Evolving structure for FOA practices

Emergence of new institutions and new actors is another important manifestation of transition. Actors in policy circles, civil society circles and circles of ‗international in domestic‘ 72

all play a greater role in acting on new laws and institutions.

A liberalized media emerges as a most significant institution which forms part of the evolving institutional structure shaping the way FOA is practiced in the country. The media is expected to perform three important functions in promoting human rights in general and specifically in implementing FOA norms. The media raises awareness about the rights of workers, monitors and reports abuses and provides venues for stakeholders to engage in

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Interview with labour advocate, lawyer U Htay, member of the Arbitrary Council, Yangon Division on 8 January 2017.

71 _{Interview with U Maung Myint, MP Pyithu Hluttaw (House of Representatives), retired Minister for Labour from 2012 -}

2013, retired Minister for Industry from 2013 - 2016 on 16 February 2017 and interview with Daw San San, President of the Yangon Division Arbitrary Council for labour dispute, Member of Dispute Settlement Arbitration Council, alternate Chairperson of Arbitration Body or Tribunal at Ministry of Labour and Employment, Ex-Member/Commissioner, Myanmar National Human Rights Commission, YGN, Director (Retired) at Ministry of Labour Employment and Social Security on 17 February 2017.

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dialogues and debates on issues around labour rights in general and the exercise of FOA in particular.

A government department, Factory and General Labour Laws Inspection Department, is another important mechanism for the monitoring and reporting on the compliance with labour laws in general. However, the Directorate of Labour is in charge of matters relating to the implementation of the Labour Organization Law as the directorate and township offices hold the registers of workers‘ organizations. Despite its role as a focal department for matters relating to labour organizations, the Directorate of Labour hardly plays any role in defining and promoting the FOA concept as it is bogged down by registration processes. Such limitation of the government department is also explained by its weak institutional strength. Out of 330 townships across the country, the Directorate of Labour has offices only in 78 townships. Weak institutional capacity is one of the reasons for the government‘s limited role in raising awareness about labour organization law and regulations. The impact of such limitations on the FOA implementation will be elaborated further when we discuss the causes and consequences of side-tracking of the FOA norm in Myanmar.

For the enforcement of the Labour Organization Law and regulations, labour dispute settlement mechanisms are introduced by the Labour Dispute Settlement Law 2012. The law set up a multi-level mechanism for the exclusive handling of labour disputes. Disputes unresolved within five days of consultation in the Workplace Coordination Committee (WCC) are to be referred to the Township Conciliation Body (TCB). When TCB fail to solve it in three days, the case is to be heard at regional or State-level Arbitration Body (AB). If the AB is unable to solve the dispute within seven days, national-level Arbitration Council (AC) is to consider the case within seven days. Final appeals can be submitted to the Supreme Court.73

While recognizing some flaws in the way such mechanism operates, the usefulness of the labour dispute resolution mechanism has been reported by BSR, an INGO working with businesses for sustainability. According to the report, 1,200 cases accepted by TCBs in 2016 alone, and around 85 percent of TCBs cases are resolved through conciliation at that level while 150 cases went on to the relevant ABs, with nearly two-thirds of these cases later appealed to the AC. A small number of disputes are diverted to the judicial system for appeal or enforcement.(Ediger and Fletcher, 2017).

Aside from such mechanisms exclusive to labour matters, complaints about labour rights abuses can be made to another national mechanism, the Myanmar National Human Rights Commission (MNHRC) formed in 2011. Although MNHRC was not exclusively designed for handling labour rights abuses, it receives complaints related to labour issues (MNHRC, 2017: 1,7).74

Although the Commission is often questioned about its autonomy due to its composition of appointed members, its activities are relatively autonomous. Within its limited mandate of receiving, verifying and referring complaints to government bodies, MNHRC handled a total of 7,208 complaints from 2011 to 2014.75

Another important institution, which played an important role during the first Union Parliament [Pyidaungsu Hluttaw] (2011–2016), was the Hluttaw Committee on Peasants, Workers, and Youth Affairs.76

In a similar way, the Rule of Law and Stability Committee of the Parliament, which was established in 2012, allowed the general public to lodge complaints against government bodies. The presence of such institutions opened opportunities for rights holders to raise their grievances via their Members of Parliament and to seek resolutions outside the courts as relevant committees made field and site visits. They tend to inform the relevant ministerial departments and government organisations of issues that needed to be addressed to satisfy right holders.

All these legislations and institutional mechanisms for the implementation of the FOA norm through enforcement of workers organization laws aim to create a peaceful industrial landscape. They are meant to fulfil the states‘ economic objectives by performing dual

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MNHRC was founded on 5 September 2011 and Complaint Mechanism was introduced on 6 October 2011.

75

Interview with U Nyunt Swe, member of the MNHRC and head of the International Relations Division.

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Union Parliament is a bi-cameral legislature which is composed of 440 seats in the House of Representatives [Pyithu Hluttaw] and 224 seats in the House of Nationalities [Amyotha Hluttaw]. Twenty four thematic committees and commissions were formed during the first Union Parliament. In the second Union Parliament, 4 permanent committees; (1) Bill Committee, (2) Public Account Committee, (3) Hluttaw Rights Committee, (4) Governments‘ Guarantees,Pledges and Undertaking Vetting Committee and 19 thematic committees are formed. Thematic committees includes Citizens Right, Democracy and Human Rights Committee, National Races Affairs, Rural Development Affairs and Internal Peace Implementation Committee, Banks and Monetary Affairs Development Committee ,National Planning ,Union Budgets and Taxation Vetting Committee,Peasants, Workers and Youth Affairs Committee, International Relations Committee, Economic and Trade Development Committee, Transportation, communication and Construction Committee, Sports, Culture and Public Relations Development Committee, Agriculture, Livestock and Fishery Development Committee, Investment and Industrial Development Committee, Natural Resources and Environmental Conservation Committee, Health Enhancement Committee, Education Enhancement Committee, Committee for Rule of Law and Peace and Stability, Judicial and Legal Affairs, Complaints and Appeals Committee, Public Affairs Management Committee, Population and Social Development Committee, Reformation and Modernization Vetting Committee,

functions: to guide and to enable the workers‘ organizations in collective bargaining through workplace coordination and to solve conflicts of interests through legal-institutional means. However, the legislation and institutions are not without defects.

The characteristics, strength and weaknesses of laws and institutional mechanisms have great conditioning effects on the way the FOA norm is implemented in Myanmar. Institutional strength and constraints are discussed in detail in the upcoming section which considers the cause and consequences of deviated FOA practice in Myanmar.