Career Forum 2014 University of Foreign Language, Yangon Legal Framework for Employment in Myanmar

Transcription

1 In association with U MyintLwinLaw Office Career Forum 2014 University of Foreign Language, Yangon Legal Framework for Employment in Myanmar an association of independent law firms in 60 countries 8 April 2014 Siri Lerdsirisopon Senior Associate siri.lerdsirisopon@vovan-bangkok.com vovan@myanmar.com.mm Vovan & Associes -U MyintLwinLaw Office 1

2 Legal Framework There is no one comprehensive labour law in Myanmar Some of the current labour laws: Employment and Skill Development Law (30 Aug 2013 replacing Employment and Training Act (1950)) Factories Act (1951) Labor Organization Law (11 Oct 2011 replacing Trade Unions Act) Leave and Holidays Act (1951) Law on Minimum Wages (March 2013 replacing Minimum Wages Act (1949)) Shops and Establishment Act (1951) Workmen s Compensation Act (1923) Settlement of Labour Disputes Law (28 Mar 2012 replacing 1929 version) Social Security Act (2012 replacing 1954 version) 2

3 Government Department of Labour Social Security Board Central Inland Freight Handling Committee Ministry of Labour Central Trade Dispute Committee Factories and General LabourLaws Inspection Department 3

4 Employment Contract Generally must be approved by local labouroffice, but in practice, the office is not ready Must be signed within 30 days of the start of employment Department of Labourpublishes an employment law booklet that contains a sample contract 4

5 Employment Contract: Basic Terms (1) the type of employment; (2) the probation period; (3) wage, salary; (4) location of the employment; (5) the term of the agreement; (6) working hour; (7) day off, holiday and leave; (8) overtime; (9) meal arrangement during the work hour; (10) accommodation; (11) medical treatment; (12) ferry arrangement to worksite and travelling; (13) regulations to be followed (14) if the employee is sent to (15) resigning and termination of by the employees; attend the training, the limited service; time agreed by the employee to continue to work after attending the training; (16) termination of agreement; (17) the obligations in accord with (18) the cancellation of the stipulation of the agreement; employment agreement mutually made between employer and employee; (19) other matters; (20) specifying the regulation of (21) miscellaneous. the agreement, amendment and supplement; 5

6 Wages Must comply with Minimum Wage Law and Rules (2013) National Committee, comprising representatives from the government, the employers, and the labour organisations, will determine the new minimum wages New minimum wages: expected by the end of 2014 Wage does not include allowances (meal, accommodation, travel, etc) Considerations: Region, Type of Job, Cost of Living Employers must inform employees of the new minimum wage and have it prominently posted Pay discrimination based on gender is prohibited 6

7 Working Hours Industry Applicable laws: Factory Act (1951); Shops and Establishment Act (1951) Working hours: Maximum Working Hours Hours per Day Hours per Week Days per Week Minimum Rest Period Factory and industrial work Office and shops minsafter 5 hours of work 16 Overtime rate is double that of ordinary wage Maximum Overtime Hours per week 7

8 Training Must comply with Employment & Skill Development Law (30 Aug 2013) Employer s obligations: make monthly contribution in the amount equivalent to at least 0.5% of employee s salary to the Employee Skill Development Fund (cannot be deducted from employee s salary) provide training to employees in line with policy of the Skill Development Team (on-the-job training, systematic training program, outside training, and/or computerized training) Note: in practice, employers are still waiting for guidelines from the government Minimum Wage Rules (2013) allows employer to pay 75% of remuneration during probation period (for purposes of training employees) and not less than 50% during the first 3 months (for employees that require training) 8

9 Leave and Holidays: Paid Leave Paid Annual Leave Must comply with Leave and Holidays Act (1951) Employee s minimum entitlements: No.of Days per year Cumulative? Accrual Casual leave 6 days No Immediately Earned leave 10 days Dependson agreement After 12 months of work Medical leave 30 days No After 6 months of work Public holidays 21 days on average N/A N/A 9

10 Leave and Holidays: Unpaid Leave Employee s entitlements are based on Social Security Law (2012) Employees may not be terminated while claiming sickness benefits, maternity benefits, and temporary disablement benefits due to employment injury equivalent to unpaid leave Unpaid Leave Based on Sickness Maternity Temporary Disablement Due to Employment Injury 10

11 Termination of Employment No clear guidelines Severance pay based on sample employment contract issued by Department of Labour(not law): Length of Service Less than 3 months Severance Pay 1 month s salary 3 months 1 year 2 months salary 1-3 years 3 months salary More than 3 years 5 months salary Arbitration council s decisions have been inconsistent Ministry of Labourto announce new severance pay in accordance with Employment and Skill Development Law 11

12 LabourDisputes Labour Dispute Settlement Law (2012) applies: Resolution Body Description Workplace Coordinating Committee Conciliation Body Dispute Settlement Arbitration Body - Required for employer of more than 30 employees - Promote good relationship - Grievances negotiated and settled within 5 days - Township level (formed by region or state government) - To conciliate a dispute within 3 days - Without settlement, individual disputes can move to court - Region/State/Division level (formed by Ministry of Labour) - To make a decision within 7 days - Without settlement, strike/lockout is possible (except disputes involving essential services ) Dispute Settlement ArbitrationCouncil /Tribunal - National level (formed by Ministry of Labour) - Council to nominate a Tribunal to resolve disputes - Toissue a decision within 14 days for non-essential services or 7 days for essential services. 12

13 Lockouts and Strikes Labour Organisation Law (2011) applies Conditions: Typeof strike/lockout Employer locking out public utility service or other service workers Labourorganisationstrike in public utility service Labourorganisationstrike in other services Conditions Strike/Lockout in essential services Not permitted Notify employees and conciliation body at least 14 day inadvance; Receive permission from conciliation body Notify employer and conciliation body at least14 days in advance; Reach an agreement with employer on provision of services during strike Notify employer and conciliationbody at least 3 days in advance 13

14 LabourOrganisations Type Labour Organisation Law (2011) applies Labourorganisationscan be registered with Township Registrar or Chief Registrar Employee has a right to join or resign from a labourorganisation Basic LabourOrganisation Township Labour Organisation Region or State Labour Organisation Labour Federation Myanmar Labour Confederation Criteria -At least 30 members; recommended by at least 10% of workers in the same trade - Recommended by at least 10% of all basic labour organisations in the same trade/township - Recommended by at least 10% of all township labour orgnisations in the same trade/state - Recommended by at least 10% of all region/state labour organisations in the same trade - Recommneded by at least 20% of all Myanmar labour federations in the same trade 14

15 Thank you. In association with U MyintLwinLaw Office an association of independent law firms in 60 countries Siri Lerdsirisopon Senior Associate Vovan & Associes Ocean Tower 1, 14 th Floor No. 162, First Floor, 35 th Street 170/42 New Ratchadapisek Road Kyauktada Township Klongtoey, Bangkok Thailand Yangon, P.O. Box 1126, Myanmar Tel: +66(0) Tel: +95(0) siri.lerdsirisopon@vovan-bangkok.com vovan@myanmar.com.mm Vovan & Associes -U MyintLwinLaw Office 15