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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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