Asia employment law bulletin 2020
Myanmar witnessed a number of government instigated developments in 2019 which aim to a safer and healthier workplace and easier dispute resolution mechanism.
Law amending the Labour Dispute Settlement Law (LDS Law)
On 3 June 2019, Pyidaungsu Hluttaw, the Parliament of Union of Myanmar, enacted the Law amending the Labour Dispute Settlement Law (Amendment Law). Some of the key amendments are set out below:
Definition of Worker and Employer
The definition of “worker” is widened to include trainees, workers on probation as well as workers who are dismissed or terminated in furtherance of a dispute. In the event the employer is a company incorporated under Myanmar Companies Law, the head of management and members of the board will also be construed to be employers as per the revised definition of “employer”.
Dispute for Employment Rights and Privileges
The terms “individual dispute” and “collective dispute” have been replaced by “dispute for employment rights and privileges” and “dispute for benefits” respectively. Under the LDS Law, both individual and collective disputes by the employee need to be settled through the dispute conciliation body before appeals can be lodged with a competent court (in the case of an individual dispute) or step-by-step appeals to an arbitration council (in the case of collective disputes). Under the Amendment Law, if a dispute is related to employment rights and privileges, either the employer or employee can submit the complaint directly to the relevant Department of Labour Relations or to a competent court. For disputes related to employment benefits, the grievance shall be submitted on a step-by-step basis from the dispute conciliation body to the arbitration council in the same manner as a collective dispute under the old law.
Workplace Coordination Committee
Employers with 30 or more employees are responsible for forming a “Workplace Coordinating Committee” which includes three representatives each for the employer and the employees (the number of representatives required to form a committee under the LDS Law was two). The term of the committee is two years (it was one year under the LDS Law). In the case of any dispute between the employer and the employee, the Workplace Coordinating Committee shall attempt to resolve the dispute and if successful, the parties shall form a collective agreement. Within one year from the signing date of such an agreement, any terms and conditions agreed to thereunder shall not be raised in complaint again. The collective agreement is to be filed with a relevant dispute conciliation body.
Fines and Penalties
The Amendment Law prescribes revised fines and penalties for non-compliance with the provisions of the LDS Law. Among others, the fine levied on an employer for non-compliance with formation of a Workplace Coordinating Committee has been revised to a range from MMK 300,000 to 1 million (c. USD 205 to 684).
The Occupational Safety and Health Law (OSHL)
The OSHL which was enacted on 15 March 2019 aims to augment occupational safety and effectively manage health matters in industries and businesses and to prevent occupational hazards and diseases. The OSHL extends to eighteen types of industries and businesses including private sector companies and joint venture businesses involved in (or doing business in the field of) manufacturing, industrial and construction activities, mining and oil and gas, port businesses, educational services, health care, transportation and communication activities. While it remains unclear when the OSHL will come into effect, we expect that it will in the course of 2020. We have set out some of the OSHL’s key provisions below:
New obligations for employers
Companies carrying on the activities covered under the OSHL must register with the competent department (Department) for occupational health and safety purposes. The OSHL also provides for the appointment by the employer of an “in-charge employee” to supervise the health and safety of workers at the workplace (Occupational Safety and Health Officer). Additionally, the OSHL imposes an obligation on the employer to notify the Department in the event of serious workplace injuries, dangerous incidents and severe occupational accidents (as defined under the OSHL).
In accordance with the OSHL, the employer must undertake a threat assessment of the machinery and equipment used in the workplace, arrange medical check-ups of its employees to ensure that they do not suffer from occupational diseases, provide personal protective equipment and ensure that the company provides appropriate medical assistance and services to its employees (a registered doctor and nurses must be appointed when the number of employees exceeds a specific threshold).
The OSHL provides for protective measures in favour of employees, such as protection against dismissal during the period of leave and prohibition from work that, due to its nature, does not fit with the recommendations of a certified doctor. The employer must also take all necessary measures to prevent any negative effects on the health of pregnant and breastfeeding employees in the workplace. Finally, the OSHL provides the right for employers to limit or restrict the work of employees who are incapacitated due to their health condition.
Offences and Penalties
The OSHL lays down severe penalties in the form of a fine or imprisonment for any contravention of the provisions of the law by an employer. The fine ranges from MMK 1 million to MMK 10 million (c. USD 684 to 6,830), depending on the contravention. Certain violations on the part of the employer like failure to appoint an Occupational Safety and Health Officer, failure to report an occupational accident and/or hazardous event or failure to pay for occupational safety and health expenses may lead to imprisonment.
Marion Carles-Salmon, DFDL Thailand
Arijeet Nandi, DFDL Myanmar