Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Myanmar (Ratification: 1955)

Follow-up to the recommendations of the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

The Committee recalls that last year it noted the establishment of a Commission of Inquiry concerning the non-observance by Myanmar of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and indicated that it would resume its examination of the application of the Convention once the Commission had completed its mandate. The Committee notes the detailed report issued by the Commission of Inquiry on 4 August 2023, which was noted by the Governing Body at its 349th Session (November 2023).

The Committee notes that the Commission of Inquiry highlighted the interdependence and complementarity between this Convention and the Forced Labour Convention, 1930 (No. 29) and the importance of taking this into account in the implementation of its recommendations. The Committee shares the views of the Commission that freedom of association lies at the heart of democracy and the rule of law and is a prerequisite for social dialogue, collective bargaining and tripartite cooperation.

The Committee notes that in its report the Commission of Inquiry concluded that the various measures imposed by the military authorities, including the labour authorities under their control, in combination with the climate of complete insecurity and constant threats to trade union leaders and members, resulted in far-reaching restrictions on the specific trade union rights set out in Convention No. 87 (paragraphs 520–594). In particular, the Commission of Inquiry concluded:

• that multiple and wide-spread actions of the military authorities constitute severe impediments to the exercise of the following civil liberties, all of which represent a sine qua non for the exercise of freedom of association: the right to life, security and the physical and moral integrity of the person; freedom from arbitrary arrest and detention; freedom from cruel and inhumane treatment; the right to a fair trial and due process of law; freedom of movement; freedom of assembly; freedom of opinion and expression; and the protection of the private property of trade union leaders and members.
• that there currently exist serious practical obstacles to the establishment of workers’ organizations without previous authorization, including a lengthy registration procedure, the use of bribes to discourage registration or for registration, pressure from the labour authorities to return registration certificates, an environment of union-busting in the private sector and a lack of recourse to independent authorities to challenge restrictions on registration, contrary to Article 2 of the Convention.
• that the military authorities have interfered in the freedom of unions to elect their leadership, including in the particular case of the Confederation of Trade Unions of Myanmar (CTUM); that the right to strike, as an essential means for workers to defend their interests, has been severely limited since the coup, both as a result of military orders restricting assemblies of more than five persons in public spaces and because of the significant risks and repercussions faced by strike participants, contrary to Article 3 of Convention No. 87; and that the right of workers’ organizations to freely organize their administration, activities and programmes is further inhibited by the climate of violence and intimidation of trade union leaders and members, resulting from their persistent stigmatization and prosecution.
• that the military authorities’ declaration of 16 trade unions and civil society organizations as not being registered legally in accordance with the Labour Organization Law (LOL) is contrary to Article 4 of the Convention.

The Committee also notes that based on the above-mentioned findings, the Commission of Inquiry urged the military authorities to (paragraph 643):

• (a) immediately cease all forms of violence, including gender-based violence, torture and other inhumane treatment against trade union leaders and members and other persons in relation to the exercise of legitimate workers’ or employers’ activities, including ethnic, religious and other minorities; this includes, in particular, violence perpetrated in the context of the suppression of peaceful public protests and demonstrations, at the time of arrests, during detention, as well as military attacks against civilian infrastructure, which all together create a climate of violence and terror that undermines the effective exercise of freedom of association;
• (b) unconditionally and without delay release all trade unionists arrested, sentenced and detained in relation to the exercise of their civil liberties and legitimate trade union activities, including those that have been arrested, sentenced and detained for having expressed opinions critical of the military authorities, or for having participated in, or organized, peaceful protests or otherwise peacefully demonstrated opposition to the military authorities following the coup d’état;
• (c) withdraw all criminal charges pending against trade unionists and others peacefully exercising their civil liberties in relation to legitimate trade union activities; and immediately stop all forms of intimidation, threats, stigmatization, harassment and surveillance of trade unionists and their families, as well as attacks against and destruction of trade union premises and property;
• (d) revoke any military orders or other measures, including those of a legislative nature, decreed since February 2021 and identified as restricting freedom of association and the basic civil liberties of trade unionists; and fully restore the protection of the basic civil liberties necessary for the exercise of freedom of association that have been suspended or restricted, including freedom from arbitrary arrest and detention, the right to a fair trial by an independent and impartial tribunal, freedom of assembly, opinion and expression and the protection of private property;
• (e) cease all disproportionate or arbitrary punitive measures against those peacefully exercising their civil liberties in calling for the return to democratic rule in which their freedom of association rights could be fully exercised;
• (f) revoke the withdrawal of citizenship and return travel documents to the trade union leaders and members concerned without delay;
• (g) stop any form of interference in the establishment, administration and functioning of trade unions at all levels, including interference in the election of trade union leadership, labour dispute resolution, conduct of collective action and administrative dissolution or suspension of trade unions; and
• (h) refrain from taking any action and measures or issuing statements that condone, facilitate or encourage union-busting, interference and other abuses of trade union rights by private and public employers.

The Committee notes the recommendation of the Commission of Inquiry that the military and the authorities under its control should immediately cease or reverse any measures or actions that violate Myanmar’s obligations under the Convention.

The Committee further notes that the Commission of Inquiry, observing that genuine implementation of the Convention will require the return to a civilian government, fully democratic institutions and the rule of law, formulated additional recommendations addressed to Myanmar to be implemented as soon as there is a return to democratic rule (paragraphs 645–647 and 649).

The Committee notes that in a communication dated 29 September 2023, the military authorities indicated to the Governing Body that Myanmar’s position regarding the Commission of Inquiry‘s recommendations would be communicated within three months.

The Committee deeply deplores the reports of the continuing grave violations of the basic civil liberties of workers and employers committed by the military authorities. It notes with deep concern that the Commission of Inquiry has only confirmed the deepest concerns it had previously expressed and has not been able to observe any positive steps to ensure the application of the Convention. The Committee strongly urges the military authorities to immediately implement the Commission of Inquiry’s recommendations and to provide a detailed report on the steps taken in this regard, as well as on all the detailed requests set out in its 2021 comment.