Rapport intérimaire - Rapport No. 52, 1961

1. 30. When it examined this case at its meeting on 20 May 1960, the Committee submitted certain conclusions in paragraphs 37 to 55 of its 48th Report, which was approved by the Governing Body at its 146th Session (24 June 1960).

A. A. The complainants' allegations

1. 31. Paragraph 55 of the Committee's 48th Report reads as follows:
2. 55. In all the circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government of Burma, which has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to the fact that by such ratification it has assumed an international obligation to apply its provisions to " workers without distinction whatsoever " and that in these circumstances the provisions of the Convention cannot be regarded as subject to modification in the case of particular categories of workers because of any private or national agreement, custom or other understanding subsisting between such categories of workers and the Government;
   • (b) to draw the attention of the Government of Burma to its view that the dissolution of the trade unions of workers in the Port of Rangoon by administrative authority in or about the month of January 1959 constituted an infringement of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma, according to which workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority;
   • (c) to decide to bring the provisions of the Trade Unions Act, 1926, as amended in 1959, and of the Government Servants' Conduct Rules referred to in paragraphs 45 to 52 above, to the notice of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, so that it may consider the question as to their compatibility with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma;
   • (d) to request the Government to keep the Governing Body informed as to any measures that it may intend to take in this connection.
3. 32. This decision of the Governing Body was brought to the notice of the Government of Burma by a letter of the Director-General dated 1 July 1960.
4. 33. The Government forwarded further information by a communication dated 16 December 1960.
5. 34. In this communication the Government mentions, in the first place, that a Federation of Workers of the Board of Management for the Port of Rangoon has now been registered under the Trade Unions Act and has been recognised by the employers-the said Board of Management. The Committee recommends the Governing Body to take note of this statement by the Government.
6. 35. The Government also declares that it intends to enact a new Public Service Bill and that, when it is enacted, it may possibly do away with or override some or all of the existing provisions of the Government Servants' Conduct Rules.
7. 36. In view of the recommendations in paragraph 55 (c) and (d) of the Committee's 48th Report already approved by the Governing Body, and cited in paragraph 31 above, the Committee recommends the Governing Body to note this statement by the Government and to bring it to the notice of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, and to request the Government to be good enough to keep the Governing Body informed of further developments in this connection.
8. 37. Finally the Government states in its communication dated 16 December 1960 that further amendments to the Trade Unions Act are contemplated. The Government encloses the text of a draft Bill entitled the " Trade Unions (Amendment) Act 1960 ", stating that the Bill is being finalised with a view to its introduction in Parliament at its next session.
9. 38. When the Committee made its recommendations to the Governing Body in paragraph 55 (c) of its 48th Report, it based its conclusions on the provisions of the Trade Unions Act, 1926, as amended by the Trade Unions (Amendment) Act, 1959, which were the texts then before it. It would seem appropriate for the Committee, while bearing in mind that the text now before it is still a pending Bill and thus liable to be changed in certain respects, to examine the text, which has been forwarded by the Government, in order to ascertain whether it should modify or make additions to the conclusions previously submitted.
10. 39. In the first place a definition of the term " employee " would be inserted in section 2 of the Trade Unions Act. According to the text of the Bill as forwarded, " employee " would mean " any person employed to do any skilled or unskilled manual or clerical work for hire or reward in any establishment or undertaking and includes for the purpose of registration under this Act an employee discharged or dismissed or suspended and whose discharge, dismissal or suspension is still under protest ". In its earlier replies the Government indicated that the freedom of association of government employees has in the past been regulated by the Government Servants' Conduct Rules and that of employees in the private sector by the Trade Unions Act. As amendments to both texts are now contemplated, it is not clear whether or not the ultimate intention is to include government employees in the definition of " employee ", for the purposes of the Trade Unions Act, cited above.
11. 40. One of the provisions of the Trade Unions Act, 1926, as amended in 1959, which the Committee examined in paragraph 45 of its 48th Report-and which it recommended should be brought to the notice of the Committee of Experts so that it might consider its compatibility with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)-was that in section 4 of the Act, according to which a trade union might be registered only if it had as members more than 50 per cent of the total number of employees of the undertaking or establishment concerned. The new Bill provides that a trade union having ten or more members and including over 20 per cent of the total number of employees concerned may be registered as a primary trade union; if its membership includes over 50 per cent it may be registered as a negotiating trade union. There is provision for corresponding deregistration when the membership falls below the figures in question. Where a negotiating union exists, it alone could bargain in the undertaking; in the absence of a negotiating trade union, one or more primary unions may be permitted to join together, on certain conditions, to negotiate particular demands. It appears to the Committee that, like the subsisting section 4 of the Act, and for the same reasons, these provisions require to be examined in the light of their compatibility with the provisions of Articles 2, 3, 7 and 8 (2) of the said Convention.
12. 41. The Committee, having regard to the recommendations already made in paragraph 55 (c) of its 48th Report, recommends the Governing Body to bring the provisions of the new Bill to amend the Trade Unions Act, the text of which the Government has furnished, to the notice of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, so that it may take account of them when considering the question as to the compatibility of the texts previously brought to its notice with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Burma, and to request the Government to be good enough to keep the Governing Body informed of further developments in this connection.