General & Misc

Myanmar Labour Laws leave Workers with Raw Deal in Disputes

Date: 22 January 2019; Type: Legal News; Source: Myanmar Times

Ma Hla Hla Win, a recently laid-off factory worker from Rakhine State, is heavily in debt from having to send funds home to her family despite being jobless for six months.

After her former employer, South Korean shoe factory MDM, closed last year, she was forced out of her room in Yangon. “I could no longer afford to pay rent,” said Ma Hla Hla Win, who now lives with a friend in Twante township.

Ma Hla Hla Win, who has been working and living in Yangon for the past 10 years, said she was sacked with 45 other workers in July 2018 without sufficient compensation. Although the workers were paid until August, they were not compensated for being laid off, which is required under Myanmar’s labour law.

What’s more, the workers say they have not been permitted to take their case to the local arbitration council. “Our case is classified as an individual dispute with the employer and was transferred to civil court instead,” she said.

When the workers filed a case against MDM for labour rights violations in Hlaing Tharyar township court, the judge rejected their pleas for compensation, citing the lack of legal avenues available to charge the employer.

 

In fact, cases like Ma Hla Hla Win’s have been on the rise since June 2018, when the Ministry of Labour Immigration and Population prohibited arbitration councils from settling disputes involving workers who are not members of a union. Such cases should be considered individual disputes and transferred to civil courts instead, the ministry said.

Before June 2018, all labour disputes that were not settled at the township level were transferred to regional and central arbitration councils under laws enacted in 2012. Only cases that remain unresolved after arbitration were heard in court. Under section (23) of the 2012 Labour Law, any employer or employee, if unsatisfied by the township mediation group or arbitration council’s decision, can file a lawsuit in civil court. 

Now though, unions with members involved in labour disputes must first be issued with an official certificate, Form 7, from the ministry as legal evidence that the workers are in a union before the case can be handled by the arbitration councils.  

Consequently, workers and labour rights activists say some employers are intentionally firing labour union leaders who are still waiting to receive Form 7. Meanwhile, some township mediation groups are transferring cases directly to civil court even though they qualify for arbitration because the unions have not received Form 7.

Ma Thin Thin Aye, a union leader at another footwear factory, Myanmar Infochamp, said that she and three other union leaders were fired last year and their dispute transferred to civil court instead of the arbitration council. The events took place before the workers received Form 7.

After seeking help from the Yangon regional government, Ma Thin Thin Aye said she was advised to file a lawsuit against her former employer for being sacked. Instead, Ma Thin Thin Aye voluntarily withdrew her civil court case and just wants to be rehired. However, she remains unemployed.

Looking ahead, the number of disputes between employers and employees is expected to continue to grow, as the ministry’s June 2018 instructions cover just 930 worker unions with around 70,000 members, while some 22 million workers are not members of a union, said U Ye Naing Win, a former central arbitration council member and labour adviser to Bago Region’s hluttaw.

The way he sees it, the instructions have “destroyed the main purpose of the 2012 laws and the fundamental principles of the 2008 constitution to protect the country’s most vulnerable workers.”

“According to the labour laws, a worker who has been fired without reason must be compensated by their employers based on the number of years he or she has been with the company,” U Ye Naing Win said.

“Now workers are being asked to go to civil court if compensation disputes are not settled. In reality, it is next to impossible for many workers to attend the court hearings,” he said.

Take Ma Kaung Myat Khin, a union leader from Myanmar Yangon Richang Apparel Co (Nisho). “My lawsuit was rejected by the civil court judge because I was absent during the court hearing, he said. Actually, I was late by about ten minutes due to the travel time from where I was working,” she said. Ma Kaung Myat Khin was subsequently fired from that job for not showing up on time for work.

Others, like former MDM employee Ma Hla Hla Win, simply cannot afford, or are unable to take time off from work to attend court hearings. “It costs me K3000 in transport fares to attend a hearing each time. That is the amount I spend on daily expenses alone,” she said.

Similarly, Ma Hla Hla Win has not been able to hold on to a new job. “I was actually hired at another factory but was fired again as I had to take many days off to attend the dispute hearings,” she said.

Another barrier for workers is costly lawyers’ fees. “Here, the minimum fee for hiring a lawyer is about K350,000. Workers can’t afford that,” Ma Kaung Myat Khin said. As a result, many do not attend court hearings at all or end up filing lawsuits themselves that are either incorrect or incomplete. 

In any case, township labour departments and mediation panels are notoriously weak in handling disputes, activists and union leaders said. 

“Dispute resolution bodies only mediate compensation cases between workers and employers. They do not handle labour rights violations or help in rehiring. Often, they also settle for compensation amounts that are lower than the prescribed amount under the law in cases where workers are sacked without reason,” said Ko Sai Yu Maung, an activist with the Action Labour Rights Network. 

In that light, not only are employers not compensating workers they have laid off, they are not rehiring them either,” Ko Sai Yu Maung said.

“Workers are very much aggrieved by the ministry’s instructions. They have lost their right to be rehired if fired unfairly. They are forced to accept whatever compensation is offered by their employers,” said Ma Hla Hla, a labour activist.

With few avenues of recourse, worker dissatisfaction often culminates in lengthy strikes, resulting in downtime for both employer and other employees. Just two weeks ago, on January 8, seven workers from Cixing Knitting Factory in Yangon were rehired after a conciliation meeting with management.

The workers were allegedly sacked without notice on December 24, resulting in a two-week-long strike that ended when they were rehired. On January 2, Cixing in fact agreed to 17 demands, including the rehiring. But on January 7, the seven workers were sacked again after the company claimed that non-striking workers opposed their reinstatement. 

The seven were rehired at the mediation meeting after 350 workers from 15 other factories in Yangon joined the strike.

The Cixing strike is just one of many in Yangon each year. Last October, Yangon Chief Minister U Phyo Min Thein himself acted as mediator in a dispute between workers and the management of China’s Fu Yuen Garment Co that caused a months-long strike.  

Fu Yuen’s management had sacked 30 workers, who were union members, without notice on August 20, accusing them of disrupting production and violating company rules. Their dismissal prompted about 300 workers at the factory to go on strike.

For its part, the government says the ministry issued the instruction because transferring unsettled disputes to the local arbitration council is not allowed in the 2012 laws. According to the labour law, such disputes must go to civil court. 

“In the past, we allowed the arbitration councils to mediate during employer-employee disputes. Now, the ministry is enforcing the 2012 laws so we can no longer continue this practice,” said U Myo Aung, permanent secretary of the ministry.

Nevertheless, the Myanmar hluttaw is discussing the possibility of updating dispute categories under the labour law to give stakeholders more room to seek legal recourse in labour disputes.

But until the laws are amended, disputes between cost-conscious employers and factory workers are expected to occur regularly and many are likely to remain unresolved.

Recently, Ma Hla Hla Win had the chance to report her plight to U Phyo Min Thein during a meeting between factory workers, owners and the regional government. But even though the chief minister issued orders for MDM to sell its factory to compensate the workers, the company has not yet done so.

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