Rapport intérimaire - Rapport No. 333, Mars 2004

1. 642. The International Confederation of Free Trade Unions (ICFTU) submitted its complaint in a communication dated 28 May 2003.
2. 643. The Government sent its reply in two communications, the first of which is dated 5 September 2003, and the second of which is dated 20 February 2004 and was received on 2 March 2004.
3. 644. Myanmar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 645. The complaint and its 17 appendices can be summarized as follows.
2. 646. In an introduction, the complainant indicates that the complaint raises new cases of violations of the right to freedom of association. These new cases are further examples of the military regime’s established practice of violating workers’ right to freely associate in trade unions. From a more general perspective, the complainant invites the Committee, in the course of its examination, to bear in mind that violations of freedom of association occur in a climate in which human rights and other fundamental freedoms and guarantees are being violently repressed. In the present case, the interdependence between freedom of association and civil liberties is particularly important. According to the complainant, there is little chance of any free exercise of trade union rights in Myanmar without human rights and fundamental freedoms being respected, the independence of justice restored and due process ensured.
3. 647. In the field of freedom of association, the complainant recalls that for over 40 years the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has pinpointed serious discrepancies in the law and practice with regard to the application of Convention No. 87. In addition, the Conference Committee on the Application of Standards has examined violations of the Convention in Myanmar on 13 occasions in the past 20 years. On eight of the most recent occasions, the conclusions of the Conference Committee were the subject of a special paragraph of its report; on the last five of these occasions, the application of the Convention by Myanmar was mentioned as a case of “continued failure to apply the Convention”.
4. 648. Despite the international pressure, the military junta has not taken any action so far in order to bring law and practice into conformity with the basic principles of freedom of association. On the contrary, gross violations persist in Myanmar.
5. 649. The complaint is divided into two parts. The first part addresses issues related to legislation, while the second deals with specific instances of grave, factual violations of freedom of association.
   • Violations of freedom of association based on legal issues
6. 650. In its introductory remarks, the complainant describes briefly the political and institutional history of Myanmar. In particular, it recalls that, after the country had gained independence in 1948, there was a first military coup in March 1962, which led to the formation of a Revolutionary Council under the chairmanship of General Ne Win. In 1974 a one-party Constitution was adopted.
7. 651. In 1988, the country faced a rising tide of discontent due to the economic and political situation. A general strike broke out in August 1988 and was violently repressed. The military retreated nonetheless to their quarters in August and September. During this period, in the wake of a general movement which led to the creation of various organizations and an independent media, hundreds of workers’ organizations were established in both the public and private sectors. These organizations were grouped in the All Burma Workers Union. On 18 September 1988, the 1974 Constitution was suspended and martial law imposed. All state organs were abolished and replaced by the State Law and Order Restoration Council (SLORC). Organizations deemed to be “anti-state”, including workers’ organizations, were disbanded and top leaders were jailed. In March 1990, the democratic opposition, the National League for Democracy (NLD), won the legislative elections but was not permitted to assume power. On 15 November 1997, the SLORC dissolved itself and appointed a new State Peace and Development Council (SPDC).
8. 652. As regard the legislative framework, the complainant stresses that it is particularly difficult to have a clear idea of the legislation in force in Myanmar, not least due to the fact that part of this legislation is secret. That being said, the complainant indicates that much of the rest of the legislative framework comprises, inter alia, a residue of outdated laws and regulations adopted during the British and Ne Win eras, to which are added a series of military decrees and orders issued since 1988.
   • Laws on freedom of association: the Trade Union Act, 1926; the Law “defining the fundamental rights and responsibilities of the people’s workers”, 1964 (amended in 1976); and the Trade Disputes Act, 1929
9. 653. The complainant explains that Myanmar has inherited, from the British era, much legislation that has so far not been repealed, amended or officially abrogated. This is the case with the Trade Union Act of 1926 (attached to the complaint) which had been the subject of comments by the CEACR for many years. One of the issues raised by the CEACR was the excessively high threshold required to establish a trade union. In 1964, the Law “defining the fundamental rights and responsibilities of the people’s workers” was adopted (the law is attached to the complaint). The Trade Union Act remained in force in so far as it was compatible with the 1964 Law. For many years, the CEACR has sought, without success, clarification from the Government on the extent to which the 1964 Law had repealed the Trade Union Act.
10. 654. The complainant indicates that the 1964 Law is far from complying with Convention No. 87 since it establishes a compulsory system for the organization and representation of workers. The 1964 Law was amended in 1976. In its 1977 comments, the CEACR noted however that the law as amended still “… imposes a single trade union system contrary to Article 2 of the Convention under which workers have the right to form organizations of their own choosing”. The complainant underlines that since that date, the CEACR has repeated its comments in successive reports. Unfortunately no progress has yet been noted.
11. 655. The complainant indicates that other laws should be brought to the attention of the Committee and in particular the Trade Disputes Act, 1929 (attached to the complaint). This Act, amended in 1966, appears to define the means of resolving industrial disputes. The complainant mentions a number of provisions that, in its view, appear not to be in conformity with freedom of association. On the other hand, the complainant indicates that it is unable to confirm whether the Act is still in force.
    • Military decrees and orders: Orders Nos. 2/88 and 6/88
12. 656. The complainant underlines that the legislative framework would not be complete if decrees and orders adopted by the military since 1988 were not taken into account. These decrees and orders have direct detrimental effects on the free exercise of trade union rights. In some cases they appear to supersede outdated legislation that has not been officially repealed.
13. 657. The complainant first draws the attention of the Committee to Order No. 2/88 issued on 18 September 1988 under the title “Order No. 2/88 of the Organization for Building Law and Order in the State” (attached to the complaint). Order No. 2/88 prohibits “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 disturbance or of committing a crime or not”. Order No. 2/88 goes on to state that “no one is permitted to open strike centres regardless of whether or not the intent is to create disturbances or to commit a crime”. Finally, “no one is permitted to demonstrate en masse” or “ interfere or obstruct people carrying out security duties”. The complainant underlines that the sweeping wording of Order No. 2/88 covers all types of meetings, including those related to legitimate trade union activities. It could thus render illegal normal trade union gatherings essential to the defence and promotion of workers’ rights.
14. 658. The complainant underlines that the provisions of Order No. 2/88 are strengthened by the Unlawful Association Act, 1908, which provides, under section 17.1 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 fine”.
15. 659. The complainant then draws the attention of the Committee to Order No. 6/88 of 30 September (attached to the complaint), entitled “Law on the Formation of Associations and Organizations”. The complainant considers that Order No. 6/88 is in blatant contravention of Convention No. 87. Thus, under section 2(a), “an organization means an association, society, union (underlining added), party committee, federation, group of associations, front, club, and similar organization that is formed with a group of people for an objective or a programme …”. By virtue of section 3(a), “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs …”, while section 3(c) states that “organizations that are not permitted shall not form or continue to exist and pursue activities”. There is no doubt, according to the complainant, that Order No. 6/88 applies to workers’ and employers’ organizations, which are thus required to request previous authorization from the military to be established or to pursue their activities.
16. 660. In addition, section 5(b) and (c) describes, in a very broad manner, the organizations which are prohibited, i.e. “organizations that attempt, instigate, incite, abet or commit act that may in any way disrupt law and order, peace and tranquillity, or safe and secure communications” and “organizations that attempt, instigate, incite, abet or commit act that affect or disrupt the regularity of the state machinery”. The complainant emphasizes that the order does not give any indication of the grounds on which the Government would judge a violation to have occurred. Moreover, it does not provide an appeal against decisions denying permission for organizations to be established.
17. 661. Finally, penalties provided in the Order for punishing violations are particularly harsh. Under section 6, any person found to have infringed section 3(c) and section 5, “shall be punished with imprisonment for a term which may extend to five years”. Section 7 states that “any person found guilty of being a member of, or aiding and abetting or using the paraphernalia or organizations that are not permitted … shall be punished with imprisonment for a term which may extend to three years”.
18. 662. The complainant underlines that these two military Orders are part of a net of repressive texts, some dating back to colonization, others new, and others secret, which are designed to prevent any person from challenging the military by organizing peaceful demonstrations. The complainant lists some other texts: (1) the Unlawful Association Act, 1908 (mentioned above and attached to the complaint); (2) the Official Secrets Act, 1928 (not attached to the complaint and providing, according to the complainant, for imprisonment for the dissemination of statements deemed official secrets); (3) the Emergency Provisions Act, 1950 (section 5 of which is attached to the complaint); (4) the State Protection Law, 1975 (attached to the complaint); and (5) Law No. 5/96 (attached to the complaint and bearing the following title “Law protecting the peaceful and systematic transfer of state responsibility and the successful performance of the functions of the National Convention against disturbance and oppositions”).
19. 663. The complainant submits that all these texts can be used arbitrarily as needed by the regime to undermine any sort of trade union activities. They contribute to nourishing a climate of denial of fundamental freedoms and to annihilating any form of labour organization. They should therefore be repealed without delay, or at least, be modified in order not to pose a threat to normal trade union activities. On the other hand, the complainant is unable to confirm whether the texts listed in the previous paragraph are still in force.
    • Preliminary conclusions of the complainant on the legislative framework
20. 664. In light of the serious discrepancies identified in the legislation, the Government should:
    • – suppress any reference to a monopoly;
    • – suppress any previous authorization required in order to form and join workers’ or employers’ organizations;
    • – provide for the right to establish and join workers’ and employers’ organizations at all levels;
    • – eliminate all penalties for the exercise of trade union activities, including strike action;
    • – provide for an appeal before an independent body in case of refusal to register or recognize a workers’ or employers’ organization.
21. 665. The complainant states that the Government should be urged to accept technical assistance by ILO experts on freedom of association in order to carry out a comprehensive review of its legislation on freedom of association so as to ensure better compliance with Convention No. 87. In this last respect, the complainant refers to the “resolution on widespread use of forced labour in Myanmar” adopted by the International Labour Conference at its 87th (June 1999) Session. Under paragraph 3(b) of this resolution, the Conference resolves “that the Government of Myanmar should cease to benefit from any technical cooperation or assistance from the ILO, except for the purpose of direct assistance to implement immediately the recommendations of the Commission of Inquiry, until such time as it has implemented the said recommendations …”. The complainant takes the view that the resolution does not prevent any technical assistance and assistance in the field of freedom of association. On the contrary, the complainant believes that the assistance given in this field can only be seen as falling within the purview of the resolution i.e. “direct assistance to implement immediately the recommendations of the Commission of Inquiry”. The complainant refers in this regard to the report of the High-Level Team, concerning the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), submitted to the Governing Body at its 282nd (November 2001) Session. The complainant quotes an extract of paragraph 68 of the report, which reads as follows “… if there existed genuine civil society organizations, and in particular strong and independent workers’ organizations, as required by Convention No. 87 ratified by Myanmar, these could provide individuals affected by forced labour with a framework and collective support which would help them to make the best possible use of whatever remedies are available to defend their recognized rights” (document GB.282/4).
    • Violations of freedom of association based on factual discrepancies
22. 666. The complainant states that, whatever the written law, in practice, workers who fight to redress the often atrocious conditions face threats, violence and murder.
    • No trade union is allowed to be established or to function
23. 667. The complainant submits that there is a total lack of legally registered workers’ organizations in Myanmar. All the trade unions that existed before the present military regime came to power have been disbanded. Any workers’ organizations that do exist have to function underground, facing constant threat of repressions and reprisal. There is a systematic practice of repression by public authorities of any form of labour organization, which often extends to violence, including torture.
24. 668. The complainant refers also to the “Union Solidarity and Development Association” (USDA). Workers are forced to join this association to work, for example, in the civil service and more generally for a myriad of economic activities. This association was created in 1993 by the Government. It is designed to substitute not only workers’ organizations, but all other civil institutions and is widely seen as a political mobilization tool. Its purported objective, published on the website of the government, is to “strengthen the Union of Myanmar to promote love and understanding among indigenous peoples, to strengthen State sovereignty, to safeguard territorial integrity and to develop the country and to build a peaceful and modern State”.
    • Federation of Trade Unions of Burma (FTUB)
25. 669. The complainant states that the FTUB is an independent workers’ organization. According to its draft constitutive documents (attached to the complaint with the composition of its Central Executive Committee), one of its aims is “to further the establishment, maintenance and development of free trade unions in Burma”. It also aims to “protect, maintain and promote democracy and basic trade union rights and human rights …”.
26. 670. The complainant explains that the organization was established in 1991 by trade unionists who were subsequently dismissed from their jobs by the military regime. It is headed by a Central Executive Committee. The Central Executive Committee has not yet succeeded in registering the organization in Myanmar; hence the draft nature of the constitutive documents. Indeed, since its establishment, the FTUB has been forced to operate outside the country. While it is the effective voice of over 1.5 million Myanmar migrants working in Thailand, it also maintains internal underground unions in key industrial sectors in Myanmar and operates in all major cities of the country. While the FTUB maintains offices in most neighbouring countries of Myanmar, it also maintains structures, organizes workers’ unions inside the territory of Myanmar and runs workers’ training activities both in countries bordering Myanmar and inside the country. The FTUB has also played a critical role in organizing independent workers’ organizations in ethnic nationality areas; the names of some of these organizations are listed in the complaint. In common with the FTUB, these workers’ organizations are unable to legally register and all function underground. While they are not affiliates of FTUB, they maintain close working relationships.
27. 671. The Government has orchestrated a campaign of defamation and discredit against the FTUB. Part of this campaign is conducted through the government-controlled media. The complainant also quotes a statement of the Worker delegate of the Myanmar delegation at the 86th (June 1998) Session of the International Labour Conference. According to him, the FTUB was created by expatriates. The FTUB “does not represent a single worker in Myanmar … [and] is an illegal organization [that] has been directly involved in and responsible for terrorist acts which took place in [Myanmar] …”. The complainant adds that that the Workers’ group challenged the credentials of this delegate on the ground of his lack of independence.
28. 672. Finally, the complainant states that the FTUB has often had to face gross interference by the public authorities in its administration that takes the form of violations of its premises and properties. Thus in May 2002, the military junta attacked and torched the Kawthoolei Education Workers’ Union (KEWU) office in Kho-Pay, Papun District, and burned down the homes of several KEWU members. KEWU is not affiliated to the FTUB but closely cooperates with it. It is not legally registered and under constant threat of repression. The event occurred a few days after union members led by the FTUB celebrated May Day; the building used for the May Day celebration was also torched. To the complainant’s knowledge no inquiry was carried out.
29. 673. The complainant concludes by underlining that it would be impossible for the FTUB to obtain authorization under Order No. 6/88 to function as a legal trade union inside Myanmar. Its activities in the country are therefore systematically considered illegal and subject to criminal prosecution.
    • Case of the General Secretary of FTUB, Maung Maung
30. 674. Maung Maung has been the General Secretary of FTUB since its creation in 1991. He was forced to leave the country in 1988 at the time of the military crackdown. Previously, Maung Maung had created with other colleagues a trade union in the state-owned mining company in which they were employed. They became members of the executive committee of this organization and were dismissed by the Military in application of Order No. 6/88. Since then, Maung Maung has exercised his trade union functions and leadership from outside Myanmar and has been honoured repeatedly by the international trade union movement.
31. 675. The Government regularly harasses and attempts to discredit Maung Maung, presenting him as a fugitive criminal. The government-controlled media launched regular attacks against Maung Maung (newspaper articles attached to the complaint in support). In 2002, the Myanmar military intelligence attempted once more to discredit the FTUB and its leadership, including its president and its general secretary, by accusing them, without evidence, of planting bombs.
32. 676. According to the complaint, the FTUB General Secretary faces criminal prosecution for legitimate trade union activities, in total contradiction of the free exercise of trade union rights and fundamental principles of freedom of association.
    • Murder of a trade unionist: Saw Mya Than
33. 677. Saw Mya Than was a member of the FTUB and an official of the KEWU mentioned above. He received training as a specialist in human and trade union rights in 2001 by both organizations. He became well known in his area for his involvement with human rights and was elected as a headman of his village, Kaleiktoat, in Ye township (Mon State).
34. 678. The complainant explains that Saw Mya Than was forced to work as a porter for the army’s Light Infantry Battalion (LIB) No. 588, led by Major Myo Hlaing. On 4 August 2002, the army column came under attack from elements of the ethnic independence movement. Saw Mya Than was shot dead by the State Peace and Development Council (SPDC) soldiers, retaliating against an ambush set by the democratic forces.
35. 679. It is common practice for the Myanmar military to recruit forced labourers as porters and “human shields” and they are often made to march in front of battalions. However, the complainant believes that there is a direct link between Saw Mya Than’s trade union role and his murder by the army for the following reasons: first, Saw Mya Than’s involvement in trade union rights was widely known; and secondly, as mentioned above, he was a headman. The complainant explains that headmen are not usually forcibly recruited to work, but they organize forced labour of others and, indeed, “recruit” a force labour workforce. By attacking the community’s head, the military regime attempted to prevent the emergence of a new leader to challenge its rule.
36. 680. The complainant adds that it was informed of the murder by the FTUB; it then reported the case to the ILO. The case was subsequently raised by the ILO Liaison Officer before the National Implementation Committee at a meeting on 9 November 2002. The Government has not given any answer yet. To the complainant’s knowledge, no inquiry was carried out to clarify the facts and take appropriate measures to punish those responsible, and to prevent such events from occurring in the future.
    • Detention of trade unionists: Myo Aung Thant, Khin Kyaw and Thet Naing
37. 681. The complainant submits the following elements concerning Myo Aung Thant. Myo Aung Thant was a member of the All Burma Petro-Chemical Corporation Union formed during the 1988 pro-democratic movement. In 1995, he became a member of the Central Executive Committee of the FTUB. He was arrested on 13 June 1997 at the airport in Yangon, along with his wife and children. He was then charged with high treason. A secret trial was conducted in August 1997 where he was denied the right to his own legal counsel and was assigned a lawyer designated by the junta. He was convicted and sentenced to transportation for life. He also was sentenced to 7 years of imprisonment, three years out of which corresponded to the sanction provided under the Unlawful Association Act, 1908. His conviction rested on a confession obtained under torture. At the end of 1998, he was moved from Yangon’s Insein prison to a remote prison in Myitkyina, Kachin State, in the far north of the country, which is too distant for family visits. At the same time, Myo Aung Thant’s wife had been sentenced to ten years in prison as an accomplice of her husband. She has, however, since been released.
38. 682. With respect to the case of Khin Kyaw, the complainant gives the following information. Khin Kyaw was a member of the Seamen’s Union of Burma. He was arrested in 1997 along with his wife. He had earlier been detained for trade union activities in 1993 and had been tortured in detention. The authorities have never stated the charges under which he is currently held but it is known that these are related to Myo Aung Thant’s case. Khin Kyaw is presently serving a 17-year prison sentence in Thayarwaddy prison in Pegu division. His health is poor.
39. 683. Regarding the case of Thet Naing, the complainant indicates that he was an underground trade union leader who is currently in jail. He was originally arrested in 1990 after involvement in politics with the National League for Democracy (NLD), and student and workers’ organizations. He was released in 1994. In 1997, Thet Naing was recruited in the Yan Ze Kyan garment factory. In 1999, a protest action broke out due to unfair labour practices on the part of the employer. Thet Naing was one of 85 workers dismissed for their role in the protest action; 100 workers were sanctioned with pay deductions. As a result, the entire workforce walked off the job in a wild-cat strike and the factory management contacted the township SPDC and military officers. An arrangement was negotiated, and the workers, including Thet Naing, were allowed to return to work. Five days later, Thet Naing and 60 other workers were dismissed once again. On 20 December 1998 (this is the year given by the complainant but presumably it should read 1999), Thet Naing was apprehended at his home by the SPDC Military Intelligence Unit No. 3, accompanied by officers of the Pegu Police Station No. 3. He was told that he was being arrested for violating section 5(j) of the Emergency Act, 1950 (mentioned above) and was sentenced to seven years in prison. He was held for five months in Insein and Pegu jails, and then transferred to Myitkyina jail in Kachin State.
40. 684. The complainant considers that these detentions and convictions for trade union activities contribute to creating an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities. The complainant believes that Myo Aung Thant, Khin Kyaw and Thet Naing should be released immediately.
    • Sailors repressed overseas
41. 685. The complainant recalls in detail Case No. 1752 examined by the Committee [see 295th Report paras. 87-119 and 299th Report, para. 17]. The complainant then describes the case of Shwe Tun Aung to show that contrary to what the Government indicated to the Committee during the examination of Case No. 1752, Myanmar seafarers are still denied freedom of association and continue to be discriminated against when they try to defend their rights. The complainant adds that it is aware of hundreds of cases but they are particularly difficult to document for fear of reprisals.
42. 686. The complainant recalls that in Case No. 1752, it was alleged that, prior to their departure from shore, Myanmar seafarers were required by a governmental agency, the Seamen Employment Control Division (SECD), to sign an affidavit saying that they would not accept any assistance from the International Transport Workers’ Federation (ITF) or affiliated parties. The affidavit obliged seafarers to sign a double payroll. The Committee urged “the Government to withdraw the SECD requirement that Myanmar seafarers must sign an affidavit restricting their right to affiliate with or contact the [ITF] for assistance, which requirement violates freedom of association principles”. The Committee also stated that the double payroll was a reprehensible way of evading the terms of collective agreements, “a practice which the Committee strongly condemns”.
43. 687. Further, the Committee noted that the ITF-affiliated Seafarers’ Union of Burma (SUB) which intervened on behalf of Myanmar seafarers, operated in exile in Thailand because it was not recognized by the Government. The Committee reminded the Government that “... it is not for the Government to decide which organization would best represent the workers’ interests, as would appear to be the case of the SECD which exercises total control over the placement of all Myanmar seafarers and which is a government agency”. Therefore, the Committee urged the Government “to guarantee and respect the rights of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests if they so wish”.
44. 688. Finally the Committee noted “with serious concern” the various incidents described by the ITF and the victimization of Myanmar seafarers – revocation of their registration, confiscation of their passports and even threat of imprisonment – in the event that they accepted or received an ITF settlement and refused to hand back their back-pay settlements to the SECD. The Committee called on the Government “to refrain in the future from having recourse to acts of anti-union discrimination against Myanmar seafarers who pursue their legitimate grievances through the complainant and/or its affiliated trade unions”.
45. 689. In the course of the follow-up of the case, the complainant recalls that the Government informed the Committee that the “affidavit requirement” had been revoked and that measures to allow Myanmar seafarers to form organizations had been taken [see 299th Report, para. 17]. The complainant asserts, in contradiction, that no effect has yet been given to the Committee’s recommendations: no seafarers’ organization has been allowed to be established and acts of anti-union discrimination are continuing. Further, seafarers were still required to sign a contract preventing them from receiving any assistance from the ITF. In support of its contentions, the complainant describes the case of Shwe Tun Aung and appends two affidavits detailing his story. It should be noted that both affidavits are unsigned, undated (referring only to March 2002) and printed on unheaded white paper. While neither document provided by the complainant is signed, they both contain a space for signature by a notary public of Harris county, state of Texas. One affidavit indicates that it reflects the statement made by Mr. James McAuley having “... personal knowledge of the facts herein ... [and] submitting this affidavit on behalf of Shwe Tun Aung’s application for asylum”. The elements submitted by the complainant and reflected in the affidavits can be summarized as follows.
46. 690. Before taking his first position as a seafarer, Shwe Tun Aung was called in by an employee of the SECD to sign a paper that warned him not to join the union or make any claims to the ITF. Without signing this document, Shwe Tun Aung would not have been able to obtain the seafarer’s certificate entitling him to work as a seafarer. At the end of his first work, Shwe Tun Aung waited in Thailand for another job. While there, he discovered the differences between the conditions of work of Myanmar seafarers and those of seafarers from other countries. He met the General Secretary of FTUB and learned about ITF’s activities. He joined the SUB in 1997 and is also a member of FTUB.
47. 691. In 1998, he joined the crew of the M/V Great Concert. For four months, the crewmembers were not paid fair wages. For two weeks, they were not fed. When the ship arrived in Paranagua Port in Brazil, in 1999, Shwe Tun Aung called the ITF inspectors who inspected the ship. The Myanmar shipping agent learned of Shwe Tun Aung’s initiative and informed the Myanmar Embassy. After a dispute lasting four months between the ITF and the shipping company, an agreement was reached and the company paid all outstanding wages. Out of the four crewmembers who decided to return to Myanmar, two were trade union members. Upon their arrival, all four were forced by the SECD to refund the wages that ITF had secured for them and were fined heavily. They were also forbidden to leave the country for three years.
48. 692. Shwe Tun Aung did not return to Myanmar for fear of reprisal but instead went to Bangkok where he became more involved in the SUB’s activities. In a radio interview, he talked about the events which had occurred on the M/V Great Concert. His name was made public and the interview was broadcast in Myanmar. This came to the knowledge of the Government who labelled Shwe Tun Aung as a criminal. Shwe Tun Aung also participated in demonstrations before the Myanmar Embassy; during one of them he met Mr. James McAuley, another seafarer.
49. 693. In September 1999, they both joined the M/V Global Mariner to participate in a worldwide campaign to present the situation of workers in Myanmar. The ship was owned by ITF. The world tour ended in February 2000. The ship was donated to a company for which most of the crew, including Shwe Tun Aung, decided to work. On 2 August 2000, the M/V Global Mariner sunk near Venezuela and all the crewmembers lost, inter alia, their identity documents. Shwe Tun Aung contacted the Myanmar Embassy in Brazil to obtain a new passport. On 17 October 2000, he was informed by the third secretary of the Embassy that his name had been placed on a “blacklist” by the Government and that he would only obtain a travel document to return to Myanmar. Six months later, after the intervention of several unions, the authorities issued a passport with the imposition of a fine of US$1,500. The document contained, however, a special instruction from the Ministry of Foreign Affairs and the Home Ministry, in charge of the special branch police who investigate all cases before passports are issued, informing authorities to whom this passport would be shown that the Government sought the return of Shwe Tun Aung to Myanmar. In other words, should he return to Thailand, he would be at risk of extradition to Myanmar. Aided by the ITF, he was granted political refugee status in the United States where he currently serves as an ITF inspector.
50. 694. Mr. James McAuley’s statement confirms Shwe Tun Aung’s involvement in trade union activities with the SUB in Thailand and in the campaign organized by the ITF. He was informed by the General Secretary of FTUB and by Shwe Tun Aung of the difficulties encountered by the latter to obtain a passport from the Myanmar Embassy in Brazil; he adds that Shwe Tun Aung was the only Myanmar crewmember on the M/V Global Mariner. Mr. James McAuley helped Shwe Tun Aung to obtain temporary visas in order to leave Brazil where he did not feel safe. The complainant contends that it is clear that Shwe Tun Aung is targeted by the Government because he tried to pursue his legitimate labour grievances.
    • Labour unrest and dismissals of workers
51. 695. The complainant states that it was informed of a great number of dismissals of workers in connection with collective labour protests and claims.
52. 696. The first case reported is the case of the Motorcar tyre factory in Kanthayar village (Thaton township, Karen State). The factory was opened in 1996 by the Ministry of Industry. Due to shortage of fuel oil and raw material, it was unable to produce anything in 1999. Unskilled daily workers lost their jobs in February 2000, while 120 skilled workers lost their employment in the following May. On 25 February 2001, the Ministry of Industry announced that 19 of the remaining skilled workers were also discharged. No compensation was paid to any of these workers. A peaceful protest was staged in front of the factory on 9 and 10 March 2001 to obtain a severance compensation pay. Thaton district authorities and a local unit of military intelligence told the protesters that they should submit their petitions to the Ministry of Industry and to the Ministry of Labour. They urged the workers to stop the protest as it “could affect the regional security”.
53. 697. Before any petition was submitted, the intelligence officers and the Myanmar police began arresting the protesters’ leaders. Nineteen skilled workers were first arrested. Arrests continued on 11 March 2001 and most workers fled the factory. Two companies from the Light Infantry Battalion (LIB) No. 24 were deployed at the site. A sign was installed at the top of the lane leading to the factory that stated that anyone passing through the factory lane between 6.00 p.m. and 6.00 a.m. was liable to be shot. The fate of the arrested workers remains unknown.
    • Textile factories
54. 698. The complainant indicates that dozens of instances of labour unrest, severely repressed by public authorities were reported to have occurred in textile factories in the course of 2001. The complainant provides examples of the ways in which workers’ rights are ignored in blatant violation of the fundamental freedom of association.
    • Unique Garment Factory, Hlaing That Ya industrial zone 4
55. 699. In November 2001, an organized workers’ movement took place at this factory in order to obtain an increase in overtime pay. At the request of management, officers of the Strategic Office of the Yangon Military Command arrived immediately and asked workers to elect representatives. Six workers came forward and explained the workers’ claims. The next day, these six workers were given three months advance pay as well as their basic monthly pay and dismissed were from their jobs. The last update of the situation indicated that the workers went into hiding for fear of being arrested.
    • Myanmar Texcamp Industrial Ltd, Hlaing Tha Ya zone 3
56. 700. Myanmar Texcamp is a Singapore-financed company, employing more than 1,000 workers. During the second week of January 2002, there was an organized request by the workers for higher wages and better working conditions. The management responded by calling in the tactical commander of the Yangon Military Command who threatened the workers that if they did not stop, they would be arrested with the charge of “creating instability to the nation”. The management added that since the overall economy was not good, if the wages were to be increased, the company would ultimately have to close. The workers felt compelled to stop their protests and drop their claims.
    • Myanmar Yes Garment Factory, Hlaing Tha Ya
57. 701. This Hong Kong-financed company employs more than 2,000 workers, in poor working conditions. Average wages are low and working hours are very long (workers are compelled to work until 10.00 p.m. or, if the demand is high, all through the night; refusal leads to automatic dismissal). In addition to the absence of any form of medical assistance, there are severe restrictions on toilet services (a toilet card is required and there is one given for each line comprising over 100 workers). While transportation is provided by the employer, its cost is deducted from workers’ wages.
58. 702. On 16 May 2000, a worker, Ma Moe Moe Htay, fell seriously ill and pleaded the manager to be allowed to rest. Two days later, her dead body was found in the gutter, clothed in her work uniform. No investigation was carried out; anger rose amongst the workers.
59. 703. On 5 October 2000, the workers staged a protest in response to the company’s failure to fulfil its promise to introduce a piece-wage rate. The company called the military intelligence unit who arrested a number of workers. Some were detained at the Hlaing Tha Ya police station, while others were detained at Ye Kyi Ai, a well-known military interrogation centre where political prisoners are routinely tortured.
60. 704. The case was denounced by the International Garment and Leather Workers’ Federation in a communication addressed to the Managing Director of the company on 2 November 2000. The complainant has attached a copy of the communication to the complaint. To the complainant’s knowledge no action was taken in response and the fate of the workers who were arrested remains unknown.
    • Conclusion of the complainant
61. 705. The complainant believes that this complaint shows serious breaches in the law and practice of Myanmar as relates to internationally recognized principles on freedom of association.

B. The Government’s reply

1. 706. The Government completed its original communication of 5 September 2003 in a communication dated 20 February 2004. At the outset of its first communication the Government stresses its belief that the complainant’s allegations are untrue. Its reply focuses only on the factual allegations.
   • Allegation that no trade union is allowed to be established or to function
2. 707. The Government states that the fundamental transformation and transition of one political system to another must be linked to the forthcoming constitution. Thus, the formation of first-level trade unions can only take place after the emergence of a national constitution, as all the laws of the country emanate from the constitution. Nevertheless, during the transitional period still faced by the country, the Government is trying to make appropriate arrangements and, in particular, to building on the existing mechanisms. The Government refers in this regard to the workers’ welfare association and to professional associations such as the Myanmar Overseas Seafarers’ Association, the Myanmar National Committee for Women’s Affairs, and the Myanmar Engineer’s Association. The Government is of the view that these associations are able to protect the rights, interests and welfare of workers as effectively as is possible under the prevailing circumstances. The Government indicates that these associations are currently functioning at various workplaces, factories, industrial zones and services and they are forerunners of trade unions.
3. 708. The Government states that it firmly believes that with the continued contact, cooperation and assistance of the ILO, differences will be resolved. The Government declares that its main objective is to continue its cooperation with the ILO.
   • Allegations concerning the public authorities’ interference with regard to the Federation of Trade Unions of Burma (FTUB)
4. 709. The Government stresses at the outset that the FTUB is an unlawful organization engaged in terrorist activities. It is headed by Maung Maung, a criminal, who had previously founded HAWK, an organization which carried out destructive terrorist activities. This organization was subsequently transformed into the FTUB. With respect to the allegation relating to the campaign of defamation and discredit against the FTUB, the Government states that it has a duty to raise awareness in the population about dangerous elements in society.
   • Response concerning Maung Maung from the Federation of Trade Unions of Burma (FTUB), representative of the ICFTU
5. 710. According to the Government, Maung Maung (also known as Pyi Thit Nyunt Wai) is a terrorist from a rebel group. He is a fugitive from justice. Two cases have been filed against him under the Public Preservation Law, 1947 and under the Penal Code (High Treason). In 1989, he was dismissed from his job at the Myanmar Gems Cooperation, for involvement in the theft of jewellery from the diplomatic department store in Yangon. When a further legal action was initiated against him under the abovementioned law, he fled from the country.
6. 711. Maung Maung then joined an anti-government organization – the United Democratic Front, later called the National Coalition Government of the Union of Burma (NCGUB) – and engaged in various activities against the Government. While he was in Bangkok, he undertook activities with members of a rebel group called “Ba Ka Tha” and in 1992, he founded the unlawful organization “HAWK” which also undertook terrorist activities. Maung Maung was involved in a terrorist attempt to carry out bombing in Yangon in 1997 and he helped another terrorist, Myo Aung Thant, to smuggle explosives in the country. For all these activities, he was found guilty under section 122 of the Penal Code (High Treason).
   • Allegations concerning the death of Saw Mya Than
7. 712. The Government indicates that a thorough investigation has been carried out and led to the following findings.
8. 713. Saw Mya Than was a villager from the village of Kaleikatoat in Ye township. He did not belong to any lawful association of education workers. The Government underlines that the Kawttholei Education Workers’ Union is an unlawful underground association affiliated to Karen National Union (KNU), which is the only remaining insurgent group in the country.
9. 714. Saw Mya Than was not elected as headman of the village contrary to what the FTUB claimed, neither was he a porter. Rather, he was employed by the army as a guide. On 4 August 2002, in this role, he was accompanying an army column. About 5 miles from the village, a small group of KNU insurgents detonated a Claymore mine; Saw Mya Than was killed instantly (he died of 11 splinter wounds), while a number of soldiers and porters sustained injuries. The army returned Saw Mya Than’s body to his family and assisted in organizing the funeral service. His family received due compensation and was quite satisfied with the assistance extended by the army and the sympathy it demonstrated. No complaint was ever made by any member of his family. The Government concludes that the allegations made by the FTUB are clearly unfounded and deliberately fabricated with political motives.
   • Allegations concerning Myo Aung Thant and Khin Kyaw
10. 715. The Government contends that Myo Aung Thant had no permanent and proper job. He went to Bangkok on several occasions and met various anti-government organizations. Pyi Thit Nyunt Wai (Maung Maung) instructed Myo Aung Thant to keep regular contacts with him and to recruit Myanmar workers. Their objective was to instigate student unrest in Myanmar. Thus, Myo Aung Thant left Yangon for Ranong on 2 June 1997. On 4 June, Pyi Thit Nyunt Wai, Myo Aung Thant, Khin Kyaw, a demolition expert, Than Lwin, and the representative of another organization (ABSDF), Aye Maung, held a meeting to instigate workers unrest in Yangon. Decisions were also taken to murder state leaders, to bomb the Chinese and Indonesian embassies, to blow up transformers and cut telephone lines in downtown Yangon. The same day, security personnel apprehended Myo Aung Thant and his accomplices and seized explosives and other evidence in Kawthoung. They were all punished for their crimes.
    • Allegations concerning seafarers repressed overseas
11. 716. The Government provides the following elements. First, it states that the Department of Marine Administration reached an agreement with the ITF. Further, the Myanmar Overseas Seafarers’ Association was established legally and affiliated with the ITF. The Association takes interest in the welfare and rights of Myanmar seafarers and is in a position to work effectively given its affiliation with the ITF.
12. 717. Moreover, the Seamen Employment Control Department issued a formal instruction dated 1 February 1995, under which the former 25 per cent deduction out of the family remittances of Myanmar seafarers was ended. Further, under Notification No. 146/94 of the Ministry of Finance and Revenue issued on 16th November 1994, Myanmar seafarers are only liable to pay 10 per cent income tax on their declared total foreign earnings.
13. 718. The Government recalls that, following the recommendations made by the Committee in Case No. 1752, a communication was sent. The Government believes that this communication adequately replies to the allegations contained in the complaint concerning seafarers. In this letter, the Government explained that the following steps had been taken to comply with the recommendations of the Committee: (1) the SCD revoked, with effect from 9 February 1995, the affidavit that seafarers had previously been obliged to sign before leaving the country; and (2) measures were under way to allow seafarers to form organizations on their own; the Government strongly denied having committed any acts of anti-union discrimination. In this communication, the Government also referred to the departmental instruction of 1 February 1995 and Notification No. 146/94. The Government stressed its commitment to fully comply with the Committee’s recommendations. It also emphasized that some actions might take some time.
    • Allegations concerning labour unrest and dismissals of workers
14. 719. With regard to the allegations concerning the Unique Garment Factory, the Myanmar Texcamp Garment Factory and the Myanmar Yes Garment Factory, in its communication of 5 September 2003, the Government contends that there were no such cases of the nature alleged. The Government admits that some disagreements between the workers and the employers existed but it underlines that these disagreements were resolved by the Township Workers’ Supervisory Committee (all factories are located in the Hlaing Tha Yar township). Contrary to what is stated in the complaint, there were no outstanding cases with respect to the Unique Garment Factory in November 2001; the Myanmar Texcamp Garment Factory in January 2002; and the Myanmar Yes Garment Factory between May and November 2000.
15. 720. In its communication of 20 February, the Government submits additional comments on the allegations relating to the three garment factories mentioned in the complaint. The Government underlines that it disagrees with the dates given and the manner in which the events are reported by the complainant. At a general level, the Government comments that workers in Myanmar enjoy rights and benefits in accordance with the existing labour laws. In any case in which breach of applicable legislative provisions is proven, the employer would be liable to pay compensation to the affected workers.
16. 721. The Government proceeds to describe the dispute resolution system. It insists that in disputes workers are represented by workers’ welfare associations present in most factories. Should a dispute arise, negotiation and conciliation are carried out between the employer and workers in the presence of both the workers’ welfare associations and the Supervisory Committee of the Industrial Zones. If the parties so wish, the Township Workers’ Supervisory Committee may continue the negotiation and conciliation until an agreement is reached. The Government denies any interference from the military in cases of labour conflict. These are settled solely by the administrative council and committees functioning under the authority of the Ministry of Labour. The Government indicates that between January 2000 and December 2003, a number of disputes arose in various industrial zones. In total, all 1,069 cases concerned were resolved through the negotiation and conciliation process and 19,186 workers received additional benefits as a result.
17. 722. Concerning the garment factories in particular, the Government indicates that these have experienced a great deal of pressure resulting from the economic sanctions imposed on Myanmar. These factories sometimes had no alternative but to lay off workers, in which case due compensation was paid to those dismissed. The Government denies that workers who engaged in protest actions were threatened or dismissed. In instances where workers submitted demands, the Department of Labour, in conjunction with management, workers and the competent administrative bodies, succeeded in defusing confrontation.
18. 723. The Government comments on each of the three specific cases raised in the complaint.
    • Unique Garment Factory
19. 724. The Government confirms that disputes arose but disagrees with both the dates specified and the alleged results. The Government indicates that the three following disputes arose:
    • (a) on 6 October 2000, 19 workers refused to work overtime and it was decided to transfer them to another work section; a dispute arose and was conciliated by the Township Workers’ Supervisory Committee; a settlement was reached under which management agreed to reinstate the ten workers (the discrepancy in figure is that of the Government) in their former section; it was also agreed that expatriate personnel would not interfere in the management of the factory and that 6 October would be considered as a worked day for the workers concerned;
    • (b) on 10 July 2001, 77 night shift workers were involved in a dispute; the factory was going through a difficult period; the 77 workers, who were still on probation, were dismissed and compensation was paid to them following a conciliation undertaken by the Workers’ Supervisory Committee;
    • (c) on 15 December 2001, workers asked for the payment of work done during lunchtime and overtime wages; the township authorities and officials of the Ministry of Labour met with the management and conciliated the matter; an agreement was signed between the employer and the workers.
      • Myanmar Texcamp Garment Factory
    • 725. The Government underlines that there have been no instances of arrest and that conciliation and negotiation were undertaken, with the assistance of the Township Workers’ Supervisory Committee, the Supervisory Committee of the Industrial Zones and the workers’ welfare associations concerned. All the workers’ claims have been met, often beyond what was demanded. The Government adds that because of the economic crisis, the factory was obliged to pay “legal benefits” to all workers. The Government refers to the three following disputes:
    • (a) on 8 January 2002, all the workers of the factory submitted claims for a wage increase and better conditions of work; conciliation was undertaken by officials of the Government and an agreement reached and signed; the management agreed to all the claims submitted; the owner of the factory even consented, in addition, to an increase for low-wage workers;
    • (b) on 2 December 2002, workers requested a wage increase; the factory owner together with management, met with the workers in the presence of the Township Workers’ Supervisory Committee and an agreement was reached on overtime compensation;
    • (c) on 5 July 2003, a dispute arose when 300 workers asked for an increase of a particular allowance; conciliation was undertaken by officials of the Department of Labour and an agreement was reached.
      • Myanmar Yes Garment Factory
    • 726. The Government asserts that the working time in force in the factory is in accordance with that prescribed under the existing labour laws and that, when overtime is to be performed, it is paid. Transportation depends on the understanding that exists between employer and workers and is either free (if it is agreed that transportation should be provided) or else charged to the workers (who are entitled to provide their own transportation, if they so prefer). The Government refers to the following two cases conciliated and negotiated in the presence of the Township Workers’ Supervisory Committee, the Supervisory Committee of the Industrial Zones and the workers’ welfare associations concerned:
    • (a) on 24 May 2002, 80 workers submitted a number of claims relating to a salary increase and improved working conditions; agreements were reached following a conciliation undertaken by the Township Supervisory Committee;
    • (b) on 16 September 2002, workers voiced their dissatisfaction about a lay-off and the conditions under which it had occurred, as well as the treatment of workers by the line manager (sewing sector); the Township Supervisory Committee undertook a conciliation and urged management to pay the compensation provided for under the contracts of employment; an agreement was reached.
20. 727. With respect to the individual case of Ma Moe Moe Htay, the Government confirms that on 16 May 2000, she fell ill at work and was allowed to rest. In the afternoon she did not report to work and her body was later found in the circumstances described by the complainant. The police undertook an investigation and concluded that it was an accident. The factory and the public authorities paid the funeral expenses.
21. 728. With respect to the Motorcar tyre factory in Kanthayar Village (Thatone township, Karen State), the Government states that it is a state-owned factory. It denies that there has ever been any complaint of the kind alleged by the complainant. There is no record of any incident at the Township (or) Divisional Labour Office. The allegations are therefore unfounded.

C. The Committee’s conclusions

1. 729. The Committee notes that the complainant has submitted two sets of allegations. A first set of allegations relates to legislative issues. The complainant has identified certain legislative instruments seriously breaching Convention No. 87. The second set of allegations relates to factual issues. The Committee will group these allegations under three main issues. The first issue relates to the alleged total absence of recognized workers’ organizations in Myanmar. The second issue concerns the alleged repression by the authorities – including murder, arrest and torture – of any worker engaged in any trade union activity or, more generally, in any expression of labour grievances; allegations of workers’ dismissals are also made. The third issue deals with the recognition of seafarers’ freedom of association, an issue dealt with by the Committee in its examination of Case No. 1752. From a wider perspective, the complainant states that the alleged violations of freedom of association have occurred in a climate in which human rights and other fundamental freedoms are being violently repressed.
2. 730. At the outset, the Committee is obliged to observe the extreme seriousness of the allegations and the detailed manner in which they have been set out. The Committee notes that the Government has submitted a reply only on certain of the factual issues raised. The Committee also notes that the second communication of the Government has been received one week before its meeting. Noting that the Government of Myanmar’s declared objective is the continuation of its cooperation with the ILO, the Committee considers the contents of its future replies and their timeliness to be an important signal of its willingness in this respect.
3. 731. Turning to the substance of the allegations, the Committee must recall the specific background concerning freedom of association against which they are presented. ILO supervisory bodies have closely followed the application of Convention No. 87 by Myanmar over several years. The Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Standards of the International Labour Conference have repeatedly drawn the Government’s attention to its continued failure to apply the Convention. The Conference Committee has regularly mentioned (the last occasion of which was at the 91st (June 2003) Session of the International Labour Conference,) the application of the Convention by Myanmar in a special paragraph of its general report, thereby underlining the seriousness of the matter.
4. 732. Given this context, the Committee wishes to recall at the outset that when a State takes membership of the Organization, it accepts the fundamental principles in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 10]. In addition to this overall obligation, there are the specific commitments resulting from Myanmar’s ratification of Convention No. 87.
   • Legislative issues
5. 733. The Committee notes that the Government has not responded to any of the points concerning legislation made by the complainant. The Committee notes that the Government does, however, admits that in practice no first level trade unions exist. The Government links this absence with the fact that the state Constitution, from which all national laws derive, has not yet been adopted. The Committee notes in this respect that the legislation applicable to trade unions and trade disputes invoked by the complainant was adopted or considered to be in force under the 1974 Constitution, which was suspended in the meantime. The Committee notes also that Order No. 6/88, which explicitly applies to unions – and the currency of which is not questioned – subjects their establishment to previous authorization of the Ministry of Home and Religious Affairs. This Order bans organizations, including unions, on very broad terms, such as disruption of the law and order or disruption of the State, without providing any mechanism of appeal. The Committee underlines in this respect that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization [see Digest, op. cit., para. 244].
6. 734. In light of the above, the Committee notes that on the one hand, there is currently no Constitution in force in Myanmar and that, according to the Government, this prevents the adoption of laws under which unions could be formed; hence, the absence of unions in practice. On the other hand, paradoxically, Order No. 6/88 refers to unions and applies in the conditions described above as problematic from the freedom of association perspective. The combination of these two elements leads the Committee to observe that currently there is no legislation that affords a legal basis to the respect for, and the realization of, freedom of association in Myanmar. This legal situation is in clear infringement of Convention No. 87.
7. 735. In the Committee’s view, this situation calls for several actions to be taken by the Government. First, a legal basis must be provided to allow the respect for, and realization of, freedom of association and, in particular, the recognition of free and independent workers’ and employers’ organizations. This legal basis must, at the very minimum, provide for the guarantees enshrined in Convention No. 87. It should also address the more specific issues of the seafarers’ right to organize. In addition, the Committee reminds the Government that the Convention covers employers as well as workers. While due note has been taken of the Government’s observations on the lack of a state constitution, the Committee observes that this situation does not prevent all legislative activities and that decrees and orders have indeed been adopted since the suspension of the 1974 Constitution.
8. 736. Secondly, in accordance with Article 8 of the Convention, this legal basis should comprise specific measures whereby any other legislation, and in particular Orders Nos. 2/88 and 6/88, will not be applied in a manner which would undermine the guarantees relating to freedom of association and collective bargaining.
9. 737. Finally, the Committee observes that respect for the Rule of Law requires all legislation adopted to be made public and the contents of which to be widely diffused. Any amendment to the law or indeed its abrogation should follow the same process. The Committee expects that any legislative instruments adopted with respect to freedom of association will strictly abide by these fundamental requirements.
10. 738. Bearing in mind the serious implications of the lack of any legal basis for freedom of association in Myanmar, the Committee is convinced that the Government should accept the technical assistance of the Office to remedy the situation.
    • Factual issues
11. 739. In relation to the absence of recognition of trade unions, the Committee will first examine the question of the representation of workers’ interests by the welfare associations referred to by the Government and which, according to its own admission, are not trade unions but can be considered as forerunners of trade unions. This question has been examined previously by the Committee of Experts on the Application of Conventions and Recommendations and was raised recently before the Credentials Committee of the International Labour Conference.
12. 740. Pending the establishment and recognition of trade unions, the Committee is of the view that alternative forms of organized collective representation of workers can be envisaged provided they constitute real preliminary steps towards the setting up of free and independent trade unions. These embryonic workers’ organizations must therefore enjoy, at least, guarantees of independence. The question is whether welfare associations present these guarantees.
13. 741. The Committee notes that, while generally referring to their role in dispute resolution, the Government has not provided any information on the composition and the functioning of these associations, nor has it submitted examples of their rules. While the Committee was able to obtain a copy of the rules of the Myanmar Overseas Seafarers’ Association, in the absence of detailed information on the circumstances under which these rules have been developed and adopted, the Committee cannot ascertain whether they are the free expression of the will of the workers concerned. In any event, paragraph 5 of Chapter 4 of these rules explicitly limits seafarers’ freedom of choice to establish and join associations; thus, under this provision the association is “… the sole association representing the Seafarers”. The Committee notes from the conclusions of the Credentials Committee [see 3rd Report, para 27, 90th (June 2002) Session of the International Labour Conference] that these associations are far from presenting all guarantees of independence since representatives of the Government and employers are members of their executive committees. The Committee also takes note of the 2002 observation of the Committee of Experts on the Application of Conventions and Recommendations that “… Workers Welfare Associations … are not a substitute for the fundamental right to organize provided for in the Convention”.
14. 742. In light of the considerations made above, the Committee is also of the view that workers’ welfare associations are not substitutes for free and independent trade unions. This will be so for as long as they fail to present guarantees of independence in their composition and in their functioning and, at least as far as seafarers are concerned, as long as these workers are prevented from establishing or joining the association of their own choosing. By the same token, should the Government consider the involvement of welfare associations in the elaboration of the draft legislation on freedom of association, the Committee must point out that such a contribution could not be considered as fulfiling the requirements of a real representation of workers in the process.
15. 743. The Committee notes that in its observations concerning the FTUB, the Government has not replied to the allegations concerning the other workers’ organizations functioning underground on the territory of Myanmar. The Committee notes that the Government considers the FTUB to be unlawful and headed by a person against whom criminal charges have been pressed. The Committee will address this last aspect below. The Committee also notes that the Government considers another workers’ organization, the KEWU, to be unlawful. Given the legislative context currently prevailing in Myanmar, and the absence of any recognized trade unions, the Committee may reasonably infer that any organization freely chosen by workers will be considered to be unlawful by the Government. In these circumstances, pending the outcome of the legislative process and the ensuing establishment of trade unions proposed earlier in this report, the Committee requests 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’s request includes workers’ organizations which operate in exile since they cannot be recognized in the prevailing legislative context of Myanmar. The Committee also requests the Government to issue clear instructions in this regard to its agents and to keep it informed of developments. Finally, the Committee recalls that the right of workers and employers to freely establish and join organizations of their own choosing cannot be said to exist unless such freedom is fully established and respected in law and practice.
16. 744. Regarding the allegations of repression by the authorities towards trade union officers and members, as well as workers pursuing their labour grievances, the Committee makes the following preliminary considerations before examining each of these allegations in turn. Generally speaking, the Committee recalls that appropriate measures should be taken by governments to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect to basic human rights and in a climate free of violence, pressure, fear and threats of any kind. In addition, although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities. Finally, with regard to charges brought against trade union leaders on the grounds of their trade union activities, the Committee has pointed out in the past the danger to the free exercise of trade union rights by sentences passed against representatives of workers within the framework of activities related to the defence of the interests of those they represent [see Digest, op. cit., paras. 36, 42 and 44].
17. 745. The Committee is mindful of several limitations surrounding the examination of the allegations in question. Indeed, as mentioned earlier since freedom of association has no legal basis and in view of the contents of some legislative instruments, such as Order No. 6/88, the logical consequence is that any form of trade union activity would be considered illegal and, in practice, could not develop effectively. Thus, the gathering of evidence in support of the allegations relating to trade union activities will be especially difficult as the relevant bodies and individuals are considered unlawful. In this context, in its determination of the matters raised by this case, the Committee will consider that any labour activity, which can reasonably be associated with freedom of association will form a sufficient basis for examination. Further, in what follows, the Committee requests the Government to provide copies of the documentation produced by governmental or any other public authorities in relation to the issues raised by the allegations, in order to allow the Committee to carry out an objective examination.
18. 746. Turning first to the case of Saw Mya Than’s murder, the Committee notes that, according to the complainant, he was actively involved in human rights and trade union activities: he was an FTUB member and an official of the KEWU. He was elected as a headman in his village of Kaleiktoat. He was forced to work for the army as a porter. He was murdered by the army in retaliation for a rebels’ attack. The complainant alleges that there was a direct link between his trade union role and his murder by the army, because such role was widely known and headmen are not usually forced to work for the army. The Committee notes that, according to the Government, Saw Mya Than was not elected as headman of the village nor was he a porter in the army. Rather, he was employed by the army as a guide. He did not belong to any lawful association of education workers and the KEWU is an unlawful underground organization affiliated with the only remaining insurgent group in the country. Saw Mya Than was killed by a mine detonated by insurgents. Due compensation was given to the members of his family and the army helped organize the funeral services. A thorough investigation of this murder was carried out by the authorities.
19. 747. The Committee notes that the Government does not deny Saw Mya Than’s involvement in trade union activities but merely states that he did not belong to any lawful association of workers. As an unlawful association of workers may equally raise freedom of association issues, the Committee considers that it is justified to examine the murder. In view of the directly conflicting versions of events, however, the Committee cannot draw any conclusion as to the link between his murder and any activity associated with freedom of association. While the Committee takes due note that an investigation has been carried out – indeed its results have been presented to the Governing Body – it notes that it was undertaken by the Government in a particular context and that its findings are very succinct.
20. 748. In these circumstances, the Committee recalls that serious cases such as murder of a trade unionist require the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest, op. cit., para. 51]. The Committee is aware that the conditions to afford such inquiries are not currently met at the national level. As a result, the Committee considers that the best solution would be the establishment of an independent panel, composed of experts who could be considered impartial by all the parties concerned. This panel would carry out an independent investigation into the case of Saw Mya Than. The Committee requests the Government to establish such a panel and inform it of its decision in this regard.
21. 749. Regarding the case of the General Secretary of FTUB, the Committee notes that, according to the complainant, the General Secretary of FTUB faces criminal prosecution for his legitimate trade union activities. He was allegedly dismissed from his employment under Order No. 6/88 after establishing a union in the state-owned mining company in which he was employed. After he had fled his country, he became General Secretary of FTUB in 1991. The Committee notes the Government’s statement that the General Secretary of FTUB is a fugitive from justice as two cases have been filed against him under the Public Protection Preservation Law, 1947 and under the Penal Code of High Treason; he was found prima facie guilty under section 122 of this Code. He was dismissed from his employment in 1989 because he had committed theft.
22. 750. The Committee notes that the Government does not make any comment at all in relation to the trade union activities of the General Secretary of FTUB. In particular, the Government does not deny that he participated in the establishment of a union in the state-owned company who employed him at the time but it disagrees with the complainant on the reason of his dismissal. While both parties agree that criminal charges have been pressed against the General Secretary of FTUB, the Government does not spell out in detail the grounds on which these charges have been made and on which he was found guilty under section 122 of the Penal Code.
23. 751. The Committee considers that there are enough elements present to justify its examination of this case. Given the prominent trade union activities of the General Secretary of FTUB and the current legislative context rendering any such activity illegal in Myanmar, the Committee must consider the possibility that the criminal charges and the trade union functions are linked in this particular case. Therefore, the Committee requests the Government to adduce evidence illustrating that the grounds on which the criminal charges were pressed against the General Secretary of FTUB had no connection with his trade union activities. In particular, it requests copies of the decision, referred to in the Government’s reply, by which he was found guilty under section 122 of the Penal Code, as well as of any documents relating to the other case filed against him under the Public Protection Preservation Law, 1947.
24. 752. With respect to the cases of Myo Aung Thant and Khin Kyaw, according to the complainant, Myo Aung Thant was a member of the All Burma Petro-Chemical Corporation Union. In 1995, he became a member of the Central Executive Committee of FTUB. He was arrested on 13 June 1997 at the airport in Yangon, along with his wife and children and was charged with high treason. A secret trial was conducted in August 1997 during which he was denied the right to his own legal counsel and was represented by a lawyer designated by the junta. He was convicted and sentenced to transportation for life as well as to seven years in prison. His conviction rested on a confession obtained under torture. Myo Aung Thant’s wife was sentenced to ten years in prison as an accomplice of her husband. She has since been released. Concerning Khin Kyaw, the complainant alleges that he was a member of the Seamen’s Union of Burma. He was arrested in 1997 along with his wife. He had earlier been detained for trade union activities in 1993 and had been tortured in detention. The authorities have never stated the charges under which he is currently held but it is known that these are related to Myo Aung Thant’s case. Khin Kyaw is presently serving a 17-year prison sentence.
25. 753. According to the Government, Myo Aung Thant had no permanent job and was in close contact with the General Secretary of FTUB and various anti-government organizations. He and his accomplices, including Khin Kyaw, decided on 4 June 1997 to instigate workers unrest in Yangon and to commit crimes. They were apprehended the same day by security personnel, and explosives and other evidence were seized in Kawthoung. Myo Aung Thant and Khin Kyaw were sentenced their crimes.
26. 754. The Committee notes that the Government admits that the two cases are connected and that sentences have been handed down. The Government does not comment at all on the allegations of trade union activities. Given the prevailing legislative context in Myanmar and that Myo Aung Thant and Khin Kyaw’s names appear on the list of the members of FTUB Central Executive Committee, the Committee considers that there are enough elements to justify its examination of these two particular cases. The Committee notes with deep concern the extreme gravity of the allegations relating to the manner in which both Myo Aung Thant and Khin Kyaw and their families were arrested, the allegations relating to torture, the allegations that Khin Kyaw was not informed of the charges pressed against him and the allegations relating to the manner in which the trial was conducted at least in Myo Aung Thant’s case. The Committee observes in this respect that these allegations have not been denied or contradicted by the Government, with the exception of the circumstances under which the arrests occurred.
27. 755. The Committee must draw the Government’s attention to the following general principles. The arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards [see Digest, op. cit, para. 84]. The absence of guarantees of due process of law may lead to abuses and result in trade union officials being penalized by decisions that are groundless. It may also create a climate of insecurity and fear which may affect the exercise of trade union rights [see Digest, op. cit., para. 106]. In cases of alleged torture or ill-treatment while in detention, governments should carry out inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and sanction of those responsible, are taken. The Committee has also emphasized the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person [see Digest, op. cit., paras. 57 and 59]. Finally, a climate of violence aimed at trade union leaders and their families does not encourage the free exercise of trade union rights set out in Conventions Nos. 87 and 98, and all states have the duty to guarantee their respect [see Digest, op. cit., para. 61].
28. 756. In these circumstances, taking into account that Myo Aung Thant and Khin Kyaw did not benefit from a fair trial with access to legal counsel of their choice and that the conviction of Myo Aung Thant rested allegedly on a confession obtained under torture, the Committee urges the Government to take the necessary steps to have both Myo Aung Thant and Khin Kyaw released from prison.
29. 757. Regarding the case of Thet Naing, according to the complainant, he was recruited in the Yan Ze Kyan garment factory, in 1997. In 1999, a protest action broke out, in which Thet Naing played a role for which he was dismissed. The workers launched a wild-cat strike and the management called for the intervention of the army. An arrangement was eventually negotiated, and the workers, including Thet Naing, were allowed to return to work. Five days later, Thet Naing and 60 other workers were dismissed again. Thet Naing was subsequently apprehended at his home by the SPDC Military Intelligence Unit No. 3, accompanied by officers of the Pegu Police Station No. 3. He was told that he was being arrested for violating section 5(j) of the Emergency Act, 1950 and was sentenced to seven years in prison. The Committee regrets that the Government has not provided any reply to these allegations. It therefore firmly requests the Government to submit a comprehensive reply together with the copies of any relevant documents, including any judicial decision under which Thet Naing might have been sentenced. If any sentence has been handed down, the Committee requests the Government to provide evidence to prove that it has no connection with any activity related to freedom of association and, in the absence of conclusive evidence, to take urgent steps to release Thet Naing from prison.
30. 758. Turning to the allegations that workers of various factories have been repressed or threatened because of their pursuance of their labour grievances, the Committee notes the following allegations in relation to the particular examples highlighted in the complaint. In the case of the Motorcar tyre factory, a peaceful protest was staged in front of the factory on 9 and 10 March 2001 to obtain payment of compensation for workers who had been dismissed due to the production being stopped. Thaton district authorities and a local unit of military intelligence intervened and officers of military intelligence and of the Myanmar police force arrested 19 workers. Further arrests were made on 11 March 2001 and two companies from LIB No. 24 were deployed at the site. The fate of the workers arrested remains unknown. The Committee notes that the Government rejects all allegations. In view of the direct conflicting versions given by the complainant and the Government, it would be difficult for the Committee to express any opinion in this examination. In that context, the Committee requests the Government to provide copies of the company’s records of employees on 9 and 31 March 2001 with due explanations of any differences so as to resolve this issue.
31. 759. In the case of the Unique Garment Factory, in order to obtain an increase in overtime pay, an organized workers’ movement took place in November 2001. At the request of management, the officers of the Strategic Office of the Yangon Military Command arrived and asked workers to elect representatives. The six workers who came forward were the next day dismissed with final payments. The workers went into hiding for fear of being arrested. In the case of the Myanmar Texcamp Industrial Ltd, in the second week of January 2002, there was an organized request by workers for higher wages and better working conditions. The management responded by calling in the tactical commander of the Yangon Military Command who threatened the workers with arrest if the protest was not ended. The workers felt compelled to stop their protest and drop their claims. Finally, regarding the Myanmar Yes Garment Factory, on 5 October 2000, workers staged a protest in response to the company’s failure to fulfil a promise concerning their wages. The company called the military intelligence unit and a number of workers were arrested. Some were detained at the Hlaing Tha Ya police station, and others were detained at Ye Kyi Ai, a well-known military interrogation centre where political prisoners are routinely tortured. The fate of the workers who were arrested remains unknown.
32. 760. With respect to these last three cases, the Committee notes the general comments made by the Government on the dispute-resolution mechanism and the number of disputes which arose between January 2000 and December 2003. The Committee notes that the Government denies that workers have been threatened or dismissed because of their participation in protest actions; that if workers were dismissed, this was due to the economic situation of the garment industry; and that the workers concerned received a severance payment. With respect to the Unique Garment Factory, the Government refers to three disputes which arose on 6 October 2000, 10 July and 15 December 2001. In all three cases, agreements or settlements were reached following conciliation undertaken by the Township Workers’ Supervisory Committee and officials of the Ministry of Labour. The only dismissals which occurred were those of 77 night shift workers who were still in their probationary period and who received compensation for termination of employment. Concerning the Myanmar Texcamp Factory, the Government refers to three disputes, dated, respectively, 8 January and 2 December 2002 and 5 July 2003. Again, in all three cases, agreements were reached following conciliations undertaken by the Township Workers’ Supervisory Committee and officials of the Ministry of Labour. The Government also refers, albeit without more detail, to “legal benefits” paid to workers because of an economic crisis experienced by the Myanmar Texcamp Factory. Finally, with respect to the Myanmar Yes Garment Factory, the Government refers to two disputes which occurred on 24 May and 16 September 2002. Agreements were reached in both instances. The second dispute related to the conditions under which workers had been laid off.
33. 761. With respect to the dispute-resolution mechanism, the Committee refers to its earlier conclusions on the representations of workers’ interests by the workers’ welfare associations. These conclusions apply equally for dispute resolution. The Committee trusts that the forthcoming legislation on freedom of association will address the issue and that workers’ interests, in particular in dispute resolution, will be represented by organizations presenting all guarantees of independence. Further, the Committee requests the Government to provide copies of the relevant legal instruments governing the dispute?resolution mechanism it has described and, in particular, details on the composition, the role and the functioning of the Township Workers’ Supervisory Committee and the Supervisory Committee of the Industrial Zones.
34. 762. Concerning the three garment factories, the Committee notes that the Government recognizes the existence of labour disputes. However, with the exception of the dispute which arose in the Myanmar Texcamp Factory in January 2002, the Committee notes that there are significant factual disagreements between the complainant and the Government, to the extent that they may be referring to different events. In these circumstances, the Committee is not able at this stage to draw any conclusion and is obliged to ask for further information as follows.
35. 763. The Committee requests the complainant to submit additional information in light of the comments made by the Government on labour disputes which occurred in the three factories. Further, the Committee requests the Government to provide copies of all agreements (or to detail the terms of the agreements if no formal document was signed by the parties) referred to in its reply and in particular: (1) the agreements relating to the disputes of 6 October 2000 and 15 December 2001 concerning the Unique Garment Factory; (2) the agreements relating to the disputes of 8 January, 2 December 2002 and 5 July 2003 concerning the Myanmar Texcamp Factory; and (3) the agreements relating to the dispute of 24 May 2002 concerning the Myanmar Yes Garment Factory. In addition to each of these agreements, the Committee requests the Government to submit any other records of the process leading to the conclusion of the agreements and to detail by whom and the manner in which they have since been implemented.
36. 764. Further, the Committee requests the Government to specify the grounds on which the dismissals referred to in its reply have occurred and to detail the agreements reached as to the conditions under which the dismissals were eventually settled. The Committee’s request relates to: (1) the dismissal of the 77 night shift workers from the Unique Garment Factory; (2) the workers from the Myanmar Yes Garment Factory who disagreed on 16 September 2002 with the conditions under which they had previously been laid off. Finally, the Committee requests the Government to submit further information on the dismissals which have occurred in the Myanmar Texcamp Factory due to the economic situation.
37. 765. Finally, the Committee wishes to state that the intervention of the army in relation to labour disputes is not conducive to the climate free from violence, pressure or threats that is essential to the exercise of freedom of association. The Committee notes that the Government denies any intervention of the army in labour conflicts and requests the Government to explicitly protect workers’ and employers’ organizations from any interference by the public authorities in the forthcoming legislation on freedom of association.
38. 766. With respect to the recognition of seafarers’ freedom of association, as recalled by both by the complainant and the Government, the Committee has already examined the issue in Case No. 1752. The Committee notes, however, that the complainant adduces new evidence in support of its allegations of denial of seafarers’ freedom of association and anti-union discrimination by detailing the case of Shwe Tun Aung. The Committee notes that the Government has not submitted any comments on this individual case.
39. 767. As concerns the question of freedom of association of seafarers, and in particular the representation of their interests by the Myanmar Overseas Seafarers’ Association, the Committee can only refer the Government to its previous conclusions on the welfare associations in general and the Myanmar Overseas Seafarers Association in particular. The Committee therefore requests the Government to explicitly recognize the right to organize of Myanmar seafarers in the forthcoming legislation. In the meantime, the Committee requests the Government to refrain from any acts preventing the free operation of any form of organized collective representation of seafarers, freely chosen by them to defend and promote their economic and social interests. Again, this request includes seafarers’ organizations which operate in exile and which cannot be recognized in the prevailing legislative context in Myanmar. Instructions should be issued to that end to governmental agencies in charge of seafarers’ working conditions. The Committee requests the Government to keep it informed in this regard.
40. 768. In addition, the Committee requests the Government to submit a detailed reply on the allegations relating to Shwe Tun Aung’s case, including any relevant documents to support its comments. With reference to the allegations that Shwe Tun Aung was requested to sign a contract under which he was forced to renounce his right to seek any assistance from the ITF and/or its affiliated parties, the Committee requests the Government to provide any contract or document signed or accepted by Shwe Tun Aung upon taking up his first assignment, as well as any document on the basis of which seafarers can currently take up their first assignment.
41. 769. The Committee trusts that the examination of the complaint will enable the Government of Myanmar to fulfil the general obligation to respect and realize freedom of association that it accepted upon becoming an ILO Member as well as the specific obligation deriving from its ratification of Convention No. 87. While the Committee and the Office will be at the disposal of the Government of Myanmar to provide for any assistance or guidance it may wish to have in this respect, any real and sustainable progress will only hinge on the willingness of the Government to fulfil its obligation as an ILO Member and, in particular, on its cooperation in the present procedure.