Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 378, Juin 2016

1. 467. The complaint is contained in a communication from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) dated 16 November 2015.
2. 468. The Government forwarded its response to the allegations in a communication dated 5 January 2016.
3. 469. Myanmar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 470. In a communication dated 16 November 2015, the complainant organization, IUF, alleges anti-union practices, including harassment, discrimination and dismissals of trade union members and officials, as well as interference in union activities, denial of access to workplace and attempts to dismantle the Bagan Hotel Union, carried out by the management of the Bagan Hotel River View (hereinafter, the hotel).
2. 471. The complainant indicates that the Hotel in the Mandalay Region is one of seven hotels owned by the KMA Group, a conglomerate with holdings in agriculture, forestry, shipping, mining, construction, energy, machinery, and auto sales among other activities. According to the complainant, in response to longstanding grievances, workers at the hotel formed and sought to register a union at the end of 2012 submitting the required registration materials with the Myingyan Labour Office. As there was no response for more than six months, the union again submitted the material and the Bagan Hotel Union was officially registered on 13 June 2013, 18 months after its initial application. Some 125 employees out of 170 staff became members. The Bagan Hotel Union is affiliated to the IUF.
3. 472. The complainant alleges that management responded to the formation of the union by harassing and discriminating its members and officers. As early as November 2013, the human resources manager of the company owning the hotel requested the union leaders to disband the union (evidence cited in the Naypyidaw Arbitration Council’s report of 6 May 2015), and older union members were told to no longer report for work despite the lack of a formal, written retirement policy. On 7 March 2015, management allegedly summoned the union executive to a closed, filmed meeting in a private hotel room guarded by hotel security and instructed them to disband the union and to sign resignation letters. Five union leaders who refused were immediately terminated. On 8 March 2015, the union leaders were denied entry to the workplace, and told that if they did not submit resignation letters they would have to sign blank papers. The dismissed union leaders were denied access to their members on the hotel premises, and continue to be denied access.
4. 473. The complainant indicates that, on 9 March 2015, the union formally wrote to the Township Conciliation Body, informing it of the dismissals and requesting its intervention. On 13 March 2015, a tripartite meeting was convened by the Township Conciliation Body at which a representative confirmed that the company owning the hotel wished the union to disband (statement recorded in the Naypyidaw Arbitration Council’s report of 6 May 2015). The competent government authorities are thus aware of the company’s consistent hostility to the presence of a union at the hotel and at its other hotels. According to the law, a tripartite mediation meeting under the auspices of the conciliation body should result in an agreement between union and management within three days. Ten days following the meeting, the union formally requested on 23 March 2015 the Mandalay Division Arbitration Body to act. As a result, the union learned that that the Township Conciliation Body had communicated to the Mandalay Division Arbitration Body (but not to the union or the company) a recommendation that the hotel reinstate the five dismissed union leaders.
5. 474. According to the complainant, on 31 March 2015, a meeting was convened with the Mandalay Division Arbitration Body, where the human resources manager of the company owning the hotel confirmed his wish to see the union disband (statement cited in the Naypyidaw Arbitration Council’s report of 6 May 2015). On 3 April 2015, the Mandalay Division Arbitration Body ordered management to reinstate all the dismissed union leaders after determining that there was no legal basis for their dismissal. In response, the company appealed the order to the Naypyidaw Arbitration Council. On 6 May 2015, the Arbitration Council reaffirmed the reinstatement decisions of the bodies which had previously ruled and ordered the hotel management to reinstate all five union leaders with full compensation and back wages (attached to the complaint). The Arbitration Council further ruled that the union leaders’ employment was protected under the Labour Organization Law, which also provides that decisions should be implemented within 30 days. However, the 2014 Act on the Application of Writs provides for a period of up to two years to appeal the decision.
6. 475. The complainant alleges that, on 8 May 2015, during the peaceful demonstration of some 70 hotel employees, union members and non-members, in front of the hotel for implementation of the reinstatement order, management informed staff that they would have to sign warning letters pledging not to join in any future protests, and that if they failed to sign their managers would sign, meaning that they had all received warnings for having engaged in peaceful protest activity.
7. 476. Furthermore, the complainant alleges that, on 4 June 2015, in a meeting with the union to discuss implementation of the Arbitration Council decision, management agreed to pay compensation and back wages and to rehire the workers at their former positions and salary for a period of six months. The workers would not, however, receive the customary payment based on distribution of the service charge, which is an important part of workers’ remuneration in Myanmar and in the region. Most importantly, they were told not to report for work, as the hotel had lodged an appeal to the Supreme Court based on the Application of Writs Act; management would then make a final decision on their employment status on the basis of the court decision. A management statement to that effect is included in the agreement, which the union leaders reluctantly agreed to sign on the understanding that the Supreme Court would provide further clarification on their employment status in a decision which should normally take only several months. After waiting several weeks to receive confirmation that the appeal had been submitted to the Court, the union investigated the matter and learned that no appeal had been filed, meaning that they had signed the 4 June agreement on the basis of false information.
8. 477. According to the complainant, on 16 June 2015, the union requested the Naypyidaw Labour Department Registrar to assist them in obtaining official reinstatement letters from the hotel, in accordance with the decision of the Naypyidaw Arbitration Council. On 18 June 2015, the hotel management, in order to formally comply with the order of the Naypyidaw Arbitration Council, offered reinstatement letters to the five dismissed union leaders, informing them that they would receive their basic monthly wages (without service charge and other remuneration) but were not to report to work. The union leaders continued to be denied access to their jobs and to their members. On 13 July 2015, the union formally wrote to the Nyaung U Township Conciliation Body, explaining that in the current situation, the union leaders were experiencing severe economic hardship due to the insufficiency of the basic salary, and that the union was unable to function as the leaders were denied access on-site to the members and could not hold meetings, collect dues or submit the required reports to the Government, and called on it to assist in securing their legally mandated reinstatement at their jobs. A meeting on 1 October 2015 between union and management representatives failed to yield any progress. On 4 November 2015, the union communicated to the IUF information received from the Deputy Labour Minister according to which the company had now appealed the reinstatement decision of the Naypyidaw Arbitration Council, which meant that the agreement signed by the union on 4 June 2015 was based on false information from management that an appeal had already been lodged with the Supreme Court.
9. 478. The complainant alleges that rights violations at the hotel continue. The union President and four executive members who were illegally dismissed are still denied access to their workplace and to their members. There are reports that applicants are being screened to determine potential union supporters, and older union members were again pressured to retire. The complainant denounces that government authorities have failed to implement and enforce the reinstatement orders in a way which offers meaningful protection to the union’s members and officers and would allow the workers in the establishment to effectively exercise their rights under Conventions Nos 87 and 98. This failure is compounded by a serious flaw in the legal system which gave management up to two years to appeal the reinstatement orders during which period the Government claims it cannot enforce official decisions. The Government’s failure in this regard creates a climate of impunity which allows violations of basic trade union rights to continue. Workers at the hotel continue to be victimized solely on account of their union membership and enjoy no legal protection in this regard. The unduly lengthy registration procedures observed in this case also discouraged workers from effectively exercising their rights (one-and-a-half years to obtain legal registration for the Bagan Hotel Union).
10. 479. Recalling that the ILO has a long history of involvement in the fight for the observance of international human rights standards in Myanmar, the IUF denounces that tourism in Myanmar is booming but tourism industry workers continue to be denied their basic rights.

B. The Government’s reply

1. 480. In a communication dated 5 January 2016, the Government indicates that the five workers of the Basic Labour Organization of Bagan Hotel including U Thein Shwe were dismissed as claimed on low service charge. Although the Conciliation Body in Nyaung Oo Township conciliated this case, the settlement could not be reached. Therefore, this case was referred to the Conciliation Body in Mandalay Region, which decided to reinstate the five workers including U Thein Shwe and to compensate interim period damages with the last payment (not including service charge). However, as the KMA Group was not satisfied with that decision, the Conciliation Body (Mandalay Region) referred the matter to the Arbitration Council, which decided in case No 25/2015 that: (i) the President of the union and four other officials were dismissed without having a legitimate reason for extraordinary dismissal and should therefore, be reinstated and compensated with full wage interim period damages as the last payment during the term of examination; and (ii) the employer should pay full compensation to the workers according to section 51 of the Settlement of Labour Dispute Act 2012. In accordance with the decision of the Arbitration Council, the employer paid the total amount of Kyats 4,613,599.70 including Kyats 1,548,599.70 for interim period damages and Kyats 3,065,000 for compensation to the workers by the witness of the Staff Officer of the Factories and General Labour Laws Inspection Department, Nyaung Go Township. In this case, the workers were compensated by the employer.
2. 481. However, regarding the reinstatement of workers, the Government observes that the workers and the employer concluded a contract with free consent on 4 June 2015. In its paragraph 3, it is stipulated that the employer agreed to grant the workers monthly pay of the original post and the five workers agreed to enjoy their salary by staying at home (without going to work (hotel)) while the writ is submitted to the Supreme Court of the Union (as the employer was not satisfied by the decision of the Arbitration Council) pending the rendering of its decision on this case. According to this agreement, the employer applied the writ case of 93/2015 to the Supreme Court of the Union on 4 August 2015. At present, this case is under process by the Supreme Court of the Union. The Government underlines that the employer and the workers concluded the contract to reach an agreement with free consent without fully complying with section 24(b) of the Settlement of Labour Dispute Act, which provides for “concluding mutual agreement if the settlement is reached in conciliating under subsection (a), before the Conciliation Body”.
3. 482. Moreover, the Government provides information concerning the registration process of the Basic Labour Organization of Bagan Hotel. The five executive committee members of the Bagan Hotel Labour Organization applied for registration of the union on 23 May 2013. After scrutinizing the application in accordance with the stipulation by the township registrar of the District Labour Exchange Office, Myingvan Township, the receipt of application to register as a labour organization was issued. According to the procedure, the application was forwarded to the Chief Registrar Office in Nay Pyi Taw on 27 May 2013. The Chief Registrar issued the recognizing Certificate for the Basic Labour Organization of Bagan Hotel with the registration No. Nyaung Go (Ancient Bagan)/Services (Hotel)/Basic (240/2013) on 1 July 2013 under the Labour Organization Law 2011. As it was issued within the time frame provided in the law, the allegation that it took 18 months to have the certification of the Basic Labour Organization of Bagan Hotel is not true.
4. 483. Lastly, the Government states that, in the present case, the Ministry of Labour, Employment and Social Security is taking action by supervising both parties (employers and workers) regarding the full incompliance (sic) with the decision of the Arbitration Council. Moreover, it is being solved by cooperating with the local labour federations in order not to have negative impacts on the benefits of workers. At present, it appears that a proper understanding of labour laws by workers and employers is still required. Awareness-raising activities on labour law will be conducted and the process of reviewing and amending labour laws is being implemented through social dialogue with the participation of tripartite representatives.

C. The Committee’s conclusions

1. 484. The Committee notes that, in the present case, the complainant organization alleges anti-union practices, including harassment, discrimination and dismissals of trade union members and officials, as well as interference in union activities, denial of access to workplace, attempts to dismantle the Bagan Hotel Union, carried out by the management of the Bagan Hotel River View (hereinafter the Hotel).
2. 485. The Committee notes, in particular, the complainant’s allegations that: (i) at the Hotel owned by the KMA Group, the newly formed union submitted the required registration material at the end of 2012 and resubmitted it after six months in the absence of response; the Bagan Hotel Union was registered on 13 June 2013, 18 months after its initial application; (ii) management responded to the formation of the union by harassing and discriminating against union members and officers, for instance by requesting in November 2013 union leaders to disband the union and older union members to no longer report for work despite the lack of a formal retirement policy and, in 2015 during the dispute settlement procedure, by repeatedly expressing the wish for the union to disband; (iii) on 7 March 2015, management summoned the union executive to a closed filmed meeting in a private hotel room guarded by hotel security, instructed them to sign resignation letters, immediately terminated five union leaders who refused and subsequently denied them access to the hotel indicating that if they did not submit resignation letters they would have to sign blank papers; (iv) on 9 March 2015, the union launched a procedure with the Township Conciliation Body; (v) in the absence of a response, the union referred the matter on 23 March 2015 to the Mandalay Division Arbitration Body, which, as recommended by the Township Conciliation Body, ordered management on 3 April 2015 to reinstate the dismissed union leaders after determining that there was no legal basis for their dismissal; (vi) following the company’s appeal, the Naypyidaw Arbitration Council reaffirmed, on 6 May 2015, the reinstatement of all five union leaders with full compensation and back wages within 30 days as provided by law; (vii) on 8 May 2015, during the peaceful demonstration of some 70 hotel employees, union members and non-members, in front of the hotel for implementation of the reinstatement order, management informed staff that they would have to sign warning letters pledging not to join in any future protests, otherwise their managers would sign, constituting a warning; (viii) on 4 June 2015, management agreed to pay compensation and back wages and to rehire the workers for a period of six months at their former positions and salary (without the customary payment based on distribution of the service charge), provided that they did not report for work, as the management had lodged an appeal with the Supreme Court in line with the Application of Writs Act (two-year time frame) and would await its judgment; the union leaders reluctantly agreed to sign since the Supreme Court would provide clarification on their employment status in a decision which should normally take only several months; the union subsequently learned that no appeal had been filed and that they had signed the agreement on the basis of false information; (ix) the management issued on 18 June 2015 reinstatement letters along the lines of the agreement and continued to deny access to the workplace; on 4 November 2015, information was received according to which the company had now appealed the reinstatement order to the Supreme Court; (x) rights violations at the hotel continued: the union officials were still denied access to the workplace; applicants were being screened to determine potential union supporters, older union members were again pressured to retire, and workers at the hotel continued to be victimized on account of their union membership; and (xi) the Government’s failure to enforce the reinstatement order was compounded by the two-year time frame for appeal under the Application of Writs Act during which period the Government claims it cannot enforce official decisions.
3. 486. The Committee also notes the Government’s indications that: (i) the five officials of the Basic Labour Organization at the Hotel including U Thein Shwe were dismissed as claimed on low service charge; (ii) the Conciliation Body in Nyaung Oo Township conciliated this case, but the settlement could not be reached; (iii) the case was referred to the Conciliation Body (Mandalay Region), which decided to reinstate them and to compensate interim period damages with the last payment (not including service charge); (iv) as the employer was not satisfied with that decision, the matter was referred to the Naypyidaw Arbitration Council (case No. 25/2015); (v) the Arbitration Council decided that the union President and four officials were dismissed without legitimate reason and should be reinstated and compensated with full wage interim period damages as the last payment during the term of examination, and that the employer should pay full compensation to the workers according to section 51 of the Settlement of Labour Disputes Act; (vi) accordingly, the employer paid the total amount of kyats 4,613,599.70 (US$3,920) – kyats 1,548,599.70 (US$1,315) for interim period damages and kyats 3,065,000 (US$2,605) for compensation; the workers were thus compensated by the employer; (vii) however, regarding their reinstatement, the parties concluded a contract with free consent on 4 June 2015 according to which the employer agreed to grant the workers monthly pay of the original post and the five workers agreed to enjoy their salary by staying at home (without going to work) while the writ is submitted to the Supreme Court of the Union (as the employer was not satisfied with the decision of the Arbitration Council) and a decision is rendered; (viii) in line with the contract, the employer appealed to the Supreme Court of the Union on 4 August 2015, and the case is under examination; (ix) in the Government’s view, the conclusion of the above contract is not in full compliance with section 24(b) of the Settlement of Labour Dispute Act, which provides for concluding mutual agreement if the settlement is reached in conciliating before the Conciliation Body; (x) the Ministry is taking action by supervising both parties regarding the full incompliance (sic) with the Arbitration Council’s decision and by cooperating with the local labour federations so as not to have negative impacts on the benefits of workers; awareness-raising activities on labour law will be conducted as it appears that a proper understanding by workers and employers is still required in this regard; and (xi) the allegation that the union registration process took 18 months is untrue, as the application was submitted by the union on 23 May 2013, and the certificate was issued on 1 July 2013 in line with the Labour Organization Law.
4. 487. Regarding the allegations concerning the registration procedure, the Committee observes that the dates of submission of the application for union registration indicated by the complainant (first submission end of 2012) and by the Government (23 May 2013) do not coincide. Noting that, according to the information provided by the complainant and the Government, the union was registered between mid-June and 1 July 2013, the Committee notes that the time between the alleged date of first-time submission of the application by the complainant and the union’s registration would add up to six months (and not 18 months), whereas the time between the submission date asserted by the Government and the union’s registration would be approximately one month in line with the Labour Organization Law. From the information at its disposal, the Committee is not in a position to ascertain the accurate date of submission of the application for union registration. It can only indicatively recall its view that a long registration procedure constitutes a serious obstacle to the establishment of organizations, that a period of one month envisaged by the legislation to register an organization is reasonable, and that, in case of a period of more than three months, the Committee had previously expressed regret that there was a delay in registering the union despite the fact that there were no apparent obstacles justifying the delay [see 238th Report, Case No. 1289 (Peru), para. 148].
5. 488. Regarding the allegations of anti-union discrimination, harassment and intimidation of union members and officials at the Hotel, the Committee notes the lack of Government response but does observe that, in addition to the dismissal of five union officials, the various acts alleged by the complainant (some of which are claimed to be recorded in the Arbitration Council’s report (in Burmese)), including the requests to withdraw from the union or to sign resignation letters, the repeated employer statements as to the desire to disband the union, and the requests for older union members no longer to report to work despite the lack of a retirement policy, have not been contested by the Government. The Committee generally recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. Since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities. Moreover, the Committee emphasizes that attempts by employers to persuade employees to withdraw authorizations given to a trade union could unduly influence the choice of workers and undermine the position of the trade union, thus making it more difficult to bargain collectively, which is contrary to the principle that collective bargaining should be promoted [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 771, 773, 793 and 863]. The Committee requests the Government to conduct an investigation into these allegations and if found to be true to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts are immediately ceased.
6. 489. Regarding the allegation that, after a peaceful demonstration of hotel employees, both union and non-union members, for the reinstatement of the union leaders, management again requested its workers to sign letters this time pledging not to join future protests and threatened that otherwise they would issue warning letters, the Committee notes that the Government does not respond to these allegations. Recalling generally that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Digest, op. cit., para. 133], the Committee requests the Government to carry out an investigation into these specific allegations and if found to be true to ensure an effective remedy, including sufficiently dissuasive sanctions, so that such acts do not recur.
7. 490. With respect to the alleged failure to enforce the decision of the Arbitration Council of 6 May 2015, the Committee observes that, according to the complainant, the Government refrained from enforcing the reinstatement order because it claims not to be able to do so during the two-year time frame for appeal to the Supreme Court under the Application of Writs Act, and that the Government states that the part of the award regarding compensation had been complied with but that as regards the part concerning reinstatement, a new agreement had been concluded between the parties on 4 June 2015. Noting the Government’s indication that the five workers have been fully compensated by the employer in accordance with the relevant part of the Arbitration Council’s decision, the Committee observes that the agreement concluded by the parties to the dispute subsequent to the arbitration award diverges from the terms of the award concerning their reinstatement (agreement for the employer not to pay the service charge and for the workers not to report to work). The Committee further notes that, while the Government states that the parties entered the contract of their own free will, the complainant alleges that the union concluded the contract based on the false information that the employer had appealed to the Supreme Court. Given that the employer, even if there was a delay, did indeed lodge an appeal at the latest two months later, the Committee is not in a position to conclude that the agreement of 4 June 2015 was based on false information. In these circumstances, the Committee welcomes the Government’s position to monitor the parties’ compliance with the award as modified by the agreement, to take measures to ensure that the workers’ benefits are not negatively impacted and to conduct awareness-raising activities to enhance workers’ and employers’ understanding of labour laws. Noting that the agreement is valid only until the Supreme Court renders its decision, the Committee expects that the final judgment in this case will be issued without delay and requests the Government to provide a copy of the judgment once it is handed down.
8. 491. As regards the five union officials that have been denied access to the hotel premises since their dismissal, thus affecting their union activities, the Committee recalls that, for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members. Governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization. Trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned [see Digest, op. cit., paras 1103, 1105 and 1106]. The Committee is therefore of the view that the agreement of 4 June 2015 modifying the reinstatement order of the Arbitration Council, by which the workers have agreed not to report for work, should not be understood as to preclude their right as trade union representatives to access the workplace in order to be able to carry out their representation function. The Committee requests the Government to take measures to bring the union and the employer together with a view to reaching agreement on the specific access of the union officials to the workplace so as to allow for the proper exercise of their functions, with due respect for the rights of property and management. It requests the Government to keep it informed of the progress made in this regard.
9. 492. In light of the above, the Committee wishes to generally recall that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The Committee has recalled the need to ensure by specific provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers. Similarly, the Committee emphasizes that the existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., paras 817, 818, 824 and 861]. The Committee asks the Government to review the relevant legislation, in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions. The Committee encourages the Government to avail itself of ILO technical assistance in this respect and invites it to give consideration to the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).