Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Employment Service Convention, 1948 (No. 88) - Thailand (Ratification: 1969)

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Observation

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The Committee notes the observations of the National Congress of Thai Labour (NCTL) and of the Employers’ Confederation of Thailand (ECOT), received on 22 November 2022, to which the Government has provided its comments.

Articles 4 and 5 of the Convention. Consultation and cooperation with the social partners. The Committee takes note of the observations made by the ECOT regarding the lack of consultation prior to the adoption of new legislation and measures relating to the Convention. The Government replies that, in conformity with the Employment Arrangement and Jobseeker Protection Act, B.E. 2528 (1985) a Committee on the development of employment arrangement and jobseekers’ protection was created which counts among its members, one member appointed from the employees and one member appointed from the employers. Its powers and duties include making recommendations to the Minister of Labour on policies and measures related to employment and jobseekers’ protection, on challenges in employment arrangements and jobseekers’ protection and on the prevention and suppression of deceit against jobseekers. It also provides guidance and counsel to employment agencies on overseas employment standards, on the promotion of employment, on the development of skills for the Thai labour market, on the determination of standards and practices for skill testing and may perform other duties as assigned by the Cabinet or the Minister of Labour. The Committee notes from the Government’s report that the Committee on the development of employment arrangement and jobseekers’ protection held four meetings between 2014 and 2018 to discuss “various related issues”. The Committee however notes that no meetings have taken place since 2018, when the three-year term of the Committee on the development of employment arrangement and jobseekers’ protection ended. The Government indicates in that regard that the selection process for the appointment of new members of this Committee is underway. The Committee recalls that Articles 4 and 5 of the Convention require the establishment of advisory committees with a view to ensuring the full cooperation of employers’ and workers’ representatives in the organization and operation of the public employment service. Noting with concern that that the three-year term of the Committee on the development of employment arrangement and jobseekers’ protection has expired, the Committee hopes that the Government will take all necessary measures to give effect without delay to these important provisions of the Convention and requests the Government to provide information on any progress made in this regard.

Article 6(b)(iv). Migrant workers. The Government indicates that it has taken several measures to prevent abuse in the recruitment and the exploitation of migrant workers. First, the Government states that, under the Employment Arrangement and Jobseeker Protection Act B.E. 2528 (1985), the Maritime Labour Act B.E. 2558 (2015), the Foreigners’ Working Management Emergency Decree B.E. 2560 (2017) and the Revision No. 2 B.E. 2561 (2018), all private employment agencies must be licensed by the Government. As a result, as of 25 April 2022: (i) 300 recruitment offices/agencies are allowed to arrange “domestic placement” for job seekers, (ii) 129 recruitment agencies are allowed to arrange job placements overseas, (iii) 6 recruitment agencies are allowed to arrange placements for seafarers and (iv) 245 companies are allowed to place migrant workers in Thailand. Second, the Government indicates that, in 2022, the Department of Employment inspected an important number of recruitment agencies/offices: (i) 175 recruitment offices/agencies that are allowed to arrange domestic placement, (ii) 123 recruitment agencies that are allowed to arrange overseas placements, (iii) 6 recruitment agencies that are allowed to place seafarers and (iv) 225 companies that are allowed to place migrant workers in Thailand. Third, the Government indicates that, as a result of these inspections, 35 recruitment offices/agencies that place job seekers in Thailand had their licenses suspended (for not submitting monthly recruitment reports to the registrar) and recruitment agencies that arrange overseas placements also got license suspensions (on several grounds). Fourth, the Government indicates that, in 2016, Migrant Workers Assistance Centres were established in ten provinces throughout the country. These centers provide consultations, guidelines, and assistance to migrant workers. They further cooperate with organizations that prevent human trafficking. In terms of impact, the centers assisted 3,452 migrant workers in 2016, 52,983 migrant workers in 2017, 46,109 migrant workers in 2018, 42,653 migrant workers in 2019, 41,240 migrant workers in 2020, 38,749 migrant workers in 2021 and 25,864 migrant workers in 2022. Fifth, the Government indicates that it continues to manage the migration of workers to Thailand through the signature of Memorandums of Understanding (MOUs) with its neighbouring countries. In 2015–17, the Government signed MOUs with Cambodia, the Lao People’s Democratic Republic, Myanmar, and Vietnam. Regarding the impact of the MOUs, the Government indicates that the number of migrant workers who registered with the MOU process was: 279,311 in 2015, 392,749 in 2016, 582,726 in 2017, 912,231 in 2018, 1,005,848 in 2019, 797,158 in 2020, and 594,408 in 2021. In the context of the COVID-19 pandemic, cross-border recruitment under the MOU procedure resumed in December 2021. Migrant workers had to provide evidence of vaccination or a certificate showing a history of COVID-19 infection in the past three months. Some 474,834 migrant workers registered with the MOU process in 2022. Sixth, during the COVID-19 pandemic, the Government took several measures to allow migrant workers who were already in Thailand to keep working in the country. The Government adopted several resolutions allowing the renewal and the extension of work permits or legalizing the status of migrant workers without work permit. Regarding the observations received from social partners, the Committee notes that the NCTL has no objection to the Government’s indications in its report. The Committee also notes the observations submitted by the ECOT, indicating that the smuggling of migrant workers persists. The ECOT observes that the smuggling of migrant workers is low-risk, cheaper, and faster than the legal channels, and that eventually, illegal workers receive amnesty and can apply for work permits. In reply, the Government reiterates that it has introduced various relief measures for migrant workers. Notably, the Government has enabled migrant workers to come work in Thailand under the MOU process, including during the COVID-19 pandemic. The Government affirms that the MOU process tackles the smuggling of illegal workers and prevents human trafficking. Moreover, on 30 May 2022, the Government issued the Order of the Centre for the Administration of the Situation due to the Outbreak of the Communicable Disease Coronavirus 2019 (COVID-19) No. 11/2565 (in effect since 1 June 2022), which reduces the length and the cost of the MOU process. As a result, as of October 2022, the cost of migration through the MOU process is 5,890 Thai bahts (instead of 11,409 to 24,200 bahts before) and the process takes approximately 20 to 30 service days, depending on the procedures in the country of origin. The Government further recalls that it took several resolutions to allow migrant workers who were in Thailand to stay in the country during the COVID-19 pandemic. The Government specifies that such measures were taken with a view to preventing undocumented workers from being exploited during this difficult time, as the Government considers irregular workers as being vulnerable rather than having committed crimes. The Government also indicates that law enforcement, the military, police, and the local administrative offices in the provinces at the border of the country have intercepted smuggling of migrant workers. Further, the Department of Employment regularly inspects companies at risk of employing irregular workers and takes this opportunity to inform the employers on the process to hire migrant workers legally.Taking due note of the above information, the Committee wishes to acknowledge the efforts made by the Government to facilitate the movement of workers between Thailand and the neighbouring countries and prevent the abuse in the recruitment and exploitation of migrant workers. Noting the concerns expressed by the ECOT, the Committee requests the Government to continue providing detailed information on the impact of the measures taken, including by the public employment service, to protect migrant workers during recruitment and placement and to facilitate their movement across borders, with due regard to their fundamental rights. The Government is also requested to provide updated statistical data, disaggregated by country of origin and by sex, on the migrant workers working in the country under the above MoUs as well as outside of these frameworks and their access to employment services.

Article 11 of the Convention. Effective cooperation between the public employment service and private employment agencies. Regarding the participation of the private employment agencies in the activities of the Committee on the development of employment arrangement and jobseekers’ protection, the Government indicates that, in accordance with the Employment Arrangement and Jobseeker Protection Act, B.E. 2528 (1985), the Cabinet appoints to the Committee at least three persons with knowledge of employment and jobseekers’ protection. The Thai Overseas Manpower Association has been appointed for its knowledge in the recruitment and protection of jobseekers. The Thai Overseas Manpower Association has 57 licensed private employment agencies among its members and aims at promoting overseas employment placement. Regarding the measures taken to secure effective cooperation between the public employment service and private employment agencies, the Government indicates that, on 30 June 2020, the Department of Employment and six private recruitment agencies signed a MOU for Cooperation in Job Arrangements. In conformity with this MOU, the Department of Employment and the private agencies have been exchanging job announcements. The Department of Employment has also been providing a link to the job vacancies database of the six private agencies on its website, and vice versa. This allowed jobseekers to have better access to information. The six private recruitment agencies also provided the Department of Employment with statistical information, enabling it to assess trends in the labour market. The MOU for Cooperation in Job Arrangements was initially in effect until June 2023 and is expected to be renewed for a continued implementation. The Government indicates that the Department of Employment has a project to exchange employment information with three additional private employment agencies in 2023. Regarding the observations received from the social partners, the Committee notes that the ECOT is concerned that, although a core principle is that private employment services should be non-profit, the collection of fees and expenses is not prohibited under Thai law. The ECOT further finds that the use of the term fees and expenses in the relevant Thai legislation is ambiguous and may be interpreted differently. The Government replies that several texts regulate the collection of fees and expenses by private recruitment agencies. The Employment Arrangement and Jobseeker Protection Act B.E. 2528 (1985) and Revision state that domestic private employment agencies are prohibited from demanding or receiving any money or property from jobseekers other than service fees or expenses, at a rate not exceeding the rate prescribed by the Minister of Labour. In conformity with this same Act, overseas employment agencies are prohibited from demanding or accepting fees from jobseekers except to the extent permitted by the Director-General of the Department of Employment. The Rule of the Ministry of Labour on Service Fees and Expenses Rates to be Collected from Jobseekers B.E. 2547 (2004), stipulates that the fees and expenses received or demanded by domestic private employment agencies shall not exceed 25 per cent of the workers’ wages in the first month of work. Overseas employment agencies however may demand/receive fees or expenses from jobseekers which do not exceed 100 per cent of the wages in the first month of work, when the contract is of one year or more. For employment contracts of less than a year, the fees shall be reduced proportionately. The Foreigners’ Working Management Emergency Decree B.E. 2563 (2017) and Revision No. 2 B.E. 2564 (2018) prohibits private employment agencies that bring migrant workers to work in the country from demanding/accepting money or property from employers or workers, except for the fees and expenses listed in a notice from the Department of Employment, at the rate prescribed thereby. The notice of the Department of Employment entitled “Items and rates of service fees and expenses for bringing migrant workers to work with employers in the country,” B.E. 2564 (2021) states that companies allowed to bring migrant workers to work in Thailand can demand fees from employers at a rate not exceeding 25 per cent of the workers’ wages in the first month of work. Noting that the fees and expenses that overseas employment agencies may demand to jobseekers appear substantial (amounting to approximately 8 per cent of the annual remuneration) and unrelated to any specific service offered to the workers, the Committee requests the Government to provide further information in this regard, taking into account the provisions of Article 11 of the Convention.The Government is further requested to indicate what countries the overseas employment agencies primarily draw jobseekers from, as well as to indicated how many jobseekers are being charged these high fees every year. Taking into account the fact that, pursuant to Article 11 of the Convention, the co-operation between the public employment service and private employment agencies cannot be conducted with a view to profit, the Government is asked to indicate the types of services offered that justify allowing the rate of fees and expenses that is four times that charged by domestic agencies. The Committee also requests the Government to provide updated information on the manner in which private employment agencies participate in the activities of the Committee on the development of employment arrangement and jobseekers’ protection, once it is operational again. More generally, the Committee requests the Government to continue providing detailed and updated information on the measures taken to secure effective cooperation between the public employment service and private employment agencies. In this regard, recalling the campaign launched by the Office in May 2022 to promote the ratification of both the Public Employment Services Convention, 1948 (No. 88), and the Private Employment Agencies Convention, 1997 (No. 181), the Committee invites the Government to consider ratifying Convention No. 181, as the most up-to-date instrument in the area of private employment services, which in turn complements the effective implementation of Convention No. 88.