Informe definitivo - Informe núm. 295, Noviembre 1994

Caso núm. 1752 (Myanmar) - Fecha de presentación de la queja:: 17-DIC-93 - Cerrado

1. 87. In a communication of 17 December 1993, the International Transport Workers' Federation (ITF) submitted a complaint of infringements of trade union rights against the Government of Myanmar. It sent additional information relating to its complaint in a communication of 21 March 1994.
2. 88. The Government supplied its observations on the case in a communication dated 6 June 1994.
3. 89. Myanmar has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); it has not ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 90. In its complaint of 17 December 1993, the ITF alleges that the Government has committed flagrant violations of human and trade union rights through its oppression of Myanmar seafarers serving on foreign flagships. The intimidation and abuse of these seafarers is the direct result of their having accepted assistance from the ITF to improve their wages and working conditions.
2. 91. The ITF explains that its complaint is based on information which has been collated from sources which include the ITF affiliated Seafarers' Union of Burma (SUB), which operates in exile in Thailand and is in regular contact with the ITF, and ITF inspectors worldwide who over the past few years have intervened on behalf of Myanmar seafarers on numerous occasions. The ITF points out that many Myanmars are forced by poverty to take jobs at sea and around 30,000 are currently registered with the Seamen Employment Control Division (SECD) which operates under the auspices of the Department of Marine Administration. This agency in turn comes under the responsibility of the Ministry of Transport and Communications. The Government therefore has, through the SECD, total control over the placement of all Myanmar seafarers. Myanmar seafarers have to work with whatever pay and conditions the flag-of-convenience ships offer and before boarding a ship they are required to sign a contract saying that they will not contact the ITF. The complainant attaches an example of such a contract (see Annex 1). In the event that Myanmar crew members do receive an ITF settlement, they are required to pay the money back to the SECD (even if the ITF's intervention was requested by non-Myanmar members of the crew). If they refuse, their registration is revoked, passports confiscated and they face the threat of imprisonment. In at least one case of ITF intervention, the Myanmar crew of a flag-of-convenience ship were told that their families would be hurt if the action was not called off.
3. 92. The ITF then goes on to describe in detail certain case histories as evidence to support its allegations. The MV Albatross incident, which occurred in March 1987, involved the 22 Myanmar crew of the Maltese-flag Albatross. The Myanmar crew members sailing on the Albatross were being paid in line with the agreement the SECD had signed with the manning agent (i.e. US$200 per month for the Able Seamen (AB) as opposed to the ILO recommended minimum, at that time, of $286). Their December salary was paid three months late and minus overtime. Thereafter they only received cash advances representing a fraction of their true entitlement. Living conditions on board were appalling - they were rationed to only 15 minutes of fresh water for washing and bathing every five days, and were provided with the barest minimum of food to survive. Only 2.5 kg of meat were spread between the 22 Myanmar crew. The rice was not full grain but of the type usually used to feed livestock rather than humans. the men also had serious worries about the overall safety of the ship. There was only one nine-year-old radio receiver working and the medical chest was almost empty in breach of international standards.
4. 93. The Myanmars were also maltreated by the master and were physically assaulted and threatened to the extent that many of the crew genuinely believed their lives were in danger. These horrendous conditions eventually drove the crew to seek help in March 1987 when their ship docked near New Orleans in the US. They contacted ITF Inspector John Sansone (from the International Longshoremen's Association - ILA), and told him that they had activated the grievance procedure outlined in their contract and were waiting for a response. On 18 March 1987, when a response to their complaints had not been forthcoming, they went on strike. The men made their own ITF banners, which they hung on the side of the ship. The owners' representative, from Seaworld Management and Trading Inc. in Greece, appeared on the scene and promptly tried to bribe the ITF inspector. He told Sansone that he would pay for a trip for him to go away while the ship slipped quietly out of port. When this approach failed, the owners' representative tried to take the ship out to sea while the strike was still on. The US pilots refused to board the ship on the grounds that the ship was not safe to sail. The owners then contacted the Myanmar Ambassador to Washington and within hours the crew lifted the eight-day-long strike and the ship sailed. The captain of the ship was replaced, but the real reason for the crew ending their action was a series of telephone calls they received from the Myanmar Ambassador. The crew maintained that the Ambassador threatened each of them with immediate imprisonment upon return to Myanmar unless the strike ended. Faced with government and employer pressure like this, and knowing that no real trade unions exist in their home country to protect them, the men were forced to give way.
5. 94. In the MS Cape Hope incident which also occurred in 1987, the ITF explains that it won US$44,239.40 plus interest for a Myanmar seafarer on the Cyprus-flag Cape Hope in a case brought in Germany. The judgement was handed down in a Bremen Labour Court against the owners of the ship, the Kingfisher Shipping Company of Nicosia. The seafarer in question had been employed on the Cape Hope (a ship with an ITF collective agreement) for over two years. The fact that the ship was covered by an ITF agreement, and the owner had contracted to pay ITF rates, meant that the ITF had a legitimate right to intervene to assist the crew in obtaining justice. In rejecting the seafarer's claim, the owner claimed falsely that he had an agreement with the ITF under which 70 per cent of crew pay was to be sent back to the SECD. In fact, the crew members on the Cape Hope were the victims of "double bookkeeping", a common phenomenon on flag-of-convenience ships. Each pay-day they were given two lists to sign, an official ITF salary list, and the SECD "ITF" salary list which was considerably lower.
6. 95. As a result of being cheated of their wages in this way, the crew asked ship inspector Hans Kreitlow of the German Transport Workers' Union (OTV) to help them when the ship arrived at the German port of Bremen in May 1987. The crew gave Kreitlow leave to have the ship arrested for payment of the debt. A representative of the Myanmar Embassy in Bonn learned of the situation and visited the ship. By this time only one seafarer was prepared to continue the action against the shipowner but the Myanmar Embassy representative "persuaded" the seafarer to go with him to a local notary where he signed papers saying he was prepared to drop the case. Despite this the case came before the courts and further evidence of subversion by the Myanmar authorities came to light. Kingfisher, with the obvious collaboration of the Myanmar authorities, produced a statement which they claimed that the seafarer had signed in June 1987 (i.e. about a month after the events described took place) before a notary in Myanmar. In this document the seafarer stated that he wished to drop the case against Kingfisher as he had received all the money due to him for the two years he had been on the ship.
7. 96. However, the court was able to prove from entries in the seafarer's passport that he was not even in Myanmar at the time the company claimed he had signed the statement, but in Thailand. Not surprisingly, the court later declared the signature a forgery (it was quite different from those in his passport and on the ship's documents). Not deterred, the company also produced a second statement to back up the first in which the seafarer was said to have signed receipts before the Director of the Myanmar Department of Marine Administration for the money he had supposedly received. The court, after examining the evidence before it, said it fully accepted the seafarer's argument that he had not been in Myanmar since lodging his complaint in Germany. Nor could he possibly have signed this second statement as he was by that time in Germany. It therefore dismissed both of the statements Kingfisher had placed before the court. The court then ruled that both parties agreed that he should have been paid in line with ITF wage rates and that Kingfisher had lamentably failed to prove it had done this. The court therefore ruled that the SECD "agreement" had no validity and even had it been in force the SECD could not deduct 70 per cent of a seafarer's pay without his express authority. In the light of the evidence, the court decided to award the seafarer his claim in full. He was subsequently awarded backpay of US$44,239.40 plus 4 per cent interest from 10 August 1987. Costs were also awarded against Kingfisher.
8. 97. As regards the MV Trans Dignity case, the ITF states that on 29 September 1988 in Sundsvall, Sweden, 14 Myanmar seafarers working on board the Liberian-flag Trans Dignity contacted the ITF-affiliated Swedish Seamen's Union (SSU) requesting their help in improving their working and living conditions on board ship. A local official of the SSU, Peter Rundqvist, went on board to listen to the crew's complaints. The Trans Dignity was technically covered by an ITF agreement (the owner had in fact signed the agreement with an ITF affiliate just days before arriving in Sweden), but the crew were not being paid in accordance with it. Rundqvist found evidence of the usual system of evasion - the crew were signing on two sets of ships' articles and dual wage accounts were in operation. The Swedish unions decided to seek the termination of the existing agreement and to request the signature of a new ITF Standard Agreement. When the owners refused to agree to this demand, the unions boycotted the vessel for a period of six days until the owner's representative, flying in from Hong Kong, eventually agreed to sign the new agreement and to pay the crew their backpay entitlement under it. As part of the agreement, the owners gave an undertaking that they would not subsequently victimize the seamen by withdrawing their seamen's books or registration or attempting to claim back the payments obtained for them by the Swedish unions' action.
9. 98. The new agreement, which was signed on 1 December 1988, awarded a total of US$176,845 in backpay to the Myanmar crew. The crew decided that they would accept the backpay settlement and sign off the vessel and return to Asia. When the claims had all been settled, the crew, who at their own insistence had already received part of their backpay in cash, prepared to leave Sweden on a flight to Bangkok on 6 December 1988. Knowing the fate which might await them in Myanmar, they had no intention of going on any further than Bangkok. Prior to departure, the local manning agent in Sweden attempted to intimidate the crew by informing them that he was aware of their flight details and "promised" they would be met on arrival. The message "you can't escape from us" was also conveyed to the men's families back home in Myanmar. As planned, the crew arrived in Bangkok on 8 December 1988. Their money and passports were confiscated on arrival by the Myanmar authorities, prompting the Thai authorities to declare them illegal immigrants and to request that they be returned to Myanmar as soon as practicable. Their passports were subsequently returned but only after ITF lawyers had intervened on their behalf. A campaign was then launched designed to make an example of the crew so as to ensure that no other Myanmars would ever accept assistance from the ITF or any of its affiliates. They circulated a scurrilous document headed "ITF problem crew on MV Trans Dignity", accompanied by pictures of each crew member and their identity documents numbers, saying that they were troublemakers. (The ITF attaches a copy of this document to its complaint.) This tactic was successful in ensuring that they did not work at sea again. In the end, financial hardship forced all but three of the former crew of the Trans Dignity to return home to Myanmar where their passports and seamen's books were confiscated by the Myanmar authorities as punishment for accepting the help of the ITF and refusing to hand over their backpay settlements.
10. 99. In the MV Chemical Harmony case, in March 1991 one of the ITF's inspectors in Rotterdam, Mr. Gert-Jan Harmsen from the ITF-affiliated Federatie van Werknemersorgansaties in de Zeevaart (FWZ), visited the Japanese-owned Panamanian-flag chemical tanker Chemical Harmony and discovered that nine Myanmar crew members were not signed on the ship's articles. The names of Koreans who were not on the ship had been entered in their place. The vessel was covered by an ITF-approved Korean collective agreement, but the Myanmars were being paid much less than the other 14 Korean crew members. Disturbed by this, Harmsen investigated further and uncovered a double bookkeeping system. Despite being reminded of the risks involved, the crew of the Chemical Harmony were determined to press for the full wages due to them, and after threatening the Master with arrest for false documentation Harmsen persuaded the ship's Korean managers, Nam Ung Marine of Pusan, to guarantee the payment of US$46,583 owed to the men. The next problem was to get the Myanmar crew members home safely. The first four Myanmar flew to Bangkok on 27 March 1991, having promised to telex the ITF when they arrived. The ship was delayed in Rotterdam by repair work and it was not until 5 April 1991 that the remaining five Myanmars could be flown to Bangkok. Four days later, the ITF heard from its lawyers in Bangkok that all except two of the nine were in safety. The first group had been threatened by the manning agents, and one of them had disappeared having presumably been taken back to Myanmar by the Myanmar authorities. One member of the second group then decided for personal reasons to take the risk and return to Myanmar too and he promised to try to contact the missing man and report back. No such information was ever received.
11. 100. In the MV Angelic Faith incident, the ITF describes that on 3 June 1993 11 Myanmar former crew members of the Greek-flag Angelic Faith were kidnapped by Myanmar government officials whilst in transit through Singapore airport bound for Bangkok. These seafarers had received assistance from the ITF when their vessel docked in Dalrymple Bay, Queensland, Australia. Industrial action by the ITF-affiliated Maritime Union of Australia (MUA) resulted in a backpay settlement of nearly US$100,000. The crew were threatened by the Myanmar authorities with forcible repatriation to Myanmar. Instead, the MUA arranged repatriation from Australia to Thailand via Singapore. The crew arrived in Singapore on Qantas flight QF051 on 3 June. What happened then has rightly become an international diplomatic incident, with the Government of Singapore publicly accusing Qantas airline and the Myanmar Government of infringing its sovereignty. It is clear that the crew members were effectively kidnapped and returned forcibly to Myanmar. It has been reported on Myanmar television that they are currently under house arrest.
12. 101. On 31 August 1993, Mr. Lau Ping Sum, a member of the Singaporean Parliament, asked the Minister for Home Affairs to inform the House if the Government was investigating the circumstances under which 11 airline passengers were intercepted at the airport and sent to Myanmar. The Home Affairs Minister, S. Jayakumar, told Parliament that the Myanmar Embassy had persuaded Qantas airways staff in Singapore and private airport security guards to help seize and hold the 11 seafarers on 3 June. The Government said that the seafarers were kept at the airport until 7 June when they were put on a flight to Yangon (Rangoon). The Minister told the Singaporean Parliament that the day before the flight arrived, the First Secretary of the Myanmar Embassy in Singapore had received a request from the Chairman of the Star Corporation Shipping Company, representing the seafarers' employers, asking him to help in repatriating the seafarers to Myanmar. The First Secretary subsequently received instructions from the Myanmar Foreign Ministry to assist in repatriating the seafarers, the Minister told Parliament. He stated that when the seafarers arrived, the First Secretary got the Qantas airport duty manager to assist him to seize the passports of the 11 seafarers and to hold the men until their departure to Yangon (Rangoon). The Minister stated that the actions of the airport security officers, who he stated acted solely on the request of Qantas and the Myanmar Embassy, were unsatisfactory and that they would be reviewing their future procedures. He further stated that the Singaporean Government took a very serious view of this incident.
13. 102. The ITF finally indicates that the Deputy Minister of Transport, U Than Wai, stated at a press conference held on 8 October 1993 (which was broadcast by Rangoon Radio) that there were approximately 28,000 registered Myanmar seafarers and about 11,000 of these were currently being employed by over 120 "international shipping companies". According to the Director-General of the SECD, Dr. U Tin Hlaing, it was the SECD which, in the absence of a trade union in Myanmar, looks after the welfare and interests of Myanmar seafarers. At the press conference mentioned above, the Director-General of the Department of Marine Administration, U Hla Min, stated that the SECD entered into general agreements with foreign shipping companies for the employment of Myanmar seafarers and that the SECD was solely responsible for ensuring that the seafarers got their contractual wages and decent working conditions. In addition, the Director of the SECD, U Tun Aung Myint, said that Myanmar seafarers did not face the threat of detention or torture nor are they prevented from bringing money into the country. However, the Deputy Transport Minister did confirm that Myanmar seafarers had to sign an agreement before they can leave the country to join a ship with the SECD stating that they will not "let down the State's dignity". He also confirmed that there were some disciplinary measures in place, such as the confiscation of the seamen's discharge book, if this agreement was breached by the seafarer. The ITF concludes by stating that those seafarers who have contacted the ITF in the past regarding the non-compliance with collective agreements by foreign shipping companies and their working conditions generally have been subject to retaliation by the Government of Myanmar. This retaliation has included the confiscation of passports, seamen's record books and qualifications and some have even been sentenced to jail for obtaining "illegal income" in accordance with the Foreign Currency Act. This is, according to the radio broadcast of the press conference held on 8 October 1993, legitimate persecution in order to ensure that Myanmar seafarers do not compromise the "State's dignity".
14. 103. To its communication of 21 March 1993, the ITF attaches a letter (see Annex 2) which, according to it, illustrate the nature of the pressure being exerted by manning agents in Myanmar on Myanmar seafarers. The ITF asserts that the letter clearly indicates that Myanmar seafarers are required to sign for wages they do not actually receive. The letter also states that the manning agent "has excellent contacts with the departments concerned here and ensure not to occur any problem especially in connection with ITF matters". In the ITF's view, this is a clear reference to the Government's practice of intimidating Myanmar seafarers who contact the ITF, or its affiliates, for assistance in securing their legitimate rights.

B. The Government's reply

1. 104. In its communication of 6 June 1994, the Government contends that the complaint filed by the ITF is groundless. The allegation that there is oppression of Myanmar seafarers serving on foreign-flag ships by the Myanmar Government is utterly baseless and has no foundation whatsoever. It is not the policy of the Myanmar Government to oppress the Myanmar seafarers or Myanmar citizens for that matter. The allegations emanate from certain quarters, mainly from outside sources, who are politically motivated and who are bent on tarnishing the image of Myanmar authorities.
2. 105. The Government then refers to the five vessels mentioned by the ITF. The Government points out that the allegations made by the ITF were found to be untenable. For example, in the case of MV Trans Dignity, the ITF has in its letter of complaint appended as Annex 2, the names of 14 crew members said to have served on MV Trans Dignity. Names and photographs said to be belonging to 14 crew members were given. The names of four seamen, namely Maung Htwe, Thaung Tun Shane, Maung Aung and Zaw Myint were given. Their passport numbers and their CDC numbers were also given. However, upon scrutiny by the Myanmar authorities concerned it was found that the said four seamen never registered themselves with the authorities concerned. The passports as well as the CDCs were all fakes. In other words the four so-called seamen had never registered themselves officially and were carrying fake passports and fake CDCs.
3. 106. The Government points out that since the advent of the State Law and Order Restoration Council which took over the state power in September 1988, it is the policy of the Government to look after the interests and welfare of Myanmar workers including Myanmar seamen. The incidents said to have occurred regarding MV Albatross and MS Cape Hope took place in 1987. With regard to the case concerning MV Chemical Harmony, the Myanmar authorities feel that the responsibility of the unfortunate incident lay with the owners of the vessels or with the manning agents. With regard to the incident concerning MV Angelic Faith, the Government submits that the allegations against the Myanmar authorities are unfounded. Neither coercion nor threat was resorted to by the Myanmar authorities against the 11 seamen, as alleged. They were repatriated to Myanmar by the shipowners in accordance with the contracts. On their return to Myanmar no harm was done by the Myanmar authorities except that their CDCs were revoked.
4. 107. As regards family remittance, the Government states that for the welfare and benefit of the families of the seamen, Myanmar seamen are required to remit a portion of their salaries to their families back home. Prior to 1989 the allotment for family remittances was fixed at 50 per cent of the seamen's salaries. Beginning from 1989-90 Myanmar fiscal year, this allotment was reduced to 25 per cent. The seamen can use freely the remaining 75 per cent of their earnings. They can either spend the whole amount abroad or they can open a foreign exchange account in Myanmar. They can operate this foreign exchange account in Myanmar freely.
5. 108. The Government then turns to the issue of employment contracts and pledges. According to it, the hiring of Myanmar seamen by foreign shipping companies/agencies is done in accordance with the agreement signed between the foreign shipping companies/agents and the Myanmar seamen. The terms and conditions of the contract are scrutinized by the Seamen Employment Control Division (SECD) under the Department of Marine Administration, Ministry of Transport. Before leaving the country, the seamen have to pledge that they will conduct themselves as good citizens of the Union of Myanmar and also to abide by the rules and regulations for Myanmar seamen. The allegation that the Myanmar Government has long made Myanmar seamen enjoy reduced salaries and rights is totally untrue. No government would adopt and practice a policy detrimental to its own citizens or nationals. Myanmar seamen enjoy rights under the terms and conditions of the contract signed with the respective shipping companies. The terms and conditions will depend on the type and volume of work. The SECD oversees the contract. There is no oppression by the Myanmar authorities on the Myanmar seamen serving on foreign ships.
6. 109. With respect to the Seamen Union of Burma (SUB), the Government claims that the SUB does not represent the seamen of Myanmar. Those who belong to this self-styled SUB are a handful of seamen who have violated the laws, rules and regulations of the country. This small group of seamen left the country for various reasons and chose to stay abroad. They are involved in illegal and clandestine business. The SUB is not recognized by the Government of the Union of Myanmar.
7. 110. The Government then refers to U Nay Win Aung's letter which was sent to various shipping companies and which had been appended to the ITF's complaint (Annex 2). The Government explains that in his letter of 2 February 1994, U Nay Win Aung, President of Vasconia Myanmar Limited, Yangon, Myanmar, had solicited the business of various shipping companies abroad. In his zeal to act as manning agent in Myanmar, U Nay Win Aung had deceived his prospective business companies by stating that there existed a double bookkeeping arrangement by Myanmar authorities with foreign shipowners to avoid any involvement or problem with the International Transport Workers' Federation. The Government asserts that no such arrangement of double bookkeeping exists between the Myanmar authorities and foreign shipowners. The Government adds that U Nay Win Aung is engaged in general trading export-import business and is a business representative of Vasconia SARL (France). It considers that it is regrettable that ITF has used U Nay Win Aung's letter as a complaint against Myanmar.
8. 111. In the Government's view, it is apparent from the foregoing that the allegations made against the Myanmar authorities concerning the Myanmar seamen are without foundation. The Myanmar Government's policy is to look after the interests and welfare of Myanmar seamen serving on board foreign vessels. The role played by the SECD is of a regulatory nature to protect the interests of Myanmar seamen. The allegations made against the Myanmar authorities are regrettable. With a view to rebutting these allegations, the authorities of the Government of the Union of Myanmar held a news conference on 8 October 1993 in which senior officials explained everything that really happened in order to dispel any misunderstanding and misconception.

C. C. The Committee's conclusions

• The Committee's conclusions
  112. 112 The Committee notes that the allegations in this case concern violations of human and trade union rights through the oppression by the Government of Myanmar of seafarers serving on foreign flag ships. The complainant contends more specifically that the intimidation and abuse of these seafarers is due to the fact that they accepted assistance from the complainant to improve their wages and working conditions. In this respect, the complainant provides detailed information and case histories to back up its allegations.
  113. 113 At the outset, the Committee observes that the Government does not dispute the allegation that the terms and conditions of the contract signed between foreign shipping companies/agents and Myanmar seafarers are overseen by the Seamen Employment Control Division (SECD) which operates under the Department of Marine Administration in the Ministry of Transport. However, the Government maintains that the role played by the SECD is of a regulatory nature to protect the interests of Myanmar seamen and not to oppress them. The Committee notes however that the Government does not reply to the complainant's allegation that Myanmar seafarers are required to sign an affidavit saying that they will not contact the complainant before boarding a ship nor does it provide its observations on the copy of such an affidavit provided by the complainant (Annex 1). All it states is that before leaving the country the seamen have to pledge that they will conduct themselves as good citizens of Myanmar and abide by the rules and regulations for Myanmar seamen. However, it would appear to the Committee from the detailed information and case histories provided by the complainant that Myanmar seafarers are in fact required to sign a contract restricting their rights to accept any assistance from the complainant or affiliated parties.
  114. 114 In this connection, the Committee would emphasize the importance that it attaches to the fact that no obstacle should be placed in the way of the affiliation of workers' organizations, in full freedom, with any international organization of workers of their own choosing (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 520). In the present case, it is the Myanmar seafarers themselves and not an organization of workers as such who are prevented from contracting or accepting assistance from the complainant. However, the Committee believes that this situation is due to the fact that the ITF-affiliated Seafarers' Union of Burma (SUB) which intervenes on behalf of Myanmar seafarers operates in exile in Thailand since by the Government's own admission, the SUB is not recognized by the Government of Myanmar. In this respect, the Committee would remind the Government that, under the terms of Article 2 of Convention No. 87 which the Government of Myanmar has ratified, workers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing in full freedom to protect their interests. The Committee considers that it is not for the Government to decide which organization would best represent the workers' interests, as would appear to be the case of the SECD which exercises total control over the placement of all Myanmar seafarers and which is a government agency.
  115. 115 In view of the above-mentioned arguments, the Committee would first of all urge the Government to withdraw the SECD requirement that Myanmar seafarers must sign an affidavit restricting their right to affiliate with or contact the complainant for assistance, which requirement violates freedom of association principles. Moreover, as regards the non-recognition of the SUB by the Government, the Committee would remind the Government that workers should be able to form and join organizations of their own choosing in full freedom; it therefore urges the Government to guarantee and respect the rights of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests if they so wish.
  116. 116 The Committee recalls in this respect the special paragraph adopted by the 1993 Conference Committee on the Application of Standards concerning the denial of the right to organize by the Government of Myanmar. The Committee notes that the evidence before it in this case is yet another example of the way in which the Government denies the right to freedom of association to its citizens. The Committee deplores that this case illustrates that the Government similarly denies the same fundamental rights to Myanmar seafarers.
  117. 117 The Committee further deplores the requirement in the affidavit by which Myanmar seafarers are obliged to sign a double payroll. This is a reprehensible way of evading the terms of collective agreements, a practice which the Committee strongly condemns.
  118. 118 Finally, the Committee takes note with serious concern of the various incidents described by the complainant and of the victimization of Myanmar seafarers - such as revocation of their registration, confiscation of their passports and even the threat of imprisonment - in the event that they accept and receive an ITF settlement and they refuse to hand their back-pay settlements to the SECD. The Committee deeply regrets that in response to the incidents of the five vessels described in detail by the complainant, the Government merely states that in certain incidents the seamen never registered themselves and were carrying fake passports or that in certain other incidents, the responsibility lay with the owners of the vessels or with the manning agents. It is amply clear to the Committee that in most of these incidents the Myanmar authorities, either directly or indirectly, had exerted various types of pressures on Myanmar seafarers once an ITF settlement concerning them was reached. The Committee draws the Government's attention to the principle that no person should be prejudiced in his employment by reason of trade union membership or legitimate trade union activities (see Digest, op. cit., para. 538). It therefore calls on the Government to refrain in future from having recourse to acts of anti-union discrimination against Myanmar seafarers who pursue their legitimate grievances through the complainant and/or its affiliated trade unions.

The Committee's recommendations

1. 119. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to withdraw the requirement by the Seamen Employment Control Division (SECD) that Myanmar seafarers must sign an affidavit before leaving the country restricting their right to affiliate with or contact the complainant for assistance to protect their occupational interests.
   • (b) Recalling the importance that it attaches to Article 2 of Convention No. 87 which the Government of Myanmar has ratified, the Committee urges the Government to guarantee and respect the rights of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests if they so wish.
   • (c) The Committee calls on the Government to refrain from having recourse to acts of anti-union discrimination against Myanmar seafarers who pursue their legitimate grievances through the complainant and/or its affiliated trade unions.

Z. Annex 1

• Literal translation into English from the Myanmar original
• AFFIDAVIT
• confirm that I am fully aware of the dangers of the International
• Transportation Workers' Federation (I.T.F.) or other parties involvement. I
• solemnly promise by signing my name that I will abide with and honour my
• official agreement of employment for the complete duration of the agreement
• and/or additional Voluntary extension hereof.
• Should the Master and/or Owners and/or Managers and/or Agents of above vessel
• be forced to effect any backpay to us as extorted by I.T.F. through
• intimidation or blackmail or whatever form, so the undersigned seamen commit
• myself being signing this AFFIDAVIT, that I shall return this backpay money
• promptly and in full to the Master or the Owners of above vessel upon
• departure from said port.
• I likewise promise and agree to sign every month a "Double payroll" if
• required by the Master.
• I, the undersigned, fully understand that I will be legally liable for
• prosecution in case I break this personal commitment.
• Furthermore, I hereby state that the following are true and correct.
• My bank account is: ..............................................
• Assets under my
• ownership are:
• (include any houses
• or cars) .......................................................
• Finally, I, the undersigned seamen, confirm that I have signed this document
• out of my free will and without force or intimidation in any kind of force.
• IN WITNESS whereof I place my signature on this Affidavit on this day of 199 ,
• and I confirm that the text was read and translated to me.
• Annex 2
• Vasconia Myanmar Limited
• Dated: 2-2-94
• TO:
• FRANCE.
• FOR THE ATTENTION OF THE OPERATION MANAGER
• Through the Honourable Commercial Attache of the Embassy of France in Myanmar,
• we came to learn your esteemed company and aware that your line of business is
• mainly involving with shipping. Taking the liberty we are pleased to introduce
• ourselves that we are one of the leading exporters/importers and also a
• business representative of Vasconia S.A.R.L (France) in Myanmar. Our line of
• business is general trading and involved with man-power and seamen recruiting.
• We have been doing seamen recruiting and man-power business since last 10
• years ago. Therefore we assure you that our experiences and knowledge can
• fulfil all your requirements regarding with seamen recruitment and man-power.
• Also note that we have excellent contacts with the departments concerned here
• and ensure not to occur any problem especially in connection with ITF matters.
• Even in the case of ITF people make routine check up at certain ports and
• found the pay different, our seamen understood very well to solve this
• problem. In such case they firstly receive the salaries as recommended by ITF
• in order to fall in line with regulations. But, as soon as the vessel departed
• the port and came into the area of international water zone they surrender
• their surplus money to the master of the vessel and master remit all surplus
• amount to the principal Co. All our seamen understood this ITF matter and they
• know the way to solve the problem. Therefore we guarantee not to happen any
• problem regarding with ITF. Also note that our Myanmar seamen are hard
• working, obedient, experienced, well trained and hold relevant certificates of
• competency as recognized by the standard of International Maritime
• Organization (IMO). To be competent as above, Marine Administration Dept: Has
• closely supervised, trained and made necessary examinations to issue the
• certificates. So most of the foreign shipping companies are much interested
• Myanmar seamen for their vessel. For the above facts that we are much
• interested to establish business relationship with you for long mutual
• benefits and to promote seamen recruiting business. We do expect that our
• offer will meet you interest and if you need further information, please do
• not hesitate to contact us. We ever welcome your enquiries and assure you to
• feed back your requirements immediately with our best attention.
• Our fax no. 095-01-89960 ATTN: (864)
  95. 095-01-87806 ATTN: NAY WIN AUNG
• Tlx no. BM 21201 ATTN: (1861)
• Banker name: MFTB, YANGON, MYANMAR.
• We much look forward to hearing good news from you soon.
• Yours faithfully,
• Nay Win Aung
• President