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MINISTRY OF LABOUR, EMPLOYMENT AND SOCIAL SECURITY

Application and Practice of the Settlement of Labour Dispute Law

Dr. Than Win

Director-General

Department of Labour Relations

Ph-+95 67 430115

Fax-+95 67 430147

Email:win.john @gmail.com

Kandawgyi Palace Hotel, Yangon, Myanmar, 12 February, 2013

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The settlement of Labour Dispute Law was enacted on 28th March, 2012 and Rules were issued on 26th April, 2012.

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The Settlement Mechanism

Supreme Court of the Union

Arbitration Council

Arbitration Body

Conciliation Body

Workplace Coordinating CommitteeEnterprise Level

Township Level

Region/State Level

Final and Conclusive

5 days

3 days++

7 days

14 / 7 days

90 daysSection 296Writ of

Certiorari

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Section 296 of Constitution of The Republic of the Union of Myanmar (2008)

The Supreme Court of the Union has the power to issue the following writs:

i. Writ of Habeas Corpus;

ii. Writ of Mandamus;

iii. Writ of Prohibition;

iv. Writ of quoWarranto;

v. Writ of Certiorari; (အမှု�ခေ�စ��န်ခေ)

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Arbitration Council

5 persons

Selected by the Ministry

- Retired Director- Generals- Well experienced in Labour Affairs- Average age 70 years old

5 persons selected by the Employers’ Organization

- Retired RUMFCCI (CEO / Senior Staff /

Advocate)- Average age 73 years old

5 persons selected by the Workers’ Organization

- Most of them are from the private sectors

except U Nyar Na(40 years old)- Average age 52 years old

- The Arbitration Council was established on 20th July, 2012

with the approval of the Union Government.

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Arbitration BodySR. No

Region / State Date of Approval

1. Yangon 31 May, 2012

2. Bago 31 May, 2012

3. Mandalay 20 July, 2012

4. Magway 13 August, 2012

5. Taninthayi 16 August, 2012

6. Kayah 10 September, 2012

7. Kachin 11 September, 2012

8. Sagaing 22 September, 2012

9. Chin 22 October, 2012

10. Ayeyawady 23 October, 2012

11. Kayin 23 October, 2012

12. Mon 23 October, 2012

13. Shan 26 November, 2012

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The formation of Rakhine State is not yet established. Now, the Ministry of Labour, Employment and Social Security(MOLES) already received the nominees list and on the way to Cabinet approval of the Union Government .

Nay Pyi Taw Arbitration Body can not be yet established. Need to insert relevant provision in the Settlement of Labour Dispute Law. Therefore MOLES is now trying to amend the law.

Nay Pyi Taw, the Capital of the Union, prescribed as Union Territory, shall be under the direct administration of the President. (Section 50 of Constitution, 2008)

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Academic Qualification & Experience of Chairperson Arbitration BodiesSr.No

Region/State Experience & Qualification of Chairperson

1. Yangon Col (Rtd.)/ Judge of Supreme Court (Rtd.)/ B.A(Law), LL.B

2. Bago Deputy Director, General Administration Department Ministry of Home Affairs / B.Sc (Maths;)

3. Mandalay Division Labour Inspector (Rtd.), Factories and General Labour Laws Inspection Department, Ministry of Labour/ B.A(Law), LL.B

4. Magway District Judge (Rtd.)/ Advocate / B.A ,(H.G.P) ,(R.L)

5. Taninthayi Deputy Director (Rtd.), General Administration Department / B.A

6. Kayah Assistant Director (Rtd.)(GAD)/ I.Sc

7. Kachin Assistant State Law Officer(Rtd.), Attorney General Office / LL.B

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Sr.

No

Region/State Qualification of Chairpersons

8. Sagaing Administrative Officer (Rtd), GAD / B.Sc (Phys;),

Diploma in Education

9. Chin Assistant Director (Rtd) GAD/ B.A. Dip.Journ,

B.L;E.C.A; B.C.S (S.E)

10. Ayeyarwady Deputy Director, GAD, Regional Government/

B.Sc(Chem:)

11. Kayin Chairman (Rtd), Kayin State Council / B.A

12. Mon State Law Officer (Rtd)/ B.A(Law), LL.B

13. Shan Assistant State Law Officer (Rtd)/ B.A(Law), LL.B

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Settlement Status (1.4.2012 – 31.12.2012)

1. Arbitration Council resolved 17 cases. The member of workers involved was 1801 and total cash benefit enjoyed by workers was about 52.78 million Kyats and 1333.28 USD.

2. Region / State Arbitration Bodies resolved 38 cases and 3412 workers enjoyed 34 million Kyats (est.)

3. Township Conciliation Bodies settled 736 cases involving 63604 workers enjoying 1.255 billion Kyats benefits in total.

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Review the cases submitted to Arbitration Council

1. Unfair Dismissal / Termination Employment - 11

UD/TE (Severance Benefit Decision)

2. Reinstatement Decision - 3

3. Piece rate claim - 1

4. Bonus claim - 1

5. Wages claim - 1

Total 17 cases

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Question

To review the recent employment laws?

1. Employment Contract?

2. Termination of Employment?

3. ILO Convention 158 (Termination of employment & ILO Recommendation 166 ) (------).

4. Model Law?

5. ASEAN Countries’ Legislation

6. ILO website (www.ilo.org) EPLEX

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Challenges for Arbitration Council, Arbitration Bodies and Conciliation

Bodies

1. Some Arbitration Council members are elderly persons, and they are not suitable to travel to the remote workplaces in Region or State.

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2. Region / State Arbitration Body Absence of witnesses from both parties.(Time

Frame) Arbitration Body members from different

Townships. (Magway / Taninthayi) Some Arbitration Body members selected by

employer organizations are sometimes engaged with their own business.

Workers’ Representatives have only two-days, a month on duty (according to Section 30 of Labour Organization Law)

Case Referral from Conciliation Body without trying to take enough time to conciliate. (3 days + ----)

Beyond the scope of Jurisdiction of Arbitration Body.

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Challenges of Township Conciliation Bodies1. Outsiders’ Interfering / Intervention (Open door or

Close door)

2. Being absence of Employers’ or Workers’ representatives make decision delay.(Time Frame)

3. Being unable to join by the Conciliation Body members (Employers’ Representatives ) without prior requests for absence.

4. Blockade Conciliation Body members inside the workplace.(Restriction of movement)

5. Try to get the management role by workers’ side.

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6. Contractor & subcontractor (Both Employers?)

7. Cannot reach remote workplaces in dispute because no travel allowance is provided.

8. 8and allowance for all Conciliation Body memb. Require to find the ways to enjoy suitable subsidy ers excluding government staff.

9. Regular meeting & working meeting Allowances

10. Where is the best place to conciliate? Chairperson’s office or workplace?

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Recent Development of Ministry of Labour, Employment and Social Security1. Procedural Rules for Arbitration Council

already adopted with the approval of the office of the Attorney-General (OAG).

2. Suggested Correspondence letter to Region/State Government concerning suitable subsidy and allowance for Conciliation Body members from National Budget (Compared to 50000 Kyats each for 3 Tribunal members and 30000 Kyats each for 3 Arbitration Body members in any Case).

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3. Amendment of the Settlement of Labour Dispute Law(Nay Pyi Taw Council & Prohibition and Penalty).

4. Ministerial Notification – Prosecution mandate to Labour inspectors of Factory and General Labour Law Inspection Department.

5. Redundancy & Severance Benefits Rate to be determined by the Minister (By Rule 35).

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Status of Formation of workers’ Organization and Employers’ Organization

Basic Employers’ Organization - 17Employers’ Federation - 1Basic Workers’ Organization - 404Township Workers’ Organization - 4Workers’ Federation - 1

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Public Sector Workers’ Organization

1. Education (7) (University Yangon 5/ Mandalay 2)

2. Transport (3) (Railway 2/Inland water Transport 1)

3. Manufacturing (1) (Paper Mill 1)

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Pros and Cons of Labour Relations

1. Lack of recognition to workers’ organization by the respective employers.

2. Failure to comply with decisions or awards of Arbitration Council, Arbitration Body due to loophole of the Law.(No intention to abide by the Law)

3. Submit writ to the Supreme Court as late as possible. Delayed Action and cannot enjoy the benefit in time.

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4. Insufficient financial status of workers to submit writ and to sue the case. Most of them have no legal consultants.

5. Some Workers’ Organizations deviate from the right track. For example, Two Freight handling workers organizations in Kyaikhteeyo (the golden rock pagoda) are conflicting each other and they were trying to get the role of supervision Committee.

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6. Good Industrial relations Peaceful workplace and more productivity Job Opportunity more Family Income National Economic development

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Q. How to share a Cake ?

Employer Workers 80% 20%

70% 30%

60% 40%

The Employer knows the actual net profit.

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The Way Forward and Suggestions

1. Amendment to the Settlement of Labour Dispute Law.

2. Awareness program and Training Courses especially for Trade Union Leaders.

3. Take more time to exercise Negotiate and conciliate process.

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4. Conciliation Body, Arbitration Body, Arbitration Council members should know labour laws and Arbitration Body, Arbitration Council should decide awards that the employer can comply with and workers can enjoy the right-based benefits.

5. Regular Tripartite Workshop, Technical meeting to be held to share the experience and to understand each other.

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6. To determine and issue the Ministerial Notification for severance benefit or redundancy pay.

7. To make a new employment Protection Law such as termination of Employment Law.

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THANK YOU

for your kind attention.