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The New Legal Framework (Labour Organization Law, Industrial Dispute Settlement and Collective Bargaining)

by Dr.Than Win

Director-General Department of Labour Relations

MINISTRY of LABOUR

The Republic of the Union of Myanmar

Population 60 Millions(est.)

Labour Force 37 Millions

Labour Force Participation rate 66%

No. of Factories, Shops and 126127

Establishments

No. of workers 3.65 Millions

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(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

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Existing Labour Laws

(9) Minimum Wages Act, 1949(10) The Leave and Holiday Act, 1951(11) The Shops and Establishments Act, 1951(12) The Workmen’s Compensation Act, 1923(13) The Social Security Act, 1954(14) The Employment Statistics Act, 1948(15) 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)

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(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)

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Repealed Acts

(1) Social Security Bill (2) Minimum Wages Bill (3) Employment and Skill Development Bill (4) Workmen Compensation Bill

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Bills on progress

(1) Payment of Wages Act

(2) Factories Act

(3) Leave and Holidays Act

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Laws to be amended

Constitution of the Republic of the Union of Myanmar (2008) was promulgated on 29.5.2008.

Chapter IBasic Principles of the Union Government

Section 24 The Union shall enact necessary laws to protect the right of workers.

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Labour Law Reform(2008-2012)

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

Chapter VIIICitizen Fundamental Rights and Duties of the Citizens

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.

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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).

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Drafting & Promulgation Process for a Labour Law

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Ratified by Parliament(Pyidaungsu Hluttaw)Office of the President

Discussion and Debate by Bill Committees in Parliament

Submission to the Parliament

Cabinet of the Union Government

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

The President signed the Law

Promulgation of the Law

The Labour Organization LawNumber of Chapters = 14

Chapter ITitle, Enforcement and Definition Chapter II Establishment of the Labour Organizations Chapter IIIRegistration Chapter IVFunctions and Duties of the Executive Committee Chapter V Rights and Responsibilities of the Labour Organization Chapter VIEstablishing and Expending of Fund Chapter VII Duties of Employer

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Chapter VIII Duties and Powers of the Chief Registrar

Chapter IX Application relating to the Decision of the Chief

Registrar Chapter X Duties and Powers of the Township Registrar Chapter XI Lock-out and Strike Chapter XII Prohibitions Chapter XIII Penalties Chapter XIV Miscellaneous

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The Ministrial Notification on Rules for

the labour organization law was issued

on the date 29.2.2012. (8 Chapters and

43 Rules)

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Number of sections = 58

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Features of Labour Organization Law (2011)Formation

Myanmar Labour Confederation

Labour Federation

Region /State Labour Organization

Township Labour Organization

Basic Labour OrganizationSupport by not less

than (10) percent of all workers

30 workers

and more

10% TLOs

10% , 2 BLOs

10% R/S LOs

20% LFs

Relevant Counterparts

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Section 8 The employers may organize in parallel structure under this law.

Labour Federation Employers’ Federation

Labour Organization

Employers’ Organization

workers Employers

Region/State/Township

Basic

Myanmar Labour Confederation

Myanmar Employers’ confederation

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.

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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 as the organizations representing the workers.

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

Right to Collective Bargaining

Services Industrial Action

Lock-out Strike Public Utility Services 14 days

14 days Services other than 14 days 3

days Public Utility Services Essential Services X

X 20

Notification Period for Lock-out & Strike

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)

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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

29 Basic Labour Organizations

S/R Service / Industry Number1 Oversea Workers Sending Agency 22 Garment 8

Total No. of Employers’ Organizations 10

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10 Basic Employers’ Organizations

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.

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The Settlement of Labour Dispute Law

The Settlement of Labour Dispute LawNumber of Chapters = 10

Chapter ITitle and DefinitionChapter II Formation of the Workplace Coordinating CommitteeChapter III Formation of the Conciliation BodyChapter IV Formation of the Dispute Settlement Arbitration Body Chapter V Formation of Dispute Settlement Arbitration Council

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Chapter VI Settlement of Dispute

Chapter VII Confirmation, Amendment and

Effectiveness of Decision

Chapter VIII Prohibitions

Chapter IX Penalties

Chapter X Miscellaneous

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The Ministrial Notification on Rules for the Settlement of Labour Dispute Law was issued on 26th April, 2012. ( 8 Chapters and 39 Rules)

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Number of sections = 60

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Labour Dispute Resolution System (Flowchart)

Labour Dispute

Individual Dispute Collective Dispute

Township Conciliation Body

Region/State ArbitrationBody

AG3 days

Industrial Action(strike& lock out)

Arbitration Council

7 days

Tribunal

7 days14days

Township Conciliation Body

Competent Court EssentialServices

7 days

Decision

Types of labour disputes

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.

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Subject

Parties

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Collective Dispute (rights dispute or interest dispute)

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

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- the dispute could jeopardize the operation

of the work and social peace

- by taking long industrial action it may lead

to the threat to law and order stability or

social and economic crisis to the workers

as well as to the State.

Consequence

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 Conclusion of Collective Bargaining Collective Agreement

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Workplace Conflict Management

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.

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Section 10 Formation of Conciliation Body

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.

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Qualification of members of Conciliation Body

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Section 14 Township Special Conciliation Body can be established for Special Economic Zones (SEZ).

Tripartite Formation ( 11 person ) - Government Representatives/ Public Interest - 3 Employers’ Representatives - 3 Workers’ Representatives Self- administered Division Self- administered Zone

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Region/ State Dispute Settlement Arbitration Body

Rules Rule 14 The member of the Arbitration Body:

(a) shall have attained 25 years of age;(b) (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;

(c ) shall have good character.

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Qualification of members of Arbitration Body

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)

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Arbitration Council

RulesRule 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.

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Qualification of members of Arbitration Council

Negotiation41

Labour Dispute Resolution Process(complete)Supreme Court

Arbitration Council

State/Region Arbitration Body

Township Conciliation Body

Workplace Coordinating Committee

Industrial Action (Strike/Lock-out)

Litigation

Arbitration -II

Arbitration - I

Conciliation

decision

decision

Former Labour Dispute Resolution System

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Division Trade Disputes Appeal Committee (DTDAC)

Central Trade Disputes Committee (CTDC)

Township Workers’ Supervisory Committee (TWSC)

(Final and No appeal to Supreme Court )

Township Trade Disputes Committee (TTDC) Arbitration

Concilitation

Cases of Labour Disputes (2009-2011)

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S/R Year No. of Cases

No .of Workers 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

Total 1591 17337 41106.83 34110 3457

Source: Department of Labour and ( TWSC)

Cases that are decided by the Trade Disputes Committee (2009-2012)

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S/R Year TTDCCases

DTDACCases

CTDCCases

No .of Workers Involved

Cash Benefits Kyats (In Million)

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

Total 19 9 3 27 87.83

Source: CTDC

Recent Labour Disputes in the Year 2012

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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 Wages & Salaries

Source: Department of Labour

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.

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Collective Bargaining

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.

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Collective Bargaining (Definition)

Important conditions for effective

recognition of the right to 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

Collective Agreement (R. 91)

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)

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Collective Bargaining (C.154 , Art.2)

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 (first-level trade unions, federations and confederations); only in the absence of these latter organizations may representatives of the workers concerned conclude collective agreements.

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ILO principles concerning collective bargaining

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.

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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.

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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.

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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);

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(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.

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Suggestions/ Recommendations

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.

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3. In order to have a good industrial relation tripartite conference, workshops and seminar should be held as a regular basis. 4. To have an effective collective bargaining and then to conclude a collective agreement that is legally binding to both parties, the relevant policy adoption concerning rules and regulations should be done as necessary.

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Thank You