Open Letter To Minister of Labour : Recommendations on the policies concerning the management of labour and the protection of workers, foreign workers and their families

Open Letter

To Minister of Labour

 

13 September 2023

Subject: Recommendations on the policies concerning the management of labour and the protection of workers, foreign workers and their families  

Dear   Minister of Labour Pipat Ratchakitprakarn,

 

The Human Rights and Development Foundation (HRDF) and Migrant Working Group (MWG) congratulate you on the occasion you have been royally appointed as the Minister of Labour under the administration led by Prime Minister Srettha Thavisin. We fervently hope that you and your government will carry out the duties as expected by the people, particularly in the promotion and protection of workers, foreign workers and their families to garner acceptance and commendation from without and outside the country.

As civil society organizations, HRDF and MWG have been working for a long time in partnership with the Ministry of Labour to promote and protect human rights of workers and their families, both Thai and foreign workers. We have compiled information, study, coordinate, recommend, campaign and advocate for policies, laws and practices, disseminate information to raise the awareness on human rights, and offer legal assistance to the workers as well as work to combat human trafficking and the use of forced labour. We are very pleased to have a chance to coordinate and collaborate with you and the Ministry of Labour in the future.

Nonetheless, as HRDF and MWG have been working to help workers, migrant workers and their families for over 20 years, we realize the importance of the development of policies on labour and the management for foreign workers and their families which continue to face challenges ranging from the process to determine the policies, strategies, laws and practices of successive governments and how the enforcement of law by the authorities still fails to adhere to principles, understanding and clear direction. The efforts insofar tend to focus on coping with immediate issues. Therefore, HRDF would like to bring to your attention the following observations and recommendations as follows;

1.Migrant workers and stateless workers

1.1 Issues concerning the management of migrant workers In the past 30 years, while the economic growth has increased, its population has declined. Thailand has been facing a labour scarcity. The cabinet has issued reprieves to allow the employment of migrant workers of three nationalities for the first time in 1992 hoping to bring into an order the management of workers and the offering of working status and the right to residency to migrant workers. Until now, such management of migrant workers has faced many challenges in terms of safe migration, legal entry of migrant workers, discrimination and exploitation stemming from policies adopted by public and private agencies. The recruitment and registration fees have been unfairly left with the migrant workers who have to struggle through the highly complicated recruitment process. Such recruitment fees imposed of them do not match the workers’ income and do not comply with the ILO General principles and operational guidelines for fair recruitment. In addition, each worker tends to choose different ways and timing to get registered depending on the document’s duration. Even though the public authorities claim the fees imposed of them are relatively low, still, they compel the workers to continue to depend on help from the employer or the broker. This has passed on to the workers financial and debt burden related to the registration process. Even though their employer may advance money to pay for the fees, such burden shall eventually get passed on to the workers through wage deduction or an obligation to keep the worker to work with the employer as long as possible. In most cases, the employer or the broker often retrain the worker’s personal documents as a guarantee forcing the worker to work in an environment and with remuneration lower than the minimum standards, to be subject to forced labour and to be a victim of modern-day human trafficking. HRDF therefore recommend that the Ministry of Labour carry out an effort to amend the Royal Ordinance Concerning Management of Employment of Foreign Workers B.E. 2561 (and its amendments) and related laws, to ensure that;

(1) The laws, rules, and regulations concerning the registration of migrant workers and their dependents, the renewal of permit to enter or reside in the country, the work permit, the duration of registration and document application and nationality or personal status verification, the deportation which is simple, economical, convenient and fast for the worker and the employer, and the recruitment fees which are fair and comply with the ILO General principles and operational guidelines for fair recruitment.

(2) The amendment or repeal of Section 64 of the Royal Ordinance which has caused problems to the migrant workers subjecting them to exploitation and having to shoulder unfair and expensive burden stemming from the renewal of employment contract and the application for permit to reside in the country and the renewal of work permit every 90 days.

(3) Regarding the work of stateless persons, at present, many individuals who were born in Thailand have become stateless or are left without nationality due to various reasons. For example, there might be no evidence to prove their background related to their nationality, their names have not been reported, surveyed and registered as a result of which they have become stateless and are left with no nationality. They are regarded as foreigners according to the Royal Ordinance, are not supposed to work without work permit and have no access to public services causing the problems for them, their families and society. Therefore, the Ministry of Labour should amendment the laws, rules, and regulations to ensure these individuals can work similarly to the Thai nationals.

(4) Regarding the work of asylum seekers, Thailand hosts a large number of refugees and asylum seekers who have fled from war and cannot immediately return to their countries of origin or to resettle anywhere. These individuals are treated as aliens or non-Thai nationals according to the the Royal Ordinance as well. They are not supposed to work and have to live off from the support provided by the government or international community. The Ministry of Labour should ensure these individuals are allowed to work certain jobs. This will not only lessen the support warranted by them, it will also ensure these individuals can live their lives with human dignity, an attain joy and make a contribution to move forward the country’s economy and society.

1.2 The protection of migrant workers: At least three million migrant workers and their family members contribute significantly to move forward Thailand’s economy. Still, many migrant workers in the agricultural sector, sea fishery, small and medium enterprises and informal sector are not accorded with adequate protection. There is no protection in terms of their minimum wage, working hours, holidays, sick leave, days off, leave days, working environment and welfare such as medical costs and compensation when getting ill or facing work-related injury. Their occupational health and safety do not comply with the law. There is also discrimination based on race.  If the problems are left unaddressed, it will make the products and services made by the migrant workers fail to garner acceptance in international market. Particularly, according to the announcement of the government’s policy on the intermediate term which focusses on the negotiation of Free Trade Area (FTA) Agreements which require the labour protection on par with international standards. This may affect the country’s potential to achieve sustainable economic growth and sustainable development. HRDF thus has these recommendations to offer;

(1) Regarding the Labour Protection Act, B.E. 2541 (and its amendments), even though in principle, the law applies to all employers and employees, but there are still regulations and practices which violate the law. For example, the Royal Ordinance Concerning Management of Employment of Foreign Workers still allow the employer to retain personal documents of the migrant workers by claiming the employees willingly leave the document with them. The wage deduction to service debt, the illegal forms of employment, the dependence on broker, and the execution of duties of the authorities that allow legal discrimination against migrant workers continue to exist. This deprives some migrant workers from legal protection. Or the provision of protection based on the documents of the workers, rather than on the definition of the employee and the employer as a result of which the workers are deprived of their protection, particularly their access to remedy from the Employee Welfare Fund. Therefore, the Ministry of Labour should repeal such regulations and rules and makes an effort to change the attitude of the authorities in order to eliminate such discrimination.

(2) Under the Workmen’s Compensation Fund Act B.E. 2537 and the Social Security Act B.E. 2533, there are secondary laws and guidelines which discriminate against migrant workers and employees in certain sectors, particularly seasonal employees in agricultural and fishery sectors, and home workers impeding their access to benefits from such laws. For example, the Notification of the Ministry of Labour on the determination of health benefits and welfare for fishing workers allows the employer to opt for buying a private insurance which is equivalent to social security or to register their workers in the social security system. This does not just constitute a discrimination, but is also incompatible with the International Worker organization (ILO) Convention no. 188 to which Thailand is a state party. In addition, the Social Security Office does not review access to benefits among the insured migrant workers and their access to the Workmen’s Compensation Fund and among migrant workers who do not have personal documents such as their access to the Workmen’s Compensation Fund according to the Workmen’s Compensation Fund Act B.E. 2537 (and its amendments). Certain laws or guidelines have been issued invoking the law and the competent officials have enforced such laws discriminately. For example, for the employees who have entered the Kingdom without permission, or even if they have received the permission, but they have not been registered with the Workmen’s Compensation Fund, when they get injured or sick from their work, according to the Workmen’s Compensation Fund Act, the employees should be entitled to receiving medical expense and compensation from WCF according to the decision of the Supreme Administrative Court no. O821/2558. But in such cases, the competent officials simply ordered the employers to pay for such costs. As a result, the migrant workers might not receive the money or might not receive it in full. Therefore, the Ministry of Labour should ensure the competent officials act according to the law and the legal precedent based on the court’s decision.

Please note that, the insured migrant workers who are a stakeholder in the Social Security Fund do not have their representatives who have the power to investigate, to oversee and manage the Fund. This also constitutes a discrimination.

(3) In addition, an effort should be made to offer meaningful protection to the migrant workers and to impose clear punishment on the employer and the broker who avoid or violate the law. A complaint mechanism must be put in place to ensure a migrant worker can exercise their due rights according to the law when getting engaged with a labour dispute or when facing dismissal. The state must come up with measures to allow the workers to stay temporarily in Thailand until the legal proceeding ends, or must provide a measure to ensure adequate remediation.

(4) Collaboration should be made with neighboring governments including Myanmar, Cambodia and Laos to protect the rights of migrant workers and their families from such countries, particularly in terms of the prevention and suppression of human trafficking, the exploitation of broker ring, the nationality and personal status verification, the application and renewal of personal document and travel document, the assistance for survivors of human trafficking and forced labour, the collection of wage and compendation after the final verdict has been delivered, etc.

(5) Thailand should promptly become a state party to the International Convention on Protection of the Rights of All Migrant Workers and Members of Their Families1990 (ICRMW).

1.3 Freedom of association and collective bargaining of migrant workers: The Labour Relations Act B.E. 2518 still contains provisions which deprive or impede the rights of stateless migrant workers despite being born in Thailand. They are restricted of their freedom to form a labour union or a worker organization, to become a member of the labour union’s or worker organization’s committee or subcommittee. This is incompatible with human rights and Thailand’s international obligations, particularly concerning the right to freedom of association and collective bargaining. Therefore, HRDF proposes that the government amend the law to recognize such rights and freedoms of the stateless migrant workers born in Thailand and to ensure compliance with the launch of the National Action Plan on Business and Human Rights Phase 2 which includes a plan for the government to review the ratification of the International Labour Organization Conventions no. 87 and 98 to uphold freedom of association and collective bargaining.

2.The division of workers and confusion of the laws

In the past due to security and political reasons or the different viewpoints among the government, employers and workers, it has led to the promulgation of labour laws which tend to divide the workers in terms of the protection of workers and labor relations or industrial  relations. As a result, such laws fail to provide comprehensive protection to all forms of emerging businesses and technologies. Therefore, HRDF recommends that government amend the relevant labour laws as follows;

2.1 Consolidate and develop a single labour protection law: A labour protection law is a set of laws promulgated to protect “labour” or “worker” and to ensure a minimum standard regarding their working condition including their remuneration, working hours and days and other welfare and benefits. This includes the Labour Protection Act, B.E. 2541, the Workmen’s Compensation Fund Act B.E. 2537 and the Social Security Act B.E. 2533 and the Homeworkers Protection Act, B.E. 2553, etc. (thereafter called “labour protection law”). HRDF proposes that the government to revise the labour protection laws by consolidating them into a single law. This could be done through the enactment of the Labour Protection Act or the Labor Protection Code which contains key provisions including;

(2.1.1) The application to all kinds of “labour” or “worker” in all sectors, not limited to just “employee” according to the Civil and Commercial Code only. Rather, it should apply to all individuals who are any “labour” or “worker” including a labourer, a hiree, a worker, and a freelancer who have a legal relation with other persons based on various forms of reciprocal contract. Their forms of work and legal relation may be hidden or vary according to the progress of business and technology including the food delivery service, home-based workers, apprentices, workers in entertainment parlors, part-timers, etc.

(2.1.2) The determination of labour rights and “minimum standard” regarding working condition, remuneration and welfare which every “labour” or “worker” should be entitled to, albeit they shall not be inferior to what is provided for by the International Labour Organization (ILO).

(2.1.3) The determination of labour rights and minimum standard in such laws according to  (2.1.2) or in secondary laws or subordinate laws through the Royal Decree or Ministerial Regulation specifically for each group of the “labour” or “worker” , albeit they shall not be inferior to the “minimum standard” or what is provided for by the International Labour organization (ILO).

(2.1.4) The labour protection laws at the statutory law or subordinate law must be made based on human rights and human security, with respect of human dignity, equality and non-discrimination in whatsoever form or based on any ground.

2.2 Consolidating labour relations laws into a single law The existing labour relations law is the Labour Relations Act B.E. 2518. Following the military coup by the National Peace Keeping Council (NPKC) in 1991, the State Enterprise Labour Relations Act B.E.  2534 was promulgated to separate state enterprise workers and keep them under this law. It has weakened labour movements making them lose their bargaining power and not become a major force for social and economic development. Moreover, the current labour relations law has been enforced and interpreted to apply exclusively to the employee and the employer according to the Civil and Commercial Code. As a result, more than 50% of the “labour” or “worker” including workers in informal sector, workers under hire of work contract or under other forms of reciprocal contracts and freelancers are unable to exercise their right to freedom of association and collective bargaining. HRDF thus proposes to the government to act as follows;

(1) Promptly ratify the International Worker organization (ILO) Conventions no. 87 and 98. As a founding member and since becoming a member country of ILO in 1919. Thailand has pledged to international community that it will ratify the two Conventions which are among the core Conventions concerning freedom to establish and operate a worker organization and to conduct collective bargaining without discrimination. Despite being in existence since 1949, Thailand has yet proceeded to ratify them citing the need to revise its own labour relations law first. As a result, Thailand’s workers are deprived of and have their right to form an organization and labour union restricted, particularly the workers who are not regarded as an “employee” according to the Civil and Commercial Code. The migrant workers are also stripped of the right to form a worker organization or a labour union and to become a member of the border of such organizations. They thus lack collective bargaining needed for the protection of their human rights and labour rights. The Ministry of Labour should therefore ensure Thailand promptly ratify the ILO Conventions no. 87 and 98 without having to first amending its own labour relations law.

(2) A single labour relations law should be enacted to apply to all kinds of “labour” or “worker” in all sector including the public sector, state enterprises, and private sector. This will ensure they can exercise their right to form a worker organization. And it can be arranged for worker organizations in each sector to have their unique nature and rights appropriate for their sector. Therefore, an effort should be made to recognize the right to freedom of association and collective bargaining as prescribed in the International Labour Organization (ILO) Conventions no. 87, 98 and others without discrimination.

 

3.Labor trafficking and forced labour

The issues of labor trafficking and forced labour have evolved along with the development of business and technology including bonded labour or Call Center workers or scammers. An increasing number of people have fallen victim to such human trafficking and forced labour. Until now, the government under the pressure of international trade as consumers, service users or governments refuse to use products and services made from forced labour, child labour, workers subject to exploitation and survivors of human trafficking, has enacted and amended laws for the prevention and suppression of forced labour and human trafficking. Yet, they are not adequate for the prevention and suppression of such problems. There is room for improvement in terms of the legislations and their enforcement, otherwise it will affect Thailand’s products and services in international market. HRDF has these recommendations for the government;

(1) Amend the Anti-Trafficking in Persons Act B.E. 2551  (and its amendments) to ensure it complies with the Protocol to the Forced Labour Convention, 1930, (no. 29), particularly on the provisions concerning forced labour

(2) Recruit personnel for the enforcement of the laws including officials of the Ministry of Labour, the police, officials of the Ministry of Social Development and Human Security, public prosecutors, and the Court who have legal expertise and are able to offer knowledge and counseling and can act in accordance with the ILO’s principles as well as ensuring effective and regular training and capacity building to personnel in various sectors.

 

HRDF and MWG fervently hope that the above observations and recommendations shall be useful for your determination of policies and practices to promote and protect all workers in Thailand.

With respect in human rights and human dignity

Human Rights and Development Foundation (HRDF) and Migrant Working Group (MWG)

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For more information, please contact Human Rights and Development Foundation (HRDF),

Phone 02-2776882 [email protected]