"There is no way to prevent workers from leaving their jobs. In any business, if the worker is not comfortable with the business, he will leave. The employer cannot be told that the employee cannot be fired. Workers who are not compatible with the business will be fired by the employer. Then, if the employer demands compensation for the employee's resignation, they can file a dispute at the labor office."
(a labor activist)
Whether the contracts between the employer and the workers are valid or legal regarding the compensation claim, Myanmar Labor News has inquired a labor activist about whether it is in accordance with the law.
Question - There are contracts between workers and employers, so what should be followed when concluding these contracts?
Answer - Either the EC contract or a contract with both side’s request included, the main thing that needs to be followed is not to conflict with the labor law and the meaning of it, regardless of whether the parties sign a contract. Contracts also need to be legal.
So, if we sign a contract in other factors, we have to register the contract. The contract is often not bound by any law. Often controversial. These issues really need to deal with the laws and will not be covered.There is something written in the labor law that says that content that is against the law is null and void.Therefore, it is necessary to send to the relevant departments to verify whether the contracts are valid.
Question: If the employee quits the job, is the employer's claim for compensation according to the contract legal?
Answer: If you are already employed, you must conclude an Employment Agreement (EC) under the Law on Employment Development.
The EC contract already contains the points specified by the Ministry of Labor. Neither the employer nor the employee not have the right to correct it. But there are rules are extendable according to the slaughtering industry. For example, not to smoke or eat betel nuts in the workplace. These can be added later. But default points cannot be modified.
According to the EC contract, there are periods which the worker must inform regarding the resignation in advanced according to seniority. A week for a probationary staff and a month for permanent ones. If the employee gives a week's notice that they will be leaving, the employer cannot demand severance pay from the employee who is legally leaving according to the contract.
What asking for compensation according to the contract signed when they hired looks like manipulating the EC contract making it looks like illegal.
In fact, if the employer is not confident with the employee, he can fire the worker. And the workers too have the right to resign if he is not comfortable with the job
In the EC contract, there are time limits regarding the ability to fire and the ability to quit. The worker cannot be demand for compensation for the resignation.
There is also the right to apply to the labor office that such claims for compensation are automatically void if they are against the EC contract.
Question - Does this mean that the workers cannot be forbitten from resigning?
Answer - There is no way that can forbit the resignation of workers. In any sector, if the worker is not comfortable with the job, he will leave. The employer can't be also told that he can't be fired the workers. Workers who are not compatible with the job will be fired by the employer. Then, if the employer demands compensation for the employee's resignation, they can file a dispute at the labor office. But that does not mean to give the compensation mandatorily.
Question - Do the employers have the right to keep the workers' identity? Is it legal?
Answer - Employers cannot keep the workers’ identity. If they want to know if the information of a worker is correct, they can ask for the labor card during the job application. The cards are registered at the labor office with the worker’s identity. The labor office checks whether the registration is correct or not. Information such as education are collected there. Therefore, even if the employer keeps it due to business needs, he can keep only that labor card. The worker's national identity card cannot be kept. If the workers encounter this type of confiscation, they can take it back by informing the relevant labor office.
Question - It is known that there is a term in the EC contract. During that period, whether the worker resign themselves or the employer fires them, how should they proceed? Please also explain whether the term of the contract is related to the employee's seniority.
Answer - EC contract is the term of the contract, not the seniority of the worker. A worker can't be fired after the contract has expired. If the contract expires, the subsequent rules in the contract the points that are not appropriate for the period can be removed or added. If they do this, the employer and the employee can negotiate and prepare. For example, salaries, dormitories and ferries. Such as would the employer continue to give what he gave before? Would they provide something new that they didn’t pay last year. Salary may also change.
The workers can't be fired only because the contract is expired. Whether it's a year or six months, the workers have to give notice in advance according to the contract. After this, rights and benefits must be dealt with according to the law.
It's like the workers can't be fired only because the EC contract is expired. And not a mandatory compensation to pay for resigning during the term of the contract.
Question - What kind of things do workers need to be aware of when signing a contract before entering the workplace?
Answer - If the employer requests to conclude a contract, it is difficult for the workers to refuse for reasons. If you want a job, you have to sign a contract. If so, they have to check if there is any content in the contract that is against the law Another copy of the contract is required to be with the employee. If there is a contract, they can cancel the contract by informing the illegal demands to the labor office and people who help with the labor issue.
Question - What should workers who have signed contracts that are beyond the law do?
Answer - If they have signed the contracts due to employment requirement, they need to inform the experts who understand the law, labor activists and organizations. When they resolve like that, the content that exceeds the content law is null and void. For example, they cannot agree to lower the minimum wage. It is void because it is against the law.
Question - There are businesses that pay less than the minimum wage after eliminating expenses. Is this legal or against the law?
Answer - There are two parts. When the minimum wage law was stipulated, there was a clarification for the businesses according to the number of the workers to pay the minimum wage. If they have the number of workers that is stipulated by the law, they need to pay the minimum wage.
The workers need to ask since they started working that would the employer cover the expenses or not. If the expenses are covered and the wage is 120,000 kyats, it is legal under the law.
If the expenses are not covered then the full minimum wage needs to be paid. Because meal, electricity and water costs, etc. are deductible expenses.
Another thing is that although some issues are not concluded by the minimum wage law, they are covered by the shops and work centers act. Such as paying on the holiday. I mean, it is often covered by another law if not that one. So, the workers of these shops and domestic businesses also have working hours, leaves and holiday benefits. They need to know these things.
Business and worker covered by the relevant law are all the same. There is no specific law regarding the type of worker. The main problem with home businesses that can be called small businesses, is that neither the business nor the workers are registered. These are violations of the law.
A business must register what kind of product produces and what kind of equipment it us. Even if the worker doesn’t have the time to register the employer should do it.
