Myanmar. He repeated that the transitional process to a democratic multi-party system and the abolition of the monopoly of trade unions was taking time and preparation. He was opposed to the allegation that elected representatives were imprisoned and stressed that the drafting of the Constitution was going ahead. He repeated that the single trade union no longer existed and that steps had been taken to adopt legislation which would take into account the principles of freedom of association.

The Committee took note of the information repeated by the Government representative according to which his Government was committed to a process of change in the country's legislation in order to guarantee trade union rights. Nevertheless, the Committee recalled that the Committee of Experts and the Conference Committee had indicated to the Government, over a period of several years, the provisions of the legislation requiring amendment and up to now these changes in the legislation had not been made. Consequently, the Committee expressed its deep concern and firmly urged the Government to adopt, in the very near future, the necessary measures in legislation and practice to guarantee to all workers and all employers without any distinction and without prior authorization the right to organize even outside the existing trade union structure should they so wish. The Committee trusted that it would be able to take note of substantial progress in the application of the Convention and requested the Government to transmit relevant detailed information in its next report. The Committee decided to include this case in a special paragraph of its General Report.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

In reply to the Committee's observation, the Government wishes to indicate that the Trade Union Act is the one among the existing labour laws which have now been redrafted to meet the new trends prevailing in this country. With the enactment of these new labour 1aws, trade union rights will prevail within a new framework.

In addition, a Government representative stated that in July of last year his Government had formed a body composed of nine members named the Central Council for Legislative Studies. This Council will examine laws which need to be repealed or amended, including labour laws. As a result, new labour legislation will be promulgated which reflects the changes occurring in the country, and is in conformity with the Convention. In addition, he stated that in conformity with Declaration No. 11/92 of 24 April 1992, his Government will meet the elected representatives of Parliament to decide on the convocation of a national Convention which will establish the fundamental principles for the drafting of a Constitution that would be the basis for a multi-party democratic system. The new Constitution will incorporate the rights of all workers to form their own independent trade unions in conformity with the democratic system.

The Workers' members stated that they understood that, according to the information provided by the Government representative, Parliament should soon deal with the problems raised by the Committee of Experts and would correct the single trade union monopoly situation. Moreover, they recalled that the Committee had dealt with this problem since 1989. They emphasised that although the Committee of Experts had not received the report, it had taken note of the written information supplied by the Government, as well as the long discussion which had been carried out in the Committee in 1991. At that time the groups were in agreement that the Government needed to take measures to eliminate the trade union monopoly, and to establish the possibility that trade union pluralism could be adopted by granting workers freedom of choice. This did not necessarily mean that the workers must form several trade unions. Neither pluralism nor a single trade union system could be legally imposed, but rather remained a matter of free choice.

The Employers' members stated that once more they shared the opinion held by the Workers' members. They recalled that the Government had already indicated, during preceding discussions, that the trade union monopoly provided for in the law no longer applied in practice. However, the Workers' members hoped for the official elimination of this legal obligation, as was appropriately requested by the Committee. The Government had indicated that in the light of the political changes that had occurred in the country, the single party system would be eliminated and, as a result, free choice of a trade union system would be introduced. The Workers' members stated that now it was a matter of insisting on the modification of the national legislation. They stated that the written information provided constituted a brief comment on Convention No. 87, which indicated that the text of the relevant Act was being prepared. The implementation of this new legislation would re-establish trade union rights. Nevertheless, in their opinion it was indispensable that the Government provide to the Committee more details on the subject and, above all, the texts of this new Act. Moreover, there remained the question of the date of entry into force of this Act.

A Workers' member of Japan stated that the case of Myanmar was very serious. He recalled long discussions which had taken place on the subject of Myanmar in this Committee last year. Since then, no progress had been made despite the assurance given by the Government representative. In the meantime, the available information on this subject referred to the extreme degree of atrocities and the unprecedented escalation of violations of human rights committed by the military regime. He stated that, according to the statement of the Government representative, the abolition of the single party system had resulted in the end of the single trade union. However, on the basis of available information, he noted that no progress had been made, but rather there had been a change from a State with a single party to a State without any party. In the same manner, there had been a change from a single trade union system to a system characterised by a lack of any trade union. He drew the attention of the Committee to the fact that the Workers' member of Myanmar did not represent any workers' organisation, which in itself clearly illustrated that there was an absence of a trade union in the country, as well as the total and complete absence of trade union freedom. For these reasons, the case of Myanmar deserved to be included in a special paragraph of the report so that it would draw the attention of the entire Conference as well as of the world.

The Workers' member of Greece pointed out to the Committee that the Government representative first had made a statement of denial in respect of Convention No. 29, and then made a statement regarding what it would do in the future in respect of Convention No. 87. However, he reiterated the question already raised by the Employers' members as to when the actions referred to would actually take place.

The Government representative recalled his previous intervention in which he had indicated that the Government was meeting with the elected representatives of all the political parties. He stated that his country was actively committed to a multi-party democracy and market-oriented economy. Measures had been taken to attain this goal, including the guarantee of freedom of association. Democratisation of the country was a long process which required preparation and time. The Government wished to return to a democratic multi-party system because it wanted to have the collaboration of workers and employers who had been granted the right to organise freely. The Government representative recalled that his country was experiencing a period of transition towards democracy, and asked that his Government be given more time to obtain results.

The Workers' members clarified that the availability of the choice of trade union pluralism was an obligation derived from the Convention that had nothing to do with the political situation. They considered that, taking into account the report of the Committee of Experts and the present discussion, it should demand that the Government take prompt action to correct this situation at the legislative level.

The Committee took due note of the information given by the Government. It understood that the Government was in the process of amending the legislation with a view to lifting the legal restrictions on the freedom of workers to be members of unions of their own choosing. However, it was not clear how far the Government's intentions had materialised in this respect. It therefore strongly urged the Government to bring a Bill to the effect mentioned before Parliament, as soon as possible, and send a copy of the same to the ILO at the same time.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

The Government has communicated the following information:

The year 1988 saw historic, social, economic and political change in Myanmar, whereby the socialist way of life under the one-party system was drastically replaced by the multi-party democracy system. With the abolition of the one-party political system, the unitary workers' organisation which had been the order of the day for more than 20 years has also dissipated. Even though there has been no formal amendment or repeal made to the Act No. 6 of 1964 and Regulation No. 5 of 1976, they became automatically defunct. Eighty-five out of over 200 political parties registered with the Election Commission competed in the general elections which had been recongnised as one of the most free and fair elections. Most of those political parties had their own affiliated workers' organisations. There are also workers' organisations formed along the lines of trades and professions such as Musicians' and Dramatists' Association, Painters' and Sculptors' Council, Film Artistes' Organisation, Writers' and Journalists' Association, Medical Doctors' Association and Nurses' Association.

In addition, a Government representative reiterated the written information communicated by his Government. He also indicated that the Committee of Experts had rightly pointed out that the provisions of the law concerning the formation of workers' organisations in his country restricted the creation of trade unions to a single trade union structure, which was contrary to the provisions of Articles 2, 5 and 6 of the Convention. The Act and Regulation in question had been enacted when Myanmar had been practising a one-party political system. Following the disturbances in the latter part of 1988, many changes had taken place, including: (a) the abolition of the one-party political system and its replacement by a multi-party democratic system; (b) the replacement of the centrally planned economic system by a market-oriented economy. He stressed that with the abolition of the one-party system, the unitary trade union structure had been automatically removed and the Act and Regulation permitting a single trade union had become automatically defunct. His country was currently going through a transitional period involving major transformations. It was in the process of drawing up a new Constitution which would contain express provisions for freedom of association and protection of the right to organise, in line with the Convention. His Government had already submitted a detailed report to the Committee of Experts for the period ending June 1991 and would keep that Committee informed of all relevant developments.

The Workers' members noted that for many years the Committee of Experts had been making comments on the single trade union system established by law, which was contrary to the principle of the Convention. The Government representative had just repeated what had been said in this Committee in 1989, namely that there had been political changes having consequences for trade union organisations. There would be a new Constitution, but neither the written information provided by the Government nor the oral statement of the Government representative had mentioned other texts or new legislation. That was why the present Committee had to insist that changes had not yet been made and texts not yet adopted in full conformity with the principles of the Convention.

The Employers' members recalled that the Government representative himself had indicated that the trade union monopoly still existed under the legislation and was a violation of the Convention. He had also said that since the political changes in 1988, practice was different. However, as had been done in 1989, they believed that the present Committee should insist that the law be changed as well. If there was a political willingness to do this, they were of the opinion that there would be no difficulties in eliminating this legal monopoly system.

The Workers' member of Sri Lanka considered that the Government representative had added nothing to what had been said in 1989. Since the Government representative hoped that the Constitution would make the changes required in order to bring the legislation into conformity with the Convention, the speaker asked him to indicate the time-frame for these statutory changes.

The Government representative explained that certain steps to amend, repeal or make some necessary changes to the 1964 Act were being taken; the Committee would be informed when progress had been made.

The Committee noted the written and oral information supplied by the Government and the debate that had taken place in the Committee. Nevertheless, it expressed its concern at the fact that despite the firm assurances given to the present Committee and to the Committee of Experts, which had just been repeated, the Government had still not taken specific measures to bring its legislation into conformity with the requirements of Articles 2, 5 and 6 of the Convention. The Committee had to insist once again that the Governmetn take urgent legislative steps so as to lift the restrictions on the freedom of workers and employers to establish occupational organisations of their own choosing and to make it possible for trade union pluralism to exist. It expressed the hope that the Government would be able to report on measures taken to bring its legislation into full conformity with the requirements of the Convention, in accordance with the assurances it had given on several occasions and that the Committee would be in a position to note real progress in this respect in the near future.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative indicated that his country had undergone drastic changes recently in the political, economic and administrative system. The single party system had been abandoned in accordance with the wishes of the people. The concomitant changes, reforms and restructuring were presently in full swing in all sectors of life in the country namely, political, economic and social spheres. Plans had been already adopted and a specific timetable had been drawn up for the holding of a free and fair general election on multi-party system within a few months time. All necessary preparations were being made in that direction. As a matter of fact, over 200 political parties had been formed and duly registered with the General Election Commission and they were expected to participate in the forthcoming elections.

Thus, there no longer existed the situation about which the Committee had expressed certain misgivings in regard to the present Convention. In the meanwhile, during this extremely delicate period of transition, marked by drastic reforms and restructuring, the existing labour laws afforded adequate protection to workers of their basic rights. The Ministry of Labour and its administrative organs were keeping very close watch on all matters concerning the interest and welfare of workers. It may also be emphasised that there existed no legislation whatsoever which prevented workers from forming associations to look after their legitimate common interest.

The prospective scenario of labour organizations and movements in Burma could accordingly be no other than the one that is in tune or harmony with the multiparty democratic system and hence in conformity with Convention No. 87.

The Workers' members stated that there would not be a long discussion because Burma had sent its reports. Furthermore, the political, economic and social changes permitted hope that the Convention would be fully applied. The declarations of the Government representative concerning the constitution of several political parties and the possibility for workers to form one or many trade union organisations permitted hope that the Act No. 6 of 1964, and, in particular section 9 (which imposed a single union structure), would be amended. It would be useful to specify the date by which these amendments should be made in order to assure that they would result in a proper application of the Convention.

The Employers' members indicated that the trade union monopoly laid down in law was an obstacle to freedom of association, and therefore, to application of the Convention. As in many other cases, the Government maintained that this monopoly was based upon the will of the workers themselves. None the less, the Employers' members considered that the will of these persons did not constitute a reason for establishing such a monopoly in the legislation. The declarations made by the Government representative were somewhat vague; it seemed that different rules would be established if a different will were to become known. In any event, trade union monopoly should be eliminated from the legislation.

With regard to the political changes which would lead to a multi-party system, the present Committee could not examine these political questions, but could affirm that a single party system often goes hand-in-hand with a single union system. In fact, there was a correlation between these two systems and therefore it was hoped that the end of a single party system would also lead to the end of the single union system. The Workers' members would be grateful if they could observe progress in the near future in legislation, as well as in practice.

The Government representative described the political changes which had taken place in this country. The single party system and the single union system no longer existed. With regard to the economic plan, a mixed economy come into practice. As concerns the social climate, the democratic way was being pursued. The fact that two political parties had set up trade unions proved that workers now enjoy freedom of association.

The Workers' members observed that it was not the political parties that it was necessary to give authorisation to set up trade union organisations; this was a worker's right and it was preferable that a trade union not be attached to a political party, nor created by such a party. In this regard, the Office could clarify the meaning that must be given to the forming of free trade union organisations.

The Committee took note of the information communicated by the Government representative.

The Committee noted the will expressed by the Government to comply with its obligations stemming from the Convention.

The Committee also noted that certain specific measures were adopted to remedy the divergencies existing between national legislation and practice on the one hand, and the Convention on the other, but that this legislation had not yet been adopted.

Recalling the comments made by the Committee of Experts for a number of years, the Committee expressed its firm hope that the Government would adopt at an early date, and if necessary with the assistance of the International Labour Office, legislation in conformity with the requirements of the Convention and which would put an end to the system of a single union structure.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

In its previous reports, the Government has tried to clarify its position as regards the existence of a single trade union structure.

The single trade union structure came into existence not because of the imposition by law but solely because of the will of workers who consider, in the light of bitter experiences of the past, multiple trade unions or fragmented trade unions as the manifestation of disunity and disorder among workers. Such a multiple structure of trade unions is far from being able to safeguard and promote the rights of workers, but rather renders the disunited workers victims of manipulation and exploitation.

The legislative provisions referred to in the observation do not prevent the workers from establishing other associations. There are other associations, such as those of literary workers, artistes and musicians, and doctors and nurses.

The Government would like to express its willingness to cooperate with the Committee of Experts and other relevant bodies to eliminate the discrepancy of views with respect to the application of the Convention. The Government welcomes the dialogue and would like to continue to maintain it, as it believes it provides a means to clarify mutual positions and an opportunity to have a better understanding of each other's views.

In addition, a Government representative said that, as had been communicated in previous reports, the Burmese trade union structure had come into being because of the will of the workers themselves; it was therefore imperative that it should be amended only in consultation with them. The observation of the Committee of Experts had been transmitted to the workers' organisations, and so far no suggestions for amendments had been expressed, either implicitly or explicitly. The legislative provisions referred to in the observation did not prevent workers from establishing their own organisations, and organisations like nurses' associations and literary workers' associations existed. Mindful of its obligations, her Government would spare no effort to co-operate with the Committee of Experts with a view to reaching agreement through a continued constructive dialogue for the clarification of mutual positions and the promotion of better mutual understanding.

The Employers' members said that the situation was quite clear. It was a case of a legalised trade union monopoly that was not in conformity with the requirements of the Convention. That had been noted again and again and still remained unchanged. The Government representative had stated that the structure had been established at the request of the workers and that a change could be made only if the workers themselves requested it. In that connection, it should again be pointed out that the workers were, of course, entitled to set up a single trade union structure, since the Convention did not prescribe that trade union structures should be either single or pluralistic. However, the Government was responsible for allowing for both possibilities. If it prescribed a single structure, it was not complying with the Convention. The remarks made by the Government representative were therefore not satisfactory. Burmese legislation was not in conformity with the Convention and should be brought into line with it. The Committee should once again express quite clearly that a monostructure prescribed by law was a violation of the Convention which provided that workers should have a free choice. From what the Government representative had said, it was the Employers' members' understanding that the Government was not prepared to meet the wishes of the Committee of Experts and of the present Committee.

The Worker member of the United States said that the Employers' members had put the point very well. It was the same problem which the Committee had discussed in the case of Mauritania-namely, that domestic legislation was not in conformity with the provisions of the Convention, which required that more than one trade union structure should be permissible. The workers were entitled to decide whether there should be one union or more than one union, but domestic legislation must make it possible for them to make that choice.

The Workers' members fully agreed with the previous speaker. The Committee's proceedings in respect of Burma with regard to Convention No. 52 had been discontinued because the Government had transmitted a written reply in which it stated that it was placing proposals for the amendment of the pertinent provisions of its labour legislation before a law commission. Consequently, the Committee might expect to see some results in 1988. With regard to Convention No. 87, however, very clear legislative discrepancies remained. Changes were required. In its report, the Committee of Experts had noted that the Government intended to pursue consultations on the matter and it was greatly to be hoped that those consultations would produce results.

The Committee took note of the information supplied by the Government representative. It regretted that, in spite of a number of comments over previous years, the Government had not yet taken any steps to bring its legislation into conformity with the Convention on the question of the trade union monopoly system. The Committee noted that consultations with the workers' organisations and with the Law Commission would be pursued in that regard. It hoped that those consultations would lead to a rapid solution and that the legislation would be amended to ensure full conformity with the Convention.

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Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, referring to grave matters already noted by the Committee.

The Committee notes the conclusions of the Conference Committee on the Application of Standards of June 2010. The Committee notes, in particular, that the Conference Committee noted with great concern the continued failure by the Government, over several years, to eliminate serious discrepancies in the application of the Convention.

Civil liberties. In its previous observation, the Committee recalled the ITUC’s reference to the arrest, heavy-handed interrogation and 20 years’ imprisonment sentence for sedition imposed on six workers as well as the additional prison sentences imposed on Thurein Aung, Wai Lin, Kyaw Win and Myo Min (five years sentence for association with the Federation of Trade Unions of Burma (FTUB) and three years sentence for illegally crossing a border). It further noted the arrest of Burma Railway Union leader U Tin Hla and of Su Su Nway, who was sentenced to 12-and-a-half years in prison. Moreover, the ITUC indicated that, at the end of 2008, three workers – Khin Maung Cho (aka Pho Toke), Nyo Win and Kan Myint – employed at the A21 Soap Factory in Hlaing Thayar Industrial Zone, were sentenced to long jail terms for involvement with exiled groups, sedition and other charges.

Furthermore, in its previous observation, the Committee recalled that the ITUC had previously referred to numerous other grave violations of the Convention, including:

–      the imprisonment of Myo Aung Thant, member of the All Burma Petro-Chemical Corporation Union, who has now been in jail for over 12 years after having been convicted for high treason for maintaining contacts with the FTUB (under section 122(1) of the Penal Code);

–      the killing of Saw Mya Than, FTUB member and official of the Kawthoolei Education Workers’ Union (KEWU), who was allegedly murdered by the army in retaliation for a rebel attack, and in respect of whose murder the Committee on Freedom of Association had requested the Government to institute an independent inquiry in the framework of Case No. 2268;

–      the disappearance on 22 September 2007 of Lay Lay Mon, a female labour activist who is a former political prisoner, after helping organize workers to support protesting monks and citizens in the uprising in Yangon; she was believed to be incarcerated in Insein prison but there was no news of if, or when, she would be brought to trial;

–      the disappearance of labour activist Myint Soe during the last week of September 2007 after being active in engaging with workers to increase their involvement in the September uprising;

–      the arrest by the military authorities on 8 and 9 August 2006 of seven members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. Three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were sentenced to 18 years in jail under sections 17(1) and (2) of the Unlawful Associations Act. Tin Oo was reported to have suffered such intensive torture during detention that he has now become mentally unstable and there are fears for his health;

–      the arrest in March 2006, and subsequent sentencing, of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-State Peace and Development Council (SPDC) demonstrations (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years);

–      the intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Yangon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory;

–      the arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU);

–      the arrest, torture and killing of Saw Thoo Di (aka Saw Ther Paw), a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April 2006;

–      the shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the SPDC military upon learning that, on 30 April 2006, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration; and

–      the arrest, torture, and sentencing by a special court established in prison of ten FTUB activists to prison sentences, from three to 25 years, for having used satellite phones to convey information to the ILO and to the international trade union movement through an intermediation by the FTUB.

The Committee notes that the Government reiterates in its report that the six persons arrested for allegedly participating in the May Day event, including Thurein Aung, were not workers. The Government’s report adds that no workers were sanctioned for the exercise of trade union activities, that workers have the right to request the respect of their rights, individually or collectively, that thousands of workers do so annually and that no worker has taken any action as regards May Day activities. Furthermore, the Committee notes that during the meeting of the Conference Committee, the Government representative reiterated that the Ministry of Home Affairs had declared the FTUB to be a terrorist organization and that it could therefore not be recognized as a legitimate workers organization.

The Committee notes that the Conference Committee observed with extreme concern that many people remained in prison for exercising their rights to freedom of expression and association, despite calls for their release, and that it urged the Government immediately to put an end to the practice of persecuting workers or other persons for having contact with workers’ organizations, including those operating in exile, and called upon the Government to ensure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights.

The Committee can only deplore the fact that the Government has not provided any information, in its report, on the situation of the numerous persons referred to above and fails to provide any evidence of the measures taken to implement the Committee’s previous requests, in particular as regards the need to establish independent investigations into these matters. Once again, the Committee deeply regrets the paucity of the information provided, which is in stark contrast to the extreme gravity of the issues raised by the ITUC.

The Committee recalls that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. Furthermore, as regards the reported torture, cruelty and ill-treatment, the Committee once again points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 30).

Finally, the Committee recalls that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he 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 this Convention”, the authorities should not interfere with legitimate trade union activities through arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.

The Committee therefore once again most deeply deplores the serious allegations of murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities. The Committee once again strongly urges the Government to provide information on the measures adopted and instructions issued so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to secure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win, Myo Min, and all those who have been imprisoned for the exercise of trade union activities and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of his/her own choosing.

Furthermore, 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 both in law and in practice, the Committee once again urges the Government to indicate all measures taken, including instructions issued, to ensure 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 organizations which operate in exile.

Legislative framework. In its previous comments, the Committee recalled the issues it has been raising over the years with respect to the legislative framework, including the prohibition of trade unions and the absence of any legal basis for freedom of association in Myanmar (repressive anti-union legislation, obscure legislative framework, military orders and decrees further limiting freedom of association, a single trade union system established in the 1964 Law and an unclear constitutional framework); the FTUB forced to work underground and accused of terrorism; “workers’ committees” organized by the authorities; the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma, which is affiliated to the FTUB and the International Transport Workers’ Federation (ITF).

The Committee further recalls that, for several years, it has indicated that there exist some pieces of legislation containing serious restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (i) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted, shall be punished with imprisonment for a term which may extend to three years (section 7); (ii) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; (iii) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1); (iv) the 1926 Trade Union Act requires that 50 per cent of workers must belong to a trade union for it to be legally recognized; (v) the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers establishes a compulsory system for the organization and representation of workers and imposes a single trade union; and (vi) the 1929 Trade Disputes Act contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to courts of inquiry or to industrial courts. Finally, the Committee recalled that there was no legal basis for the respect for, and realization of, freedom of association and that the broad exclusionary clause of article 354 of the Constitution subjects the exercise of this right “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”.

The Committee notes that during the June 2010 meeting of the Conference Committee, the Government representative stressed that, in accordance with its roadmap, Myanmar was committed to pursuing its transformation to a democratic society, that freedom of association rights, as well as other basic civil liberties provided for in the new Constitution would set out the framework within which new trade union legislation would be developed, and that no one has been, or is, apprehended for implicit or explicit exercise of the rights derived from the Convention. The Committee notes that the Conference Committee, recalling the long-standing and fundamental divergences between the national legislation and practice, on the one hand, and the Convention, on the other, and observing that the Government itself has admitted that there could be no legal trade unions in the country as yet, once again urged the Government in the strongest terms to immediately adopt the necessary measures and mechanisms to ensure all workers and employers the rights provided for under the Convention and to repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act. The Conference Committee further emphasized that it was crucial that the Government take all necessary measures to ensure a climate wherein workers and employers could immediately exercise their freedom of association rights without fear, intimidation, threat or violence.

The Committee notes that the Government indicates in its report that the drafting process of legislation on workers’ organizations will be based on three pillars: the new Constitution, continued assistance and advice from the ILO and the Convention. The Committee also notes that the Government indicates that the Pyidaungsu Hluttaw (i.e. Union Assembly/Parliament) will take the necessary measures, after the 2010 elections, to repeal Orders Nos 2/88 and 6/88, the Unlawful Association Act as well as Declaration No. 1/2006. The Government’s reports adds that the first draft of the legislation on workers’ organizations was completed in May 2010 and that it consists of 15 chapters addressing, inter alia, issues linked to the organization, duties, rights, fundraising and disbursement. Furthermore, the Government indicates that this first draft has been submitted to the Attorney-General for legal opinion; that the Government is considering requesting the technical assistance from the Office in this respect and that the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) as well as the workers’ representatives will be consulted and their views will be taken into consideration to further improve the instrument. The Committee requests the Government to provide a copy of the draft legislation referred to and invites the Government to avail itself of the technical assistance of the Office.

In these circumstances, noting that the planned general elections took place on 7 November 2010, the Committee urges the Government to take, without delay, the necessary measures so that the Pyidaungsu Hluttaw will immediately, upon its constitution, repeal Orders Nos 2/88 and 6/88 as well as the Unlawful Association Act and Declaration No. 1/2006, so that they will no longer be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. The Committee also requests the Government to ensure that the necessary measures are taken without delay for the elaboration of a Trade Union Law that will fully guarantee the right of workers to establish and join organizations of their own choosing, without previous authorization and to provide a copy of the legislation once adopted.

The Committee once again urges the Government to furnish a detailed report on the concrete measures taken, with the full and genuine participation of workers and employers from all sectors of society regardless of their political views, to enact legislation guaranteeing, to all workers and employers, the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It requests the Government to communicate any relevant draft laws, orders or instructions in this regard so that it may examine their conformity with the provisions of the Convention.

Finally, the Committee encourages the Government to avail itself of the technical assistance of the Office in this regard.

Extension of ILO mandate. The Committee notes that the Conference Committee, recalling its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize, reiterated its previous request to the Government to accept an extension of ILO presence to cover the matters relating to the Convention. Recalling that the Government had indicated in its previous report that an extension of ILO presence to cover the matters related to the Convention was under consideration, the Committee once again expresses the firm hope that the Government will be in a position to accept such an extension in the very near future and requests the Government to provide information in this respect.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the discussion that took place at the Conference Committee on the Application of Standards in June 2009. It also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2268 and 2591 (354th Report, approved by the Governing Body at its 305th Session, June 2009, paragraphs 154–168), and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 26 August 2009 which refer to grave matters noted by the Committee in its previous comments.

The Committee recalls the ITUC’s previous reference to the arrest, heavy-handed interrogation and long prison sentences imposed on six workers (Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min). The six workers were sentenced on 7 September 2007 to 20 years’ imprisonment for sedition and Thurein Aung, Wai Lin, Kyaw Win, and Myo Min were sentenced to an additional five years in prison for association with the Federation of Trade Unions of Burma (FTUB) under section 17(1) of the Unlawful Associations Act and to three years for illegally crossing a border, as a result of which their jail time amounted to 28 years in total. The Committee notes that in its 2009 comments the ITUC indicates that the six workers appealed their convictions to the divisional court, which dismissed them, prompting them to file their appeals to the Supreme Court – which reviewed the cases on 4 April 2008 and let the original court rulings stand.

The Committee recalls the previous allegations concerning Burma Railway Union leader U Tin Hla. According to the ITUC, U Tin Hla had been arrested along with his entire family on 20 November 2007, and – while his family was later released – was charged and sentenced to seven years in prison under section 19(a) of the Penal Code for possession of explosives which were, in fact, electric wires and tools in his toolbox. The ITUC had indicated that U Tin Hla’s crime was apparently his very active efforts to organize workers from the railways and other sectors to support the popular uprising of the Buddhist monks and people in late September 2007. In its 2009 comments, the ITUC adds that U Tin Hla remains in prison, suffering from tuberculosis and diabetes.

In respect of Su Su Nway, who allegedly had been arrested for her actions in supporting workers’ participation in the September 2007 uprising, the Committee notes that in its 2009 comments the ITUC states that in November 2008 Su Su Nway was convicted of encouraging assembly of persons disturbing state tranquillity, obstructing the work of officials, and issuing communications that interfere with Myanmar’s relations with other nations. She was sentenced to 12 years and 6 months in prison. The ITUC also indicates that at the end of 2008 three workers – Khin Maung Cho (aka. Pho Toke), Nyo Win, and Kan Myint – employed at the A21 Soap Factory in Hlaing Thayar Industrial Zone, were sentenced to long jail terms for involvement with exiled groups, sedition and other charges. Khin Maung Cho was sentenced to 19 years, while Kan Myint received ten years in jail and Nyo Win was given a five-year sentence.

The Committee recalls that the ITUC had previously referred to numerous other grave violations of the Convention, including:

–           the imprisonment of Myo Aung Thant, member of the All Burma Petro-Chemical Corporation Union, who has now been in jail for over 12 years after having been convicted for high treason for maintaining contacts with the FTUB (under section 122(1) of the Penal Code);

–           the killing of Saw Mya Than, FTUB member and official of the Kawthoolei Education Workers’ Union (KEWU), who was allegedly murdered by the army in retaliation for a rebel attack, and in respect of whose murder the Committee on Freedom of Association had requested the Government to institute an independent inquiry in the framework of Case No. 2268;

–           the disappearance on 22 September 2007 of Lay Lay Mon, a female labour activist who is a former political prisoner, after helping organize workers to support protesting monks and citizens in the uprising in Yangon; she was believed to be incarcerated in Insein prison but there was no news of if, or when, she would be brought to trial;

–           the disappearance of labour activist Myint Soe during the last week of September 2007 after being active in engaging with workers to increase their involvement in the September uprising;

–           the arrest by the military authorities on 8 and 9 August 2006 of seven members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. While in detention, several male members of the family were tortured while being interrogated. On 3 and 4 September 2006, the authorities released four of the family members. But three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were sentenced to 18 years in jail under sections 17(1) and (2) of the Unlawful Associations Act. Tin Oo suffered such intensive torture during detention that he has now become mentally unstable and there are fears for his health;

–           the arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years);

–           the intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Yangon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory;

–           the arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU); she was supposedly held in Toungoo;

–           the arrest, torture and killing of Saw Thoo Di, aka. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April 2006;

–           the shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the SPDC military upon learning that, on 30 April 2006, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration; and

–           the arrest, torture, and sentencing by a special court established in prison of ten FTUB activists to prison sentences, from three to 25 years, for having used satellite phones to convey information to the ILO and to the international trade union movement through an intermediation by the FTUB.

As concerns the six workers arrested for allegedly participating in a May Day 2007 event, the Committee notes that the statement of the Government representative to the Conference Committee repeats the Government’s previous indication that they had not been arrested for holding a May Day event, but for breach of existing laws and for their involvement in unlawful activities and attempted terrorist acts in the country. There was solid evidence that those persons had been receiving instructions, training and financial assistance from the FTUB, a terrorist group in exile and unlawful association which masterminded bombings and terrorist acts to incite public unrest in the country. The Government representative further stated that any request to release them immediately constituted an infringement upon national sovereignty and was contradictory to the basic principles of public international law and Article 8 of the Convention, which stipulates that the law of the land should be respected.

With respect to U Tin Hla, the Committee notes that the statement of the Government representative to the Conference Committee reiterates the Government’s previous indication that U Tin Hla was neither a leader nor a member of a labour union, but had worked as a supervisor for Myanmar Railways, which had no union. He had been caught by the police when committing the crime of possessing ammunition and had been subsequently charged and sentenced. As regards the ITUC’s other allegations of the murder, detention, torture, arrest and sentencing of trade unionists, the Government states that the persons referred to were not arrested and convicted for having engaged in trade union activity but for having incited hatred of and contempt for the Government.

The Committee can only deplore the fact that the Government in its report largely confines itself to its previous observations – referring to the FTUB as a terrorist organization and indicating peremptorily that the numerous persons referred to were convicted for breaches of existing laws and inciting hatred of the Government – while failing to provide any evidence of measures taken to implement the Committee’s previous requests. Once again, the Committee deeply regrets the dismissive tone of the Government’s reply and the paucity of the information provided, which is in stark contrast to the extreme gravity of the issues raised by ITUC. The Committee once again strongly condemns the view expressed by the Government that comments made by workers’ organizations under article 23 of the ILO Constitution and recommendations made by the ILO supervisory bodies to remedy violations of the fundamental rights of workers constitute interference in internal affairs, emphasizing in this regard that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified including Convention No. 87.

The Committee once again stresses that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. Furthermore, as regards the reported torture, cruelty and ill-treatment, the Committee once again points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 30).

Finally, recalling that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar, the Committee once again recalls that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he 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 this Convention”. The authorities should not interfere with legitimate trade union activities through arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.

The Committee therefore once again most strongly deplores the serious alleged acts of murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, including the mere sending of information to the FTUB and participation in May Day activities. The Committee once again urges, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to secure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win, Myo Min, and all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. Furthermore, 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 both in law and in practice, the Committee once again urges the Government to indicate all measures taken, including instructions issued, to ensure 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 organizations which operate in exile.

The Committee recalls the issues it has been raising over the years with respect to the legislative framework, including the prohibition of trade unions and the absence of any legal basis for freedom of association in Myanmar (repressive anti-union legislation, obscure legislative framework, military orders and decrees further limiting freedom of association, a single trade union system established in the 1964 Law and an unclear constitutional framework); the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; “workers’ committees” organized by the authorities; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB) which is affiliated to the FTUB and the International Transport Workers’ Federation (ITF).

The Committee further recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted, shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1); (4) the 1926 Trade Union Act requires that 50 per cent of workers must belong to a trade union for it to be legally recognized; (5) the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers establishes a compulsory system for the organization and representation of workers and imposes a single trade union; and (6) the 1929 Trade Disputes Act contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to courts of inquiry or to industrial courts.

Recalling that it had previously requested a detailed report on the measures taken to address the above-noted legislative matters, the Committee deeply regrets that the Government limits itself to repeating previously submitted information on the adoption of the Constitution and upcoming legal reforms. The Government reiterates that several sections of the Constitution would give effect to the provisions of the Convention (paragraph 96 of Chapter IV, paragraphs 353, 354 and 355 of Chapter VIII, and Schedule One, Union Legislative List, in Chapter XV) and repeats that, once the Constitution comes into force, pursuant to its provisions, national legislation would be reviewed and new laws drafted, including the Trade Union Law, and that they would be in line with Convention No. 87. In respect of the legislation, the Committee also notes that according to the Government the FTUB had been declared a terrorist organization by the Ministry of Home Affairs in Declaration No. 1/2006, and was also an unlawful association under the Unlawful Associations Act, 1908.

With regard to the Government’s indications, the Committee further notes that in its conclusions the Conference Committee, wishing to highlight the intrinsic link between freedom of association and democracy, observed with regret that the Government had undertaken a road map for the latter without ensuring the basic requisites for the former. The Conference Committee also called upon the Government to take concrete steps urgently, with the full and genuine participation of all sectors of society regardless of their political views, to ensure that the Constitution, the legislation and the practice were fully brought into line with the Convention.

Finally, the Committee recalls its previous observation that there was currently no legal basis for the respect for, and realization of, freedom of association in Myanmar and that the broad exclusionary clause of article 354 of the Constitution subjects the exercise of this right “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. In this respect the Committee had noted with deep regret that the drafting of article 354 of the Constitution may continue to give rise to continued violations of freedom of association in law and practice. Recalling the particularly serious and urgent issues that it has been raising for nearly 20 years now, the Committee must once again deplore the Government’s persistent failure to take any measures to remedy the legislative situation which constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of the Convention. Furthermore, the Committee once again deeply regrets the exclusion from any meaningful consultation of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention.

In these circumstances, the Committee once again urges the Government to furnish without delay a detailed report on the concrete measures taken, with the full and genuine participation of all sectors of society regardless of their political views, to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to immediately repeal Orders Nos 2/88 and 6/88, the Unlawful Association Act, and Declaration No. 1/2006 of the Ministry of Home Affairs, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. The Committee once again requests the Government to communicate any steps taken towards the adoption of draft laws, orders or instructions to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention.

The Committee notes that the Conference Committee, recalling its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize, called upon the Government to accept an extension of the ILO presence to cover the matters relating to Convention No. 87. Noting the indication in the Government’s report that an extension of the ILO presence to cover the matters related to the Convention was under consideration, the Committee expresses the firm hope that the Government will be in a position to accept such an extension in the very near future.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2268 and 2591 (351st Report, approved by the Governing Body at its 303rd Session, November 2008 paragraphs 1016–1050; 349th Report approved by the Governing Body at its 301st Session, paragraphs 1062–1093). It also notes the comments of the International Trade Union Confederation (ITUC) dated 29 August 2008 on grave matters which arose in the course of 2007 as well as its previous comments on very serious issues which arose in 2005–06 and the Government’s response to some of these issues:

1. In reply to the ITUC comments relating to severe repression by the Government of the September 2007 uprising against the military Government of the State Peace and Development Council (SPDC) which had been led by Buddhist monks, and supported by workers, students, and citizen activists, the Committee notes the Government’s indication that ten persons died and 14 were injured; in total, 2,284 persons were found to have been involved in the unrest in Yangon and 643 persons outside Yangon; among them a total of 2,836 persons (2,235 from Yangon and 601 out of Yangon) were released; 91 remained under arrest (49 from Yangon and 42 from outside Yangon); these were involved in violence and terrorist acts and necessary measures were being taken against them in accordance with the laws. The Government adds that the SPDC is making efforts for the emergence of a peaceful, modern, disciplined, flourishing, democratic nation upholding the three main National Causes; the vast majority of the people have already adopted the Constitution, the fourth step of the seven-step road map, to shape the future State; on 23 September 2008 the Government released from prison 9,002 prisoners with good conduct and discipline, for social and family reasons.

2. The Committee notes that the ITUC refers to the arrest, heavy-handed interrogation and long prison sentences imposed on six workers (Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min) who participated in a 2007 May Day event at the “American center” in Yangon and tried to relay news to the outside world through the Burma-Thai border; significant harassment of their lawyers by the authorities which prompted them to withdraw from the case on 4 August; the conviction of the six workers on 7 September to 20 years imprisonment for sedition and additional convictions of Thurein Aung, Wai Lin, Kyaw Win, and Myo Min to another five years in prison for association with the Federation of Trade Unions of Burma (FTUB) under section 17(1) of the Unlawful Associations Act and to three years for illegally crossing a border, as a result of which their jail time amounted to 28 years in total. The six activists filed appeals which were dismissed, prompting them to file their appeals to the Supreme Court, where they were pending at year’s end.

The Committee notes that according to the Government, the Supreme Court has held hearings on this case which is pending before it. The Government regrets the request made by the Committee on Freedom of Association in Case No. 2591 (see below) for the release of the six activists which, according to the Government, constitutes interference with the internal affairs of the country. The Government adds that: (i) Article 8 of the Convention requires workers and their organizations to respect the law of the land; (ii) the six persons were not workers at a factory or workplace; (iii) they were arrested not for holding a May Day event but for inciting hatred or contempt for the Government (section 124(A) of the Penal Code), for being a member of or contacting an unlawful association (section 17(1) of the Unlawful Association Act, 1908) and for illegally leaving and re-entering the country (section 13(1) of the Immigration (Emergency) Provisions Act, 1947); (iv) the FTUB does not represent any workforce in Myanmar; it is a terrorist group in the guise of a workers’ organization; (v) the authorities allow the detainees to meet with guests and relatives; they also allowed Mr Thomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, to meet with Thurein Aung, Kyaw Kyaw and Su Su Ngwe on 5 August 2008; upon request for medical (dental) treatment of Thurein Aung, the Government arranged for a dentist to cure him; (vi) the Special Rapporteur also met with the Minister of Labour and the Human Rights Committee. As for the FTUB, in particular, the Government adds that: (i) after the adoption of the Constitution, the organizations and associations in Myanmar will need to be established under the existing laws of the country and should have locus standi; (ii) the FTUB is not represented anywhere in the workforce of the country; it is illegally established outside the country by persons who absconded and are fugitives from justice; (iii) there is strong and firm evidence that the FTUB has committed terrorist acts uncovered in June 2004; by virtue of the International Convention on the Suppression of Terrorism and the International Convention for the Suppression of the Financing of Terrorism the Government issued Declaration No. 172006 on 12 April 2007 announcing that the FTUB was a terrorist group.

In this regard, the Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2591 (349th Report, paragraphs 1062–1093 and 351st Report, paragraphs 144–150), according to which “it is undeniable that the six persons were punished for exercising their fundamental right to freedom of association and the freedom of expression”. It observes that their convictions were based on such acts like, for example, holding a public lecture to discuss “problems encountered by workers at their respective workplaces, which had an effect of agitating them” or preparing a speech on “salaries, disproportionate prices for goods, right to take leaves, pension and the failure of the Government to address these issues”, which were considered by the Government and the courts as “defam[ing] the Government”. The Committee also notes that the Committee on Freedom of Association called on the Government to recognize the FTUB as a legitimate trade union organization and to allow for the free operation of any form of organization of collective representation of workers including the legalization of the FTUB (349th Report, paragraphs 1083, 1089, 1092; 351st Report, paragraph 1038). With regard to the appeal filed by the workers to the Supreme Court, the Committee on Freedom of Association indicated its deep concern at “the indication in the [first instance] judgement that the court explicitly ordered the destruction of all but some evidence presented to it (Case No. 82), thus rendering any review by a higher tribunal virtually impossible” (349th Report, paragraph 1088). As a result, the Committee on Freedom of Association called for the immediate release of the six activists, Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min.

3. The Committee notes that the ITUC refers to the imprisonment of Myo Aung Thant, member of the All Burma Petro-Chemical Corporation Union, who has now been in jail for over 11 years after having been convicted for high treason for maintaining contacts with the FTUB (under section 122(1) of the Penal Code). The Committee notes that according to the Government, Myo Aung Thant is still in prison for breaking the laws of the country and it is impossible to release him, and ITUC should not interfere in the internal judicial affairs of an ILO member State. The Committee notes in this regard the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (351st Report, paragraphs 1016–1050) in which the Committee on Freedom of Association deplored the Government’s refusal to consider the release of Myo Aung Thant and strongly urged the Government to take the necessary steps to ensure his immediate release from prison.

4. The Committee notes that the ITUC refers to the killing of Saw Mya Than – FTUB member and official of the Kawthoolei Education Workers’ Union (KEWU), allegedly murdered by the army in retaliation for a rebel attack. The Committee notes that according to the Government, Saw Mya Than’s death was an accident caused by the KNU, an insurgent organization. The Committee notes that the Committee on Freedom of Association requested the Government in the framework of Case No. 2268 to institute an independent inquiry into the alleged murder of Saw Mya Than – to be carried out by a panel of experts considered impartial by all the parties concerned.

5. The Committee notes that the ITUC refers to the detention and sentencing of Burma Railway Union leader U Tin Hla, a long-serving electrician with the Myanmar Railway Corporation. He was arrested along with his entire family on 20 November 2007; while his family was later released, he was charged under section 19(a) of the Penal Code for possession of explosives which were, in fact, electric wires and tools in his toolbox; after a brief trial, he was sentenced to seven years in prison; in reality, his crime was apparently his very active efforts to organize workers from the railways and other sectors to support the popular uprising of the Buddhist monks and people in late September 2007. He was 60 years old when arrested and there are significant concerns for his health in prison. His requests to see a doctor have been denied.

The Committee notes that according to the Government, the ITUC always refers to an imaginary union when making allegations on persons; U Tin Hla was not a member of a union, but rather a supervisor working in Myanmar Railways and there is no union under the Myanmar Railways. On 14 November 2007 at about 9.30 pm the Police Force of Yangon Division made a surprise check at his house and found him with 337 point 30 carbine bullets and 13 9mm bullets. The Township Court convicted him to seven years’ imprisonment. 

6. The Committee notes that the ITUC refers to the arrest on 13 November  in Yangon of Su Su Nway, the activist who brought a forced labour complaint to the ILO which subsequently resulted in the first successful conviction of four local officials for procuring forced labour; she was arrested for her actions in supporting workers’ participation in the September uprising; at the end of the year, she was being held in Insein prison, awaiting trial on charges of sedition. The Committee notes that according to the Government, this case does not relate to workers’ rights; following complaint No. 2469/07, Su Su Nway was charged under sections 143 and 147 of the Penal Code and the case is before a special court in Insein Prison (Criminal Regular Trial No. 10/2008).

7. The Committee notes that the ITUC refers to:

–      the disappearance on 22 September 2007 of Lay Lay Mon, a female labour activist who is a former political prisoner, after helping organize workers to support protesting monks and citizens in the uprising in Yangon; she is believed to be incarcerated in Insein prison but at year end there was no news of if, or when, she would be brought to trial;

–      the disappearance of labour activist Myint Soe during the last week of September 2007 after being active in engaging with workers to increase their involvement in the September uprising.

8. The Committee notes that the ITUC refers to the arrest by the military authorities on 8 and 9 August 2006 of seven members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. While in detention, several male members of the family were tortured while being interrogated. On 3 and 4 September 2006, the authorities released four of the family members. According to the latest communication by the ITUC, three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were sentenced to 18 years in jail under section 17(1) and (2) of the Unlawful Associations Act. Tin Oo suffered such intensive torture during detention that he has now become mentally unstable and there are fears for his health.

The Committee notes that according to the Government, Thein Win and six other persons were prosecuted under Criminal Procedure No. 1475/06 at the Township Court of Justice of Toungoo in Pegu Division on 20 September 2008. They were connected to a bomb blast in Paenwegone and the insurgency as well as to participation in terrorist activities. The Southern Military Command made the necessary investigation and the father, mother, brother, sister and sister-in-law were released in September 2006. They went back to their residence and on 2 October 2006 they ran away from Myanmar to Maesauk, Thailand.

9. The Committee notes that the ITUC refers to the arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years); according to the latest communication by ITUC, they are still serving their sentence.

10. The Committee notes that the ITUC refers to intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Yangon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory. A detachment of 12–20 police officers were regularly present in the factory after workers returned to work.

11. The Committee notes that the ITUC refers to the:

–      arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU); she was supposedly held in Toungoo;

–      arrest, torture and killing of Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April 2006.

12. The Committee notes that the ITUC refers to the shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the SPDC military upon learning that, on 30 April 2006, the FTUB and Federation of Trade Unions–Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration.

13. The Committee notes that the ITUC refers to the discovery in early June 2005 by the SPDC of an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August 2005, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Yangon where they were investigated and tortured by special branch police and the Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July 2005, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October 2005. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years; the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment. In its latest communication, the ITUC adds that, at the end of 2007, all these FTUB members were still being detained in Insein prison.

The Committee deeply regrets that the Government’s response fails to acknowledge any of the fundamental rights and basic civil liberties of workers contained in the Convention. The Committee regrets the dismissive tone of the Government’s reply to the comments by ITUC as well as the paucity of the information provided which is in stark contrast to the extreme gravity of the issues raised by ITUC. It strongly condemns the Government’s view that comments made by workers’ organizations under article 23 of the ILO Constitution and recommendations made by the ILO supervisory bodies to remedy violations of the fundamental rights of workers constitute interference in internal affairs. It emphasizes in this regard that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified including Convention No. 87. The Committee stresses that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. Furthermore, as regards the reported torture, cruelty and ill-treatment, the Committee points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 29–30). In addition, noting that several trade unionists have been tried by special courts inside prisons and taking note of court orders to destroy evidence thus rendering any appeal virtually impossible, the Committee emphasizes that it should be the policy of every government to ensure observance of human rights and especially of the right of all detained or accused persons to receive a fair trial with all guarantees of due process.

The Committee, noting that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar, recalls once again that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he 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 this Convention”. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities. In this regard, the Committee deeply regrets that ordinary trade union activities like speeches on socio-economic issues of direct interest to the workers, participation in May Day events and the mere communication of information to the FTUB are considered by the Government as criminal activity and punished with severe prison sentences. The Committee emphasizes that the holding of public meetings and the voicing of demands of a social and economic nature on the occasion of May Day are traditional forms of trade union action and trade unions should have the right to organize freely whatever meetings they wish to celebrate on May Day; freedom of expression which should be enjoyed by trade unionists should also be guaranteed when they wish to criticize the Government’s economic and social policy. With regard to the conviction of trade unionists for passing a border and the Government’s comments on the FTUB being an “alien” organization, the Committee emphasizes that in accordance with the principle enshrined in the Universal Declaration of Human Rights, everyone has the right to leave any country, including his own, and to return to his country and that forced exile of trade union leaders and unionists constitutes a serious infringement of human rights and trade union rights, since it weakens the trade union movement as a whole when it is deprived of its leaders. With regard to the Government’s reference to other Conventions, in order to justify violations of this fundamental Convention, the Committee emphasizes that a state cannot use the argument that other commitments or agreements justify the non-application of ratified ILO Conventions.

The Committee therefore once again most strongly deplores the serious alleged acts of murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, including the mere sending of information to the FTUB and participation in May Day activities. The Committee urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. Furthermore, 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 both in law and in practice, the Committee urges the Government to indicate all measures taken, including instructions issued, to ensure 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 organizations which operate in exile.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee notes the comments made by ITUC on issues that have already been raised by the Committee over the years, including the prohibition of trade unions and the absence of any legal basis for freedom of association in Myanmar (repressive anti-union legislation, obscure legislative framework, military orders and decrees further limiting freedom of association, a single trade union system established in the 1964 Law and an unclear constitutional framework); the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; “workers’ committees” organized by the authorities; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB) which is affiliated to the FTUB and the International Transport Workers’ Federation (ITF).

The Committee notes that according to the Government:

–      the Referendum for the adoption of the Constitution was successfully held and the “yes” vote amounted to 92.4 per cent according to Announcement No. 10/2008 of 15 May 2008 by the Commission for Holding the Referendum of the Government of the Union of Myanmar. Chapter VIII on Citizenship, Fundamental Rights and Duties of Citizens provides in paragraph 354 that: “There shall be liberty in the exercise of the following rights subject to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality: (a) the right of the citizens to express freely their convictions and opinions; (b) the right of the citizens to assemble peacefully without arms; (c) the right of the citizens to form associations and unions.”;

–      as a consequence of these provisions, a legislative framework has been established and the initial steps are being taken for the establishment of trade unions at the basic level, aimed at free and independent workers’ organizations. Basic workers’ organizations have already been formed in 11 industrial zones;

–      furthermore, work is now beginning at the respective Committees on amending, reviewing and revising the provisions of the various labour laws adopted on the basis of the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers. Moreover, the issues raised by the Committee on the Trade Disputes Act 1929 and Trade Union Act 1926 are addressed in the New State Constitution through Chapter IV on Legislation, Chapter VIII on Citizenship, Fundamental Rights and Duties of Citizens and Chapter XV on General Provisions. As for Orders Nos 2/88 and 6/88, the Government indicates that during this transitional period, it will need to draw up measures of protection against persons who will attempt to generate hatred or contempt or excite or provoke disaffection towards the Government established by law in the Union of Myanmar or for the constituent units thereof. But, as a result of the New State Constitution, in future, Order 6/88 will be addressed through the drafting of the new Trade Union Law, and the procedures of the registration of the workers’ organizations will be included in this new law;

–      finally, concerning seafarers, the Government indicates that the Department of Marine Administration under the Ministry of Transport has allowed those Myanmar seafarers who are working on board ships to inform and complain to the Seamen Employment Control Division (SECD) and also inform and complain to the ITF or any other valid association for the prejudice suffered to their interests and their rights.

The Committee recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1); (4) the 1926 Trade Union Act requires that 50 per cent of workers must belong to a trade union for it to be legally recognized; (5) the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers establishes a compulsory system for the organization and representation of workers and imposes a single trade union; (6) the 1929 Trade Disputes Act contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to Courts of Inquiry or to Industrial Courts.

While noting the Government’s indications on the adoption of the Constitution and upcoming legislative reforms, the Committee must, however, observe that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar and that the broad exclusionary clause of section 354 of the Constitution subjects the exercise of this right “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. The Committee notes with deep regret that the drafting of section 354 of the Constitution may continue to give rise to continued violations of freedom of association in law and practice. Recalling the particularly serious and urgent issues that this Committee has been raising for nearly 20 years now, the Committee deplores this persistent failure to take any measures to remedy the legislative situation which constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of the Convention. Furthermore, the Committee deeply regrets the exclusion from any meaningful consultation of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention. It must also express serious doubts as to whether the “trade unions” referred to by the Government actually reflect the free choice and interests of workers within the current framework of a total absence of an enabling legislative framework and recurrent violations of freedom of association in practice.

The Committee once again urges the Government to furnish without delay a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to immediately repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. It requests the Government to communicate any steps taken towards the adoption of draft laws, orders or instructions to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention.

[The Government is asked to supply full particulars to the Conference at its 98th Session and to reply in detail to the present comments in 2009.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report, including its reply to some of the comments previously made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in a communication dated 12 July 2006.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (340th Report, paragraphs 1064–1112) and in particular observes that it requested the Government to institute an independent inquiry into the alleged murder of a trade unionist, Saw Mya Than, and to release Myo Aung Thant from prison. The Committee notes that the Government’s observations on these matters refer to its previous communications.

The Committee also notes the comments of the ITUC dated 27 August 2007 on grave matters which arose in the course of 2006, in addition to issues that have already been raised by the Committee over the years, including the current situation of an obscure legislative framework; a single trade union system; military orders and decrees further limiting freedom of association; the prohibition of trade unions; “workers’ committees” organized by the authorities; the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB):

–           The arrest by the military authorities on 8 and 9 August 2006 of eight members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city as well as ten alleged associates of Thein Win including the village head and other elders. While his mother and one of his sisters were released after one day, the others were sent to Toungoo prison and intensively interrogated under torture by military intelligence and special branch officers about the activities of Thein Win including an alleged trip he made to Pegu to organize activities around May Day. While being held at Toungoo the family members were ordered by their interrogators to sign “confessions” about Thein Win’s activities and most of them were forced to do so under torture. On 3 and 4 September 2006, the authorities released most of the family members and friends. Most were however subsequently visited and threatened by military intelligence officers who demanded that each prisoner pay 1 million kyats into an army fund. Three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were still being detained at the end of the year charged with violations of section 17(1) and (2) of the Unlawful Associations Act.

–           The arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years).

–           Intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Rangoon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory. A detachment of 12–20 police officers were regularly present in the factory after workers returned to work.

–           The arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU). She was supposedly held in Toungoo.

The Committee further recalls the grave information previously communicated by the ICFTU to which the Government has not provided any new information:

–           The arrest, torture and killing of Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April.

–           The shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the State Peace and Development Council (SPDC) military upon learning that, on 30 April, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration.

–           The discovery in early June 2005, by the SPDC of an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Rangoon where they were investigated and tortured by special branch police and the Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years; the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment. In its communication of 27 August 2007, the ITUC adds that, at the end of 2006, all these FTUB members were still being detained in Insein prison. There were significant concerns about the health of retired army Major Myint Lwin, aged 77, who had been sentenced to seven years.

–           Thet Naing, another underground FTUB leader, was released from Myitkyina prison in November 2004 after serving a seven-year sentence following his rearrest for his role in leading a workers’ protest in the Yam Ze Kyang garment factory. He continues to be affected by nerve damage suffered from the torture he was subjected to during his interrogation and the mistreatment he received while in jail. He has now left the country and joined the FTUB abroad.

The Committee takes note of the information provided by the Government with regard to some of the other allegations made by the ICFTU in 2006:

–           The police arrest on 17 April 2005 of four workers (Hlae Hlae Khaing, Zin Min Khing, Moe Thi and Mar Mar) following a strike at a garment factory in Hlaingthayar industrial zone, and their imprisonment in Rangoon for allegedly having broken the law through their actions connected with the factory (released on 2 May after mobilization of the other workers in the factory which was suppressed by the army). The Government indicates that the mobilization was due to claims that the annual bonus be paid on a monthly basis and was resolved through negotiations and conciliation.

–           The death on 3 November 2005, of FTUB organizer Aung Myint (see above) under mysterious circumstances in his cell at Insein prison. According to the ICFTU, the authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a funeral, making it impossible to ascertain whether he died from abusive treatment, disease or other cause. Police officials cremated the body themselves. The Government indicates that he was suffering from tuberculosis and had received treatment in the prison hospital as well as the Insein Public Hospital and then, at the patient’s request, back to the prison hospital where he died on 6 November 2005. Because his relatives had difficulties to arrange for a funeral, the authorities, in consultation with the relatives, cremated the body.

–           The arrest of Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union in 1997, and his being charged at the time with high treason for maintaining contacts with the FTUB. According to the ICFTU, now the SPDC, has explained that he was jailed for ten years for high treason under section 122(1) of the Penal Code, plus seven years for violations of the Emergency Provisions Act, plus three years for violating the Unlawful Associations Act. Myo Aung Thant is detained in a remote part of the country at Myitkyina prison in Kachin State, and was, according to his family, in the course of 2005 held in solitary confinement in a small, windowless cell. The Government indicates that the cell is 10 by 10 feet, the main door is 7 by 2.5 feet and the bed is 6 by 4 feet. He received a medical check-up and it was found that he was suffering from the disease of piles. He was sent to the Myitkyina General Hospital for operation. His relatives (mother, son, sister and niece) were able to see him seven times.

The Committee regrets the paucity of the information provided by the Government in reply to the large number of extremely grave allegations most of which have remained without reply. The Committee urges the Government to provide detailed observations on all the above allegations, in its next report.

The Committee once again most strongly deplores the recent and serious alleged acts of arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of their trade union activities, including the mere sending of information to the FTUB. The Committee recalls once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats and that a climate of violence, in which murders and disappearances of trade union leaders go unpunished, constitutes an extremely serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention. Furthermore, as regards more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 29–30). The Committee therefore urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. The Committee firmly hopes that the Government will soon be in a position to indicate progress in this respect.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee recalls that it had noted in its previous observation a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established. In particular, the Committee had regretted the long delay in the adoption of the Constitution, and the lack of participation in this process of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention for nearly 20 years. Furthermore, the Committee recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1).

The Committee notes the Government’s indications that: (i) the National Convention delegates successfully completed the drawing up of the fundamental principles and detailed basic principles for the drawing up of the Constitution; (ii) work has started at the basic level, especially in the Yangon Division, under the supervision of the Supervisory Committee of the Industrial Zone, towards the creation of the new trade union and that 11 basic workers’ organizations have been formed at the industrial zones in Yangon Division and more will be formed in the remaining industrial zones of Myanmar; and (iii) workers can bargain with their employers on their working conditions under the existing labour laws, either individually or collectively; such bargaining took place in 80 factories and workplaces in 2006 and 140 factories and workplaces up to September 2007; all these could be settled by the representatives of the Government, employers and workers through conciliation and negotiation.

While noting the Government’s indications, the Committee must, however, recall once again the long delay in the adoption of the Constitution and the fact that, in the meantime, no progress has been made on the particularly serious and urgent issues it has been raising for nearly 20 years now. It must also express serious doubts as to whether the organizations and negotiations referred to by the Government actually reflect the free choice and interests of workers in a situation as described above, void of any legislative protection for the exercise of meaningful freedom of association.

The Committee once again urges the Government to furnish without delay a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to immediately repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. It requests the Government to communicate any steps taken towards the adoption of the Constitution and provide the text of the fundamental principles for the drawing up of the Constitution as well as any further relevant draft laws, orders or instructions made to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention. Finally, the Committee requests the Government to indicate the manner in which the elements of civil society were involved in the adoption of the fundamental principles.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. The Committee observes that it does not contain any specific information concerning the questions raised in its previous comments, but rather refers once again to the constitutional process following which labour laws will be elaborated.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (340th Report, paragraphs 1064-1112) and in particular observes that it requested the Government to institute an independent inquiry into the alleged murder of a trade unionist, Saw Mya Than, and to release Myo Aung Thant from prison.

The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 12 July 2006, concerning numerous and grave matters that have been raised by the Committee over the years, including the current situation of an obscure legislative framework; a single trade union system; military orders and decrees further limiting freedom of association; the prohibition of trade unions; “workers’ committees” organized by the authorities; the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB). The Committee notes that the Government’s observations concerning matters raised by the ICFTU mainly refer to its previous communications. In addition, the ICFTU has referred to the following allegations:

(1)   The police arrest on 17 April 2005 of four workers (Hlae Hlae Khaing, Zin Min Khing, Moe Thi and Mar Mar) following a strike at a garment factory in Hlaingthayar industrial zone, and their imprisonment in Rangoon for allegedly having broken the law through their actions connected with the factory. Workers of the factory went on strike on 18 April demanding their immediate release. On 19 April, police and military, led by Major Tin San, converged on the factory, which they unilaterally declared closed until further notice. Threats of arrests were made against the workers if they didn’t cease their strike. Finally, Major General Myint Swe, the Rangoon Army Commander, arrived on the scene with nine prison transport trucks and delivered an ultimatum – either to vacate the compound immediately or the Army would arrest them all. The workers immediately ceased their strike, and left the factory. On 2 May the four arrested workers were released from prison.

(2)   Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, was arrested by an armed column of Infantry Battalion 83 outside his village on 28 April, tortured and shot dead.

(3)   The State Peace and Development Council (SPDC) military learnt that on 30 April, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration in Pha village and sent in Light Infantry Battalion 308, which shelled the village with mortars and rocket propelled grenades, seeking to kill the organizers and disrupt the preparations.

(4)   In early June 2005, the SPDC uncovered an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Rangoon where they were investigated and tortured by special branch police and Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years, the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment.

(5)   On 3 November 2005, FTUB organizer Aung Myint (see above) died under mysterious circumstances in his cell at Insein prison. When arrested on 2 July, along with other members of the FTUB Pegu network, he was physically fit and in good health. The authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a funeral, making it impossible to ascertain whether he died from abusive treatment, disease, or other cause. Police officials cremated the body themselves.

(6)   Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, was arrested in 1997 and charged at the time with high treason for maintaining contacts with the FTUB. Now the SPDC has explained that he was jailed for ten years for high treason under section 122(1) of the Penal Code, plus seven years for violations of the Emergency Provisions Act, plus three years for violating the Unlawful Associations Act. Myo Aung Thant is detained in a remote part of the country at Myitkyina prison in Kachin State, and was, according to his family, in the course of 2005 held in solitary confinement in a small, windowless cell.

(7)   Thet Naing, another underground FTUB leader, was released from Myitkyina prison in November 2004 after serving a seven-year sentence following his rearrest for his role in leading a workers’ protest in the Yam Ze Kyang garment factory. He continues to be affected by nerve damage suffered from the torture he was subjected to during his interrogation and the mistreatment he received while in jail. He has now left the country and joined the FTUB abroad.

The Committee regrets that the Government did not provide detailed observations on these serious allegations made by the ICFTU in 2005 and 2006 and urges the Government to include a detailed reply in its next report.

The Committee most strongly deplores these most recent and serious allegations which detail a long list of trade unionists who have been arrested, detained, tortured and sentenced to many years of imprisonment for the exercise of their trade union activities, including the mere sending of information to the FTUB. The Committee recalls once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats and that a climate of violence, in which murders and disappearances of trade union leaders go unpunished, constitutes an extremely serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention. Furthermore, as regards, more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 29 and 30). The Committee therefore urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. The Committee firmly hopes that the Government will soon be in a position to indicate progress in this respect.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee recalls that it had noted in its previous observation a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established. Furthermore, it recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of, organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1).

Noting the Government’s statement that it will send the draft labour laws concerning the protective measures of the workers as soon as the new State Constitution is finalized, the Committee cannot but regret once again the long delay in the adoption of the Constitution and the fact that, in the meantime, no progress has been made on the particularly serious and urgent issues it has been raising for nearly 20 years now. The Committee once again urges the Government to furnish a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. It requests the Government to communicate any relevant draft laws, orders or instructions made in this regard so that it may examine their conformity with the provisions of the Convention.

[The Government is asked to report in detail in 2007.]

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information contained in the Government’s report, the oral and written information provided by the Government representative to the Conference Committee on the Application of Standards in June 2005, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention. The Committee also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2268 (333rd Report paragraphs 642-770 and 337th Report paragraphs 1058-1112).

The Committee further notes the observations dated 31 August 2005, received from the International Confederation of Free Trade Unions (ICFTU) with regard to the following issues: obscure legislation; single trade union system; military orders and decrees further limiting freedom of association; prohibition of trade unions; "workers’ committees" organized by the authorities; the Independent Federation of Trade Unions (FTUB) independent workers’ organization forced to work underground and accused of terrorism; repression of seafarers even overseas; detention of trade unionists and specific violations of trade union rights  in 2004. The Committee requests that the Government provide its observations in its next report on the comments made by the ICFTU.

A. Violations of fundamental civil liberties. 1. Murders and torture of trade unionists. The Committee recalls that in its previous comments it had asked the Government to take all necessary measures so that workers and employers can exercise the rights guaranteed by the Convention in a climate of full security and in the absence of fear. It notes the conclusions of the Conference Committee to the effect that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats.

The Committee further notes with regret in this respect, the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2268 concerning the death of Saw Mya Than, member of the FTUB and official of the KEWU, as well as the comments made by the Worker members in the Conference Committee with regard to Koe Moe Naung who was allegedly 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; he was a trade union leader who was organizing Burmese fishermen and migrant workers from Myanmar in the Ranong Province.

The Committee strongly deplores these alleged violations of fundamental civil liberties of trade union members and leaders and emphasizes that a climate of violence in which murders and disappearances of trade union leaders go unpunished, constitutes a serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 29). As regards, more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey, op. cit., paragraph 30). The Committee therefore asks the Government to provide information in its next report on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers.

2. Arrests, convictions and imprisonment for trade union activities including contacts with organizations abroad. The Committee recalls that in its previous comments, it had asked the Government to ensure that no individual shall be sanctioned for contacts with a trade union or workers’ association, while noting that the judgements of the Supreme Court, making references to contacts with illegal organizations abroad, were ambiguous in this respect. The Committee notes in this respect from the Government’s report that the three organizers of the FTUB, Nai Min Kyi, Aye Myint and Shwe Mahn (instead of Nai Yetka as indicated in the Committee’s previous report), who had been previously convicted and received heavy prison sentences for ILO-related activities, were finally released from prison after their sentences were commuted to lighter ones. Shwe Mahn was released on 29 April 2005 while Nai Min Kyi and Aye Myint were pardoned and released from prison in January 2005. Moreover, the Supreme Court had indicated on appeal that "communication and cooperation with the ILO does not amount to an offence under the existing laws of Myanmar". The Committee takes note of this information.

The Committee notes with regret however, the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2268 with regard to the conviction of the General Secretary of the FTUB for high treason, the conviction and imprisonment of Myo Aung Thant, based allegedly on a confession obtained under torture, and the conviction and imprisonment of Khin Kyaw, member of the Seamen’s Union of Burma; the last two allegedly did not benefit from a fair trial with access to legal counsel of their choice.

The Committee further notes with deep regret the text of the judgement dated 9 April 2004 by the Ma-ha-aung-mye Township Court which convicted ten workers (U Hla Soe, U Than Win, U Win Kyi, Daw Hnin Pa Pa (aka) Myint Myint Tun, Myint Oo (aka) Ni Ni, Aung Aung Naing (aka) Ba Gyi Aung, Htay Lwin Oo, Aung Naing Thu (aka) Po Htaung, Ye Tun Min, Zaw Min Naing, U Tin Oo) to seven years’ imprisonment under section 5(j) of the Emergency Provisions Act of 1950, for having carried out "activities for the emergence of a trade union in Myanmar". The Committee notes from the content of the court judgement that the accusations included: contacting opposition forces in Maesod, Thailand; receiving financial support from exiled groups; receiving trade union training from the aforementioned organizations; disseminating information from inside the country to exiled opposition forces; and joining together in forming a trade union. The court found that in taking part in such prohibited activities, "the accused had the intention to destroy the stability and security of the union in order to bring about the ruin of public morality and to incite to aberrant behaviour".

The Committee most strongly deplores the conviction of trade unionists to imprisonment for what appears to be the exercise of regular trade union activities like setting up workers’ organizations, communicating with international organizations of one’s own choosing and receiving financial assistance and training from them. It emphasizes once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. The authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention. The Committee urges the Government to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular, for having contacts with workers’ organizations of their own choosing. The Committee trusts that the Government will be in a position to indicate progress in this respect in its next report.

B. Legislative framework (Articles 2, 3, 5 and 6 of the Convention). In its previous comments, the Committee had noted a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established despite the comments it had been making on this issue essentially since ratification of the Convention 50 years ago. The Committee had urged the Government to take all the necessary measures so as to adopt a legislative framework under which free and independent workers’ organizations could be established and to ensure that Orders Nos. 6/88 and 2/88 and the Unlawful Association Act of 1908, did not apply to the exercise of the right to organize. The Committee recalls that: (1) Order No. 6/88 of 30 September 1988 provides that the "organizations shall apply for permission to form to the Ministry of Home and Religious Affairs" (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908, provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1).

The Committee notes from the information provided in the Government’s report and by the Government representative to the Conference Committee in June 2005, that appropriate workers’ organizations, which have been suppressed since 1988, would re-emerge once Myanmar had its new Constitution. With this in mind, the Myanmar Government 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 the new Constitution. During its sessions between 1993 and 1996, the National Convention had laid down basic principles. 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 social welfare rights. The deliberations had also 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 legal provisions. In total, 104 basic principles had been adopted by consensus, and it was indicated that "the State shall enact necessary laws to protect the rights of the workers". The Government states in its latest report that a new legislation will be coming out along with the new Constitution.

The Committee points out that the seven-step Road Map process for the drafting of a new Constitution which would eventually open the way to the emergence of appropriate workers’ organizations started as early as 1993 and is still in its initial phase. The Committee observes that the documents attached to the Government’s report contain a list of topics on which legislation is to be enacted in the future, including topics as general as "labour disputes" and "labour organizations" without any further suggestion as to the content of the "detailed basic principles" on these issues. Moreover, no legislative texts have been attached to the report and there is no indication on any measures to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, as previously requested by the Committee.

The Committee notes with deep regret that the information provided by the Government continues to demonstrate a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations can be established and a total absence of any meaningful dialogue in this respect. Noting that measures are needed urgently to amend the legislation and the Constitution with the full and genuine participation of all sectors of society regardless of their political views, the Committee, like the Conference Committee, once again urges the Government to communicate all relevant draft laws and to furnish a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations.

[The Government is asked to reply in detail to the present comments in 2006.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the information contained in the Government’s report, the oral information provided by the Government representative to the Conference Committee in 2004, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention. The Committee also notes the observations dated 19 July 2004, received from the International Confederation of Free Trade Unions (ICFTU). Finally, the Committee notes the report of the Committee on Freedom of Association on Case No. 2268 (see 333rd Report, paragraphs 642-770).

In its previous comments, the Committee had urged the Government to take all necessary measures in the very near future to ensure that workers and employers can fully exercise their rights guaranteed by the Convention, in a climate of full security and in the absence of threats or fear.

The Committee notes the indication in the Government’s latest report that the Trade Union Act is still in force and that no restriction whatsoever has been imposed on workers’ freedom of association. The Government’s report also indicates that there are several professional arts and crafts associations and other associations, including workers’ welfare associations that are functioning well in Myanmar. On the other hand, the Committee notes that the Government’s report also indicates that since 1988, when the Constitution was suspended, there have been no trade unions in Myanmar which would meet the requirements of the Convention and that, until such time as a strong Constitution accepted by the Myanmar people is drawn up, first-level trade unions and appropriate mechanisms cannot be established. In this respect, the Committee notes that the Government representative indicated to the Conference Committee that, on 20 May 2004, the National Convention held deliberations on basic principles for the social sector, including the rights of workers, and that these principles would provide the framework under which detailed provisions would be developed in the process of drawing up the new Constitution. The Committee finally notes that the Government considers that the comments made by the ICFTU are similar to those previously answered by the Government and therefore they do not call for any reply.

The Committee must, once again, point out that it has been commenting upon the Government’s failure to apply this Convention, both in law and practice, essentially since its ratification 50 years ago. It notes that the Government’s report does not contain any of the information requested by the Conference Committee at its last session, in particular as concerns the communication of 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 comments presented by the ICFTU. The Committee must note with deep regret that the information provided continues to demonstrate a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations can be established.

With respect to the reference made to encouraging workers’ welfare associations to be involved in industrial relations, the Committee reiterates that it has always considered that these associations have none of the attributes characteristic of free and independent workers’ organizations that are the objective of the Convention. Like the Committee on Freedom of Association, the Committee considers that such associations fail to present the necessary guarantees of independence in their composition and in their functioning and therefore cannot act as a substitute for freely chosen organizations of workers.

The Committee recalls that, in addition to the concerns arising from the total absence of legislative framework guaranteeing the right to organize, there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. The Committee notes in this respect that: (1) Order No. 6/88 of 30 September 1988 provides that the "organizations shall apply for permission to form to the Ministry of Home and Religious Affairs" (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908, provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1). The Committee urges the Government to take all the necessary measures so as to ensure that Orders Nos. 6/88 and 2/88 and the Unlawful Association Act of 1908, cannot apply to the exercise of the right to organize protected by the Convention and to keep it informed in this respect.

The Committee also notes from the comments of the ICFTU that three Independent Federation of Trade Unions - Burma (FTUB) organizers, Nai Min Kyi, Aye Myint and Nai Yetka, were arrested by the "Junta" on 16 July 2003 and sentenced to death under the high treason Act by the Rangoon District Court on 28 November 2003. The ICFTU states that the evidence presented in the trial related to contacts that these three persons had with the FTUB, possession of a Burmese-language version of the ILO’s 1998 Commission of Inquiry report on forced labour in Myanmar, and possession of a business card of the Acting ILO Liaison Officer in Yangon. In this respect, the Committee notes that the Government representative has indicated to the Conference Committee that the first appeal to the Supreme Court lodged by those three individuals had a positive outcome as their sentences were commuted to much lighter ones. The Committee also notes that a second judgement made by the Supreme Court on 14 October 2004 has commuted the penalty for Nai Min Kyi and Aye Myint to two years’ sentence of imprisonment with labour. It further notes from the second judgement that the Supreme Court has clearly stated that "as the Union of Myanmar is a member of the United Nations Organization and the International Labour Organization, it is carrying out communication and cooperation with such organizations. Any person may communicate and cooperate with these organizations. Communication and cooperation with the ILO does not amount to an offence under the existing laws of Myanmar".

The Committee recalls that while being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention. Moreover, the Committee also takes the view that detention, and in particular detention with labour, when applied to people involved in trade union activities, constitutes a blatant violation of the principles of freedom of association. Noting that the judgements of the Supreme Court make references to contacts with illegal organizations abroad, which are ambiguous, the Committee trusts that the Government will take the necessary measures to ensure that no individual shall be sanctioned for contacts with a trade union or workers’ association, and urges the Government to take all necessary measures so that workers and employers can exercise the rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear.

The Committee asks the Government to provide, with its next report, a detailed reply to the serious matters raised by the ICFTU and urges the Government, once again, to take all necessary measures in the very near future to ensure that workers and employers can fully exercise their rights guaranteed by the Convention and in particular: that they may form and join organizations of their own choosing without previous authorization, for the furtherance and defence of their interests; that these organizations may organize their activities and formulate their programmes freely; that first-level organizations may form federations and confederations and that these in turn may affiliate with international organizations of workers and employers without impediment (Articles 2, 3, 5 and 6 of the Convention).

[The Government is asked to reply in detail to the present comments in 2005.]

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information contained in the Government’s report, the oral information provided by the Government representative to the Conference Committee in 2003, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention. The Committee also notes the observations received from the International Confederation of Free Trade Unions (ICFTU) in 2002.

The Committee notes the indication in the Government’s latest report that Myanmar is in transition to democracy and is doing its utmost to promote the rights, interests and welfare of workers as well as to find ways to take appropriate interim steps before the drafting of the Constitution. The Government adds that no positive responses to the Committee’s comments on formation of first trade-level unions can take place before the emergence of a strong state Constitution.

The Committee nevertheless feels obliged to recall that it has been commenting upon the Government’s failure to apply this Convention, both in law and practice, essentially since its ratification 50 years ago. While the Government continues to refer to the ongoing drafting of the new state Constitution and the search for appropriate measures and means to build on existing mechanisms so the workers associations will be able to look after their rights, interests and welfare, the Committee must note with deep regret the total lack of progress in providing a legislative framework in which free and independent workers’ organizations can be established. The Committee takes due note of the renewed references in the Government’s latest report to workers’ welfare associations as the forerunners of trade unions safeguarding and promoting the interests of workers as best as they can at present, as well as of the regret expressed by the Government that the Committee holds a different opinion in respect of the role that may be played by the welfare associations. The Committee must reiterate in this respect that it has always considered that these associations have none of the attributes characteristic of free and independent workers’ organizations that are the objective of the Convention. Indeed, the Committee fears that the Government’s continued insistence on the role of the welfare associations in respect of the application of the Convention, without any other real progress in this application, is simply an indication of the lack of seriousness given to the fundamental matters raised by the Committee over these many years.

In this respect, the Committee takes due note of the comments made by the ICFTU concerning: the important restrictions placed upon freedom of association by the 1926 Trade Union Act; the dissolution of all trade unions in 1988 by the military regime; Order No. 2/88 of 1988 which makes the gathering, walking or marching of five persons or more a criminal act; and the Unlawful Associations Act which punishes membership in an unlawful association with imprisonment. The ICFTU further refers to the practical application of the Convention and in particular to the Independent Federation of Trade Unions - Burma (FTUB) that it states in the abovementioned context has been forced to operate clandestinely since its inception in 1991. It further refers to two officials of the FTUB and one trade union leader who remain in prison for having exercised their trade union rights and the total absence of due process in respect of the charges brought against them and their trials. Finally, the ICFTU refers to the continuing illegality of the FTUB-affiliated Seafarers’ Union of Burma (SUB) and the continuing prohibition of their contacts with the International Transport Workers’ Federation.

The Committee notes with regret that the Government has provided no information in reply to the serious matters raised by the ICFTU. The Committee recalls that respect for civil liberties is crucial for the exercise of freedom of association and urges the Government to take all necessary measures so that workers and employers can exercise the rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear.

The Committee urges the Government to take the necessary measures in the very near future to ensure that workers and employers can fully exercise their rights guaranteed by the Convention and, in particular: that they may form and join organizations of their own choosing, without previous authorization, for the furtherance and defence of their interests; that these organizations may organize their activities and formulate their programmes freely; that first-level organizations may form federations and confederations and that these in turn may affiliate with international organizations without impediment (Articles 2, 3, 5 and 6 of the Convention).

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the information contained in the Government’s reports. In particular, it notes the indication in the Government’s latest report that the Minister of Labour has conducted detailed discussions with the Office of the Attorney-General and other concerned ministries and organizations on measures to be implemented that will reflect the positive approach by the Government to be in conformity with the provisions of the Convention. The Committee nevertheless feels obliged to point out that, for over eight years now, it has been taking note of the Government’s statement that the drafting of a new state Constitution is under way, as well as the review and redrafting of old labour laws, including the Trade Unions Law, without any concrete development in this respect. While noting the Government’s contention that important progress has been made with the creation of the Myanmar Overseas Seafarers’ Association, the Committee considers that no real progress has been made in providing a legislative framework in which free and independent workers’ organizations may be established.

The Committee once again recalls that it has been commenting upon the Government’s failure to apply this Convention, both in law and in practice, for over 40 years. In it previous comments, it had urged the Government, in particular, to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organizations concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate with international organizations (Articles 2, 5 and 6 of the Convention).

Furthermore, while noting the indication in the Government’s reports that Workers’ Welfare Associations and Workers’ Supervisory Committees protect the rights of the workers and can be regarded as a surrogate of the trade unions, the Committee is of the opinion that such associations are not a substitute for the fundamental right to organize provided for in the Convention.

The Committee, therefore, firmly urges the Government to adopt the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment. Furthermore, it once again asks the Government to furnish with its next report a copy of any proposed revisions of the Trade Unions Law under consideration.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes with regret that for the third consecutive year, the Government’s report has not been received.

The Committee notes the oral information provided by the Government representative to the Conference Committee in 2001, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention.

In its previous comments, the Committee had noted that the drafting of a new State Constitution was under way, as well as the review and redrafting of old labour laws, including the Trade Unions Law. The Committee had recalled, however, that the Government has referred to the drafting of new labour legislation and a new Constitution for several years now. It deplores once again this year that no specific progress or developments have been communicated to the Committee in this regard.

The Committee recalls that it has been commenting upon the continued failure to apply this Convention, both in law and in practice, for over 40 years. In its previous comments, it had urged the Government, in particular, to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organizations concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate with international organizations (Articles 2, 5 and 6 of the Convention).

The Committee deeply deplores the lack of cooperation on the part of the Government, manifested in particular by a total absence of reports under this Convention over the past years despite a serious failure in applying its provisions.

The Committee must once again reiterate the urgent need for the Government to adopt the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment. Furthermore, it once again asks the Government to furnish with its next report a copy of the most recent draft revision of the Trade Unions Law so that it might assess the draft’s conformity with the Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes with regret that the Government’s report has not been received.

In its previous comments, the Committee noted the special paragraph in the Conference Committee on the Application of Standards 1999 report for continued failure by Myanmar to implement the Convention.

The Committee had further noted that the drafting of a new State Constitution was under way, as well as the review and redrafting of old labour laws, including the Trade Unions Law. The Committee had recalled, however, that the Government has referred to the drafting of new labour legislation and a new Constitution for several years now. It deplores that no specific progress or developments have been communicated to the Committee in this regard.

The Committee recalls that it has been commenting upon the continued failure to apply this Convention, both in law and in practice, for over 40 years. In its previous comments, it had urged the Government, in particular, to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organizations concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate with international organizations (Articles 2, 5 and 6 of the Convention).

The Committee deeply deplores the lack of cooperation on the part of the Government, manifested in particular by a total absence of reports under this Convention over the past years despite a serious failure in applying its provisions.

The Committee must once again reiterate the urgent need for the Government to adopt the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment. Furthermore, it once again asks the Government to furnish with its next report a copy of the most recent draft revision of the Trade Unions Law so that it might assess the draft’s conformity with the Convention.

[The Government is asked to supply full particulars to the Conference at its 89th Session.]

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with regret that the Government's report has not been received.

The Committee notes the written and oral information provided by the Government representative to the Conference Committee in 1999, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee's report for continued failure to implement the Convention.

In its previous comments, the Committee had noted that the drafting of a new State Constitution was under way, as well as the review and redrafting of old labour laws, including the Trade Unions Law. The Committee had recalled, however, that the Government has referred to the drafting of new labour legislation and a new Constitution for over five years now. It deplores that no specific progress or developments have been communicated to the Committee in this regard.

The Committee recalls that it has been commenting upon the continued failure to apply this Convention, both in law and in practice, for over 40 years. In its previous comments, it had urged the Government, in particular, to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organizations concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate with international organizations (Articles 2, 5 and 6 of the Convention).

The Committee must once again reiterate the urgent need for the Government to adopt the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment. Furthermore, it once again asks the Government to furnish with its next report a copy of the most recent draft revision of the Trade Unions Law so that it might assess the draft's conformity with the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the written and oral information provided by the Government representative to the Conference Committee in 1998, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee's report for continued failure to implement the Convention. The Committee also notes the information provided in the Government's latest report.

The Committee notes from the Government's report that the drafting of a new State Constitution is under way, as well as the review and redrafting of old labour laws, including the Trade Unions Law. The Government adds that, only after the enactment of the new Trade Unions Law can there be practical application of the provisions contained therein.

The Committee must recall, however, that the Government has been referring to the drafting of new labour legislation and a new Constitution for over five years now, yet no specific progress or developments have been communicated to the Committee in this regard. Furthermore, the Committee would once again recall that it has been commenting upon the failure to apply this Convention, both in law and in practice, for over 40 years. In its previous comments, the Committee urged the Government, in particular, to adopt the measures necessary to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organization concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate with international organizations (Articles 2, 5 and 6 of the Convention). The Committee can only reiterate the urgent need for the Government to adopt the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment and would request the Government to furnish with its next report a copy of the most recent draft revision of the Trade Unions Law so that it might assess the conformity of this draft with the Convention.

REQUESTS The Government is asked to supply full particulars to the Conference at its 87th Session. #CONFERENCE_SESSION:87

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the statement made by the Government representative to the Conference Committee in 1997, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee's report for continued failure to implement the Convention. It must once again express its profound regret that it has not received a report from the Government, despite the fact that the Conference Committee, in its conclusions, had urged the Government to supply a detailed report to the Office. It notes with particularly grave concern that the most recent Government report was received over three years ago.

In these circumstances, the Committee cannot but note with the deepest regret that it has been commenting upon the continued failure to apply this Convention, both in law and in practice, for over 40 years now. In its previous comments, the Committee had urged the Government, in particular, to adopt the measures necessary to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organization concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of first-level unions, of federations and of confederations to affiliate freely with international organizations (Articles 2, 5 and 6 of the Convention). As no information whatsoever has been communicated to the Office in this regard, the Committee must once again urge the Government to adopt, as a matter of urgency, the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment.

[The Government is asked to supply full particulars to the Conference at its 86th Session.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the statement made by the Government representative to the Conference Committee in 1996, as well as the discussion which took place therein. It must, however, once again express its profound regret that it has not received a report from the Government, requested as a result of the Conference Committee's conclusions, and that the Government representative's statement to the Conference Committee only repeated what had been said over previous years concerning its intention to apply the Convention without being able to indicate that any specific positive developments had occurred in law or practice. Furthermore, while noting the Government representative's indication to the Conference Committee that the ILO had been formally requested to provide technical assistance in drafting the trade union law and was welcome to visit the country at a mutually convenient date so that its input could be incorporated into the new legislation, the Committee notes with deep regret that the mission which had been scheduled in May 1996 could not be received.

In these circumstances, the Committee must once again recall that it has been commenting upon the serious incompatibilities between the national law and practice and the Convention for 40 years now. It has been urging the Government, in particular, to take the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organization concerned, first-level unions, federations and confederations of their own choosing for the furtherance and defence of their interests and to ensure the right of any first-level union, federation or confederation to affiliate with international organizations (Articles 2, 5 and 6 of the Convention). As no concrete developments have been communicated to the Office, the Committee must once again urge the Government to adopt, without delay, the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment.

[The Government is asked to supply full particulars to the Conference at its 85th Session.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the Government's report as well as the written and oral information provided to the Conference Committee in June 1994 and the detailed discussion which took place there. It further notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1752 (295th Report, paragraphs 87-119, approved by the Governing Body at its 261st Session, November 1994) concerning restrictions on the right of seafarers to form an independent trade union for the defence of their basic rights and interests and on their right to affiliate to an international federation, evidence of yet another example of the manner in which freedom of association is denied in Myanmar.

The Committee notes from the Government's report that the National Convention convened to adopt basic principles for framing the new Constitution is still in progress. The Government further indicates that elaborations pertaining to labour issues, including the right of association for workers, shall be made in due course.

The Committee notes that a mission from the ILO was recently in Myanmar with a view to continuing the dialogue on measures to be taken to bring the country's law and practice into conformity with the Convention.

The Committee recalls in this regard that it has been commenting upon the serious incompatibilities between the Government's law and practice, on the one hand, and the Convention, on the other hand, for 40 years. It therefore expresses the firm hope that, with the assistance of the ILO, the Government will take the necessary measures in the very near future to ensure that new legislation is introduced to allow all workers without distinction whatsoever to establish and, subject only to the rules of the organization concerned, to join first-level unions, federations and confederations of their own choosing for furthering and defending their interests, without previous authorization, and to ensure the right of any such first-level union, federation or confederation to affiliate with international organizations, in order to bring its law and practice into full conformity with the requirements of Articles 2, 5 and 6 of the Convention. It requests the Government to report in detail on the progress made in this regard and to send a copy of any relevant draft legislation with is next report.

[The Government is asked to supply full particulars to the Conference at its 82nd Session.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the written and oral information supplied to the Conference Committee in 1995, as well as the detailed discussion which took place therein. It must, however, express its regret that it has not received a report from the Government, as requested in consequence of the Conference Committee's conclusions.

The Committee would recall that it has been commenting upon the serious incompatibilities between the Government's law and practice, on the one hand, and the Convention, on the other hand, for 40 years now. In particular, the Committee has been asking the Government to take the necessary measures to ensure the right of workers to establish, without previous authorization, and to join, subject only to the rules of the organization concerned first-level unions, federations and confederations of their own choosing for furthering and defending their interests and to ensure the right of any such first-level union, federation or confederation to affiliate with international organizations (Articles 2, 5 and 6 of the Convention).

The Committee takes due note of the Government's indication at the 1995 Conference Committee of its interest in obtaining advice from the Office on the draft Trade Unions Act in order to contribute towards its efforts to apply the freedom of association principles, as well as its expression of a genuine desire to cooperate with the ILO and its commitment to harmonize law and practice with Convention No. 87. Nevertheless, as no concrete developments in law or practice have as yet been communicated to the Office, the Committee must once again urge the Government to adopt, as a matter of urgency, the necessary measures to ensure fully the right to organize, and the right to affiliate with international organizations, without impediment.

[The Government is asked to supply full particulars to the Conference at its 83rd Session.)]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report as well as the written and oral information provided to the Conference Committee in June 1993 and the detailed discussion which took place there.

With reference to its previous comments, the Committee notes that, according to the information transmitted to the Conference Committee as well as the Government report, the representative National Convention was convened on 9 January 1993 and it has laid down the basic principles to be embodied in the new Constitution that would ensure fundamental rights, including freedom of association for workers. Moreover, new labour laws reflecting the principles of the Convention would replace old ones namely, Act No. 6 of 1964 and implementing Regulation No. 5 of 1976 which establish a system of trade union monopoly. These new laws had been submitted to the appropriate authorities and were now under consideration.

While noting the above information, like the Conference Committee the Committee feels bound to point out that the Government has been giving similar assurances over a period of several years. It notes with concern that no real progress has been made as yet in this respect neither in the legislation nor in practice. It therefore firmly urges the Government to ensure that new legislation is introduced to allow workers to establish first-level unions, federations and confederations of their own choosing and choose an appropriate structure without previous authorization, in order to bring law and practice into full conformity with the requirements of Articles 2, 5 and 6 of the Convention which was ratified more than 35 years ago. It requests the Government to report in detail on any progress made in this regard and to send a copy of the draft legislation along with its next report.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous observations, the Committee takes note of the Government's report as well as the written and oral information provided to the Conference Committee in June 1992 and the detailed discussion which took place there.

During that discussion of the trade union monopoly established by virtue of sections 2 and 6(b) of Regulation No. 5 of 1976, the Government referred to the current drafting of new labour legislation which would reflect the changes occurring in the country, namely the redrafting of the Constitution as a basis for a multi-party democratic system and the country's commitment to a market-oriented economy. The Conference Committee urged the Government to introduce legislation as soon as possible which would lift the legislative restrictions contained in the 1976 Regulation on the freedom of workers to be members of unions of their own choosing. The Government's report also states that the new Constitution is to be drawn up on the basis of guidelines to be adopted at the representative National Convention in January 1993.

In view of these legislative activities in the country, the Committee asks the Government to ensure that the principles of freedom of association are enshrined in the new legislation so that workers can establish first-level unions, federations and confederations of their own choosing and choose an appropriate structure without previous authorization, in conformity with Articles 2, 5 and 6 of the Convention. It trusts that the Government's next report will be able to note progress in this direction.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report has not been received. It none the less takes note of the written information communicated by the Government, the statement made by a Government representative and the long discussion that ensued at the Conference Committee in 1991.

With reference to its previous observation, the Committee notes that, according to the written information transmitted by the Government, Act No. 6 of 1964 and implementing Regulation No. 5 of 1976 have fallen into abeyance although they have not been formally amended or repealed and that, in practice, a large number of workers' organisations exist. The Committee also notes that a Government representative stated that with the abolition of the one-party political system, the unitary workers' organisation no longer exists and that the Act and Regulations organising the single trade union system have automatically become obsolete.

While noting this information, which the Government had already given, the Committee is bound to repeat its previous observation and once again urges the Government to adopt the necessary texts at an early date to lift the restrictions on the freedom of workers and employers to establish occupational organisations of their own choosing and to make trade union pluralism possible for first-level unions, federations and confederations, in order to bring its legislation and practice into conformity with the requirements of Articles 2, 5 and 6 of the Convention.

[The Government is asked to supply full particulars to the Conference at its 79th Session.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by a Government representative to the Conference Committee in 1989, and in the Government's report.

The Committee recalls that for many years it has been raising the question of the trade union monopoly established under section 9 of Act No. 6 of 1964, as amended, and under sections 2 and 6(b) of Regulation No. 5 of 1976. These provisions clearly establish a single union structure, and prevent unions from establishing other organisations outside that structure. This is inconsistent with Articles 2, 5 and 6 of the Convention, which require that all workers should have the right freely to associate for trade union purposes, including the establishment of federations and confederations.

In the information supplied to the Conference Committee in 1989, and repeated in its report, the Government indicated that Myanmar was currently undergoing political, economic and social change. Free and fair elections were held in 1990, and the drafting of a new state Constitution is now a major priority. The Government stated that this new Constitution would make express provision for freedom of association and the right to organise. The Government hoped that the Constitution would be in line with Convention No. 87. The Committee shares the Government's hopes in this regard, and asks the Government to keep it informed of all relevant developments.

In addition, the Government states in its report that workers and employers have the right to establish and join organisations of their own choosing without previous authorisation, and that there are no legal or administrative provisions that hinder them from doing so. The Committee points out that these propositions do not appear to be consistent with the continued existence of the provisions referred to in the previous paragraphs. The Government does not provide any indication that these provisions have been repealed or amended so as to bring them into conformity with the requirements of the Convention. If this has indeed occurred, the Committee asks the Government to supply a copy of the relevant legislation. If there has been no such amendment or repeal, the Committee must yet again urge the Government to introduce the necessary legislation to bring law and practice into full conformity with the requirements of this Convention, which was ratified more than 35 years ago.

[The Government is asked to supply full particulars to the Conference at its 78th Session and to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's reply to its previous comments.

The Committee recalls that for many years it has been raising the question of the trade union monopoly established under section 9 of Act No. 6 of 1964, as amended, and under sections 2 and 6(b) of Regulation No. 5 of 1976. These provisions clearly establish a single union structure, and prevent workers from establishing other organisations outside that structure. This is inconsistent with Articles 2, 5 and 6 of the Convention, which require that all workers should have the right freely to associate for trade union purposes, including the establishment of federations and confederations.

In its previous reports the Government has indicated that, following disappointments with pluralistic trade union structures in the past, the workers themselves decided to introduce a single trade union structure. It was not, therefore, imposed by law. From the Government's point of view, this has the consequence that the current system could only be modified with the consent of the workers, who had not yet put forward any proposals to this effect.

The Government had, on several occasions, indicated that the legislation does not prevent workers from establishing other associations if they so choose. As evidence of this, it referred to the fact that various groups of professional workers had established associations on their own account. Apparently, these included doctors, nurses, actors and writers. In its previous comment the Committee had asked the Government to provide further information as to the nature of these associations and the activities in which they could engage. In its report the Government indicates that major political changes are currently under way in Burma. In particular, the former single-party system is in the process of being transformed into a multi-party system. These changes have caused the Government to conclude that there would be no point in making a detailed reply in respect of a situation which no longer exists. The Government also expresses the hope that these changes will mean that in its future reports it will be able to demonstrate full conformity with the requirements of the Convention.

In view of these changes, and of the Government's stated preparedness to respect its obligations under the Convention, the Committee trusts that it will indeed take appropriate steps to bring its legislation into conformity with the Convention, and in particular with Article 2 thereof. The Committee also reminds the Government that the technical and advisory resources of the Office remain at its disposal if required.