2008 Annual Survey of violations of trade union rights - Thailand
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Thailand, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6ac.html [accessed 5 July 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 100 – 105 – 138 – 182
The military government of Prime Minister Gen. Surayud Chulanont drafted a new Constitution and organized a national referendum, which approved it by 56% on August 19. New elections to restore democratic rule were held on December 23, resulting in a victory for the People's Power Party, close to ex-Prime Minister Thaksin Shinawatra, who was legally barred from contesting the poll. Employers continued to bust unions with impunity while regulatory enforcement was ineffective at best. Migrant workers from Thailand's neighbours proved particularly vulnerable to labour rights abuses.
Trade union rights in law
Basic provisions in the private sector: Private sector workers have the right to form and join trade unions under the 1975 Labour Relations Act (LRA). Ten workers in the same factory or industry can apply to form a union. Unions must be registered with the Ministry of Labour (MOL). The Act prohibits anti-union discrimination by employers and sets up a tripartite Labour Relations Committee to hear cases. However, the LRC's decisions can and often are appealed to the Labour Courts.
Restrictions on union membership and eligibility: Section 95 of the Labour Relations Act provides that members of a union "shall be workers working for the same employer" of the enterprise or company represented by the union, or "employees engaging in the same category of work." If a worker loses his/her job at that enterprise, he/she must be dismissed from the membership of the union. And since, by law, leaders of unions can only come from the active membership of the union, this also means the worker loses his/her leadership post.
An executive committee member of a union must be at least 20 years old to stand for election despite the fact that the legal age to work is 15.
No union protection in private universities or "public institutions": The 2003 Private University Act exempts private universities from the Labour Protection Act and the Labour Relations Act. The law establishing "public institutions", a quasi-government institution, also prevents workers in those institutions from forming a union.
Restrictions on trade unions' right to have advisors: The Thai government uses NPKC Order 54 from the 1991 military government to restrict the unions' right to have advisors. Under this order, each union is entitled to no more than two advisors, who must register with the Ministry of Labour and have their registration regularly renewed. The Ministry has broad discretion to deny registration and penalise labour leaders who fail to register.
Migrant workers restricted from union leadership: The LRA prohibits anyone who is not a Thai national from being one of the ten workers to organise and register a union. The LRA also prohibits any non-Thai citizen from being an elected leader of the union committee. The result is that the estimated 1.5 to 2 million migrant workers from Burma, Cambodia and Laos who are present in the country are effectively stripped of any right to form a trade union.
No real protection: There is no specific protection for union founders or committee members. Despite the ban on anti-union discrimination, workers can be legally fired for any other reason, provided they receive severance pay. Members of the bilateral Worker-Employer Welfare Committee are protected from dismissal under the 1998 Labour Protection Act, but reinstatement for unfair dismissals is a very lengthy process.
Collective bargaining: Employees constituting at least 15 per cent of the workforce, or a trade union with a membership representing at least 20 per cent of the workforce, may present collective bargaining demands. The union must take a vote in its annual meeting in order to put forward those demands, failing which the union has no right to engage in collective bargaining.
Restrictions on unionisation at state enterprises: Employees of state enterprises have the right to form trade unions and bargain collectively under State Enterprise Labour Relations Act (SELRA).
Each state enterprise can have only one union, and each state enterprise employee may be a member of only one union. However, if a union's membership dips below 25 per cent of the eligible workforce, then it is liable to be dissolved administratively by the state under the terms of SELRA.
Under the SELRA, the objective of a state enterprise union must be to promote good relations among employees and between employees and employers; to protect workplace conditions; and to cooperate with authorities in seeking to ensure the effectiveness of the state enterprise and protect its interests.
Affiliation between state enterprise unions and private sector labour congresses or federations is restricted by SELRA. State enterprise unions can only affiliate to a national labour congress as a confederation. Thus, the State Enterprise Workers' Relations Committee (SERC), the national confederation of state enterprises, can affiliate as an entity with one national labour congress, but individual state enterprise unions cannot.
Still no unions for civil servants: Article 63 of the Constitution of 2007 ostensibly provides freedom of association to civil servants, but implementing laws have not been passed, so they are effectively still excluded from coverage by all labour laws. The government continued to refuse to register or recognise the National Thai Teachers Union (NTTU).
Restrictions on the right to strike: The SELRA prohibits strikes and lockouts within state enterprises. Civil servants have no right to strike.
Private sector workers have the right to strike, but the government may restrict strikes that would "affect national security or cause severe negative repercussions for the population at large."
The Labour Relations Act forbids strikes in "essential services", which it defines in broader terms than those set out by the ILO.
Trade union rights in practice and Violations in 2007
Impunity for employers – exploiting legal loopholes and non-enforcement of the law to fire unionists: Employers frequently dismiss workers trying to form trade unions. In some cases, they are fired while awaiting registration of the union (and therefore not yet covered by the laws protecting them from anti-union discrimination). In other situations, they are dismissed for ostensibly nonunion reasons invented by the employer. Penalties for wrongful dismissal are too low to be dissuasive.
The fact that an employee must negotiate leave for his or her union activities makes retaliation by the employer easy. Factory owners often tell management not to allow union executive members to work overtime. This results in a significant economic disadvantage for union leaders and creates disincentives for workers to take leadership roles in the union.
For example, in April, the Auto Press Part Co., an auto parts manufacturer in Rayong province, attempted to frustrate collective bargaining by firing a total of 16 union committee members during the time that negotiations were continuing.
In May, Austrian-owned Tyrolit Thai Diamond Co. Ltd in Rayong province learned that its workers were organizing a union and fired the 8 employees who were leading the unionization effort.
Between May and July, Sony Technology Thailand Co. Ltd, located in Chonburi province, fired a total of 18 workers as they were organizing a union and preparing collective bargaining demands. International pressure by labour activists in Thailand and the Netherlands prompted Sony Netherlands to investigate and, in October, to order Thai managers to reinstate all 18 workers with back pay.
Habiro Thailand Co, Ltd., a computer hard disk manufacturer based in Prachinburi province, fired seven union executive members in October 2007 after the union requested a meeting with management to discuss an annual bonus for workers.
The clearest case of impunity in action was seen at Thai Summit Eastern Seaboard Auto Parts.
When the company, owned by the politically prominent Jungrungreangkit family, joined the Ford-Mazda Auto Alliance union, management demanded that they withdraw and be satisfied with a smaller, "in house" union. When the union refused, management engaged in a partial lockout, targeting union members, for a month. An agreement was reached on January 19 to allow return of all locked-out workers to the factory in early February, explicitly barring retaliation against union members. But returning union members were barred from the factory and instead compelled to undergo mandatory behaviour adjustment training organized by a private firm using a local Ministry of Interior office. On February 9, management fired the ten most active leaders of the union, claiming that they had "deserted their duties". Meanwhile, the trainings for the remaining union members were continually extended, revealing their punitive intent to ensure long-term separation of the unionists from their fellow workers and pressure them to resign.
Local officials failed to take steps to end this unfair labour practice. The union's case was taken up by the National Human Rights Commission (NHRC), which issued a report (no. 101/2550, dated May 17, 2007) finding that the case involved "a violation against the employee rights and freedom on collective bargaining". The NHRC called for an investigation and condemned the factory management for escorting soldiers (later identified as Navy personnel) around the factory compound in order to intimidate workers during negotiations in November 2006. In late May, the remaining unionists were then moved to a separate factory facility away from the main complex. By the end of August, only 25 of the original 266 union members were still working for Thai Summit, and the union had ceased being able to effectively represent the workers. At the end of 2007, the Federation of Thai Auto Workers (TAW) was preparing a freedom of association complaint to be filed with the ILO CFA.
Thai Summit Engineering Center, another company in the network of the Jungrungreangkit family, fired 15 union officers in the Samut Prakan-based factory in early October 2007.
Labour courts inefficient: The unions also report that tripartite labour courts are very slow in handling disputes and tend to side with the employer in cases where union leaders have been fired. Even where a court has ordered the reinstatement of an illegally fired worker, employers often react by offering substantial severance pay in lieu of reinstatement.
For example, in February, worker dissatisfaction prompted 29 workers at the headquarters of True Corporation, a communication firm controlled by the vehemently anti-union Chearavont family that owns the Charoen Pokphand (CP) conglomerate, to organize the Labour Union True Life. Throughout the month, Atsadawut Thiengtong, the workers' leader, was subjected to hostile interrogation by management representatives, who threatened him with a punitive transfer or termination if the workers did not desist. On March 2, all 29 of these original union founders were fired in an attempt to decapitate the union. The workers filed a case on March 6 in the Labour Court, claiming they had been fired for union activity in contravention of the law and seeking reinstatement. After the union held its first annual meeting, True Co. filed a Labour Court case against the MOL to prevent registration of the union committee by claiming some of the leaders lacked qualifications because they no longer worked for True. Blatant delaying tactics by lawyers for True were allowed by the Court, resulting in a situation where the case for reinstatement of the workers had still not been heard by the Court at year end.
Harassment of trade union leaders: At Almond Jewelry, management continued its anti-union campaign, refusing to reinstate President Patoom Kamdeewan and union Executive Committee member Akom Thongdeewan, threatening workers with dismissal if they engaged in union activity, and pressuring union members to sign petitions to withdraw from the union. Management refused to bargain a new labour agreement with the union and locked out 254 union members on April 9.
Also in April, the owners of Rayong-based SIG Combibloc forced a new shift on workers, thereby eliminating workers' shift differential pay by ending the 8-hour shift in favor of a 12-hour shift. The union, led by Secretary General Thaneth Jhanluechai, opposed the change, and for his actions he was terminated by management on May 4. An international campaign was mounted by ICEM and UNI, and labor unions in New Zealand, to demand that the new owners, Rank Group, investigate the matter, and this pressure was decisive in ensuring Thaneth's reinstatement with back pay on December 6.
Migrant workers suffer huge restrictions: Migrants theoretically have the same rights as nationals under Thai law, but in fact they are not permitted to change jobs without their current employers' permission. If they do, or if they are fired, they can be immediately deported. Thai employers use these provisions to prevent migrant workers from exercising their freedom of association.
There were again literally dozens of cases where migrant workers in Mae Sot and other parts of the country were intimidated to not assert their collective rights. Blacklists operated, and workers were arrested and abused with impunity by local authorities, aiding and abetting factory owners, throughout the year. The newly passed Working of Aliens Act 2007 authorizes payment of rewards to informers who assist authorities who arrest undocumented migrant workers, deepening the already pervasive fear felt by migrant workers.
Tanong Pho-arn – 16 years on, still no trace, no justice: 19 June 2007 marked the sixteenth anniversary of the disappearance of Tanong Pho-arn, president of the Labour Congress of Thailand and vice president of the former ICFTU-APRO. There was no progress made in his case during the year.