The labour movement and the law in progress
Ma Thazin Soe has worked in a garment factory in Yangon's northern Mayangone Township for three years. She rises at dawn to make a bus journey from her home in neighbouring Hlaingtharyar Township, on Yangon’s western outskirts, and returns after dark.
Ma Thazin Soe said she is “barely able to make ends meet” on her basic monthly salary of K30,000.
On February 6, Ma Thazin Soe and about 100 of her co-workers at the factory, owned by the Yangon-based Waminn Group of Companies, went on strike after submitting a list of demands to management, including a K20,000 monthly increase in their basic salary.
It was a wildcat strike, meaning that it was not organised by a registered union. Strikes, whether organised or wildcat, are becoming increasingly common as a nascent labour movement gains strength and the laws protecting workers’ rights remain a work in progress.
By the second day of the stoppage, the number of striking workers on the road outside the garment factory had dwindled to 65.
On February 18, after four rounds of negotiations with management and disagreement over the salary increase, the number of striking workers had shrunk to about 35.
Ma Thazin Soe stood with her fellow strikers, most of whom were women, on a dusty footpath in the midday heat near the freshly painted factory compound. “We are paying to work,” she told me.
As we spoke, sitting on newspapers on a section of the footpath squeezed between a hedge garden and a stall selling kitchenware, workers at the factory swarmed into the compound without barely a glance at the small group of strikers.
The Confederation of Trade Unions in Myanmar – which represents about 43,000 mainly agricultural workers – supported the striking garment factory employees by helping them to negotiate with the management. It is also helping the workers to register the factory’s first union. The CTUM, formed in November 2014, is the successor of the Federation of Trade Unions in Burma that was founded in exile in 1991 and established branches along Myanmar's borders as well as in Thailand, India and the United States.
Within a few months of a Labour Organisation Law taking effect in April 2012 about 100 unions had been formed, said Mr Christopher Land-Kazlauskas, chief technical advisor for the International Labour Organization's freedom of association and social dialogue project.
The union movement has continued to grow steadily and in mid-February there were more than 1500 basic labour organisations registered throughout the country, said Mr Land-Kazlauskas.
However, the Labour Organisation Law and accompanying regulations are “not entirely” in line with ILO Convention 87 on the Freedom of Association and Protection of the Right to Organise, of which Myanmar is a signatory, he said. This is mainly because of a “rigid” sectoral focus that has inhibited the development of unions at a broader level as well as the right to strike, Mr Land-Kazlauskas said.
The law stipulates that basic labour organisations at the workplace level must have a minimum of 30 members and that 10 percent of the workforce in a particular sector or workplace must vote in favour of the union. This is not in line with international standards that there be no “unreasonable requirements” for forming a union.
“When you get into a factory with 2,000 workers and you require 10 percent of the workforce to be in favour of the union, that's not in line with the standard because it's going to require 200 workers voting and that would be considered an unreasonable requirement,” said Mr Land-Kazlauskas.
The law also says that if there are fewer than 30 workers at an enterprise they can only form a union “jointly with any other trade of the same nature”.
The requirement for sector-specific trade unions breaches Articles 2 and 5 of the ILO Convention, which gives workers and their organisations the right to form unions across industries.
“So if the shop workers at a restaurant and teachers in a school across the street and all of the nurses in the children's hospital just down the road wanted to form a union, they should technically be allowed to, but they're not under the law,” said Mr Land-Kazlauskas.
Reaching the glass ceiling
Union organisers face a similar issue at the township level.
Although township labour organisations can be formed on the recommendation of at least 10 percent of all basic labour organisations in the township and within the “category of trade or activity”, township-level organisations must be formed jointly with other basic labour organisations in the same industry.
“So if you want to form a union, even though we have two unions in this sector, you have to fulfill the ten percent requirement and negotiate with other unionists and discuss with other unions and if they do not agree, it is impossible to form a township level union,” the CTUM’s assistant general secretary, Ma Phyo Sandar Soe, told Mizzima Weekly.
For example, in the agricultural sector CTUM, which represents 506 basic and 23 township-level labour organisations countrywide, has been unable to establish a township-level organisation in Yangon’s Dagon Seikkan Township.
Of the seven basic level agricultural organisations in Dagon Seikkan Township, four are members of CTUM's national level Agricultural Farmers Federation of Myanmar. The other three are represented by an organisation that confusingly shares the same name but is known as the AFFM-IUF because of its affiliation with the Geneva-based International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association, known as the IUF.
Despite having established five federations CTUM has been successful in registering two, including the AFFM. The three others, representing building, industrial and mining workers, are “stuck,” said Ma Phyo Sandar Soe.
The Building and Wood Workers' Federation of Myanmar, the Industrial Workers Federation of Myanmar and the Mining Workers Federation of Myanmar are establishing the region and state-level organisations required under the Labour Organisation Law to form federations.
The CTUM is caught in a bind because it is striving to meet the provisions of the law but is forming unions regardless, in accordance with Convention 87 and the standards of international union federations.
“We have the right to form federations,” said Ma Phyo Sandar Soe. “We have freedom of association; our country signed Convention 87.”
A seat at the table
To further complicate the process, the government has yet to formally recognise labour federations.
“The problem is the unions have really hit a glass ceiling,” said Mr Land-Kazlauskas.
“They’ve gotten the basic labour organisations off the ground, not more than 60 township labour organisations, and then the federations, they exist, but recognition is another issue,” he said.
“What we're trying to do is work with the government to find a solution to recognise the national federations because they need a national counterpart.”
He said some basic labour organisations registered under the law have affiliated with a federation and by doing so have “given them their voice and said 'we want you to represent us at the national level' – but the lack of legal recognition by the government is just a formality that is making that difficult right now”.
The CTUM is working with national level federations, such as the AFFM-IUF and the Myanmar Trade Union Federation, to reform labour laws.
The CTUM submitted a policy paper last year to the Ministry of Labour, Employment and Social Security proposing amendments to the Labour Organisation Law and the Settlement of Labour Dispute Law. The proposal had to be made informally because the government has not established a mechanism that can receive and consider suggestions from organisations representing workers.
“If there were a more formal structure to have the unions, employers and the government together in a setting where they could actually receive the draft laws in advance and consult their own membership, apply any legal expertise that they might have and provide informed constructive comments for the government to take into account those it deems appropriate, it would ensure that the law is in line with the expectations of those who generate wealth in society, the employers and the workers,” said Mr Land-Kazlauskas.
Fear of standing up
Workers on strike at the garment factory owned by Waminn Group of Companies were unwilling to identify a leader because of concern the person would be sacked, as often happens during disputes. The Labour Organisation Law is not effective in dissuading employers from dismissing union leaders.
The Settlement of Labour Dispute Law, also enacted in 2012, prohibits employers from dismissing employees for “membership in a labour organisation ... or participating in a strike in accord with this Law”. The penalty for breaching the law, K500,000, is not regarded as an effective deterrent.
The CTUM proposed in its policy paper to the ministry, which is soliciting comment from various union groups ahead of a review of labour laws in June, that offending employers be liable to a prison sentence.
“The fear is if something isn't done to effectively dissuade retaliation against trade union leaders, you can do it asmany times as you want until there is no one else standing up to try and become a trade union leader,” said Mr Land-Kazlauskas, adding that ILO Convention 98 specifically forbids discrimination in employment and occupation based on union activities.
In the aftermath of strikes that began in December at a lingerie factory in the Shwethanlwin industrial zone at Hlaingtharyar Township, employers sacked 15 labour leaders. CTUM has consulted a lawyer over this breach of the Labour Organisation Law.
The push for conciliation
At the Waminn Group of Companies garment factory CTUM organiser U Myaw Zaw Oo sat with the striking workers in the afternoon heat.
“They are not asking for much,” he said, as a handful of resolute women sitting beside him nodded in agreement.
The Dispute Settlement Law provides for a five-step settlement mechanism but an emphasis is placed on resolving disputes at the workplace level. Unresolved disputes proceed to negotiations at the township, region and state, or national level and if still not settled, can go before the Supreme Court.
Ma Phyo Sandar Soe said the dispute-settling process tends to break down at the first step because of lack of recognition of unions by employers and their reluctance to negotiate, the consequence of a “top-down” and authoritarian workplace culture during military rule.
“Sometimes workers might achieve fifty percent, sometimes seventy; but one hundred percent is not possible, so we try to help workers at the negotiation table,” she said.
Garment factory worker Ma Thazin Soe said strikers had made demands and were reluctant to negotiate.
The CTUM encourages workers to first try to resolve disputes through negotiation with employers. It says going on strike should be a final option, which a union has the right to do under the Settlement of Labour Dispute Law if it is not satisfied or does not agree with a ruling by a conciliation body. A decision to strike should be democratic and supported by a majority of union members to be effective, said Ma Phyo Sandar Soe.
The Yangon Region conciliation body had ruled in favour of workers in 20 of 22 disputes brought before it last year by CTUM members, she said.
A culture of negotiation may be emerging as more disputes go before conciliation bodies, but Mr Land-Kazlauskas said the shift would take time.
“The idea that you can actually have a union existing on an equal footing with management – not running the factory – but having a voice in terms of determining terms and conditions and wages and hours of work – it is a completely novel concept,” said Mr Land-Kazlauskas.
“Enterprise-level grievance procedures to resolve conflicts at the workplace before they grow into something more are missing,” he said.
“But, this is all brand new and we're really at the early stages and trying to do everything all at once.”