12 Minutes To Read

A New Way for Workers’ Rights Beyond the Legal Framework: The All Burma Federation of Trade Unions

12 Minutes To Read

Ye Yint Khant Maung discusses trade unionism and labour disputes in Myanmar. 

At the start of Myanmar’s so-called “democratic transition”, the U Thein Sein government enacted the 2011 Labour Organisation Law, which legalised trade union formation and set out legal labour rights. Subsequently, the 2012 Labour Disputes Settlement Law provided an official mechanism to resolve labour disputes. Given that, for 55 years, it had not been possible to create independent trade unions, this was, seemingly, a watershed event in the development of industrial relations in Myanmar.[1] But have these new laws and the labour dispute mechanism actually enabled industrial workers in Myanmar to achieve their rights and resolve their grievances? At present, the rights of industrial workers in Myanmar remain just words. The voices of industrial workers have been neglected under the prevailing voices that prioritise national economic growth and attracting foreign investment. For these reasons, searching for a new approach to achieve workers’ rights in the present situation is a crucial task for trade unions in Myanmar. Existing trade union legislation is ostensibly intended to ensure workers’ right to organize. But in fact, these laws aim to achieve industrial tranquillity and workers’ acquiescence in order to promote foreign direct investment and stable capital accumulation. In this article, I consider a different approach to unionization, beyond the current legal framework. This alternative approach has been pursued by one unregistered trade union federation: the All Burma Federation of Trade Unions (ABFTU). This article is based on nine interviews, conducted in 2019, with leaders and members of ABFTU, and government officials, as well as on a review of existing research, news, and related documents.

Introduction

As part of Myanmar’s “democratic transition,” in 2011, the Thein Sein government tried to end its international isolation and integrate with the global economy by reforming the domestic economy and enacting laws in line with international standards. In response, most western countries lifted their sanctions on Myanmar, and the International Labour Organisation (ILO) played a significant role in formulating the new labour institutions. On 11th October 2011, the Thein Sein government enacted the Labour Organisation Law, which repealed and replaced the 1926 Trade Union Act, and on 28th March 2012, the government enacted the Settlement of Labour Disputes Law, which repealed and replaced the 1929 Trade Dispute Act.[2] Currently, the Labour Organisation Law is under review for a second amendment, and Parliament has already enacted a second amendment to the Settlement of Labour Disputes Law (on 3th June 2019). There are now a total of 2,876 legally registered unions at the workplace, township, state, and region levels, as well as union federations and confederations, and employers’ associations. Other labour rights organisations, such as We Generation and the Yaung Chi Oo Workers Association, which work independent of trade unions, are also active in Myanmar. Labour disputes and their causes in contemporary Myanmar are varied and wide ranging, and they depend on the type of work and industrial sector. Many workers in Myanmar’s industrial zones have in practice lost their legal rights, especially their right to organize, due to government actors prioritising high economic growth and productivity. One government official claims that trade unions are radical and only consider their own perspective.[3] But in fact, the legislated labour dispute process aims to encourage foreign direct investment and achieve peaceful capital accumulation. Many workers in Myanmar now realise that the government’s labour dispute settlement mechanism and trade union legislation are ineffective.[4] Consequently, although the 2011 Labour Organisation Law legalised trade unions, some unions and federations in Myanmar have decided not to register under this law. In this article, I consider the case of the All Burma Federation of Trade Unions (ABFTU) and its member unions in order to understand why the workers involved decided to form unregistered unions, and to understand the challenges such unregistered unions face. My argument is that the current legal framework for trade unions and the dispute settlement process in Myanmar are primarily concerned with industrial stability. This has resulted in complications that hinder workers’ ability to achieve their legal rights. As a result, trade unions in Myanmar face many obstacles, like state oppression through the legal framework, and management oppression within the factory.

Current Conditions of Trade Unions in Myanmar

After the legalisation of trade unions, many workers’ groups applied to register as legal trade unions. There are now 1,671 factory-level unions in the country. The Myanmar government often points to this high number as evidence of workers’ right to organize. Some commentators have supported this claim, arguing that the worker’s right to organize and protect their interests inside the factory has been legally granted. However, in practice, workers in Myanmar who try to organize trade unions inside their factory face difficulties, discrimination, and other risks. The case of a strike at the Dishang Kenny garment factory in Hlaing Thar Yar industrial zone in January 2019 is illustrative. After union organizers in the factory complained of excessive overtime and payment below the legal minimum, the employer fired the workers involved in the dispute. One of the sacked workers told The Myanmar Times, “We don’t know why we were fired. We did nothing wrong at the factory.” In response, the factory manager claimed that he had to dismiss the workers because “they violated the conditions of their contracts by disrupting and delaying production.” The manager also complained that he could not control the workers in the factory because of the union’s intervention in disputes between individual workers and management, and that, as a result, the company had to spend too much time resolving disputes with sacked workers. In this case, about 500 workers subsequently protested in front of the factory and demanded that the sacked union members who were arbitrarily fired be rehired. The workers’ statement highlights the difficulties workers face when attempting to form unions inside their factory. In this dispute, the Township Labour Relations Department issued a statement describing the case as a dispute between individual workers and the factory, as the union did not have a Form 7, the trade union registration letter from the Ministry of Labour, Immigration and Population.[5] Given the sometimes critical views expressed about trade unions in Myanmar, formal registration has been prominent in trade union advocacy. When workers attempt to organize trade unions or solve their problems in accordance with the law, they face delays due to the weakness and excessive requirements of the law. The Labour Organisation Law contains bureaucratic requirements that hinder union organising in the factory, and hinder formal union registration. In order to establish a workplace trade union, a minimum of 30 workers or 10 percent of the workforce must agree.[6] Also, in violation of international standards, the union must submit a list of prospective union members to the factory management in order to get a recommendation from the employer confirming that the listed workers are actually employed at the factory. A union organizer at Myanmar Consumer Enterprise said, “After the township registrar asked for the details of union members and other required documents like the National Registration Card and recommendation letters from the employer, I had to remove most of my intended members from the list due to lack of such documents.”[7]The difficulties of trade union registration, the requirement to give detailed information about unionists to the registrar, and the fact that workers often lack the required documents have all caused workers to hesitate to organize. Such problems, as well as the threat of being fired for union activities inside the factory, are major challenges for Myanmar trade unionists. It is also crucial to understand that, in the view of most Myanmar government officials, workers’ right to organize unions depends on legal permission from the government. According to one government official interviewed, “Before enacting this law [the 2011 Labour Organisations Law], there were no unions. Without the law, there is no union. If there were, it would be an illegal trade union. The Myanmar government has already agreed to ILO Convention 98.”[8] It is a common belief among government officials that if a union lacks registration (Form 7) from the government, then it is an illegal union, and thus, if workers picket or strike, the action is deemed an attempt to disrupt manufacturing. However, government officials in the Labour Arbitration Council are often biased against actions even by registered unions. One government official I interviewed argued, “Trade unionists are always ready to strike and picket. They need to obey the law. If they don’t, it can affect the perceptions of foreign investors.”[9] Currently, eight federations and one confederation (CTUM) are legally registered. In general, CTUM and its affiliated labour unions have discouraged workers from striking in order for CTUM to appear as a credible partner in the government’s reform process. Thus, although the existence of registered unions in the workplace is a threat to management, unions have also been a way for employers and the government to prevent strikes and promote industrial tranquillity by requiring unions to work through the bureaucratic labour dispute resolution process. Consequently, some unions have chosen not to register and to instead attempt to address workplace grievances outside      the government’s restrictive labour dispute resolution mechanism. Such is the case with the All Burma Federation of Trade Unions, as I consider below. 

A Labour Federation Outside the Legal Framework

The All Burma Federation of Trade Unions (ABFTU) was established on 1st May 2017 with a plan to avoid registering with the government. According to Ko Kyaw Myo, a member of ABFTU’s central advocacy committee, the reason for remaining an unregistered union federation was that the official trade union framework was just a way to restrict workers from organising and therefore an ineffective way for workers to advance their interests. In addition, registered union federations in Myanmar do not effectively represent their members and so there was a need for an independent federation through which workers could organize to claim their rights and improve their working conditions, taking a confrontational approach to labour disputes, if needed. As Ko Kyaw Myo explained, “I don’t trust the current dispute settlement process. The nature of labour disputes is complex and sometimes we do not have enough time to get permission from anyone. If we were to wait for permission, we would have little chance of succeeding in our struggle.”[10]ABFTU’s understanding of labour struggles is based on the view that the feasibility of achieving workers’ demands in workplace disputes hinges on the employer, rather than the government, and therefore workers need to confront employers directly, rather than indirectly through the government dispute resolution mechanism. At present, ABFTU consists of about 500 workers organized in 14 Basic Labour Organisations (workplace-level trade unions). When the federation was established, the central advocacy committee included 12 people. The strategy that ABFTU follows is to start with democratic grassroots unions at the factory level, and then build from the bottom up to form a trade union federation. The idea for ABFTU came following a dispute with the Myanmar Trade Union Federation (MTUF) in 2013 regarding whether or not to legally register. Following the dispute, some workers, including Ko Kyaw Myo, resigned from MTUF. These workers agreed that the legitimacy of a trade union rests solely on the will of the workers involved. According to Ko Kyaw Myo, “We workers should work for labour rights ourselves. And to do this, we need to be independent. If we were to register, we would not be able to remain independent, because we would be bound by the law.”[11] ABFTU was initially formed to be a general national-level federation open to all workers, including farmers, industrial workers, and workers in other sectors in Myanmar. There are still many steps to pass and the federation is in the process of trying to hold a national workers’ convention. Although ABFTU members believe registration restricts trade union activities, they acknowledge that registration serves an important role for advocacy and legitimising unions. Some ABFTU member unions at the enterprise level have therefore applied for (and obtained) Form 7, the official trade union registration form, because they believe it provides them some protection. One member stated that before registering, they faced discrimination in the workplace. However, after registering and receiving their Form 7, factory supervisors had to accept the union and were afraid of the union.[12] In practice, ABFTU members try to resolve workplace disputes at their initial stage by negotiating inside the factory, issuing their demands to the employer, as well as to the Township Conciliation Body as an ultimatum to the concerned parties. Under the legal framework, when workers face problems at their workplace, they must first submit their demands collectively or individually to the factory administration and the Township Conciliation Body. However, they must then wait as the process drags on. Therefore, if the employer and Township Conciliation Body neglect the workers’ demands, ABFTU workers commence advocacy and prepare a strike to resolve their grievances, rather than wait for further negotiations through the Township Conciliation Body. Ko Kyaw Myo thinks that going on strike is the best tool to threaten employers, because employers worry about the strike hurting their profits.[13] For ABFTU, picketing and striking are the main tools for achieving workers’ demands. They have used this approach in disputes at the KGG factory (2017 Nov – 2018 Jan), Fu Yuen garment factory (2018 Aug – Oct), and Myanmar Ever Green factory (2016 Jan). The reason for preferring striking over the government’s dispute resolution process is that the official process is time-consuming and it is likely that factory managers will reject the Arbitration Council’s decision. The Myanmar Times reported that employers have ignored sixty percent of the Arbitration Council’s rulings. As a result, many workers have lost confidence in the government’s Arbitration Council. According to the 2012 Labour Dispute Settlement Law, striking is legal only when disputes are not completely resolved after going through all stages of the official arbitration process. The ABFTU’s approach is therefore to confront employers directly in the workplace rather go through the official arbitration process. This approach is outside the legal framework, but it has proven to be more effective. Although such a confrontational approach is risky for workers, ABFTU workplace unions continue to pursue this strategy: directly negotiating with management in the workplace, and then striking immediately afterwards if negotiations fail. According to the new Settlement of Labour Disputes Law, amended on 3 June 2019, provision no.39 (a), workers are forbidden from any activities that harm productivity or the interests of other workers. This provision aims to restrict the activities of unions in the factory who do not accept the decision of the Arbitration Council. According to one ABFTU leader, ABFTU workers negotiating outside the legal framework have succeeded in about eighty-five to ninety percent of workplace disputes. In the case of Myanmar Ever Green, a plywood and veneer factory, the workers themselves resolved their dispute by negotiating directly with the factory owner, and they received compensation as they had demanded for the closing of the factory. Although the employer had initially paid compensation in accordance with the law, the workers were not satisfied with the amount, which was equivalent to only a one-month salary or half-monthly salary based on their service time. The workers’ therefore asked ABFTU for help, conducted an eleven-day strike, and then got their demand, which was compensation equal to three months’ salary. [14] Although it can be difficult for workers to fully achieve their demands in such cases, direct confrontation is often more effective for the workers involved. Most issues resolved by ABFTU unions concern organising trade unions, wages, compensation, and overtime pay.[15] Most workers are not aware of their legal rights before joining the union. One member stated, “We did not know anything about labour law and our legal rights. After we joined the trade union, we learned about our rights and were able to demand our rights from management. On the other hand, we have not been selected for overtime because of being trade unionists.”[16] It is clear that organising a trade union makes workers more aware about their employment conditions and their legal rights, but such organisers are also discriminated against by factory management in various ways. ABFTU operates solely on the basis of member dues from the members of workplace trade unions, which are paid at a rate of 10,000 kyat per month, and donations from other supporters. Ko Kyaw Myo stated, “We don’t want to accept aid from international organisations because it will restrict us, as we would be no longer independent. We might be constrained by them.” Although this way of self-funding allows ABFTU to remain independent, it is not sufficient to support their activities, especially when workers are on strike. The financial problems of the federation are significant and will be critical for the life of the union.[17] Among ABFTU member unions, the Fu Yuen Factory Trade Union illustrates well the challenges of factory-level trade unions. In this factory, management has always attempted to divide the unionised workers from the non-unionised workers by threatening non-unionised workers or by disturbing the union’s advocacy in the factory.[18] Ma Thet Htar Swe, a leader of Fu Yuen Factory Trade Union said, “Since the union was established, we unionised workers have not been chosen for overtime. They choose the other non-unionised workers who are connected with supervisors and management.” In Myanmar, the current minimum wage of 4,800 MMK is not sufficient for workers’ well-being. Therefore, workers have to work overtime in order to support themselves and their families. If a worker is not permitted to work overtime, he or she will face financial difficulties. This is what has happened with trade union organizers, who are often turned down for overtime when they request it.[19] ABFTU trade union organizers working at the Myanmar Consumer Enterprise faced similar discrimination. This denial of overtime is a common way by which managers oppress trade union organizers in the factories.

Conclusion

As I have stated above, Myanmar trade unionists inside the factory face discrimination and threats when organising trade unions and when operating as a union. The obstacles these organizers’ face in the factory restrict trade union formation and workers’ ability to fully achieve their legal labour rights. Legalisation of trade unions aimed to show foreign governments that Myanmar workers have legal freedom of association, and to persuade foreign investors that, by granting labour rights, the country can achieve industrial peace. The approach of ABFTU toward dispute resolution is to negotiate first and strike second, with the aim of creating a real threat to the employer while bypassing the government’s dispute resolution mechanism. This approach is more effective at enhancing workplace democracy, and a more confrontational approach may also push the government to improve labour policy and actually implement labour legislation. However, this approach is clearly outside the legal framework and is therefore risky for rank-and-file workers who participate. For instances, in the case of the Fu Yuen Factory strike, the workers were attacked by armed thugs. Nevertheless, imposing threats on the employer is the only way workers will ever fully realise their rights. To what extent this approach will be effective remains an open question. For now, however, ABFTU and its workers are determined to continue their struggle in this way.

Ye Yint Khant Maung is currently a student of Master of Development Studies at the Yangon University of Economics, where he also earned a Bachelor degree in Business Administration. He was an Editor and Chief-Reporter of The Uptown of Wealth Campus Magazine, also being a contributor of numerous articles and essays. He is an alumnus and Research Associate at Yangon School of Political Science. As a researcher, he focuses mainly on Myanmar Trade Unionism and Myanmar Private Property Regime. Currently, he is also a research fellow of Norwegian Institute of International Affairs (NUPI).  His research project is about the basic labour organizations and labour regime in Myanmar. This post is part of a series of articles produced in the context of a fellowship program developed by the Norwegian Institute of International Affairs (NUPI) in partnership with Urbanize: Policy Institute for Urban and Regional Planning. The author wishes to thank Stephen Campbell for his support in writing this post.

Notes

[1] International Center for Trade Union Rights (ICTUR), Trade unions of the world, 6th edition, p. -229.

[2] Lwin, K. 2014. “Understanding Recent Labour Protests in Myanmar.” In Debating Democratization in Myanmar. ISEAS- Yusof Ishak Institute, Singapore, pp. 137-156.

[3] Interview with a government official from the Ministry of Labour, Immigration and Population on 15 August 2019.

[4] See also https://www.mmtimes.com/news/over-500-workers-protest-garment-factory.html>  (Accessed on 20 August 2019)

[5] Ibid.

[6] Labor Organisation Law 2012/ Chapter II/ Provision- 4(a)i. “In so forming, it shall be recommended by not less than 10 percent of all workers of the relevant trade or activity.”

[7] Interview with MCE factory trade union leader on 26 May 2019.

[8] Interview with a government official from the Ministry of Labour, Immigration and Population on 15 August 2019.

[9] Ibid.

[10] Interview with Ko Kyaw Myo on 30 May 2019.

[11] Interview with Ko Kyaw Myo on 30 May 2019.

[12] Interview with a member of MCE Factory Trade Union on 14 August 2019.

[13] Interview with Ko Kyaw Myo on 30 May 2019.

[14] Interview with Ko Kyaw Myo on 30 May 2019.

[15] Ibid.

[16] Interview with a member of MCE Factory Trade Union on 14 August 2019.

[17] Interview with Ko Kyaw Myo on 30 May 2019.

[18] Interview with Ma Thet Htar Swe on 30 May 2019.

[19] Panel discussion with trade unionists from Fu Yuen Trade Union, Dagon Seikkan Garment Factory Trade Union, and MCE Trade Union