Burma (Myanmar)

Relevant Legislation
Law relating to the Formation of Organisations, SLORC Law No. 6/88 of September 30, 19882

In Burma, labour unions, farmer unions and student unions were banned under the rule of General Ne Win, who seized state power in 1962.3

Definition/Legal Basis

Article 2(a) of the Law relating to the Formation of Organisations states:

[…] an organisation means an association, society, union, party, committee, federation, group of associations, front, club and similar organisation that is formed with a group of people for an objective or a programme either with or without a particular name.

Forming a Trade Union

Article 3 provides:

(1) Organisations shall apply for permission to form to the Ministry of Home and Religious Affairs according to the prescribed procedure.
(2) Organisations that have already been formed shall apply within thirty days from the promulgation of this Law.
(3) Organisations that are not permitted shall not form or continue to exist and pursue activities.

Furthermore, Article 5 states:

(a) The following organisations shall not be formed, and if already formed shall not function and shall not continue to exist:
(b) Organisations that are not permitted to register under The Political Parties Registration Law, 1988 or if permitted to register, the registration[s] of which have been cancelled by the Multiparty Democracy General Elections Commission;
(c) Organisations that attempt, instigate, incite, abet or commit acts that may in any way disrupt law and order, peace and tranquility, or safe and secure communications;
(d) Organisations that attempt, instigate, incite, abet or commit acts that may effect [sic] or disrupt the regularity of state machinery.

Relevant Legislation
Labour Organisation Law (the Pyidaungsa Hluttaw Law No. 7/2011)

Definition/ Legal Basis

Article 2(c) of the 2011 Labour Organisation Law defines a trade or activity thus:

[…] (a) State-owned or private-owned factory, workshop, establishment and their production business, construction business, renovation business, industry, transportation business, service business or any other vocational works in the Republic of the Union of Myanmar. This expression also includes Government departments and Organisations.

Article  2(h) states that labour organisation, ‘means the Basic Labour Organisation, Township Labour Organisation, Region or State Labour Organisation, Labour Federation and Myanmar Labour Confederation formed under this Law.’

Forming a Trade Union

According to Article 7:

(a)    The Executive Committee of the Basic Labour Organisations shall be elected and formed with at least five members or any higher odd numbers’.
(b)    The Township Labour Organisation, Region or State Labour Organisation and the Labour Federation shall form its executive committee with “odd” number(s) from a minimum of 7 to a maximum of 15 members.
(c)    The Myanmar Labour Confederation shall be formed with “odd” number(s) of executive committee members from a minimum of 15 to a maximum of 35 members.

Article 4 of the new Law provides:

In forming the various levels of labour organisation(s) to enable to carry out (sic) the interest(s) of the workers and employers:

(a)

i.    Basic Labour Organisations may be formed by a minimum number of 30 workers working in the relevant trade or activity according to the category of trade or activity. If it is a trade or activity having less than 30 workers, it may form so jointly with any other trade of the same nature;
ii.    In so forming, it shall be recommended by not less than 10 percent of all workers of the relevant trade or activity.

(b)     Township Labour Organisations may be formed if it is recommended by not less than 10 percent of all Basic Labour Organisations in the relevant township according to the category of trade or activity;
(c)     Region or State Labour Organisations may be formed if it is recommended by not less than 10 percent of all Township Labour Organisations in the relevant Region or State according to the category of trade or activity;
(d)    Labour Federation may be formed if it is recommended by not less than 10 percent of all Region or State Labour Organisations according to the category or trade or activity;
(e)    Myanmar Labour Confederation may be formed if it is recommended by not less than 20 percent of all Myanmar Labour Federations according to the category of trade or activity.

Furthermore, Article 10 of the new legislation provides:

The relevant labour organisation shall, subject to the provisions contained in this Law, draw the constitution of rules of the labour organisation containing the following facts with the approval of the majority of its members:

(a)    name of the labour organisation;
(b)    object of the formation of (the) labour organisation;
(c)    matters relating to scrutinising the membership of (the) labour organisation, granting membership, issuing recognition certificate, resigning   from the membership of (the) labour organisation;
(d)    matters relating to the establishment of the fund, maintaining and expending of such fund;
(e)    matters relating to (the) holding of meeting(s);
(f)    matters relating to (the) monthly and annual auditing of the fund.

According to Article 11 of the new Law, the executive committee of any trade union ‘shall submit to the relevant township registrar in accord (sic) with stipulation(s), attached with the rules of its organisation and register as (a) labour organisation according to the category of trade or activity’.  New trade unions must also submit their constitution – and the form signed by executive committee members demonstrating that they have agreed to the constitution - to the Labour Federations and Myanmar Labour Confederation, pursuant to Article 12 of the new Labour Organisation Law.

Article 15 states:

If it is desirous to join between a labour organisation and another which has registered according to the category of trade or activity or re-secession from the labour organisation joined, it shall be applied to the relevant township registrar, in accordance with the rules of the labour organisations and at least with the approval of (the) majority of the total members of the relevant executive committee.

Membership

Article 3 of the new Labour Organisation Law, provides:

Every worker, who has attained the age prescribed in respective (sic) existing law to work in any trade or activity shall have the right to:

(a)    join as a member in a labour organisation and to resign from a labour organisation according to their own desire;
(b)    join as a member only in a labour organisation formed according to the category of trade or activity relating to them.

Article 8 of the new Burmese legislation provides that ‘employers may organise in parallel structures under this Law’.

Unions’ Rights / Roles


Article 16 of the new legislation outlines the functions and duties of the executive committee of a trade union, which include:

(a)    to represent the workers;
(b)    to carry out activities in protecting the rights and interests of the workers;
(c)    to develop knowledge relating to the functions and duties of workers;
(d)    to provide job training and skill(s)-training with a view to the emergence (sic) of workers with improved qualification(s) which supports the development of productivity;
(e)    to undertake all activities designed to benefit the organisation and its members including (forming) cooperative(s), housing, welfare and similar purposes.

Article 3 of the new Labour Organisation Law, stipulates that a trade union (labour organisation), ‘shall have the right to carry out under its own name and common seal and perpetual succession and the right to sue and be sued’. Article 6 further provides that the Myanmar Labour Confederation and the Labour Federation are entitled to make mutual contact with other organisations or other Labour Federations formed in accord (sic) with law, International Labour Organisation and the Labour Confederations or Federations of any foreign country and to affiliate with international labour confederations and federations’.

Article 13 of the new Law stipulates that the executive committee is responsible for maintaining the funds of the trade union, and Article 14 states:

The executive committee shall prepare and keep the monthly accounts and annual accounts of the funds collected monthly, other funds and expenditure accounts and send the annual statement of the accounts of (the) labour organisation whenever the financial year ends, to the relevant township registrar and annual statement of the accounts of Myanmar Labour Confederation and the Labour federations to the Chief Registrar without fail.

According to Article 17:

The labour organisations shall have the right to carry out freely in drawing up their constitution and rules, in electing their representatives, in organising their administration and activities or in formulating their programmes. The Labour Organisations have the right to negotiate and settle with the employer if the workers are unable to obtain and enjoy the rights of the workers contained in the labour laws and to submit demands to the employer and claim in accord (sic) with the relevant law if the agreement cannot be reached.

Article 18 of the new Law further provides that labour organisations:

[…] have the right to demand the relevant employer to re-appoint a worker if such worker is dismissed by the employer and if there is cause to believe that the reasons of such dismissal were based on labour organisation membership or activities, or were not in conformity with the labour laws.

Article 19 stipulates that labour organisations have the right to send representatives to the Conciliation Body or Tribunals in order to settle disputes, and Article 20 also provides that they have the right to participate in discussions with Government in respect of workers’ rights or interests as contained in the country’s labour laws.  Article 21 additionally grants trade unions the right ‘to participate in solving the collective bargains of the workers in accor (sic) with the labour laws’.

Pursuant to Article 23, labour organisations ‘shall assist in making agreements relating to (the) management of works (sic), individual employment agreements, bonds and other individual agreements between the employer and the workers’.

Furthermore, Article 25(a) outlines the trade union’s right to establish a fund, in accordance with their constitution or rules of their organisation, ‘with admission fees for the labour organisation, monthly contribution(s) not exceeding two percent of the wages or salary obtained by the worker who is a member of the organisation , income from the cultural and sports works which are undertaken by the labour organisation and the money donated by the relevant employer’; (b) that they ‘shall deposit to the fund if money is included in the grants provided by the Government’; and (c) shall ‘abide by the provisions of the Control of Money Laundering Law.

Protection of Trade Union Freedom

Under Article 29, employers must recognise the labour organisations of ‘his trade as the organisations representing the workers’. Moreover, Article 18 of the new 2011 Labour Organisation Law states that a labour organisation (trade union) ‘has the right to demand the relevant employer to re-appoint a worker if such worker is dismissed by the employer and if there is cause to believe that the reasons of such dismissal were based on labour organisation membership or activities, or were not in conformity with the labour laws’.

Article 30 states that employers:

[…] shall allow the worker who is assigned any duty on the recommendation of the relevant executive committee to perform such duty not exceeding two days per month unless they have agreed otherwise. Such period shall be deemed as if he is performing the original duty of his work.

Article 31 further states:

The employer shall assist as much as possible if the labour organisations request for help for the interest of his workers. However, the employer shall not exercise any acts designed to promote the establishment or functioning of labour organisations under his domination or control by financial or other means.

Moreover, Article 49 states: ‘no person shall coerce, threaten, use undue influence or seduce by illegal means any worker to participate or not to participate in a labour organisation.’ Article 50 additionally prohibits persons from interfering or obstructing the executive committee from performing its duties and powers, as outlined in the new Labour Organisation Law.

Finally, Article 56 stipulates that: ‘The Union Government may provide assistance to a labour organisation as appropriate. However, the right of labour organisation(s) to carry out activities independently according to law shall be regarded.

Endnotes
1 Law relating to the Formation of Organisations, SLORC Law No. 6/88, 30/09/1988, available at http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_ country=MMR&p_classification=02&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY (accessed 28/09/11).
2 Ibid.
3 Kyaw Thein Kha, Burma Rejects Labor Application, The Irrawaddy, 24/06/2010, available at http://www.irrawaddy.org/print_article.php?art_id=18796 (accessed 12/10/2011).