9 August 2022
Central Labour Court ordering payment of almost 10 million baht
to 32 Thai boat crew members employed in fishing work in Somalia
On 5 July 2022, the Central Labour Court ruled that Mr. N is obliged to pay 32 boat crew members covering their wage, holiday pay, outstanding wage and shared renumeration for the amount of 9,034,059.63 baht plus late interest at 15% per annum of each of the amount from 1 August 2019 until all the debt is serviced to the 32 plaintiffs.
In the ruling by the Central Labour Court, the court has made adjudication on issues concerning the employer as follows;
Issue 1: Did the defendant act as recruiter, or employer or agent of the employer and acting on behalf of the employer who was abroad to enter into an employment contract or not? The defendant has gone to meet the plaintiffs at their village to prepare for them their travel documents without charging them for his travel expense or the recruitment fees. In addition, the defendant and his foreign partners have agreed to sign a Memorandum of Understanding (MOU) for the cooperation in fishing business in Somalia. Under such MOU, the defendant was authorized to order the 32 plaintiffs to work via Line application, was in charge of making the payment to them or reducing their bonuses and was even in charge of sanctioning the sale of fish catch without having to seek permission from someone else. The acts of the defendant therefore meet all the requirements of being an employer pursuant to the Civil and Commercial Code’s Section 575 and the Labour Protection Act’s Section 5 as well as the Ministerial Regulation Concerning Labour Protection in the Sea Fishery Sector B.E. 2557 issued by the Minister of Labour invoking the Labour Protection Act’s Sections 6/1 and 22. The court deems that the defendant only has the capacity of being the employer of the 32 plaintiffs, and could be treated neither as a recruiter nor an agent of the employer who has entered into an employment contract with the plaintiffs while being abroad.
Issue 2: Could the defendant be held liable for the payment of wage, holiday pay, outstanding wage, shared renumeration, and expenses of repatriation to Thailand, as requested for by the plaintiffs or not, and for how much? According to the evidence, the defendant and his foreign partners are part of a limited partnership company pursuant to the Civil and Commercial Code’s Sections 1012 and 1013 (1) whereby all partners can be held liable for the unlimited amount of liability pursuant to the Civil and Commercial Code’s Section 1025. In other word, the defendant is obliged to pay the wage, holiday pay, outstanding wage, shared renumeration, and expenses of repatriation to Thailand to the 32 plaintiffs since the salary rate requested by all the plaintiffs did not exceed the actual amounts. Also, the shared renumeration requested is based on the average sale value of all fish catch at 55 baht/kg. In addition, the court was convinced that the 11 containers of fish catch should weigh not less than 180,000 kg. Therefore, the court rules that the defendant must pay the 32 plaintiffs their wage and other compensations aforementioned for the total amount of 9,034,059.63 baht plus late interest at 15% per annum of each of the amount from 1 August 2019 until all the debt is serviced to the 32 plaintiffs.
The case has stemmed from a reported incidence of 32 Thai crew members who worked in the Somalian waters and were left stranded. Their employer had also failed to pay them their wage, Eventually, the crew members have requested for help from civil society organizations and the Thai Consulate in Nairobi until 32 of them have been repatriated to Thailand (source: https://news.thaipbs.or.th/content/282745). After that the 32 crew members have filed the case with the Central Labour Court since the employer had failed to pay them their outstanding wage while working in the waters of Iran and Somalia.
The Human Rights and Development Foundation (HRDF), the Social Responsibility Law Office and the Stella Maris Seafarers Center (STM) have collectively helped to offer them legal assistance and to demand the payment of outstanding wage of the 32 crew members. The lawsuit was unique on various aspects including who was the real employer of the crew members. In the Employment Contract, both Mr. N and two other foreigners were indicated as employer and whether the acts of Mr. N were made in his capacity as an employer or as a recruiter. Will it still be possible to hold Mr. N liable for the payment of the wage, holiday pay, outstanding wage, shared renumeration, and expenses of repatriation to Thailand or not. These are all challenging issues judging from the facts and concerned legal issues in this case.
Ms. Kanchana Akkharachat, Legal Affairs Manager, Human Rights and Development Foundation (HRDF), deems that the ruling, particularly on the issues concerning the status of employer, offers a fair and beneficial outcome to the employees in sea fishing sector. Due to the policy to reform regulations concerning fishing vessels inside and outside the Thai waters, the employers have resorted to various ways to avoid registering their vessels as a Thai nationality while venturing out to fish offshore and sending their fish catch back to sell in Thailand. When the employees employed to work in overseas fishing face any dispute over the payment of their wage with the Thai employers, their employers tend to deny that they are the employers of these employees since at the time they are not engaged in fishing work in the Thai waters and the vessels in which they work are not registered with a Thai nationality. As a result, it has made the employees vulnerable to exploitation regarding their wage and the possibility of becoming a victim of forced labour or trafficking in person. But if the employers who are a partner and based in Thailand can be held liable for the payment of wage of the employees, it would make it easy for the employees to have access to the legal mechanism to demand their rights.
For more information, please contact Ms. Kanchana Akkharachat, Legal Affairs Manager, Human Rights and Development Foundation (HRDF)
Email: [email protected]