Effect given to the recommendations of the committee and the Governing Body - REPORT_NO389, June 2019

Effect given to the recommendations of the committee and the Governing Body

1. 57. The Committee last examined this case in which the complainant alleged anti-union practices, including harassment, discrimination and dismissals of trade union members and officials, as well as interference in union activities, denial of access to workplace and attempts to dismantle the Bagan Hotel Union, carried out by the management of the Bagan Hotel River View, at its March 2017 meeting [see 381st Report, paras 59–68]. On that occasion, the Committee requested the Government to keep it informed of the outcome of the tripartite investigation concerning the allegations of discrimination, harassment, and intimidation of union members and officials at the hotel. It further requested the Government to indicate whether the investigation team was also looking into the specific allegations of intimidation after a peaceful demonstration of union and non-union members, and if not, to indicate the steps taken to ensure an investigation into these allegations and ensure an effective remedy, if found to be true. The Committee also expressed its trust that the labour law reform would continue in consultation with the employers’ and workers’ organizations concerned, with a view to making any necessary amendments, including, as appropriate in respect to the Application of Writs Act so as to ensure the effective protection of workers against anti-union discrimination and interference by providing for swift means of redress, appropriate remedies and sufficiently dissuasive sanctions. Finally, the Committee once again encouraged the Government to avail itself of the technical assistance of the Office in regard of the labour law reform and invited it to give consideration to the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
2. 58. In its communications dated 3 March and 16 August 2017, the Government provides the following information on the outcome of the tripartite investigation into the allegations of anti-union discrimination, harassment, and intimidation of union members and officials at the hotel: (a) the Chairperson of the Bagan Hotel River View Union told that the complaint was made because the workers assumed that they were discriminated by the employer even though the employer did not use anti-union practices such as harassment, discrimination or intimidation of union members; (b) the employer representative indicated that the employer recognizes the Bagan Hotel Union as it was formed under the Labour Organization Law (2011) and that all employees are treated equally without any form of discrimination; in addition he also stated that all employees, including members of the workers’ organization, are doing their jobs at the hotel peacefully; and (c) the investigation team explained the Labour Organization Law and other labour laws to the employer and employees for their awareness. The Government adds that a new general manager of the hotel has been appointed and all staff is treated equally and without discrimination. The investigation team has also observed that the employer did not deter the peaceful demonstration of workers, and workers and staff are now performing their duties peacefully.
3. 59. Regarding the Application of Writs Act, the Government refers to the position of the Supreme Court, which it describes as follows: (a) the Supreme Court of the Union of Myanmar has the power to issue the Writ of Certiorari for ensuring the fundamental rights of citizens provided in the national Constitution (2008). The Application of Writs Act should not be abrogated because the citizens enjoy their fundamental rights provided for in the Constitution by applying the writs for the reprieves which they can receive under that Act; (b) the Application of Writs Act does not deal with labour disputes only and should not be abrogated because it is the law which is applicable for implementing the fundamental rights and duties of citizens; and (c) a two-year time frame for the Writ of Certiorari and the Writ of Prohibition is appropriate and, thus, the Supreme Court of the Union of Myanmar will not undertake any measure to modify the said time frame which allows the appeal process.
4. 60. The Committee recalls that in its previous examination of the case it had noted that both the complainant and the Government reported progress with regard to the labour relations at the hotel and, in particular, the effective reinstatement of the five union members and their access to the workplace following a judgment of the Supreme Court, as well as ongoing good faith negotiations [see 381st Report, para. 66]. The Committee takes note of the additional information provided by the Government on the outcome of the tripartite investigation into the allegations of anti-union discrimination, harassment, and intimidation of anti-union members and officials, as well as into the specific allegation of intimidation after a peaceful demonstration of union and non-union members. The Committee also welcomes the measures taken to familiarize workers and employers with the labour laws.
5. 61. The Committee further notes the information provided by the Government on the position of the Supreme Court regarding the amendment of the Application of Writs Act, and in particular, that the Supreme Court considers that the Act should not be amended and that the two-year time frame for appeals is appropriate. The Committee recalls from its previous examination of the case that according to the complainant, the Application of Writs Act allows an appeals process to remain open for up to two years even if both parties to a dispute have reached a settlement and can thus deprive workers from exercising and accessing their rights. The Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1139]. Furthermore, delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante [see Compilation, op. cit., para. 1144]. The Committee also recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, op. cit., para. 46]. The Committee therefore once again requests the Government to review the Application of Writs Act and its impact on the exercise of trade union rights, in consultation with the employers’ and workers’ organizations concerned, with a view to ensuring that its application does not undermine the effective protection of workers against anti-union discrimination and interference. It requests the Government to keep it informed of the developments in this respect.