Migrant Working Group (MWG) and HRDF submitted Report of the observations and recommendations on the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 through the process of the evaluation of the outcomes of law

admin | กรกฎาคม 14, 2024 | News | No Comments

Report of the observations and recommendations on the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 through the process of the evaluation of the outcomes of law

The Act on Criteria for the Drafting of Law and the Evaluation of the Achievement of Law B.E. 2562[1] requires that a state agency in charge of enforcing the law has to evaluate if to what extent the law under its charge has served the objectives of the enactment of the law, if it is worth of the impact and burden shouldered by the state or the public, or found to have caused gross injustice to the public or not.

Published in the Government Gazette on 22 May 2019, the Labour Protection in Fishing Work Act B.E. 2562 has come into force since 18 November 2019 in order to protect the rights of fishing workers, prevent the use of forced labour in fishery sector, enhance the capacity in the fishery sector and ensure compliance with the International Labour Organization Convention no. 188 on Work in Fishing Convention, 2007. In over the past four years, the network of civil society and labour organizations have made their reflection on the enforcement of the law through the recommendations submitted to the Ministry of Labour and the preparation of shadow reports regarding the application of laws and policies concerning the protection of the rights of fishing workers under the C 188 Convention in Thailand. We have included in the publications and the reports case studies as well. Similarly, the observations have been made by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) (The Committee) through its letters formally submitted to Thailand and Thailand is obliged to respond to the observations within 2024.

The Labour Protection in Fishing Work Act B.E. 2562 is one of the laws to be subject to the review and evaluation of the outcomes within 2024 according to the Act on Criteria for the Drafting of Law and the Evaluation of the Achievement of Law B.E. 2562. The timeframe coincides with the time when Thailand is obliged to respond to the observations of the International Labour Organization (ILO).

Therefore, to get prepared for the participation in the steps of the evaluation of the outcomes of the Labour Protection in Fishing Work Act B.E. 2562, the Migrant Working Group (MWG) has prepared a report to review the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 making the scrutiny based on each Section. This document is a part of the report of the observations and recommendations on the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 through the process of the evaluation of the outcomes of law. It sheds light on the problems stemming from the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 and initial solutions to the problems.

The problems stemming from the enforcement of the Labour Protection in Fishing Work Act B.E. 2562 in this document can be categorized into the problems stemming from provisions in the parent law or the secondary law, the problems stemming from the enforcement of the law in practicality, and the problems stemming from compliance with the International Labour Organization Convention no. 188 on Work in Fishing Convention, 2007 since some of our laws or guidelines are still incompatible with the Convention.[2] Information in this report derives from the consultation among CSOs working to protect the rights of fishing workers and to offer counseling and legal assistance to the fishing workers.[3] Below topics are divided to be in line with ILO Convention No.188 in order to clearly reflect to the implementation of ILO Convention No.188 in Thailand.

Issues and immediate recommendations regarding the Labour Protection in Fishing Work Act B.E. 2562

  1. The Implementation of International law: the protection of fishery workers in two legislations to implement ILO Convention No.188 in Thailand

Since the protection of fishery workers under ILO Convention No.188 has been set in two main laws as the Labour Protection in Fishing Work Act B.E. 2562and the Ministerial Regulation concerning Labour Protection in Sea Fishery Work B.E.2565, it confuses the involved persons in searching for the regulations and is difficult for fishery workers, employers and other involved persons to understand their rights and duties. In addition, each law contains different powers of the authority and punishment. The Ministerial Regulation concerning Labour Protection in Sea Fishery Work separates the protection of fishery workers from other types of workers protected under the Labour Protection Act B.E.2541. However, such Ministry Regulation does not determine criteria for the minimum labour protection as prescribed in the Labour Protection Act B.E.2541 such as the use of child labour, severance pay and the retirement age. The protection of fishery workers as a result are not equal to the protection of other workers under main labour protection law.

Therefore, the evaluation of law should consider whether setting labour standards for the protection of fishery workers in two laws has achieved the objective of that legislation and it is worth the additional burdens imposed upon the people or not and to what extent it caused other impacts for the protection of fishery workers.

In this regard, the MWG proposes to put together all provisions concerning labour protection in fishery sector in one law which is the Labour Protection in Fishing Work Act B.E. 2562 and in the long term to develop one single labour code covering labour rights protection and promotion mechanisms. The report on the study of the development of labour system: the development of the labour code by the Senate Standing Committee on Labour Affairs should be reviewed since it contains recommendations for the enactment of a labour code.

  1. Fundamental Principle under ILO Convention No.188: “Consultation” under ILO Convention No.188

ILO Convention No.188 defines “consultation” as “consultation by the competent authority with the representative organizations of employers and workers concerned, and in particular the representative organizations of fishing vessel owners and fishers, where they exist”. The consultation has been specified in many clauses in ILO Convention No.188. However, most of the fishing workers are migrant workers, but the Labour Relations Act do not allow them migrant workers to form a labour union. It thus impedes the promotion of the protection of fishing workers and the bargaining power of the employees/fishing workers. This part is related to the Labour Relations Act. In addition, fishing workers have lower bargaining power and are restricted of their right to associate, as a result, the use of consultation procedure according to ILO Convention No. 188 might not be conducted based on equal bargaining powers according to the tripartite procedure.

Under the evaluation of law process, MWG recommends the government to promote meaningful “consultation” procedure according to the ILO Convention no. 188 by adding one section to the Labour Protection in Fishing Work Act B.E. 2562 regarding the consultation and apply the definition and process of consultation stipulated in the ILO Convention No.188. In addition, this additional section can follow the powers and duties of trade union under Section 98 of Labour Relations Act B.E.2518 (1975).[4] This can also be done immediately by encouraging genuine representatives of the fishing workers to increasingly participate in the consultation with state agencies and promote the unionization of fishing workers according to basic principles of ILO Convention No. 188 and ILO Fundamental Convention No. 87 and 98.

  1. Definition and Scope of Law

3.1 Definition and Responsibility of Vessel Owners and Skippers

The definition of fishing vessel skipper: The law requires that a fishing vessel skipper must be a fishing worker. But in reality, in some cases, the fishing vessel skipper is merely the person who rents the vessel to conduct fishing from the vessel owner. They can be defined as a vessel owner and a fishing worker at the same time. In such case, the lessees can be held responsible like the vessel owners. It has given rise to a problem regarding the enforcement of the law. If there is any violation of the rights of the workers in the vessel, how can the lessee be held liable since the person would perform both the roles of vessel owner and fishing worker at the same time. Also, it creates problems, legally and practically, to prove the distinction between a vessel owner and a vessel lessee, i.e., through reviewing financial transactions of the employer. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) inquires if our domestic law determine a fishing vessel skipper is an equivalent to a fishing worker in all the relevant laws or not (Direct Request).

The recommendation is to expand the definition of “fishing vessel skipper” beyond just a vessel worker since in reality, some fishing vessel skippers might be a business partner of the vessel owners, although according to the law, they have to be strictly regarded by a worker and thus cannot be held liable. In addition, duties and responsibilities of the lessee should be reviewed including the rental contract.

3.2 Scope of Law

            Types of fishing subject to exemption from the Labour Protection in Fishing Work Act B.E. 2562. There is a lack of clarity in terms of the definition of each type of fishing especially the artisan fishing. The ILO Convention No.188 in principle protects fishing workers in commercial fishing. The definition of fishing vessel under the Labour Protection in Fishing Work Act B.E. 2562 limits it merely to commercial fishing. Meanwhile, Thailand’s artisanal fishing appears to involve putting fishing products on display at the pier for sale. The concern is if such practice be exempted from the application of the Labour Protection in Fishing Work Act B.E. 2562 or not. The question from the Committee is whether the definition of artisanal fishing includes fishers who sell their fishing products at the pier or not and the information regarding equality in legal protection in the exempted sectors (Direct Request). The Committee asks for information about the equal protection of workers in the fishing sectors being exempted from the Labour Protection in Fishing Work Act B.E. 2562. In addition to artisan fishing, there is yet any definition of fresh water fishing and recreational fishing in secondary laws.

            The recommendations are clearly defined the term of fishing exempted from the Labour Protection in Fishing Work Act B.E. 2562 and be in line with the type of fishing protected under ILO Convention No.188. In addition, the protection of fishing workers in domestic waters and rivers and canals should be ensured if they receive the protection similar to other fishing workers under the Labour Protection in Fishing Work Act B.E. 2562.

  1. General Principle

4.1 Implementation

            Implementation for part of Section 7 of the Labour Protection in Fishing Work Act B.E. 2562 provides that any dispute concerning the rights and duties under the Labour Protection in Fishing Work Act B.E. 2562 shall fall under jurisdiction of the Labour Court. It thus deprives the Administrative Court of the power to rule on such cases. However, a dispute between state agencies including any guideline incompatible with the notification, or ministerial regulation, or law such as the issuance of the guideline on access to the Workmen’s Compensation Fund, as a result of which the affected workers have to file the case with the Administrative Court to repeal such guideline.            

            In this regard, it is proposed to amend Section 7 of the Labour Protection in Fishing Work Act B.E. 2562 to expand the judicial power under of the Administrative in deciding a dispute concerning the rights and duties under the Labour Protection in Fishing Work Act B.E. 2562.

    4.2 Competent Authority and Coordination  
    There is a lack of clarity about the competent authority. Power to appoint a competent official belongs to the Minister of Agriculture and Cooperatives, Minister of Land Transport, and the Minister of Labour according to Section 4 of the Labour Protection in Fishing Work Act B.E. 2562 and pursuant to the order of the Ministry of Labour no. 547/2565 on the appointment of competent official according to the Labour Protection in Fishing Work Act B.E. 2562. The lack of clarity in terms of the in-charge agencies for each problem arising from implementing of the Labour Protection in Fishing Work Act B.E. 2562 should be addressed.

    In the evaluation of law, recommendations are:

    1. Review and assess the performance of duties of the authorities if it has been integrated or not, for example, has the invocation of power under Section 16 of the Labour Protection in Fishing Work Act B.E. 2562 been made consistently or not Following the review, it should provide in each Section as to who shall be the in-charge agencies, i.e. for the vessel’s safety, which agency shall be in charge, (Ministry of Labour / Ministry of Transport / Ministry of Agriculture) and prepare SOP thereof.
    2. Disclose information about the complaints, statistics, and the number of cases in various areas concerning the invocation of power by the competent official concerning their performance of duties under the Labour Protection in Fishing Work Act B.E. 2562. At least, such disclosure should apply to the report of the outcome of performance under the Notification of the Ministry of Labour on the outcome of the implementation of the Labour Protection in Fishing Work Act B.E. 2562. The information should be updated and made accessible to the public. This includes statistics of the issuance of orders under Section 16 (1)-(4) of the Labour Protection in Fishing Work Act B.E. 2562 (improve the enforcement of the law)

    5. Minimum Requirements for Work on Board Fishing Vessels

    5.1 Medical Examination

                According to Section 8 of the Labour Protection in Fishing Work Act B.E. 2562 concerning medical certificate, in reality, a vessel worker has to work continuously for several years, but their health checkup has not been conducted regularly. As a result, some vessel workers sustain health conditions both physical and mental health that make them unfit for working in the fishery sector according to the objectives of Section 8 of the Labour Protection in Fishing Work Act B.E. 2562. Additionally, the medical examination for fishery workers is not in accordance with detail in Article 10-12 of ILO Convention No.188 concerning medical examination for example the readiness to work and to stipulate any possible exemption and their underpinning reasons and the right to have additional medical examination.

                In this regard, it is proposed that a health checkup of vessel worker be conducted regularly every year and the guideline concerning medical certificate be adapted in compliance with the ILO Convention No. 188.

    1. Conditions of Service

    6.1 Fisher’s Work Agreement

              Section 6 the Labour Protection in Fishing Work Act B.E. 2562 concerning employment contract, minimum requirements regarding work, the performance of duties, accommodation, food, the protection of safety and hygiene, the employment contract is still not compliant with the requirements in the annex of the ILO Convention No. 188 such as the mention of social security law and Section 6 paragraph 2 of of the Labour Protection in Fishing Work Act B.E. 2562 since it fails to include requirements concerning the living condition of fishing workers and the working condition in the vessel and at the pier, i.e., height, heat, noise, ventilation. There is also the lack of dissemination of information concerning the implementation of the Labour Protection in Fishing Work Act B.E. 2562.

                Recommendations for evaluating of law are:

    1. Revise the template of employment contract to include issues mentioned in the annex of the ILO Convention no. 188 such as the living condition of workers. It shall indicate the area in which the worker does fishing, detail of their accommodation, benefits of employees, dispute resolution mechanism, complaint procedure, emergency contact, and the criteria for share remuneration system. More than one employer can be indicated similar to other documents of the fishing workers. Review the outcome of the breach of employment contract, i.e., the use of fishing workers in other areas except those indicated in the employment contract, etc., and what shall be done when a breach of employment contract has been made.
    2. Set the procedures for reviewing a contract and maintenance of records concerning the fisher’s work under an agreement to be in line with Article 17 of ILO Convention No.188.
    3. Improve the dissemination of information concerning the implementation of the Labour Protection in Fishing Work Act B.E. 2562under Secion 6 paragraph 4 of the Labour Protection in Fishing Work Act B.E. 2562.
    4. In particular, the concerned state agencies should implement as required under Section 16 para 4 of the Labour Protection in Fishing Work Act B.E. 2562 and according to the Notification of the Ministry of Labour on the outcome of the implementation of the Labour Protection in Fishing Work Act B.E. 2562. It is incumbent on the Ministry of Labour to prepare up-to-date and easy to access information and make it available every year, i.e., via its websites, and preparing the report on the implementation of the Labour Protection in Fishing Work Act B.E. 2562 to be submitted to the cabinet every year pursuant to the Notification of the Ministry of Labour.

    6.2 Repatriation

               Section 9 of the Labour Protection in Fishing Work Act B.E. 2562 provides the right of fishing workers to be repatriated in case of fishing outside Thai waters or overseas. However, the employment contract regarding the work on board a fishing vessel outside Thai waters or overseas is not written to cover various scenarios under Section 9 of the Labour Protection in Fishing Work Act B.E. 2562. It also fails to clearly specify the consequences for the breach of the employment contract or when an employer violates the employment contract, who should bear the burden of proof regarding the dispute between the employer and the employee? There is a problem regarding the enforcement of Section 9 of the Labour Protection in Fishing Work Act B.E. 2562 since it involves various agencies. When a dispute arises abroad, there is no clear steps to take regarding the enforcement of the Section as to which agency should take the lead respectively.  In practicality, there have been cases of fishing workers outside Thai waters facing the problems and the vessel owner or the employer could not be held accountable since they are a foreigner. This makes it challenging to track them down and to hold them accountable according to the law.

                The recommendations in part of repatriation are:

    1. The employment contract should be revised regarding the work on board a fishing vessel outside Thai waters or overseas to cover all the requirements prescribed under Section 9 of the Labour Protection in Fishing Work Act B.E. 2562 and the consequences for the breach of employment contract should be provided.
    2. Clearly determine roles and duties of concerned agencies under Section 9-10 of the Labour Protection in Fishing Work Act B.E. 2562. This could be divided into two cases: Vessel in Thai waters: The employer shall be responsible.
      Vessel outside Thai waters: The Ministry of Labour takes the lead and coordinates with the Thai Ministry of Foreign Affairs
    3. If the foreign vessel owner or employer could not be identified, the recruiter should be held accountable instead. Should not one can be held accountable, there should be a fund to help Thai nationals working abroad. And in case of migrant workers, the financial held should come from the Foreign Workers Management Fund.
    4. Determine the guidelines for the repatriation of workers under the Royal Ordinance Concerning Management of Employment of Foreign Workers B.E. 2560 to protect the workers regarding the repatriation of workers from Thailand to their countries of origin.

    6.3 Recruitment and Placement

    Section 11 of of the Labour Protection in Fishing Work Act B.E. 2562 concerning the recruitment service fees and costs does not provide definition of the recruitment service fees and costs which can be collected from the vessel owner  nor punishment for the violation of Section 11. This is is different from the request or acceptance of money or other assets from the foreign workers under Section 49 of the Royal Ordinance Concerning Management of Employment of Foreign Workers B.E. 2560 which imposes a punishment in Section 144 of the same law. In practice, it cannot be ensured that no service fees and costs shall be collected from the workers nor there shall be no deductions from their wage and other payments to pay off such costs.

    Recommendations for the evaluation of law are:

    1. It is proposed that a definition and a scope of recruitment service fees and costs should be provided based on the criteria regarding the definition of “the recruitment fees or related costs” provided by the ILO General Principles and Operational Guidelines for Fair Recruitment as “any fees or costs incurred in the recruitment process in order for workers to secure employment or placement, regardless of the manner, timing or location of their imposition or collection”.
    2. It is proposed that the provision on recruitment service fees and costs should be written in the same Section, i.e. by expanding Section 11 on the definition of recruitment fees or related costs to ensure it prohibits the collection of such money from an employees or a fishing worker, and the deduction of pay from the employee or the fishing worker. By putting them in the same Section, it can ensure that neither the employee or the fishing worker has to shoulder such financial burden.
    3. Clearly provide as to who should be responsible for all other costs which have happened or may happen in the future or during an emergency including visas fee and emergency quarantine, and how they shall be calculated to ensure it corresponds to the income of the worker.
    4. It is proposed that the Ministry of Labour by the Department of Employment (DoE) should impose a clear punishment for the violation of Section 11 of the Labour Protection in Fishing Work Act B.E. 2562 inclusive of all kinds of workers required to get registered.
    5. Add a recommendation to revoke the registration under the Royal Ordinance on Fisheries’ Section 83 to ensure the worker has access to the protection and complaint procedure of the Ministry of Labour.

    7. Accommodation and Food
    Sections 13-14 of the Labour Protection in Fishing Work Act B.E. 2562 provides that the fishing vessels have to be equipped with accommodation and have the certificates illustrating that they have passed the test on living and working conditions. However, the structure of Thai fishing vessel poses risks to the crews. Also, certain working conditions may give rise to health impact of the fishing workers include too loud noise, insufficient lighting in fishing vessel and a lack of ventilation.

                The observations about the accident occurred on the fishing vessels relating to the structure of the fishing vessels and unsafe working conditions are for example:

    1. Structure of the fishing vessels: The toilet area of fishing vessel at the end of the vessel is a risky area for fishing workers falling overboard from the fishing vessels. Even though this type of at-sea accident trends to decrease, the accidents have still been recorded. According to the Department of Fisheries, 121 fishermen are recorded as falling overboard from the fishing vessels in 2020. 107 fishermen in 2021 and 78 fishermen in 2022 are recorded in the same type of accident. From this record, the number of decreased and missing are still high rate. 90 fishermen in 2020, 83 fishermen in 2021 and 60 fishermen in 2022 are recorded as decreased and missing. For January – August 2023 (8 months), it is found that the accident of man overboard still occurs. 48 fishermen are recorded for man overboard accident with 41 decreased and missing cases.
    2. Working condition under a lack of ventilation is another cause of at-sea accident. In 2022, there is a report of 3 workers working on the fishing vessels in Pattani province has found dead. The basic cause of death is from the hazardous gas from the area of fish container where workers are doing their jobs on the fishing vessel. This case also relates to the occupation safety and health and accident prevention provided in Article 31-32 of ILO Convention No.188.
    3. Problems related to other work-related welfares include insufficient drinking water or not clean enough to drink.

    The recommendations for the evaluation of law are:

    1. An effort should be made to adjust the area at the toilet of the fishing vessel to enhance more safety by referring to Section 14 of the Labour Protection in Fishing Work Act B.E. 2562 to amend the Notification of the Harbour Department no. 215/2562 on the fishing worker certificate dated 2 December 2019, its Article 5 (8) should be expanded to “accommodation and toilet”  
    2. A measure should be available to monitor noise during the work and ensure sufficient lighting in the fishing vessel to protect health of fishing workers.
    3. An effort should be to ensure drinking water is of good quality, clean and safe to drink pursuant to the requirements of the Ministry of Public Health and ensure it is available sufficiently to all workers in the fishing vessel.

    8. Medical Care, Health Protection and Social Security
    8.1 Social Security

    Section 12 of the Labour Protection in Fishing Work Act B.E. 2562 and the Notification of the Ministry of Labour on the determination of health benefits and welfares of fishing are incompatible with the Labour Protection Act, B.E. 2541 and the requirements under Article 34 of the ILO Convention No. 188. This is because such laws allow employers to buy private insurance for their workers causing them to receive health and social protection inferior to their counterparts in other occupations. The ILO Convention No. 188 provides in principle that all workers shall afford the protection on part with their counterparts in other occupations and does not provide for the alternative purchase of health insurance.

    Besides, there is the problem concerning the inspection for implementing Section 12 of the Labour Protection in Fishing Work Act B.E. 2562 at the port. Labour inspection at the pier still fails to cover all aspects of the workers’ welfares, particularly health insurance document, payment of employer’s contribution to the Workmen’s Compensation Fund and the working condition or working requirements which incur health impacts on the workers, working conditions which affects the health of workers, health problems concerning using drug and mental problem which is found as one of the health problems among the fishery workers.  Regarding the mental problem, the treatment of fishery workers face a difficulty due to the language barriers and they are consequently treated by giving medicine.

    Recommendations for the evaluation of law are as follows:

    1. Revise Section 12 of the Labour Protection in in Fishing Work Act B.E.2562 and repeal the Notification of the Ministry of Labour on the determination of health benefits and welfares of fishing workers dated 7 January 2020 which is incompatible with c 188. There are two options. Firstly, Section 12 should be revised as;  “Section 12: The vessel owner shall provide fishing labourers with such health rights and benefits according to the social security law.”. Secondly, Section 12 should be repealed and add the social security law into Section 6 of the Labour Protection in in Fishing Work Act B.E.2562.
    2. Enhance the vessel inspection to ensure it covers issues concerning health benefits and welfares of the workers including health insurance documents, documents certifying the payment of contribution to Workmen Compensation Fund and enhance the inspection of working condition or working requirements which may affect the health of fishing workers.
    3. Provide for a clear procedure for fishing workers to have access to benefits from the Workmen’s Compensation Fund and make it more convenient to access the fund. In addition, ways to address the need of workers sustaining mental condition and problem from drug use during their work on board a fishing vessel should be explored.

    9. Compliance and Enforcement
    9.1 Receiving the complaint and follow up the case

    Complaint submitted under Section 15 of the Labour Protection in in Fishing Work Act B.E.2562 can involve various laws which fall under the charge of various authorities. In reality, there must an in-charge agency to take the lead to process the complaint, monitor the progress and the outcome as well as to impose the punishment. This complaint procedure in practice creates confusion and inconsistency on receiving and following up the progress until the appropriate punishment for the complaint. This is not in accordance with Article 40 of ILO Convention No. 188.

    In addition, there is not punishment provided when the vessel owner terminates the contract or carries out any act giving rise to the fishing labourer’s inability to tolerate the continuance of work on account of such complaint under the Labour Protection in Fishing Work Act B.E. 2562, or on account of giving testimonies as a witness for the matter to which the complaint relates, as a result of which the fishing worker who is an injured party and witness may become fearful or does not receive the protection when submitting the complaint by exercising their legal rights.

    Recommendations to solve these problems are:

    1.  It is proposed that a punitive clause be specifically added for the violation of Section 15 of the Labour Protection in Fishing Work Act B.E. 2562 based on the punitive clause under Section 143 of the Labour Relations Act B.E.2518.
    2. It is proposed that the complaint procedure be designed to keep confidential information to protect the injured party who has filed the complaint through to the end of the process. The duties belong to the state agencies that receive the complaint.
    3. Promote a tripartite process and ensure fishing workers have their more representation involved in assisting and monitoring the complaint procedure among the fishing workers.

    9.2 The Competent Authority and System for Inspection
    Under Section 16 of the Labour Protection in Fishing Work Act B.E. 2562 regarding the powers and duties of competent official, there is no legal provision to authorize the competent official to perform the duties as a competent official under the Penal Code. This limits the competent authority when enforcing the law with a criminal punishment. In addition, Regarding the issuance of a written order prohibiting the use of the vessel for fishing operations under Section 16 (4) pursuant to the Notification of the Ministry of Labour on the criteria concerning the inspection of fishing vessel or workplace of vessel owner and the issuance of a written order to bar the use of fishing vessel for fishing under (2) require that competent officials shall have a consultation before issuing such order. Therefore, the issuance of such order shall hinge on the collaboration of all concerned agencies. In practice, the competent authority hesitates to issue such order.

                The inspection of workplaces of vessel owners under Section 16 of the Labour Protection in Fishing Work Act B.E. 2562 still lack the inspection of accidence on board the fishing vessel and the preparation of report of the outcome of all cases of accidence. For example, safety inspection concerning life jacket is not on part with international standards to ensure such life jackets can be practically used by the fishing workers and have gone through quality control. It has been found some life jackets available are no longer in good condition.

                Recommendations regarding the competent authority and the inspection system are:

    1. Add to the last paragraph of Section 16 to authorize the competent official to function as a competent official under the Penal Code
    2. Amend the order of the Ministry of Labour no. 547/2565 on the appointment of competent official according to the Labour Protection in Fishing Work Act B.E. 2562 by adding the social security officers in Section 5 of such order to have powers provided in Section 16(1) – (3) of the Labour Protection in Fishing Work Act B.E. 2562 for the inspection of health benefits and social security of fishery workers.
    3. Enhance the collaboration among authorities concerned with vessel inspection under Section 16 of the Labour Protection in Fishing Work Act B.E. 2562, particularly on issues that concern the application of multiple laws to ensure the comprehensive inspection of all aspects required by law and enforce Section 16 paragraph 4 of the Labour Protection in Fishing Work Act B.E. 2562 regarding the prohibition of a fishing vessel to conduct fishing operation in the case where the conditions of fishing vessel is not safe or the vessel owner fails to comply with the minimal criteria set by laws so that the inspection system is in line with the inspection system in Article 42 of ILO Convention No.188.
    4. It is proposed that an investigation be carried out on every case of accidence on board a fishing vessel and the outcome of such accidence and its investigation shall be disclosed to the public and reviewing the quality of life jackets that are fit for actual use of fishing workers on board a fishing vessel in Thailand and enhance quality control of life jackets to ensure the quality and suitability for actual use, at least once a year.
    5. Review measures for fishing vessel inspection by additionally applying inspection process applied to conventional workplaces to ensure the workers in all sectors receive the compatible protection.

    9.3 The Inspection of Non-Thai Fishing Vessels
    There is a limitation as to the powers and duties of competent official to get on board and carry out an inspection of a non-Thai fishing vessel according to the secondary law. There is also a lack of information concerning the getting on board and the vessel inspection under Section 17 of the Labour Protection in Fishing Work Act B.E. 2562. Therefore, it is unclear if Section 17 is enforceable or how it shall be enforced.

    It is recommended to review secondary laws that restrict the exercise of power of competent official for getting on board and carrying out a section of a non-Thai fishing vessel and review the guidelines to ensure the effective enforcement of Section 17 coupled with the adoption of measures of the port state as the approach specified in Article 43 of ILO Convention No.188.

    9.4 Appropriate Punishment 

                There is no punitive clause specifically for the violation of each Section of the Labour Protection in Fishing Work Act B.E. 2562. As a result, the response to the violation of this Act depends on the discretion of the competent officials according to Section 18-19 of the Labour Protection in Fishing Work Act B.E. 2562.

                Besides, regarding the use of discretion by competent official, it tends to end up in a mediation of dispute arising from the violation of rights and duties under the Labour Protection in Fishing Work Act B.E. 2562. As a result, the vessel owner or the employer tend to have the chance to not be held accountable and it may lead to the repetition of the offence. In cases of negligence and accident, the labour inspector tend to end up in a mediation led by the competent official. It should be noted that such mediation may lead to the repetition of such accidence on board a fishing vessel and may not lead to the accountability and the remedy for the injured fishing worker.

                Recommendations are as follows:

    1. Consider to impose penalties and to impose penalties in each Section particularly in Chapter 2, Section 8-15 of the Labour Protection in Fishing Work Act B.E. 2562 to ensure the punishment in case of violation of the Labour Protection in Fishing Work Act B.E. 2562.
    2. Change guidelines for the use of discretion by competent official to settle a dispute, from emphasizing a mediation to the use of discretion to make a judgment based on the serious protection of fishing workers and the use of discretion to impose penalties according to the law to prevent the repetition of the incidence.
    3. For cases of negligence and accidence that occurs on board a fishing vessel, it should be provided for a genuine effort to prosecute a vessel owner or an employer or a person who has committed such violation and it should not resort to the use of mediation to settle the dispute.

    10. Transitory Provisions
    Concerning the Transitory Provisions, problems in this section are about the old structure of Thai fishing vessels. Thai fishing vessels are built on an outdated structure. Therefore, it could give rise to harm to the fishing workers working on board a fishing vessel. For example, the accommodation on fishing vessel is rather cammed and crowded, the toilet on fishing vessel can make it easy for a fishing worker to fall into the sea and the fish container area on board lacks of ventilation system.

    For part of transitory provisions, the recommendations are:

    1. Repeal the Transitory Provisions of the Labour Protection in Fishing Work Act B.E. 2562 since at present the fishing vessels are already subject to the enforcement of the minimum standards.
    2. Improve the structure of fishing vessels for example by identifying the fishing vessel which has been deigned to ensure safety and replicate the structure of the fishing vessel or issue a Notification requiring the improvement of fishing vessel including the height of the accommodation and the area for toilet.

    [1] Act on Legislative Drafting and Evaluation of Law B.E.2562 (2019) Section 3 “Evaluation of outcome” means the evaluation of the enforcement of a law and its rules, whether and to what extent the objective of that legislation has been achieved, whether or not it is worth the additional burdens imposed upon the State and the people, or whether and to what extent it caused other impacts, which result in injustice to the people.   

    [2] Information in this document covers the Direct Request of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) as well.

    [3] From the consultation on “Civil society participation in the public consultation to offer feedback and recommendations for legal reform through the evaluation of law process of the Labour Protection In Fishing Work Act, B.E. 2562” on 21 July 2023, from 9am-4pm, the ibis Bangkok Riverside Hotel

    [4] Section 98.  For the benefits of members of a labour union, the labour union shall have the following powers and duties:   

    (1) to make a claim, negotiate for an agreement and acknowledge an award, or make an agreement with the employer or employers’ association regarding its members’ undertakings;   

    (2) to manage and carry out any activity for the benefit of its members subject to the objects of the labour union;   

    (3) to provide an information service regarding employment opportunities for its members;   

    (4) to provide a consulting service so as to solve any problem or get rid of any dispute with regard to management and execution of work;   

    (5) to provide a service relating to the allocation of funds or properties for the welfare of its members or for the public interests, as the general meeting sees appropriate;   

    (6) to collect membership subscription and maintenance fees at the rates as prescribed in the regulation of the labour union.