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Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) - Myanmar (RATIFICATION: 1957)

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Previous comments: C. 017 observation; C. 019 observation; C. 042 direct request

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on workers’ compensation, the Committee considers it appropriate to examine Conventions Nos 17 (Workmen’s Compensation (Accidents)), 18 (Workmen’s Compensation (Occupational Diseases)), 19 (Equality of Treatment (Accident Compensation)), and 42 (Workmen’s Compensation (Occupational Diseases) (Revised)) together.

Article 2 of Convention No. 17. Scope of coverage.The Committee takes note of the information provided by the military authorities in their report that all insured persons covered by the Social Security Law, 2012, have the right to enjoy social security benefits, including employment injury compensation.The Committee notes, however, that section 12 of the Social Security Law, 2012, excludes several categories of workers from compulsory coverage under the Social Security System and related benefits, notably: domestic workers, and certain public employees, part-time and piece workers, and workers engaged in non-profit establishments on a full time basis and whose work does not have temporary or casual nature, as well as underaged workers and workers who have attained the age required to apply for superannuation benefits. On the other hand, the Committee observes that the Workmen’s Compensation Act, 1923, as amended in 2005, has a wider scope of coverage than the Social Security Law, which includes the above-mentioned categories of workers excluded from the Social Security Law. The military authorities also indicate that a new legislation on Employment Injury compensation is currently being drafted.

The Committee recalls that, in accordance with Article 2 of the Convention, the laws and regulations as to workers’ compensation for industrial accidents shall apply to workers, employees and apprentices employed by any enterprise, undertaking or establishment of whatsoever nature, whether public or private. It also recalls that the possible exclusions set out in Article 2(2) of the Convention are limitative and that the Convention does not allow excluding other categories of workers, such as those listed in section 12 of the Social Security Law, mentioned above, from coverage for industrial accident compensation. On this basis, the Committee urges the military authorities to specify the measures and legal provisions currently in place to ensure that the above-mentioned categories of workers excluded from coverage under the Social Security Law are duly compensated in case of industrial accident, and whether the provisions of the Workmen’s Compensation Act continue to apply for this purpose.

The Committee encourages the military authorities to take advantage of the new legislation on Employment Injury compensation which is being drafted to ensure that all workers victims of industrial accidents, or their dependants, are duly compensated on terms at least equal as those provided by Convention No. 17, and to provide information measures taken in this regard.

Article 5 of Convention No. 17. Periodical payments.The Committee notes that section 58 (a), (b), and (c) of the Social Security Law, 2012, provides that employment injury compensation can be paid either in the form of periodical instalments or as a lump sum, depending on the worker’s or his/her dependents’ preference, if the injury resulted in permanent incapacity or death. In addition, the Committee notes that section 58 imposes a ceiling of five years of payments for loss of capacity at a limit of 20 per cent, to be paid in a lump sum, and nine years for a loss of capacity between 20 and 100 per cent, which can also be paid in a lump sum if the beneficiary wishes so. The Committee recalls that Article 5 of the Convention authorizes the conversion of periodical cash benefits into a lump sum only when the competent authority is satisfied that it will be properly utilized. The Committee requests the military authorities to provide information on measures in place to guarantee that lump-sum payments are properly utilized. The Committee further requests the military authorities to provide statistics on the number of workers who have received employment injury compensation in the form of a lump sum and in periodical payments in the period under review.

Article 7 of Convention No. 17. Additional compensation for the constant help of another person.The Committee takes note of the information provided by the military authorities that section 58 (d) of the Social Security Law, 2012, in case of permanent incapacity for work over 75 per cent, provides for the entitlement of injured workers to an allowance of 10 per cent of the benefit in addition to the monthly pension, equal to 75 per cent of their average wage.The Committee recalls, however, that Article 7 of the Convention requires the payment of additional compensation in all cases where the injury results in incapacity of such a nature that the injured workers must have the constant help of another person. The Committee therefore requests the military authorities to ensure that all injured workers, including those with partial permanent or temporary incapacity, are provided with additional compensation when the constant help of another person is required and to provide information on the measures taken or envisaged to give full effect to Article 7 of Convention No. 17.

Article 8 of Convention No. 17. Supervision of the employment injury system and review of claims.The Committee observes, from the information available in the ILO Social Protection Platform, that the management of the Social Security Board has been improved, with the technical assistance of the ILO between 2018–19. This concerns, in particular, the monitoring and evaluation of the social security system and the Social Protection Management Information System, which have facilitated the process of supervision and revision of payments made to victims of employment injuries. The Committee also notes that section 5 of the Social Security Law, 2012, establishes the functions of the Social Security Board, which include “carrying out necessary management and supervision for enabling to implement the provisions contained in this Law.” The Committee requests the military authorities to indicate the specific measures taken or envisaged to ensure the proper supervision of the employment injury compensation system and the review of claims, as part of the functions of the Social Security Board.

Article 2 of Convention No. 18 and Article 2 of Convention No. 42. List of occupational diseases.The Committee notes the indication by the military authorities, that “The Social Security Law (2012) came into force on 1-4-2014, and that section 107 of its Rules provides that the Ministry of Labour shall, in coordination with the Ministry of Health and Sport, and with the approval of the Union Government, determine the list of occupational disease by regulation.” The Committee notes that the report sent by the military authorities was not accompanied by such a list. The Committee requests the military authorities to provide the list of occupational diseases and the relevant applicable legal provisions, particularly the regulations referred to in sections 5 and 107 of the Social Security Rules, 2014, and in the military authorities’ report.

Article 1(2) of Convention No. 19. Provision of work accident compensation abroad. As regards its previous request concerning the provision of workmen’s compensation abroad, in application of Article 1(2) of the Convention, the Committee observes that the legislation regulating these matters, namely the Social Security Law, 2012, and the Social Security Rules, 2014, do not specify the manner in which the provision of employment injury compensation to beneficiaries residing abroad is guaranteed. The Committee urges the military authorities to provide information on the measures taken and on the mechanisms in place to ensure the provision of compensation to victims of an employment injury that has occurred in Myanmar, or to their dependents, in case of death of the worker, who reside abroad. The Committee hopes that the military authorities will take the requirements of Article 1(2) in consideration when formulating the new employment injury benefits legislation with a view to ensuring the full application of Convention No. 19.

Article 4 of Convention No. 19.Situation of Myanmar migrant workers in other Member States. In its previous comments, the Committee noted that more than 2 million Myanmar migrant workers were irregularly employed in Thailand and did not have access to compensation in case of employment injury. The Committee notes the information provided by Myanmar, in its 2016 report, indicating that temporary work permits and ordinary passports were issued to Myanmar migrant workers in Thailand, and that a Memorandum of Understanding between Myanmar and Thailand on Labour Cooperation and the Agreement on the Employment of Workers had been concluded in 2016. The Committee further notes the information provided by the military authorities concerning the development of a cooperation agreement between Myanmar and Malaysia to ensure the social security coverage of Myanmar migrant workers working in Malaysia. The Committee welcomes these developments and requests the military authorities to continue providing information on the means taken to improve the employment injury coverage of its nationals abroad, in cooperation with other member States parties to the Convention. In addition, the Committee requests the military authorities to provide a copy of the agreement concluded with Malaysia, and of any other similar agreements concluded with other States parties to the Convention.

Application in practice of Conventions Nos 17, 18, 19 and 42. Inspection services and statistics. The Committee requests the military authorities to provide information (statistical and other data) in their next report so as to enable it to assess the manner in which national laws and regulations respecting employment injuries, both due accidents and diseases, are applied in practice, including the number and amounts of periodical payments for employment injury compensation made to foreign and nationals who are victims of employment injuries, and (ii) any agreement that has been concluded with other Member States which have ratified the Convention, providing copies of such agreements. The Committee also requests the military authorities to provide information on the number of labour inspection visits and violations detected and provide the extracts from the reports of the inspection service.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October-November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider ratifying Convention No. 121 or Convention No. 102 (Part VI) as the most up-to-date instruments in this subject area.

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With reference to its previous direct request, the Committee notes the lists (a) and (b) of occupational diseases in schedule 3 to the Workmen’s Compensation Act of 1923 appended to the Government’s report. The Government states that although factory managers are responsible for reporting statistics on occupational diseases to the government department concerned (sections 53 and 54 of the Factories Act of 1951), these diseases are difficult to detect as they may take a long time to appear and are revealed only after a proper medical check-up and treatment. The Government however will endeavour to collect the statistics on occupational diseases through the Occupational Health Department of the Ministry of Health and more effective reporting on such diseases by factory inspectors. The Committee hopes that the Government will be able to strengthen the supervision and enforcement measures with regard to the determination and reporting of the cases of occupational diseases. In the meantime, the Committee asks the Government to specify in its next report the number of workers employed in the industries or trades mentioned in the lists (a) and (b) in schedule 3 to the Workmen’s Compensation Act and the number of diseases or poisonings that have been registered in the enterprises concerned.

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With reference to its previous comments, the Committee notes the information provided by the Government in its reports. It notes firstly that the list of occupational diseases contained in the Government’s latest report differs from that provided previously, since it contains a lower number of diseases which are presumed to be of occupational origin. The Government is therefore invited to provide, with its next report, an up to date copy of Schedule 3 to the Workmen’s Compensation Act of 1923, which lays down the list of occupational diseases recognized in the country.

Furthermore, according to the information provided by the Government, apart from the industrial accidents duly reported by the competent authorities, there are hardly any reported cases of occupational disease in the country, taking into account the relatively low number of enterprises exposed to such risk and the prevention policies pursued by the competent authorities. Moreover, no complaints have been submitted to the authorities concerning the recognition of occupational diseases and, at present, there are no relevant statistics. While it takes due note of this information, the Committee invites the Government to provide further information on the possible reasons for the virtual absence of cases of recognized occupational diseases in the country and, in particular, to give the source of this information. The Committee also requests the Government to specify the number of workers employed in the industries or carrying out the trades listed in the Schedule under Article 2 of the Convention (right-hand column), and also to indicate, where appropriate, any investigations conducted internally to detect any flaws in the procedure for recognizing the occupational origin of the diseases listed in the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will provide general information on the manner in which the Convention is applied in practice, as well as statistics, where appropriate, in accordance with Part V of the report form.

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The Committee notes the Government's last report. It would be grateful if the Government would provide general information in its next report on the manner in which the Convention is applied in practice, as well as statistics, where appropriate, in accordance with Part V of the report form.