Press Release: Court’s verdict affirming migrant workers’ access to Employee Assistance Fund regardless of their legal status, workers demanding Ministry of Labour to repeal regulations incompatible with labour protection and human rights

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9 November 2022

Press Release
“Court’s verdict affirming migrant workers’ access to Employee Assistance Fund regardless of their legal status, workers demanding Ministry of Labour to repeal regulations incompatible with labour protection and human rights”

On 28 October 2022, the Labour Court Region 5 read the verdict made by the Court of Appeal for Specialized Cases no. 1451 – 1485/2565 in the case Committee of the Employee Assistance Fund and the Chiang Mai Governor were held liable for the decision to deny the disbursement of fund from the Employee Assistance Fund to 35 migrant workers. Following the decision, the employees have filed the case with the Labour Court Region 5 in Chiang Mai to demand justice and to ask to rescind the decision by the Committee of the Employee Assistance Fund to deny the payment. As a trial court, the Labour Court Region 5 has made its ruling on 23 March 2022 in the Red Case no. R58-92/2022 to rescind the decision of the Committee of the Employee Assistance Fund and ordered the disbursement of fund from the employee assistance fund (http://hrdfoundation.org/?p=2721). The defendants have appealed the decision of the Labour Court Region 5 through the Court of Appeal for Specialized Cases. Eventually, the Appeal Court upheld the decision of the lower court and dismissed the appeal of the defendants with key detail as follows;

Thai or migrant employees shall enjoy equal protection under the laws. Since the Regulation of the Committee of the Employee Assistance Fund on the payment of compensation, the contribution rate and the period of payment B.E. 2560 (A.D.2017) invoked by the defendants as the criteria concerning the review of the payment of compensation to the 35 migrant workers contains no provisions which restrict access to the Fund by migrant employees who have entered the country legally and it applies to the case in which the employers have failed to make payment for the period of time they are permitted to work. The defendants have, however, appealed that the circular letter no. R-NG 0507/W006876 dated 13 July 2015 concerning the guidance for paying compensation to migrant workers of the Committee of the Employee Assistance Fund, albeit not a law, but is a guidance which regulates their implementation. But such regulation is found to contain no provisions which restrict access of migrant employees to the Fund. The lower court has thus decided that that the migrant employees have entered the country illegally or that they have worked without permission is a matter that they have to address. It does not, however, legitimize restriction of their access to the Fund. By denying of the 35 migrant workers access to the Fund when their employer has failed to pay them the compensation, is a decision made beyond what is provided for in the law and the regulation. The decision is therefore made and issued in contravention of its mandate. Therefore, the Committee of the Employee Assistance Fund’s and the Governor’s motion of appeal is an argument against the use of discretion to take evidence of the Labour Court Region 5 and a request that the Court of Appeal for Specialized Cases take new evidence, is a an appeal on the questions of fact in the case, which is a prohibition according to the Act on the Establishment of and Procedure for Labor Court, B.E. 2522’s Section 54, first paragraph. Any appeal has to be made only on the questions of law. The Court of Appeal for Specialized Cases, therefore, finds no merit to rule on this issue.

That the defendants appeal that it is unlawful for the Labour Court Region 5 to include the Chiang Mai Governor as a co-defendant in this case since the co-defendant had no power to approve the payment of the compensation in this case. The issue was not argued by the defendants during the hearing in the trial court and it was not an issue at dispute cited by the trial court. Therefore, such appeal is an attempt to raise new facts which is a prohibition according to the Civil and Commercial Code’s Section 225, first paragraph coupled with the Act on the Establishment of and Procedure for Labor Court, B.E. 2522’s Section 54, first paragraph and the Court of Appeal for Specialized Cases cannot accept for adjudication.

That the defendants appeal that the Labour Court Region 5 decided to not hear evidence from a witness including the labour inspector, the Court finds that the hearings conducted by the Labour Court Region 5 are lawful since the witness examination of both the plaintiffs and the defendants completed since 23 February 2022, and the defense attorneys have announced that there were no more witnesses. This indicates that the defense attorneys had no further interest to examine the labour inspector as witness. Therefore, the appeal by the defendant and the co-defendant is not dismissed.

Pasuta Chuenkhachorn, attorney and coordinator of the Migrant Justice Programme (MJP), Human Rights and Development Foundation (HRDF) said that the ruling by the Court of Appeal for Specialized Cases again affirms that the Employee Assistance Fund which has been established by the Labour Protection Act is a fund for the protection of all workers regardless of their legal status (their immigration) on par with international labour standards.

Please note that according to the Constitution 2017’s Section 27/3 which prescribes against an unjust discrimination. In addition, according to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to which Thailand is a state party, the Committee on the Elimination of All Forms of Racial Discrimination has issued a Concluding Observation regarding Thailand’s report on the elimination of all forms of racial discrimination on 3 December 2021. Its Paragraph 32 states that “The Committee recommends that the State party enhance its efforts to improve the working and living conditions of migrant workers and their families, including by raising awareness among migrant workers of their rights and of existing avenues for filing complaints, and strengthening labour inspections, including in sectors where migrant workers are numerous, and bringing exploitative employers to justice and compensating victims….”

Therefore, it is incumbent on the Ministry of Labour to review and revoke any guidelines which appear to exclude access to the protection of the rights of employees and any discrimination.

For more detail, please contact: Pasuta Chuenkhachorn, Coordinator of the Migrant Justice Programme (MJP), Human Rights and Development Foundation (HRDF), phone 0815957578, email [email protected]