Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the report provided by the Government.

Article 1(a) of the Convention. 1. The Committee noted previously that penalties of imprisonment may be imposed under sections 4, 5, 6 and 8 of the Anti-Communist Activities Act B.E. 2495 (1952) on anyone who engages in communist activities, or who conducts propaganda or makes any preparation with a view to carrying on communist activities, who is a member of any communist organization, or who attends any communist meeting unless he can prove that he did so in ignorance of its nature and object. Similarly, under sections 9, 12 and 13 to 17 of the same Act, inserted by the Anti-Communist Activities Act (No. 2) B.E. 2512 (1969), penalties of imprisonment may be imposed on whoever assists any communist organization or member of such organization in a variety of ways, who propagates communist ideology or principles leading to the approval of such ideology, or who contravenes restrictions imposed by the Government on movements, activities and liberties of persons in any area classified as a communist infiltration area.

The Committee notes the indication in the Government's report that section 35 of the Thai Constitution (B.E. 2538 (1995)) provides that exception from the prohibition of compulsory labour can only be made by law with respect to emergency, state of war and martial law.

The Committee observes that the provisions of the above-mentioned Act do not appear to fall under any of the exceptions allowed by the 1995 Constitution. Moreover, they may be used as a means of political coercion or as a punishment for holding or expressing, even peacefully, certain political views or views ideologically opposed to the established political, social or economic system, and are accordingly incompatible with Article 1(a) of the Convention in so far as the penalties provided involve compulsory labour.

The Committee again expresses the hope that the necessary measures will be taken with regard to the Anti-Communist Activities Act to ensure the observance of the Convention, and that the Government will report on the action taken.

Article 1(c). 2. In comments made since 1976, the Committee has noted that sections 5, 6, and 7 of the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), provide for the forcible conveyance of seamen on board ship to perform their duties.

In 1990, the Committee noted the Government's indication in its report for the period ending 30 June 1988 that "the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), has not been changed or repealed at present", but that a committee had been established for considering seamen's legislation, and that any alterations to this legislation would be reported to the ILO as soon as possible. The Committee noted the Government's indication in its report for the period ending 30 June 1994, made after consideration with the Juridical Council, that the Act previously mentioned should be the Act of prevention of crews absent from their duty on merchant ships, B.E. 2465 (1922) which is being enforced. The Government added that the provisions would however probably be useless at present because it was not to be enforced for a very long time.

The Committee hopes that in the circumstances the Government will be in a position to take the necessary measures to have sections 5 to 7 of the Act repealed, and that it will soon report on the action taken.

3. The Committee noted previously that under sections 131 and 133 of the Labour Relations Act, B.E. 2518 (1975), penalties of imprisonment (involving compulsory labour) may be imposed on any employee who, even individually, violates or fails to comply with an agreement on terms of employment or a decision on a labour dispute under sections 18, paragraph (2), 22, paragraph (2), 23 to 25, 29, paragraph (4) or 35(4) of the Labour Relations Act.

The Committee notes the indication in the Government's reply to its previous observation that these provisions are necessary to make both employers and workers abide by agreements on terms of employment or arbitration awards and that they do not provide for compulsory labour.

The Committee earlier indicated that legal provisions punishing a breach of labour discipline with compulsory labour were outside the scope of the Convention if they dealt with essential services or, in other words, with situations endangering the life, the personal safety or the health of the whole or part of the population.

In this regard, the Committee has previously noted that sections 131 to 133 of the Labour Relations Act were incompatible with the Convention in so far as the scope of sanctions involving compulsory prison labour is not limited to acts and omissions that impair or are liable to endanger the operation of essential services, or which are committed either in the exercise of functions that are essential to safety or in circumstances where life or health are in danger.

The Committee notes the indication in the Government's report that the clear distinction between essential and non-essential services has not yet been made. The Committee again expresses the hope that the Government will indicate the action taken or contemplated in this regard to ensure the observance of the Convention.

Article 1(d). 4. In its previous comments, the Committee noted that penalties of imprisonment may be imposed for participation in strikes under the following provisions of the Labour Relations Act:

(a) section 140 read together with section 35(2), if the Minister orders the strikers to return to work as usual, being of the opinion that the strike may cause serious damage to the national economy or may cause hardship to the public or may affect national security or may be contrary to public order;

(b) section 139 read together with section 34(4), (5) and (6), if the party required to comply with an arbitrator's award under section 25 has complied therewith, if the matter is awaiting the decision of the Labour Relations Committee or a decision has been given by the Minister under section 23(1), (2), (6) or (8) or by the Committee under section 24, or if the matter is awaiting the award of labour disputes arbitrators appointed under section 25.

The Committee notes the Government's indication in its report that the above-mentioned provisions of the Labour Relations Act do not compel workers to resume their work and that workers are free to leave the employment if they choose to do so. The Committee wishes to point out that the compulsory labour referred to in Article 1(d) of the Convention covers the punishment for having participated in strikes and not the work which is stopped by the strikes. The Committee notes that under the above-mentioned provisions of the Act, penalties of imprisonment involving compulsory labour may be imposed for participation in strikes which are not excluded from the scope of the Convention. The Committee refers to paragraphs 122 to 132 of its 1979 General Survey on the abolition of forced or compulsory labour in which it indicated strikes which are not covered by the Convention.

Recalling the Government's indication in its report ending June 1988 that the powers conferred under section 35 of the Act have been seldom used, the Committee hopes that the Government will take the necessary measures to have the above-mentioned provisions amended.

5. The Committee previously noted that under section 117 of the Criminal Code participation in any strike with the purpose of changing the laws of the State, coercing the Government or intimidating the people was punishable with imprisonment.

The Committee again refers to the explanations provided in paragraph 128 of its 1979 General Survey on the abolition of forced or compulsory labour, where it indicated that while the prohibition of purely political strikes lies outside the scope of the Convention, nevertheless, in so far as restrictions on the right to engage in such strikes are accompanied by penalties involving compulsory work, these restrictions should apply neither to matters likely to be resolved through the signing of a collective agreement nor to matters of a broader economic and social nature affecting the occupational interests of workers.

The Committee again expresses the hope that the necessary action will be taken to remove all strikes pursuing aims of an economic and social nature that affect the workers' occupational interests from the scope of sanctions under section 117 of the Criminal Code and that pending such action, the Government will continue to supply information on the application in practice of section 117.

6. The Committee noted previously that section 19 of the State Enterprise Labour Relations Act provided that workers of state enterprises shall not in any case stage a strike or undertake any activity in the nature of a strike. Under section 45, paragraph 1, of the Act, a person who violates this prohibition may be punished by imprisonment for a term of up to one year; this penalty is doubled in the case of a person who "incites, or aids or abets the commission" of the offence under paragraph 1.

Referring to the explanations provided in paragraph 123 of its 1979 General Survey on the abolition of forced or compulsory labour, the Committee recalled that the imposition of penalties of imprisonment involving compulsory labour on striking employees would be compatible with the Convention in the case of essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population, because there the punishment is not aimed at the strike as such but at the endangering of life, personal safety or health. The distinction between essential and non-essential services is a functional one and does not depend on private or state ownership of the enterprises concerned. A blanket prohibition of strikes in all state-owned enterprises, if enforced with penalties involving compulsory labour, is incompatible with the Convention.

The Committee notes the Government's indication in its report that a clear definition of essential services is yet to be drawn and pending such definition the Government would be compelled to focus more on the safeguarding of the public interest. The Committee also notes the indication that the Government policies of both the previous and the current Prime Ministers have remained unchanged, that is, to prohibit strikes in public utilities and services.

The Committee hopes that the Government will reconsider the issue with a view to bringing the relevant legislation into conformity with the Convention, and that it will supply full information on the action taken.