Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes with satisfaction that the Anti-Communist Activities Act B.E. 2495 (1952), as amended by the Anti-Communist Activities Act (No. 2) B.E. 2512 (1969), which contained provisions punishing with penalties of imprisonment (involving compulsory labour) various acts connected with communist activities, such as propagating communist ideology, or belonging to any communist organization, or attending any communist meeting, etc., has been repealed by Act B.E. 2543 (2000), which came into force on 4 June 2001.

2. Article 1(c) of the Convention. Over a number of years (since 1976), the Committee has been commenting on sections 5, 6 and 7 of the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), which provide for the forcible conveyance of seafarers on board ship to perform their duties. The Committee noted the Government’s indications in its previous report that the Act had not been applied during the past decade and that a committee was established in March 1999 by the Department of Labour Protection and Welfare, of the Ministry of Labour and Social Welfare, for considering drafting seafarers’ legislation and upgrading their standards of work in compliance with ILO standards.

The Government indicates in its latest report of 2001 that the Act is the responsibility of the Royal Thai Police, and that the Ministry of Labour and Social Welfare is proceeding to make suggestions to that government agency on the possibility of repealing the Act. The Committee reiterates its hope that, either in the course of the revision of seafarers’ legislation or otherwise, the abovementioned provisions will be at last repealed and the legislation will be brought into conformity with the Convention on this point, and will also be consistent with the indicated practice. It asks the Government to provide, in its next report, information on the progress made in this regard.

3. The Committee previously noted 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(2), 22(2), 23-25, 29(4), or 35(4) of the Labour Relations Act. The Committee pointed out 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 which impair or are liable to endanger the operation of essential services in the strict sense of the term, 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 Government in its report of 1997, agreed that the distinction between essential and non-essential services should be addressed, and that the Senate was in fact expected to discuss the definition of "essential services". However, in its latest report of 2001, the Government indicates that the discussion might have taken place during the passage of the draft amendment to the State Enterprise Labour Relations Bill but, as a result of many amendments made, a definition of "essential services" was deleted from the draft amendment and the issue was not opened for discussion in the Senate. The Government also expresses the opinion that, in the context of Thailand as a developing country, "essential services" should also cover the services whose interruption would lead to any national calamity which might affect the population, economy and security.

While noting these indications, the Committee observes, referring also to paragraphs 114 and 123 of its 1979 General Survey on the abolition of forced labour, that the Government’s view on the definition of "essential services" does not seem to meet the criteria of "essential services" in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population). The criteria which has to be established is therefore the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population; a threat to the national economy, which might be subject to a very broad interpretation, does not seem to meet the requirements of such criteria. Similarly, as the Committee pointed out in its previous comments, some of the services listed in section 23 of the Labour Relations Act (such as railway or port services) and all the services mentioned in Ministerial Regulations No. 2 referred to by the Government in its 1999 report, do not meet the criteria of "essential services" either.

The Committee therefore reiterates firm hope that the Government will reconsider this question in the light of its obligations under Article 1(c) of the Convention and that it will provide, in its next report, information on the measures taken in order to ensure compliance.

4. Article 1(d). In its earlier comments, the Committee noted that penalties of imprisonment (involving compulsory labour) may be imposed for participation in strikes under the Labour Relations Act: (i) 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 hardship to the public or may affect national security or be contrary to public order; (ii) 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 done so, 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 Government indicates in its latest report that the Minister has never exercised the powers conferred under section 35 to intervene in any peaceful strike which does not give the abovementioned effect, and that no penalties have been imposed under the Act. It also states that the penalties of imprisonment are provided to serve only as a preventive measure to protect the public against the interruption of the service which would endanger the life, personal safety, health or well-being of the population or national security. While noting these indications, the Committee points out once again that, under the abovementioned provisions of the Labour Relations Act, penalties of imprisonment involving compulsory labour may be imposed for participation in strikes not only where they concern essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), but also in a wider range of circumstances which cannot be held to be removed from the scope of Article 1(d) of the Convention.

Referring to paragraphs 122-132 of its 1979 General Survey on the abolition of forced labour, the Committee expresses firm hope that the Government will not fail to take the necessary measures to have the abovementioned provisions amended in order to bring the legislation into conformity with the Convention on this point.

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 (involving compulsory labour). It referred to the explanations provided in paragraph 128 of its 1979 General Survey, where it indicated that, while the prohibition of purely political strikes lies outside the scope of the Convention, in so far as restrictions on the right to engage in such strikes are accompanied by penalties involving compulsory work, they 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 Government reiterates its previous statement that section 117 is essential to internal security and does not concern the prohibition or restrictions on the right to engage in strikes or collective agreements. It indicates again that this section has never been applied in practice. While noting these indications, the Committee expresses firm hope that the necessary action will be taken, on the occasion of the next revision of the Criminal Code, in order to amend section 117 so as to remove strikes pursuing economic and social objectives affecting the workers’ occupational interests from the scope of sanctions under this section, with a view to bringing this provision into conformity with the Convention and the indicated practice.

6. In its earlier comments, the Committee referred to section 19 of the State Enterprise Labour Relations Act, which provided that workers of state enterprises were prohibited from striking, this prohibition being enforceable with sanctions of imprisonment (involving compulsory labour), under section 45, paragraph 1, of the Act. The Committee has noted that the new State Enterprise Labour Relations Act B.E. 2543 (2000), which came into force on 8 April 2000, also prohibits strikes in state enterprises (section 33), violation of this prohibition being punishable with imprisonment (involving compulsory labour) for a term of up to one year; this penalty is doubled in the case of a person who instigates this offence (section 77).

The Committee again refers to the explanations provided in paragraph 123 of its 1979 General Survey on the abolition of forced labour and recalls that the imposition of penalties of imprisonment involving compulsory labour on striking employees would be compatible with the Convention only 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).

While noting the Government’s repeated statement in its report that the state utilities and services are essential for the living of the people and must be ensured against interruption or instability, the Committee again points out that 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 trusts that the necessary measures will be taken in the near future in order to bring the State Enterprise Labour Relations Act into conformity with the Convention. It asks the Government to provide, in its next report, information on the progress made in this regard.