Section 7. Worker Rights
The law provides for the right of workers to form and join independent unions, bargain collectively, and conduct legal strikes. The law permits labor organizations to demand the reinstatement of workers dismissed for union activity, but it does not explicitly prohibit antiunion discrimination in the form of demotions or mandatory transfers, or offer protection for workers seeking to form a union. The law does not provide for adequate protections for workers from dismissal before a union is officially registered.
The law permits labor federations and confederations to affiliate with international union federations and confederations. Laws prohibit personnel of the defense services, armed forces, and police force from forming unions. Basic labor organizations must have a minimum of 30 workers and register through township registrars with the Chief Registrar’s Office of the Ministry of Labor, Employment, and Social Security (Ministry of Labor). Township labor organizations require at least 10 percent of relevant basic labor organizations to register; regional or state labor organizations require at least 10 percent of relevant township labor organizations. Each of these higher-level unions must include only organizations within the same trade or activity. Similarly, federations and confederations also require a minimum number of regional or state labor organizations (10 percent and 20 percent, respectively) from the next lower level in order to register formally.
The law provides for voluntary registration for local NGOs, including NGOs working on labor issues. Organizations that chose to register could reportedly face more restrictions, including requirements for prior approval from the government if they wished to make changes to organization objectives and activities after registration took place. Broader restrictions on freedom of assembly remained in place (see section 2.b.).
The law gives unions the right to represent workers, to negotiate and bargain collectively with employers, and to send representatives to a conciliation body or conciliation tribunal. The law permits unions to assist in individual disputes and individual employment agreements. The law does not contain detailed measures regarding management of the bargaining process, such as a duty to bargain in good faith, a period for bargaining, registration, or extension or enforcement of collective agreements.
The law provides for the right to strike in most sectors, with a majority vote by workers, permission of the relevant labor federations, and detailed information and three days’ advance notice provided to the employer and the relevant conciliation body. The law does not permit strikes or lockouts in essential services. In “public utility services” (including the transport; cargo and freight; postal; sanitation; information, communication, and technology; energy; petroleum; and financial sectors), lockouts are permitted with a minimum of 14 days’ notice provided to the relevant labor organizations and conciliation body. Strikes in public utility services require generally the same measures as in other sectors, but with 14 days’ advance notice and negotiation between workers and management before the strike takes place to determine maintenance of minimum service levels.
The law provides for a framework for the settlement of individual and collective disputes at the enterprise, township, regional, and national levels through conciliation or arbitration but lacks sufficient mechanisms for enforcement. Ministry of Labor Department of Labor Relations engaged the community on awareness activities surrounding the arbitration process to enforce these mechanisms, despite limited enforcement mechanisms. As part of this process, in December 2015 the Department of Labor Relations published a pamphlet in both English and local languages explaining the conciliation process and the various processes of settling disputes. They also planned to hold seminars for the conciliation body, arbitration body, and arbitration council to include employers, workers, and government representatives in Yangon, Mandalay, and Naypyidaw. Outside observers expressed concern that the process was lengthy and cumbersome and could pose obstacles to workers using it to resolve grievances. The law does not prohibit failure to respect an order of the arbitration council. Penalties for noncompliance with the settlement agreements called for in the law are low: 100,000 kyats ($75) or less than one year in prison. Some observers noted that the low penalty amounts combined with the lack of enforcement enabled some employers to ignore judgments by the arbitration and conciliation body and the provisions of settlement agreements. There were reports of employers appealing council decisions to the Supreme Court. The government reported that 96 percent of industrial disputes between March 2012 and December 2014 took place in Rangoon and that more than 50 percent came from the garment sector.
Labor groups reported their biggest challenge remained labor organizations’ inability to register at the national level, a prerequisite for entering labor framework agreements with multinational companies, due to the registration requirements under the law. In addition the ILO, labor activists, and media continued to report concerns that employers subsequently fired or created other forms of reprisal for workers who formed or joined labor unions.
Workers and workers’ organizations continued to report that they generally found the Ministry of Labor to be helpful in urging employers to negotiate, but there were consistent reports of employers ignoring the negotiated agreements or engaging in other forms of antiunion discrimination.
Media outlets reported far fewer allegations of dismissal, imprisonment, and beatings of workers for organizing activity than in years past.
On February 29, Myanmar Veneer and Plywood Private Ltd. terminated 128 workers in Sagaing after the workers reportedly demanded overtime pay and better working conditions. This action led to formation of an informal workers association, the Freedom Labor Organization, which organized a march demanding better pay and working conditions. Dozens of workers marched from Sagaing to Naypyidaw starting on April 29. Although police initially allowed the march to take place, as protesters neared the capital on May 18, media reports indicated that 200 police officers dispersed the protest and arrested 71 persons. Authorities released 20 without charge and 36 more on June 1 after dropping the original charges. As of October the remaining 15 persons–10 workers and five student sympathizers–remained in detention pending trial facing a range of charges under the penal code, including unlawful assembly, incitement, and rioting.
Laws prohibit all forms of forced or compulsory labor and provide for the punishment of persons who impose forced labor on others, but the government did not effectively enforce the law.
The law provides for criminal penalties for forced labor violations; penalties differ depending on whether the military, the government, or a private citizen committed the forced labor violation. Prosecution of military perpetrators occurs under either the military or penal code. Civilian perpetrators may be subject to administrative action or criminal proceedings under the penal code. The maximum penalty under the penal code is 12 months in prison; under the military code it is seven years in prison. International observers deemed the penalties sufficient to deter forced labor.
The government continued to implement the ILO action plan to eliminate forced labor even following its expiration in March, renewing this mechanism in November with the ILO. Both the military and the government responded to complaints logged by the complaints mechanism on an ad hoc basis during the lapse in the ILO mechanism. The ILO reported that it continued to receive reports indicating that the use of forced labor was decreasing overall, but the number of complaints of forced labor through the ILO complaints mechanism remained significant. Moreover, it noted that the government’s and military’s use of forced or compulsory labor of adults and children and the failure to hold perpetrators accountable remained a problem (see section 7.c.). As of September the ILO received an average of 25 complaints monthly, compared with 33 complaints monthly in 2014. The ILO attributed the continuing high rates of reporting to increasing awareness of the illegality of forced labor along with strong support networks provided by the ILO and civil society organizations and the continued low levels of public trust and confidence in the national justice system. The government completed a new negotiated framework with the ILO in November.
Reports of forced labor occurred across the country, including in cease-fire states, and the prevalence was higher in states with significant armed conflict. Forced labor continued, including forced portering, mandatory work on public infrastructure projects, and activities related to the military’s “self-reliance” policy. Under the self-reliance policy, military battalions are responsible for procuring their own food and labor supplies from local villagers–a major contributing factor to forced labor and other abuses. Some observers noted that forced labor practices were changing, resulting in a reported decrease in use of forced labor by the military and an increase in reports of forced labor in the private sector and by civilian officials. At the same time, international organizations reported that forced labor remained common in areas affected by conflicts.
The ILO received reports of forced labor in the private sector, including excessive overtime with or without compensation by workers at risk of losing their job and bonded labor. Domestic workers also remained at risk of domestic servitude. Forced labor on palm oil and rubber plantations or in jade and precious stone mines occurred. There were reports of forced child labor (see section 7.c.).
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
In January the government amended the 1951 Shops and Establishments Act and the 1951 Factories Act, banning the employment of children under the age of 14 and including special provisions for “youth employment” above 14. For instance, employees between the ages of 14 and 16 can work only in a “nonhazardous environment” and can work only up to four hours per day. Employees ages 16-18 must have a certificate to authorize them to carry out “work fit for an adult.” The law prohibits employees under 18 from working in a hazardous environment.
Trained inspectors monitored the application of these new regulations, including with regard to child labor, but a general lack of resources hindered inspectors deployed throughout the country. Inspectors from the Ministry of Social Welfare monitored child related cases at 25 Township Community on the Rights of the Child projects throughout the country. The Ministry of Labor worked with UNICEF on problems related to child protection and minimum age and worked with the ILO to address child labor. In 2014 the Ministry of Labor, with ILO support, established a child labor working group, chaired by the minister and composed of representatives from all government departments, the private sector, labor unions, and civil society. The government tasked a working group with drafting a national plan of action to implement ILO Convention 182 on the Elimination of the Worst Forms of Child Labor. On August 29, the government presented the findings of its 2015 Labor Force Survey, including statistics on child labor. In September the minister of labor, immigration, and population submitted a draft list of hazardous occupations for children to the National Tripartite Dialogue Forum for review, following its approval by a technical working group composed of multiple ministries.
The law provides criminal penalties for those found guilty of recruiting child soldiers, and the government continued making progress towards eliminating recruitment in the military of children (also see section 1.g.). The criminal penalties for military officials under martial law range from dismissal from service and imprisonment in civil prison to a fine of seven days’ pay. For civilians the Trafficking in Persons law outlines penalties for child recruitment from a minimum of 10 years to a maximum of life imprisonment. Penalties under the law and their enforcement for other child labor violations were insufficient to deter violations.
Child labor remained prevalent and highly visible. Children were at high risk, since poor economic conditions induced destitute parents to remove them from school after, and occasionally before, they completed compulsory education. In cities children worked mostly in the food-processing and light-manufacturing industries, as street vendors or refuse collectors, as restaurant and teashop attendants, and as domestic workers.
The Ministry of Labor worked with other ministries to collect better data on existing child labor and started a campaign directed at parents to raise awareness of the risks of child labor and provide information about other education options available to children. The ILO recently published its report on the demographics surrounding awareness of child labor in three areas of the country (Rangoon, the Ayeyarwady region, and Mon State). The Ministry of Labor used this information to create a more targeted awareness campaign and engaged with the Ministry of Education on two programs, one aimed at bringing children out of the workplace and putting them in school, and another to support former child soldiers in pursuit of classroom education or vocational training. As part of the new government’s “100 day plan,” the Labor Ministry launched vocational schools to train young workers for jobs in nonhazardous environments. The government coordinated its efforts with the ILO in an effort to benefit directly 3,600 children and 1,000 households with education, worker safety, and support services in the Mon, Ayeyarwady, and Rangoon target areas.
With few or no skills, increasing numbers of children worked in the informal economy or in the street, exposing them to drugs and petty crime, risk of arrest, commercial sexual exploitation, and HIV/AIDS and other sexually transmitted diseases (also see section 6, Children).
Children were vulnerable to forced labor in teashops, agriculture, and begging. In rural areas children routinely worked in family agricultural activities, occasionally in situations of forced labor.
While the government liberated child soldiers and reported disciplining military officials for recruiting them in some cases, reports indicated that members of the military continued to recruit and use children in military-related activities. Ethnic armed groups reportedly also continued to recruit child soldiers (see section 1.g.).
Labor laws and regulations do not specifically prohibit employment discrimination based on race, color, sex, religion, gender, political opinion, national origin or citizenship, social origin, disability, sexual orientation or gender identity, age, language, HIV-positive status or other communicable diseases, or social status.
There were reports government and private actors practiced anti-Muslim discrimination that impeded Muslim-owned businesses’ operations and negatively affected their ability to hire and retain labor, maintain proper working standards, and secure public and private contracts. There were reports of discrimination based on sexual orientation and gender identity in employment, including the denial of promotions and firing of LGBTI persons. Activists reported that job opportunities for many openly gay and lesbian persons were limited, and they noted a general lack of support from society as a whole. Activists reported that in addition to general societal discrimination, persons with HIV/AIDS faced employment discrimination in both the public and private sector, including suspensions and the loss of employment following positive results from mandatory workplace HIV testing.
e. Acceptable Conditions of Work
In September 2015 the government adopted an official minimum daily wage of 3,600 kyats ($2.70). The minimum wage covers a standard eight-hour workday across all sectors and industries and applies to all workers except for those in businesses with fewer than 15 employees. The announcement did not include any mention of overtime compensation, which, as was the case for the minimum wage, had been a contentious issue of debate over the previous two years between the government, employers, and workers. The National Tripartite Dialogue Forum was working through such questions, especially regarding overtime pay, through the end of the year. Estimates placed the national poverty income level at less than 1,000 kyats ($.75) per day.
On January 25, parliament passed the Payment of Wages Act. This law updates the 1936 law and requires employers to pay employees on the date the salary is due for companies with 100 employees or less. For companies with more than 100 employees, the employer is required to pay employees within five days from the designated payday. Also in January the government amended the 1951 Factories Act and the 1951 Shops and Establishments Act to mandate that overtime cannot exceed 12 hours per workweek and can exceed 16 hours in a workweek only on special occasions. The amendments also stipulate that an employee’s total working hours cannot exceed 11 hours per day (including overtime and a one-hour break) and applies to shops, commercial establishments, and establishments for public entertainment.
Recent legislation relating to occupational safety and health enacted in during the year included the Laws Relating to the Environment, Safety in the Use of Chemicals and Hazardous Substances, Boiler Act, and Electricity Act. The Labor Dispute Law stipulates the terms and conditions required for occupational safety, health, welfare, and productivity, but information is limited as to whether a worker can remove themselves from situations that endanger their health or safety without jeopardizing their employment.
The Ministry of Labor’s Factories and General Labor Laws Inspection Department oversees labor conditions in the private sector. Both resources and capacity constrained enforcement. In 2014 the ministry had 99 general labor law inspectors, 104 occupational safety and health inspectors, and 53 inspection offices for the country. While the inspectors had the technical knowledge, they did not have the equipment necessary to execute inspections properly. In certain sectors other ministries regulated occupational safety and health laws, for example the Ministries of Agriculture and Irrigation, Industries, Mines, and Health.
The law stipulates that disputes in special economic zones be settled in accordance with original contracts and existing laws. Under the 2013 Myanmar Special Economic Zone Law, the government appointed a labor inspector for each such zone and established zonal tripartite committees responsible for setting wage levels and monitoring the ratio of local and foreign labor.
On September 28-30, the government and ILO held the country’s second labor stakeholders forum under the auspices of the multipartner Initiative to Promote Fundamental Labor Rights and Practices in Myanmar. The forum brought together more than 200 participants from the public and private sectors to discuss labor rights and various labor problems, including addressing child labor, strengthening labor dispute settlement, and strengthening local capacity and institutions.
Enforcement of the laws generally took place in the government sector, but frequent violations occurred in private enterprises. The Union Parliament Joint Commission did not resume its work reviewing labor violations. Workers continued to submit complaints to relevant government agencies and the dispute settlement mechanism. Workers’ organizations alleged that government inspections were rare and often announced with several days’ notice that allowed factory owners to bring facilities–often temporarily–into compliance. Corruption and bribery of inspectors reportedly occurred.
The social security board covers all employees in companies with more than five employees, with the exception of six sectors (government, international organizations, seasonal farming and fisheries, construction, nonprofit organizations, and domestic work). In practical terms the board covered primarily industrial zones, the location of the majority of registered workers, and therefore supported less than 1 percent of individuals involved in workplace accidents or casualties. While the board provided hospitals and clinics, it did not keep independently verifiable statistics on accidents or workplace violations. Observers assumed workers in other sectors of the economy to have even less support, and no statistics on accidents or workplace violations were available.