2007 Annual Survey of violations of trade union rights - Thailand
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Thailand, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca09c.html [accessed 21 October 2014]|
|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
In a year that saw yet another coup d'état in Thailand, there were numerous cases of harassment and dismissals of union leaders and members, usually following organising campaigns or strikes in support of very basic demands after management failed to negotiate. Employers ignored court rulings and Ministry of Labour decisions with impunity. Migrant workers again proved particularly vulnerable to abuse.
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 workers may decide on the rules of their unions, although there are standard, somewhat restrictive, provisions which the Ministry of Labour says must be in all union charters in order for them to be registered. Employee representation in direct negotiations with employers is possible. 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, executive committee: 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. Non-Thai workers can join a union but they cannot hold union office, as office bearers must have Thai nationality. This effectively bars the creation of unions by legally-registered migrant workers who are ostensibly covered by all aspects of Thai labour law.
No union protection in private universities: The 2003 Private University Act exempts private universities from the Labour Protection Act and the Labour Relations Act.
Restrictions on trade unions' right to have advisors: The Thai government uses a proclamation – NPKC Order 54 – by the last 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 requirement to register the union, and to also register the leaders of the union committee, is used to enforce these restrictions. The result is that the over 700,000 migrant workers from Burma, Cambodia and Laos who are legally 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, therefore, workers can be legally fired for any other reason, provided they receive severance pay, even if they are a union leader. The provision of severance pay is often not respected. Members of the bilateral Worker-Employer Welfare Committee are protected from dismissal under the 1998 Labour Protection Act, but reinstatement for unfair dismissals in such cases is a very lengthy process.
The LRA requires that all members of a union executive must be full-time workers in the enterprise. They must therefore negotiate leave of absence for trade union work with the employer.
Collective bargaining: Employees numbering 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 on working conditions. However, 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. Copies of collective bargaining demands must also be sent to the Ministry of Labour.
Revision of the LRA: The general lack of priority given to labour issues by the government and the political unrest before and after the September 19 coup d'état meant little progress was achieved in reform in 2006. The labour movement has been seeking a revision of the LRA for the past eight years, to bring it into line with international labour standards. However, the latest bill issued by the Council of State in July 2004 fell far short of those aspirations. Trade unions continued to protest strongly against the Council of State draft, stating that it contained major flaws.
Protests and efforts to reform the Labour Protection Act (LPA): The significant increase in sub-contracting arrangements in production, as well as the rapid growth in the practice of hiring contracted labourers in factories to work on production lines, doing the same work as permanent staff, continued. Major efforts by the labour movement to close loopholes in the LPA failed to make progress, and a draft law proposed in 2005 by the MOL was roundly condemned by the unions as likely to make the problem even worse.
State enterprises: Employees of state enterprises have the right to form trade unions and bargain collectively under State Enterprise Labour Relations Act (SELRA), amended in 2000.
At least ten employees, representing at least ten per cent of the workforce – excluding administrative staff, casual, seasonal and contract workers – may apply to establish a trade union. An application must be filed with the registrar, along with documentation listing the names and signatures of those who intend to become members of the union. Once registered, the trade union obtains legal status. 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 the 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 that groups the 43 state enterprise unions, can affiliate as an entity with one national labour congress, but individual state enterprise unions cannot.
No unions for civil servants: Civil servants are excluded from both the SELRA and the LRA, and there are clear government regulations saying they cannot form unions. The government sets civil servants' wages. The government continued to refuse to register or recognise the National Thai Teachers Union (NTTU). The union was a leading force in a nationwide campaign by teachers to resist possible erosion of status and benefits connected to a controversial government decentralisation and structural reform policy.
Restrictions on the right to strike: The SELRA prohibits strikes and lock-outs within state enterprises. Civil servants have no right to strike, and face disciplinary proceedings and dismissal under laws and regulations governing the civil service.
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
Only a very small proportion of the total workforce is unionised – 3.5 per cent according to 2002 figures, which is among the lowest levels in Asia. Furthermore, only a small minority of employed workers – an estimated five per cent – are covered by collective bargaining agreements.
Exploiting legal loopholes: There are many loopholes in the law which mean that those workers who do practise the right to join a union and to collective bargaining are very often the victims of anti-union harassment.
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 non-union 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 may, for example, 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.
Companies also take advantage of legal loopholes to set up several small unions in order to undermine the voting rights of bona fide unions in elections to tripartite labour committees. Labour unions, regardless of their size, have one vote each.
Union registration bias at MOL: Trade union organisers reported that during the year officials of the Ministry of Labour engaged in a practice of discouraging formation of "industrial" or "sectoral" unions (which are legal under Thai labour law) in favour of "in-house" unions. MOL officials warned that seeking registration of an "industrial" union would involve significant delays in processing the registration of a new union. When the "in-house" union at the Arnoma Hotel in Bangkok sought to change its registration to a sectoral union named the Hotel Labour Union of Thailand (HLUT), the MOL continually delayed and obstructed the union's new registration. At the end of the year, the HLUT's registration was still pending.
The registration process has also been used by the MOL to constrain trade union confederations' coverage. For example, the Phuket Hotel and Service Workers Federation faced over six months of delays in registering the Federation because the MOL would not agree to allow the Federation to use the word "service" in the federation's title because the MOL believed "service" had the potential to cover non-hotel based workplaces. The Federation finally had to agree to drop the word "service" from its name before MOL would allow the registration to proceed.
Privatisation process impacts on freedom of association: The Thai government is using the legal division between the private and the public sectors (the private sector being covered by the 1975 LRA, the public sector by the 2000 SELRA) to restrict freedom of association in the context of an ongoing privatisation process. When a state-owned company passes to the private sector, the Ministry of Labour cancels its trade union's registration, on the grounds of the difference in legal status and differences between the laws. Yet it is at the very moment when a private owner takes over management that the workers most need their union to negotiate on their behalf and protect them.
Abuses of legal provisions to keep trade unionists out of the factory: There are frequent abuses of provisions of Article 75 of the 1998 Labour Protection Act, under which the employer may temporarily halt operations wholly or partially for any cause other than "force majeure", provided that he pays his employees at least 50 per cent of their normal working day's wage during that period. Employers have used this provision to keep trade union members out of the factory with half pay indefinitely, thereby forcing them out of the company.
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. A Thai Senate investigation into the election of Central Labour Court Judges in 2003 found there had been systematic corruption in the election of assistant judges, aimed at weighting the votes in favour of pro-employer judges.
Courts tend to try and negotiate compromises, which are often not advantageous to workers, to reduce the load on their court docket. 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.
Outsourcing: Another means of circumventing trade union activity is via outsourcing to labour contractors to supply labour to the factory, which has proved increasingly popular among employers, notably in the garment and textile industries. Increasingly, auto parts, plastics, metal, and other traditionally "heavier" industries have been significantly affected.
Migrant workers suffer huge restrictions: Legally-registered migrants theoretically have the same rights as nationals under Thai law. However, 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, unless they find another job within seven days. That task is almost impossible given the collusion between employers and the existence or creation of blacklists. Thai employers use these provisions to impede migrant workers' freedom of association. Those who dare to protest are fired by the employer and handed over to the Immigration Department.
Moving industry away from centres of union activity: The government's Board of Investment incentives for foreign investors have encouraged decentralisation of industry into border areas, where union density is low or non-existent, and where factories often use legal migrant workers from Cambodia, Laos, or Burma who are not allowed under law to organise unions. During 2006, the Federation of Thai Industries (FTI) continued to push for expanded tax incentives for border investments, claiming that there was a "shortage" of labour for textile, garment, footwear, and electronics industries.
Private universities: Since the introduction of the Private University Act in 2003, university unions have not been able to negotiate with their employers. As a direct result of this law, in 2004 the Union of Professors and Staff of the Rangsit University ceased to be recognised by university management, was stripped of its office and staff, and thrown off campus.
Violations in 2006
Background: Following months of tumultuous protests on the streets of Bangkok against alleged corruption and human rights abuses by Prime Minister Thaksin Shinnawatra, the Thai Army staged a bloodless coup d'etat on September 19 – marking the 18th time in 70 years of Thai democracy that soldiers have seized power. The ruling Council for National Security (CNS) tore up the progressive 1997 Constitution, suspended political parties, engaged in press censorship, and restricted public rallies and assemblies. An appointed Prime Minister, retired Army Gen. Surayud Chulyanond, pledged the drafting of a new Constitution and holding of elections would occur before the end of 2008.
Persistent anti-union discrimination at Yan Siam Transport: The management at Yan Siam, a company in the Isuzu (Thailand) group that transports cars and trucks to showrooms throughout the country, fought a continuous battle to destroy the Logistics Relations Workers Union (LRWU) during the year. First, the Yan Siam owner refused to bargain in good faith with the union. Management then employed a series of tactics discriminating against the union, including forcing drivers to resign from the union to get more lucrative routes; paying salaries late to union members; and putting union members at the end of the assignment queue so that often they did not have work (and therefore did not receive additional 'road pay').
In order to further undermine the union, persons in Yan Siam management set up a non-union trucking firm to receive sub-contracts to drive routes for Yan Siam. Workers who were union activists were targeted for harassment, and among these activists one was fired and more than ten resigned. Management launched four separate petition drives among workers, intimidating workers into signing a letter expressing no confidence in union leaders and Worker Committee members, and those petitions were sent to the Ministry of Labour. Finally, in December, the LRWU President, Namkraduang Muanglang, and Vice-President, Kitti Baithong, had their truck keys taken away by management, preventing them from receiving driving assignments. The two leaders were then suspended without pay for violating management orders to drive routes, and Yan Siam sought an order seeking permission to fire them which was pending at the Labour Court at year end.
Anti-union discrimination, and refusal to bargain at Tesco Lotus: Since workers organised a union at Tesco Lotus in Wang Noi district, Ayuthuya province, in 2004, management at the hypermarket refused to bargain a collective agreement. It used blatant discriminatory practices – such as different, higher pay-rates for "diligence bonuses" for non-union members – to encourage workers to stay away from the union.
During 2006, the union effort expanded beyond Ayuthuya as workers organised at a Tesco in Samut Prakan. But in both cases, Tesco workers' efforts to engage in collective bargaining continued to be obstructed by management's intransigence. MOL local and national levels sought to conciliate the two sides with little success. Often the representatives of the employer either didn't appear, or maintained that there was nothing to talk about since the collective bargaining demands had been put forward in an erroneous manner and therefore were invalid. Meanwhile, Tesco management continued its efforts to discourage union membership, and ultimately undermine the union because it recognised that workers in many other Tesco stores were closely following the dispute and would likely unionise if the workers won a contract in either Ayuthuya or Samut Prakan.
Replacement workers hired during lock-out of union members: Thai Summit Eastern Seaboard Auto Parts, part of a network of companies owned by the politically prominent Jungrungreangkit family, is a "tier one" auto parts supplier for the Auto Alliance Thailand (Ford-Mazda) auto assembly factory. When workers at Thai Summit joined the Auto Alliance union, management used supervisors to seek out the leaders and demand they withdraw and be satisfied with a smaller, "in house" union. When they refused, and the Auto Alliance Union put forward the workers' collective bargaining demands, Thai Summit refused to bargain, and engaged in a partial lock-out (focusing on areas of the factory where the union is strong) starting on 26 December. The factory actively recruited replacement workers, and made it an explicit condition of hiring that the new workers would have nothing to do with the union or its demands. Over 230 union members welcomed the New Year locked out of the factory.
Anti-union harassment and brutality at Mikasa Sports: Mikasa Sports, the athletic equipment manufacturer, intensified its systematic anti-union campaign at its factory at the Eastern Seaboard industrial estate. Supervisors intensively monitored and penalised union leaders through discriminatory transfers and disciplinary procedures for trumped up infractions. Union committee members were prevented from working overtime, compelled to take unpaid leave, separated from their fellow workers, and publicly humiliated by senior managers, in one case destroying their work then ordering them to fix it. When three union committee members publicly protested against the factory's actions against workers, the management sued them in court for defamation.
When a union committee member who was pregnant miscarried during her day shift at the factory, she requested the factory to send her to a local hospital. Management refused, and instead sent her to the medical room at the factory, where she was forced to wait until the evening when a friend from another factory came and took her to hospital for treatment.
Through the combination of intimidation and disciplinary procedures based on fabricated infractions of company rules, factory management succeeded in either firing or forcing the resignation of the entire union committee except the union president. By the end of the year, the union president remained isolated and under constant harassment, and the union had been effectively destroyed in the factory.
Anti-union campaign rises and falls at NTN Manufacturing (Thailand) Co.: When workers at Japanese-owned NTN Manufacturing decided to form a union, they faced a barrage of management surveillance, harassment, and ultimately firings. In early January, as the core members of the union organising committee at the factory sought assistance from the Thailand Autoworkers Federation (TAW), management sent spies to watch the TAW union hall. NTN workers seen in the area were immediately called in by the NTN personnel director, and repeatedly interrogated over the course of the following week about whether a union was being formed. The Japanese owner publicly opposed the union in factory-wide meeting the day before the union organisational meeting and elections were due to be held on 8 February. When the workers went ahead with their meeting, two staff from the personnel department were seen noting which workers arrived to take part. On the morning of 9 February, NTN management summarily fired seven of the newly elected union committee members based on the facetious claim that there was a financial crisis at the company. The seven fired workers were the union's bargaining representatives, designated to enter into negotiations on the union's demands which were put forward to management that day.
The union appealed against the firings to the Labour Relations Committee, which ruled the company's actions clearly constituted anti-union discrimination. Meanwhile, TAW mounted a strong and effective campaign, targeting NTN's customers among auto assemblers. NTN management finally conceded, and reinstated the seven union leaders with back pay. By the end of the year, the union had successfully concluded a collective agreement with the employer.
Canadoil expands and intensifies its anti-union drive: Management at Canadoil Asia based in Amata City, Rayong, one of the production facilities of the Canadoil Group, a major producer of oil pipelines, has consistently refused to bargain with the workers since they formed their union in August 2005. Supervisors identified and interrogated union leaders and activists, and offered financial incentives to rank and file members to resign from the union. By June 2006, intensifying harassment and discriminatory treatment (e.g. bonus and wage increases only given to non-union members) finally caused enough union committee resignations that the union was forced to hold an emergency general meeting to elect a new union committee. A new set of collective bargaining demands were put forward by the union, but again factory management refused to negotiate and defied or delayed efforts by local MOL officials to mediate the dispute. Meanwhile, the factory owner recruited Thai Army soldiers to provide security at times at the factory, and hired contract workers to continue production.
The union president filed a comprehensive legal case in the Labour Court against the employer, alleging anti-union discrimination in wages, transfers, overtime, and other aspects of wage and working conditions. The case was accepted for consideration by the Labour Relations Committee but was still under review at the time of this report.
Firing union leaders at Thai Garment Export: After workers organised a union at Thai Garment in Om Noi-Om Yai industrial area, management actively investigated which workers were behind the formation of the union. On 4 December, the management fired the six workers who were the core of the union organising committee. The workers and the union filed an appeal to the tri-partite LRC on 26 December, alleging anti-union discrimination and at the end of the year, the case was under consideration.
Dismissals and threats against migrant workers in Mae Sot: There were again literally dozens of cases where migrant workers in Mae Sot 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.
In the first week of April 150 Burmese migrant workers at GS Art in Mae Sot went on strike, demanding their employer pay the minimum wage in line with the law. The strike started in front of the factory and then the workers marched to the local office of the MOL. The MOL officials ordered the employer to start paying the minimum wage immediately – which the employer agreed to do. However, by the end of the month, the employer retaliated and fired the entire workforce.
On July 22, the day after over 300 migrant workers at NC Knitting protested to demand an increase in wages, workers reported that a special police detachment arrived from Bangkok and arrested all the workers at the factory. Both legally registered migrant workers, and undocumented workers, were taken away, effectively ending the workers' protest.
In September management at Fupo Knitting 1999 Company forced a total of 259 migrant workers to move out of factory housing after 600 migrant workers had gone on strike. Their demands included payment of the minimum wage, which the management conceded to only after being ordered to by the MOL, and improved accommodation, on which no progress was made. In October and November, the employer significantly reduced the number of days of work that this group of workers were allowed to work, and began deducting money the employer had advanced to pay for the MOL registration/work permit of these migrant workers. Numerous efforts by these workers to negotiate more days of work or better accommodation were rebuffed by the employer. Management's discriminatory policies towards these 259 workers continued until 27 December, when the factory finally fired them all by refusing to extend their migrant work permits. Workers report that the manager of the factory is the wife of a prominent police general with significant influence in the area, which explains why the workers' protest letters to the MOL were ignored and the authorities did not intervene further.
Closure of Gina Form Bra, end of historic union: In September, the Hong Kong based Clover Group suddenly declared it was closing the Gina Form Bra factory, just two years after the Gina Relations Workers Union (GRWU) had won a historic three year struggle – strongly supported by more than a dozen international labour unions and NGO solidarity groups – - to overcome an intense management campaign to destroy the union. In 2001, the GRWU had been the first labour union to take a case before the National Human Rights Commission, and in 2003 the workers achieved a comprehensive collective bargaining agreement and reinstatement with back pay of dozens of fired union members. Management claimed the factory was losing money, but refused to provide proof, and GRWU mounted another campaign. Coming right at the time of the coup d'etat, union organisers were harassed by police and military to not conduct public protests – but did so anyways in front of the US Embassy, the MOL, and finally, Government House. During the third week of September, while a GRWU delegation was in Hong Kong to negotiate with the Clover Group, the factory called in army officials (out of uniform) and local police to clear workers out of the factory, and shuttered it. International solidarity efforts to reverse this decision came to naught, and finally, under pressure from international campaigners and the factory's clients, Gina Form Bra agreed to GRWU demands for severance pay above the legal minimum.
Anti-union harassment at Centaco poultry factory: During 2006, the systematic harassment faced by leaders and members at the Centaco poultry factory in the Rangsit industrial area continued (see the previous edition of the Survey). The union pursued its campaign on behalf of the 700 women workers to compel the employer to bargain. Legal appeals against the firing of the union president and 102 union committee members and activist rank-and-file workers were heard in the Labour Court. At the end of November 2006, the Labour Court allowed the firing of the union president, evidently believing management's claim that she had been involved in a mob action. However, the union president immediately appealed this ruling, pointing out that they had simply been gathering around the notice board to read the employer's termination notice, further to a lengthy dispute.
Goodyear refuses to reinstate union members: The tripartite Labour Relations Committee under the MOL investigated the dismissal of contract workers at Goodyear Tyre (reported in last year's survey), and found clear evidence of anti-union discrimination. The Committee ordered the 17 workers covered by the petition to be reinstated, with back pay. However, when the workers reported to work at the factory on 3 May 2006, management refused them entry, and appealed the ruling to the Labour Court. On 30 November, the Labour Court found that the workers were entitled to back-pay of one year, but the company appealed this verdict as well.
Tanong Pho-arn – 15 years on, still no trace, no justice: 19 June 2006 marked the fifteenth anniversary of the disappearance of Tanong Pho-arn, President of the Labour Congress of Thailand and vice President of ICFTU-APRO. He went missing three days after organising a rally to protest at the limitations on trade union rights resulting from the imposition of martial law after the February 1991 coup. He had received numerous death threats and had been ordered by the government not to attend the annual ILO conference. At the time of his disappearance, he was preparing to defy that order. While there has still been no progress in establishing the facts behind his disappearance, the government has agreed to include his death with the cases of democracy protesters shot to death or missing from the May 1992 democracy protests, for the purpose of financial compensation for families of the deceased.
Harassment of trade union leaders flares again at Almond Jewelry: The Almond Jewelry factory was the site of an energetic anti-union campaign in 2001 by US managers that finally was blunted by top-level intervention of the International Federation of Chemical, Energy, Mine and General Workers' Unions (ICEM). After several years of relative labour peace, management is evidently resorting to more aggressive tactics. Management claimed that President Patoom Kamdeewan and union Executive Committee member Akom Thongdeewan had violated company rules by wearing a personal piece of jewellery (a Buddhist chain and amulet) to work. Both were terminated in the first week of September. The workers viewed this as a clear case of anti-union actions aimed at weakening the union, and filed legal appeals against the firing. At the end of year, the union leaders' cases were still in the Courts.