2009 Annual Survey of violations of trade union rights - Thailand
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Thailand, 11 June 2009, available at: http://www.refworld.org/docid/4c52cac5c.html [accessed 1 May 2016]|
ILO Core Conventions Ratified: 29 – 100 – 105 – 138 – 182
Political turmoil continued between political factions supporting and opposing the former Prime Minister. In the private sector, employers continued to bust unions with impunity while regulatory enforcement was ineffective at best. Fifty-four Burmese migrant workers suffocated to death in April in a closed truck container.
Trade union rights in law
Constitution of 2007 guarantees freedom of association to all, but civil servants still do not have unions: The Constitution of 2007 states all persons have the right to freedom of association and specifically mentions unions as one of the organisations that can be formed. Government officials can form unions "provided that doing so does not affect the efficient administration of State affairs and the continuity of delivery of public services as providing by law." However, the civil servants are still effectively excluded from coverage by all labour laws.
Freedom of association in private sector includes registration requirement, restrictions on union membership and eligibility: 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).
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, they 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 they lose their 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.
Restrictions on unionisation at state enterprises: Employees of state enterprises have the right to form trade unions and bargain collectively under the 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% of the eligible workforce, then it is liable to be dissolved administratively by the state under the terms of SELRA.
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 join other national labour bodies.
Unions barred from all private sector educational institutions and "public institutions": The 2003 Private University Act exempts private universities from the Labour Protection Act and the Labour Relations Act. Similarly, the Private Schools Act of 2007, passed by the military-appointed Parliament in December 2007, stipulates that all teachers and educational personnel are not covered by these two key labour laws. The law establishing quasi-government "public institutions" also prevents workers in those institutions from forming a union. An increasingly wide variety of quasi-government organisations have been established as "public institutions", thereby carving out a growing section of formal employment that is legally union-free.
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 practical protection from anti-union firings: Despite specific sections in the LRA that prohibit anti-union discrimination, penalties for violating the law are not severe. Punitive damages for anti-union firings are virtually unknown and unionists who succeed in winning lengthy court battles for reinstatement are usually only awarded back wages from the date of their firing. A workers' status as a union founder or committee member offers no de jure protection unless they can prove they have been fired for union activities, and employers invariably deny that terminations are related to a worker's union work or position. 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.
The only effective protections in law exist for members of the bipartite Employees Committee (EC), established under the authority of Articles 45-53 of the LRA. EC members can only be fired with prior permission of the Labour Court. Hence, there is a strong motivation for trade unions to establish their leaders in the EC soon after organising the union.
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 the right to strike: The SELRA prohibits strikes and lock-outs 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 significantly broader terms than those set out by the ILO.
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.
Trade union rights in practice and violations in 2008
Background: Political turmoil continued between political factions supporting and opposing the former Prime Minister, Thaksin Shinawatra. State enterprise unions took a high profile role in the anti-Thaksin "People's Alliance for Democracy", which seized and closed down the country's two international airports in December.
Registration refusal: The government continued to refuse to register the National Thai Teachers Union (NTTU), which is affiliated to Education International.
Impunity for employers – exploiting legal loopholes and non-enforcement of the law to fire unionists: Employers regularly dismiss workers trying to form trade unions, especially when workers are 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 non-union reasons invented by the employer and must challenge the firings in court.
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.
Labour courts slow, inefficient, and oriented to mediation rather than protection of rights: The Labour Courts continually fail to provide timely relief to fired workers and commonly allow extensive employer delaying tactics designed to pressure workers to abandon their efforts to seek reinstatement. Major telecommunications company True Corporation, controlled by the anti-union Chearavont family which owns the Charoen Pokphand (CP) conglomerate, continually sought delays in the case brought by the fired leaders of Labour Union True Life in March 2008, threatened and harassed workers to drop the lawsuit, and effectively dragged the court proceeding into 2009.
Habiro Thailand Co, Ltd., a computer hard disk manufacturer based in Prachinburi province, continued its anti-union campaign in 2008. After management fired seven union executive members in late 2007, the union appealed to the Labor Relations Committee, which ruled on 15 March that two of the union committee members must be reinstated. Management immediately appealed against this order, and the Labour Court took the employer's side in mediation efforts, actively encouraging the remaining leaders to abandon their struggle and take severance pay. When workers refused, management used dilatory court tactics to delay consideration, and the case was still pending at the end of the year.
Harassment and firings of trade union leaders: Twenty-four workers, including all the top officers of the CP Samphan Labour Union, were fired on 11 March at luggage manufacturer CPPC, (producing top-end bags for Samsonite and other brands). The union filed appeals with the Labour Court and the tripartite LRC. The LRC ordered the workers reinstatement, but the company appealed the order to the Labour Court. Workers refused company-offered buy-outs to drop their case, so management lawyers used repeated delaying tactics at the Court to extend consideration of the cases into 2009.
Six union leaders of a newly created union of a GPV Asia Thailand Company factory (a subsidiary of GPV Group Denmark) in Bang Poo Industrial Estate in Samut Prakan province) were fired on 3 May. Workers filed a complaint against the company at the MOL and the Embassy of Denmark in Bangkok.
Nine union executive committee members of a newly created union at Apic Yamada (Thailand – a Japanese-owned computer parts producer based in Ayuthuya province) were fired in June. Workers were protesting discriminatory treatment regarding pay raises and job promotions. In response, the workers immediately went on strike and the union filed a complaint against the company with the LRC. In September, the LRC ordered the company to pay the workers compensation, but management appealed the order to the Labour Court – and then filed a lawsuit to harass the nine workers, claiming they had caused the company 29 million baht in damages.
Anti-union discrimination was reported at Ek-Chai Distribution Systems (operating Tesco Lotus stores and owned by British mega-retailer Tesco), Wang Noi Distribution Center and Srinakarin and Ayuthuya stores. It includes discriminatory transfers, harassment by supervisors, and management attempts to entice union committee members to resign. Despite the fact that all three of the unions in Tesco Lotus were registered as enterprise-level unions, focused on a single workplace, Tesco Lotus refused to bargain directly with any of them – speciously claiming that any union would have to achieve more than 20% of the 32,000 plus workforce of the company to enter into negotiations.
At Almond Jewelry, management continued its anti-union campaign by harassing the union president with a specious criminal case, implementing unilateral changes to work rules and disregarding union protests, and finally ordering a partial lock-out in mid-July, targeting only the 130 workers who were union members. Workers mounted a sit-in protest at the factory, prompting MOL mediation, and management ultimately backed down and ended the lock-out on 1 August. However, management continued its pattern of using harassment tactics to marginalise the union.
Marayasu Industries Thailand, based in Rayong, fired on 14 May three of the workers leading the formation of the union at the factory. The union leaders returned to work after two weeks of intensive protests and achieved a collective bargaining agreement with management in June.
Two union leaders were terminated in December at Thai-owned STB Textiles in Chonburi province after organising a union.
On 10 March 2008, the President, Vice-President and Treasurer of the union at Molnlycke Health Care (Thailand), a manufacturer of surgical gowns, were suspended. The company applied to the courts for permission to dismiss the union President, but had not levelled charges against the union Vice President and Treasurer. The suspension of the three appeared to be a case of victimisation of leaders because of their legitimate trade union activity, and in particular to the fact they had recently objected to the introduction of a new work organisation system. At a hearing in May, the labour courts authorised the dismissal of the union President.
The government issued arrest warrants, on 27 August, against nine People's Alliance for Democracy (PAD) leaders, including Somsak Kosaisook, Vice Chair of the ITF railway section in the region and advisor to the ITF coordinating committee, on charges of insurrection, conspiracy, illegal assembly and refusing orders to disperse.
Dubious de-registration by MOL of the union at Hoya Glass Disk: After workers created the Electronics and Electrical Appliances Relation Labour Union (EEALU), organising over 70% of the workers, management of the Hoya Glass Disk, a computer hard drive manufacturer, forbade the union from carrying out activities on company property. Management later terminated union committee members and activists on baseless grounds and ordered company security guards to forcibly remove them from the premises. It then sought Labour Court permission to terminate the President, Vice-President, and Secretary-General of the union.
This brought to 65 the total number of workers fired in 2008 for union involvement. On the same day, the MOL unilaterally revoked the union registration based on a judgment that the union committee members (who the MOL had previously considered and approved) were in fact supervisors though they were team leaders with no authority to discipline or fire workers under them. Despite its concerns about the lack of transparency and fairness of the MOL's action, the union promptly took action to re-register the union.
After pressure generated by Thai labour rights campaigners, Good Electronics, and some of the buyers of Hoya Glass Disk's products, an agreement was signed by the management to reinstate all workers fired for union activities, including the union committee members, drop all Labour Court cases against the workers, and agree to cease all interference in the internal matters of EEALU.
Triumph International hides behind lèse majesté laws to fire union President: The Triumph International Thailand Workers Union put forward collective bargaining demands to management on 9 June, leading to public conflicts between management and Union President Jitra Kotshadej when management attempted to bypass them. An agreement was finally reached.
On 30 July, the Thai subsidiary of German-owned Triumph International fired Kotshadej for discussing women's rights on TV wearing a T-shirt that opposes Thailand's draconian lèse majesté laws. Without her knowledge, and while collective bargaining negotiations were taking place, the company had initiated legal proceedings at the Samut Prakan Labour Court to have her dismissed. Due to the use of an old address, she never received any summons or other notices from the Court, and was not able to present a defence against the charges. The Court's verdict was issued on 8 July to take effect on 30 July, yet the company refrained from informing President Jitra until 29 July, when the 15-day statutory period for an appeal of a court verdict to be filed had already passed. On that same day, the union immediately declared a strike, demanding unconditional reinstatement of President Jitra, and all the workers walked off the job. As protests by the union grew in the following days, management sought court orders against 20 of the union leaders, and suspended 25 leading union activists for two weeks without pay.
After a 45 day strike, and significant international campaign pressure on Triumph International, an agreement was reached on 12 September. Both sides agreed to a re-trial of Jitra's case at the Labour Court, all other court cases were dropped and all workers were accepted back without punishment, and workers received partial payment of wages for the time they were on the picket line. On 27 November, the Labour Court again ruled Jitra could be dismissed, and she immediately appealed this decision. At the end of the year, the appeal was pending.
Migrant workers suffer huge restrictions: It is considered that there are as many as three million migrant workers from Lao PDR, Burma, and Cambodia who are working in Thailand. Only approximately 400,000 are registered to work while the rest are undocumented.
Migrant workers' rights are effectively denied in practice. Migrant workers must register through their employers and are not permitted to change jobs without their current employers' permission. If they are fired, they immediately lose their legal status in the country and can be deported. Thai employers commonly use these provisions to prevent migrant workers from exercising their freedom of association. Decrees by governors of the provinces of Phuket, Phang Nga, Rayong and Ranong also outlawed gathering of more than five migrants in one place on national security grounds.
The majority of migrant workers have no practical form of redress from the government because of the regular police tactic of arresting undocumented migrant workers on immigration charges when they seek file complaints about abuses they suffer from their employer. Collusion between employers, police and local officials to identify and suppress migrant workers groups and organising is common.
There were literally dozens of cases where migrant workers in Mae Sot and other parts of the country were intimidated not to 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.
In Mahachai district of Samut Sakhon province, less than 40 kilometres from Bangkok, work by NGOs uncovered detention and forced labour of Burmese migrant workers who were being held in a prison-like factory, forced to peel shrimp more than 18 hours a day, at Arnoma Seafood. On 10 March, police raided the factory, resulting in the freeing of over 250 migrant workers from a human trafficking situation. However, in the Arnoma case, and similar cases of trafficking of Burmese migrants for forced labour in the Runya Paew shrimp processing factory and the Prapasnavee fishing boat case, the owners of the companies still have not been prosecuted for their criminal abuses.
The Working of Aliens Act 2007 authorises payment of rewards to informers that assist authorities to arrest undocumented migrant workers, deepening the already pervasive fear felt by migrant workers.
Unionists file ILO case against Thai Summit Eastern Seaboard Auto Parts: Thai Summit, owned by the politically prominent Jungrungreangkit family, engaged in systematic harassment and discrimination against workers leading the union. The company's campaign, which continued in 2008, involved preventing reinstated unionists from working at the main factory and instead isolating them by assigning them to work at a company warehouse. By the end of 2008, only 16 of the original 266 union leaders and activists remained at the company. On 7 March, the Federation of Thai Auto Workers (TAW) filed a comprehensive complaint, which was accepted, with the ILO Committee on Freedom of Association. Workers also filed a case seeking reinstatement with the Labour Court, and their complaint was pending at year end.
Tanong Pho-arn – 17 years on, still no trace, no justice: 19 June 2008 marked the seventeenth 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 indication during the year of any interest by the government to address the case.