Industrial Relations in Myanmar and the Role of the new Legal

Report
1
The Republic of the Union of Myanmar

Population
Labour
Force
60 Millions(est.)
37 Millions

Labour Force Participation rate
66%

No. of Factories, Shops and
126127
Establishments

No. of workers
3.65 Millions
2
(1) The Employment and Training Act, 1950
(2) The Employment Restriction Act, 1959
(3) The Dock Workers (Regulation of Employment)
Act, 1948
(4) The Dock Labourers Act, 1934
(5) The Oilfields (Labourers and Welfare)Act, 1951
(6) The Factories Act, 1951
(7) The Payments of Wages Act, 1936
(8) Agricultural Workers Minimum Wages Act, 1948
3
(9)
(10)
(11)
(12)
(13)
(14)
(15)
Minimum Wages Act, 1949
The Leave and Holiday Act, 1951
The Shops and Establishments Act, 1951
The Workmen’s Compensation Act, 1923
The Social Security Act, 1954
The Employment Statistics Act, 1948
The Law Relating to Overseas Employment,
1999
(16) The Labour Organization Law (11.10.2011)
(17) The Settlement of Labour Dispute Law
(28.3.2012)
4



(1) The Law Defining the Rights and
Responsibilities of People’s
Workers in 1964
(2) The Trade Union Act, 1926
(11.10.2011)
(3) The Trade Disputes Act, 1929
(28.3.2012)
5




(1) Social Security Bill
(2) Minimum Wages Bill
(3) Employment and Skill Development Bill
(4) Workmen Compensation Bill
6

(1) Payment of Wages Act

(2) Factories Act

(3)
Leave and Holidays Act
7
 Constitution
Myanmar
29.5.2008.
of the Republic of the Union of
(2008) was promulgated on
Chapter I
Basic Principles of the Union Government
Section 24 The Union shall enact necessary laws
to protect the right of workers.
8
Section 354 Every citizen shall be at liberty in the
exercise of the following rights, if not contrary to the
laws, enacted for Union security, prevalence of law and
order, community peace and tranquility or public order
and morality;
(a) to express and publish freely their
convictions and opinions;
(b) to assemble peacefully without arms and
holding procession;
(c) to form associations and organizations;
9
Grounds for the Labour Organization
Law and the Settlement of Labour
Dispute Law




In conformity with the freedom of association and
protection of the right to organize convention
(C.87) ratified by Myanmar.
In harmony with the international practices.
The very first labour law Reform was done on the
Labour Organization law.
The Labour Organization Law was promulgated
on 11th October, 2011. But the law came into effect
on 9th March, 2012 by announcing the Notification
of the office of the President of Myanmar.
10


The Settlement of Labour Dispute
Law was already promulgated on
28th March, 2012 to accompany with
the Labour Organization Law(2011).
In the meantime the Law Defining
the Rights and Responsibilities of
People’s Workers (1964) was repealed
on 21st, November, 2011 just to make
the attraction especially for Foreign
Direct Investment(FDI).
11
Ratified by Parliament(Pyidaungsu Hluttaw)
Discussion and Debate by Bill Committees
in Parliament
Office of the President
The President signed the
Law
Submission to the Parliament
Cabinet of the Union Government
Promulgation of the
Law
Request the Legal Advise of the
Office of Attorney General
Consultation Meetings:
-Other Ministries
-Domestic Legal experts and ILO legal Experts
-Employers’ Organization / Labour Organization
Concerned Ministry
12







Number of Chapters = 14
Chapter I
Title, Enforcement and
Definition
Chapter II
Establishment of the Labour
Organizations
Chapter III
Registration
Chapter IV
Functions and Duties of the
Executive Committee
Chapter V
Rights and Responsibilities of the
Labour Organization
Chapter VI
Establishing and Expending of
Fund
Chapter VII
Duties of Employer
13

Chapter VIII

Chapter IX

Chapter X
Chapter XI
 Chapter XII
 Chapter XIII
 Chapter XIV

Duties and Powers of the
Chief Registrar
Application relating to the
Decision of the Chief
Registrar
Duties and Powers of the
Township Registrar
Lock-out and Strike
Prohibitions
Penalties
Miscellaneous
14

The Ministrial Notification on Rules for
the labour organization law was issued
on the date 29.2.2012. (8 Chapters and
43 Rules)
15
Myanmar Labour
Confederation
20% LFs
Labour Federation
10% R/S LOs
Region /State Labour
Organization
Township Labour
Organization
Support by not less
than (10) percent of all
workers
Basic Labour Organization
10% TLOs
10% , 2 BLOs
30 workers
and more
16
Relevant Counterparts
Region/State/
Township
Basic
Myanmar Labour
Confederation
Myanmar Employers’
confederation
Labour Federation
Employers’ Federation
Labour
Organization
Employers’
Organization
workers
Employers
17
Rights of Labour Organization
 Section 19 The labour organizations have the right to
send representatives to the Conciliation Body in settling
a dispute between the employer and the worker. Similarly,
they have the right to send representatives to the
Conciliation Tribunals formed with the representatives
from the various levels of labour organizations.
 Section 20 In discussing with the Government, the
employer and the complaining workers in respect of
worker's rights or interests contained in the labour laws,
the representatives of the labour organization also
have the right to participate and discuss.
18





Section 21
The labour organizations have the right
to participate in solving the collective bargains of the
workers in accord with the labour laws.
Section 29
The employer shall recognize the
labour organizations of his trade
organizations representing the workers.
as
the
Section 37,38,39 Right to Lock-out and Right to
Strike
The workers organization (Labour Organization) has the
right to strike but it must be done with the stipulations.
The employer has also the right to proceed lock-out.
19
Services



Public Utility Services
Services other than
Public Utility Services
Essential Services
Industrial Action
Lock-out Strike
14 days
14 days
14 days
3 days
X
X
20
 Section 41 Illegal Lock-out or illegal Strike
Essential services
Without permission of the relevant labour
federation
Failing to inform in advance
Not being relevant to labour affair
Not in conformity with submission in
advance (date, place, time, period, number
of participants)
Section 42
If it is an illegal lock-out or illegal
strike, it may be prohibited in accord with the existing
law. (Especially when it is likely that threat to the
law and order or acute national crisis can happen).
21
As of 2.6.2012, the registered labour
organization and employers’ organization are
as follows;
No. of labour organizations (30)
[One Myanmar Seamen’s
Federation and 29 basic labour
organizations. ]
No. of Employers’ Organizations
(10)

22
S/R
Factory / Industry/ Occupation
Number
1
Shoe Factory
1
2
Garment Factory
8
3
PVC Pipe Factory
1
4
Ceramic Tile Factory
1
5
Freight Handling
2
6
Cement Factory
1
7
Wood design (Teak) Factory
1
8
Metal Forging Factory
1
9
Construction
1
10
Mini Tractor Factory
1
11
Hotel
1
12
Trishaw
1
13
Farmers & Agriculture Workers
4
14
Mining Workers
1
15
Chemical Product Factory
1
16
Food Stuff Factory
2
17
Taxi Driver
1
Total No. of Organization
29
23
S/R
Service / Industry
Number
1
Oversea Workers Sending Agency
2
2
Garment
8
Total No. of Employers’ Organizations
10
24


The President of the Republic of the
Union of Myanmar signed the Law
on 28th, March 2012.
The Trade Disputes Act, 1929 was
also repealed.
25
Number of Chapters = 10
Chapter I
Title and Definition
Chapter II Formation of the Workplace
Coordinating Committee
Chapter III Formation of the Conciliation Body
Chapter IV Formation of the Dispute Settlement
Arbitration Body
 Chapter V Formation of Dispute Settlement
Arbitration Council
26
Chapter
VI
Settlement of Dispute
Chapter
VII
Confirmation, Amendment and
Effectiveness of Decision
Chapter
VIII
Prohibitions
Chapter
IX
Penalties
Chapter
X
Miscellaneous
27

The Ministrial Notification on Rules for
the Settlement of Labour Dispute Law
was issued on 26th April, 2012.
( 8 Chapters and 39 Rules)
28
Labour Dispute
Individual Dispute
Collective Dispute
Township Conciliation
Body
Township Conciliation
Body
Region/State Arbitration
Body
7 days
Competent Court
3 days
AG
7 days
Essential
Services
Industrial Action
(strike& lock out)
Arbitration Council
14days
7 days
Tribunal
Decision
29
Individual Dispute (Rights Dispute)

Parties
- The employer and worker or some
workers.

Subject
- The employment contract
- The collective Agreement
- Existing Labour Laws & Rules,
Regulations, Notification, ..etc.
30
Parties
Subject
The employer or
employers or
employer’s
organization
(Collective Labour)
workers or worker’s
organization
 working conditions
 the recognition of organizations
 the exercise of the recognized
right of their organizations
 relations between employer and
workers
31
Consequence
32




Section 3 In any trade in which more than 30
workers are employed, the employer shall
establish the Workplace Coordinating Committee.
The Committee will comprise of representatives
of workers and representatives of the employer.
(equal Vote)
One year TENURE.
Right to
Collective Bargaining
Conclusion of
Collective Agreement
33





Township level
Tripartite structure (11 Persons)
The secretary is the Township Labour Officer (TLO).
Time to conciliate 3 days.
Extension is also possible if both parties agree.
34




Rules
Rule10. The member of a Conciliation
Body:
(a) shall have attained 21 years of
age;
(b) shall have experience in labour
affairs;
(c) shall have good character.
35
36



Tripartite Formation ( 11 person )
- Government Representatives/ Public Interest
- 3 Employers’ Representatives
- 3 Workers’ Representatives
Self- administered Division
Self- administered Zone
37

Rule 14
(a)
(b)
(c )
Rules
The member of the Arbitration Body:
shall have attained 25 years of age;
(i)
if he is a Chairman, shall have
experience in work of legal
affairs or labour affairs;
(ii) if he is a person elected
from the list recommended
and submitted by the
employers’ organizations and
labour organizations, shall have
work experience;
shall have good character.
38
15 qualified person of Good Standing from
legal experts and experts in labour affairs
(Section 19)
 3 PANELS
(a) The first panel submitted by the Ministry
of Labour (5 persons)
(b) The second panel submitted by the
Employers’ Organizations (5 persons)
(c) The third panel submitted by the Labour
Organizations (5 persons)

39
Rules
Rule 20
 (a) shall have attained 35 years of age;
 (b) shall be a person who has experience in
work relating to legal affairs or labour
affairs or relevant work;
 (c) shall be a person who may carry out the
benefit of employer and worker fairly;
 (d) shall be a person who has good character.
40
Supreme Court
Litigation
decision
Arbitration Council
Arbitration -II
Industrial Action
(Strike/Lock-out)
decision
State/Region Arbitration Body
Township Conciliation Body
Arbitration - I
Conciliation
Workplace Coordinating Committee Negotiation
41
Central Trade Disputes Committee (CTDC)
(Final and No appeal
to Supreme Court )
Division Trade Disputes Appeal Committee
(DTDAC)
Township Trade Disputes Committee (TTDC)
Township Workers’ Supervisory Committee
(TWSC)
Arbitration
Concilitation
42
S/R
Year
No .of
No. of
Workers
Cases
involved
Cash Benefit
Kyats (In
Million)
FEC
USD
1
2009
395
5017
409.33
17016
-
2
2010
517
3921
40085.62
13299
1080
3
2011
679
8399
611.88
3795
2377
1591
17337
41106.83
34110
3457
Total
Source: Department of Labour and ( TWSC)
43
No .of
Workers
Involved
Cash
Benefits
Kyats (In
Million)
S/R
Year
TTDC
Cases
DTDAC
Cases
CTDC
Cases
1
2009- 2010
7
4
-
3
6.0
2
2010- 2011
4
2
2
16
24.5
3
2011- 2012
8
3
1
8
57.78
19
9
3
27
87.83
Total
Source: CTDC
44
S/R
Month /
2012
Number of
Factories
Number of
Workers
Involved
Claim
1
January
3
2427
Wages & Salaries, holidays
2
February
10
4357
Wages & Salaries
3
March
3
2909
Wages & Salaries
4
April
1
1329
Pay Roll Simplification
5
May
57
36810
Source: Department of Labour
Wages & Salaries
45




The Right to Organize and Collective
Bargaining (C.98)
The Collective Bargaining Convention (C.154)
Myanmar does not yet ratify C. 98 and C. 154
Recent establishment of labour organizations
means that they have the right to Collective
Bargaining.
46
 Collective Bargaining(CB) is a voluntary
process through which employers (or their
organizations) and trade unions ( or in their
absence workers representatives) discuss and
negotiate their relations and interaction at the
workplace, such as pay and other terms and
conditions of work.
 This process of bargaining aims to reach
mutually acceptable collective agreements.
47
 Important
recognition
conditions
of
the
right
for
to
effective
collective
bargaining are that workers’ organization are
independent and not under the control of
employers , or employer’s organization and
that the process of collective bargaining can
proceed without undue interference by the
authorities.
48
 All agreements in
writing
regarding working
conditions and terms of employment concluded between
an employer, a group of employer or one or more
employers’ organizations, on the one hand, and one or
more representatives workers’ organizations, or in the
absence of such organizations, the representatives of
the workers duly elected and authorized by them in
accordance with national laws and regulations, on the
other. (ILO/ 1996 , P.656)
49
The term “collective bargaining “ extends to all
negotiations which take place between an employer, a
group of employers or one or more employers'
organizations, on the one hand, and one or more workers'
organizations, on the other, for—
(a)
determining working conditions and terms of
employment; and/or
(b)
regulating relations between employers and
workers; and/ or
(c)
regulating relations between employers or
their
organizations and a workers’ organization or
workers' organizations. (ILO, 1996, P.93)
50


A. The right to collective bargaining is a
fundamental right endorsed by the members of the
ILO in joining the Organization, which they have an
obligation to respect, to promote and to realize, in
good faith (ILO Declaration on Fundamental
Principles and Rights at Work and its Follow-up).
B. Collective Bargaining is a right of employers and
their organizations, on the one hand, and
organizations of workers, on the other hand (firstlevel trade unions, federations and confederations);
only in the absence of these latter organizations may
representatives of the workers concerned conclude
collective agreements.
51



C. The right to collective bargaining should be
recognized throughout the private and public
sectors, and it is only the armed forces, the police
and public servants engaged in the administration of
the State who may be excluded from the exercise
thereof.
D. The purpose of collective bargaining is the
regulation of terms and conditions of employment, in
a broad sense, and the relations between the parties.
E. Collective Agreements should be binding. It
must be possible to determine terms and conditions
of employment which are more favourable than
those established by law and preference must not be
given to individual contracts
over collective
agreements, except where more favourable provisions
are contained in individual contracts.
52


F. To be effective, the exercise of the right to
collective bargaining requires that workers’
organizations are independent and not “under the
control
of
employers
or
employers’
organizations” and that the process of collective
bargaining can proceed without undue
interference by the authorities.
G. A trade union which represents the
majority or a high percentage of the workers in a
bargaining unit may enjoy preferential or
exclusive bargaining rights. However, in cases
where no trade union fulfils these conditions or
such exclusive rights are not recognized, workers’
organizations should nevertheless be able to
conclude a collective agreement on behalf of their
own members.
53


H. The principle of good faith in collective
bargaining implies recognizing representative
organizations, endeavouring to reach an
agreement, engaging in genuine and constructive
negotiations, avoiding unjustified delays in
negotiation and mutually respecting the
commitments entered into, taking into account the
results of negotiations in good faith.
I. In view of the fact that the voluntary nature of
collective bargaining is a fundamental aspect of the
principles of freedom of association, collective
bargaining may not be imposed upon the parties and
procedures to support bargaining must, in principle,
take into account its voluntary nature; moreover, the
level of bargaining must not be imposed unilaterally
by law or by the authorities, and it must be possible
for bargaining to take place at any level.
54

J. It is acceptable for conciliation and mediation
to be imposed by law in the framework of the
process of collective bargaining, provided that
reasonable time limits are established. However,
the imposition of compulsory arbitration in
cases where the parties do not reach agreement
is generally contrary to the principle of
voluntary collective bargaining and is only
admissible:
(1) in essential services in the strict sense
of the term (those whose interruption
would endanger the life, personal safety or
health of the whole or part of the
population);
55
(2) with regard to public servants engaged in
the
administration of the State;
 (3) where,
after
prolonged
and
fruitless
negotiations, it is clear that the deadlock
will not be overcome without an initiative
by
the authorities; and
 (4) in the event of an acute national crisis.
Arbitration which is accepted by both parties
(voluntary arbitration) is always legitimate.

56
1.
Labour Law awareness program should
be extended to reach all stakeholders.
2.
All stakeholders including employers,
workers
and
their
respective
organizations should abide by the law.
57
58
59

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