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Comments adopted by the CEACR: Thailand

Adopted by the CEACR in 2021

C100 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations from the National Congress of Thai Labour (NCTL) transmitted by the Government with its reply and received on 25 November 2021.
Article 1(a) of the Convention. Additional emoluments. Overtime payments. The Committee notes the observations provided by the NCTL regarding the provisions of the Labour Protection Act, which set the maximum hours of work per week and stipulate that overtime work should be paid at 1.5 times the hourly rate. The union adds that the Thai Labour Standard (TLS) 8001-2020 states that the employer must pay wages and remuneration to employees for work performed outside work hours or exceeding normal working hours at not less than the legal requirement. It further indicates that Ministerial Regulation No.7 provides that workers involved in production who are paid monthly wages are eligible to be paid for overtime work only at the hourly rate. The NCTL states that therefore there is an inconsistency between Ministerial Regulation No. 7 and the Labour Protection Act, the latter being in conformity with the Convention. The Committee notes that, in its reply, the Government states that there is no inconsistency because Ministerial Regulation No. 7 indicates that employer and workers involved in production can agree the maximum hours worked in a day, as long as the weekly max is under 48 hours and states that the Convention is not relevant in this regard. The Committee recalls that, in accordance with the Convention, the principle of equal remuneration for men and women for work of equal applies not only to wages but also to any additional emoluments, including overtime payments. It also stresses that compliance with the requirements of the Convention is required in law and in practice and, therefore it is important to assess the impact of any legal provisions on the gender pay gap in practice. If, as a result of the implementation of the above legal provisions, women or men are disproportionally affected by lower supplements for overtime work, it may contribute to unequal pay for men and women and have an impact on the gender pay gap and therefore be contrary to the principle of the Convention. In order for the Committee to get an appreciation of how these legal provisions operate in practice and their possible impact on the gender pay gap, it requests the Government to provide statistical information disaggregated by sex on the distribution of men and women in the production sector and other sectors of the economy and, within the production sector, on the number of overtime hours worked as well as any other relevant information. It also requests the Government to provide any assessment it may have made of the impact of overtime payments on the remuneration of men and women.
Articles 2 and 3. Private sector. In its previous comments, the Committee urged the Government to provide information on the practical application of the Thai Labour Standards (TLS) 8001-2003 related to equal remuneration for men and women for work of equal value and also asked it to indicate whether any activities, including training, had been organized in the private sector to promote job evaluation and provide a better understanding of the principle of equal remuneration for men and women for work of equal value. The Committee notes the Government’s indication that the TLS are regularly updated and that, on 24 March 2020, the TLS 8001-2020 entered into force. The TLS 8001-2020 state that the employer “shall treat employees equally in payment of wage and remuneration, regardless of gender of employees” (standard 4.7.3). The Committee also notes the information provided by the Government concerning a series of training sessions on TLS 8001-2020 and evaluations of businesses’ application of the TLS, which were conducted by the Department of Labour Protection and Welfare. The Committee requests the Government to provide information on the results of the evaluation exercises conducted by the Department of Labour Protection and Welfare in relation to the application of standard 4.7.3 of the TLS 8001-2020 and the principle of equal remuneration for men and women for work of equal value, including information on the use of objective evaluation methods by employers. Please also continue to provide information on any activities undertaken to promote the application of the Convention in the private sector.
Gender pay gap. In its previous comments, the Committee asked the Government to provide: (1) information on the measures taken under the Eleventh National Economic and Social Development Plan to improve women’s access to decision-making and management positions, and their impact on reducing the gender pay gap; and (2) statistical data disaggregated by sex on the participation of men and women in different occupations and sectors of activity in the public and private sectors. The Committee notes that the Government refers to the Five-Year Report on the Eleventh National Economic and Social Development Plan (2012–2016) which highlights that the number of women in executive and decision-making positions increased during the years of implementation of the Plan. The Committee also notes that currently the Twelfth National Economic and Social Development Plan (2017–2021) includes a strategy (strategy no. 2) to reduce inequality in society which, among other things, envisages the adoption of measures to reduce income inequalities (target 1). Under the Plan, the Department of Women's Affairs and Family of the Ministry of Social Development and Human Security has introduced the Action Plan for Women Development (Phase 1: 2020-2022) with the objective of fostering gender equality by changing attitudes, empowering women and enhancing their public participation, among others. Concerning statistical data, the Committee notes from the statistics provided by the Government that in the last quarter of 2020 the average monthly wage of women was 14,780 Bath, compared to 14,484 Bath for men. The Committee also notes that according to the Labour Force Survey, in the last quarter of 2020, women accounted for 45.87 per cent of the total population in employment. In the same period, the majority of women in employment worked as skilled agricultural forest and fishery workers (26.9 per cent of all women workers) followed by service workers (24.76 per cent), while the majority of men engaged in agriculture, forestry, and fishing (35.5 per cent of all men workers), followed by wholesale and retail trade (15.15 per cent), and manufacturing (14.61 per cent). As regards the public sector, the Committee notes that women represented a majority of the civil servants, however they accounted only for 30.29 per cent of civil servants in managerial positions, and 20.93 per cent of civil servants in executive positions. The Committee requests the Government to provide information on the measures adopted under the Twelfth National Economic and Social Development Plan (2017 – 2021) to promote the principle of the Convention and foster greater participation of women in managerial and executive positions, in the public and private sectors, as well as in a wider range of occupations and sectors of activity, and their results. Please also continue to supply statistical information disaggregated by sex on the participation of men and women in different occupations and sectors of activity and their remuneration rates, in the public and private sectors.
Article 4. Cooperation with employers’ and workers’ organizations. In its previous comments, the Committee asked the Government to provide the following information: (1) the number of committees set up in order to follow up the workplace policy and how they ensure and monitor the implementation of the principle of equal remuneration for men and women for work of equal value; (2) how the Labour Welfare Committee as well as the welfare committees at the enterprise level are in practice promoting equal remuneration for men and women for work of equal value; and (3) whether any collective agreements explicitly providing for equal remuneration for men and women for work of equal value have been concluded, and if so please forward copies of such agreements. The Committee notes the Government’s indication that between October 2020 and March 2021 there were 4,289 welfare committees set up in business enterprises. The Government reports that, in general, the welfare committees can promote the principle of the Convention by: raising the issue with employers; making suggestions and providing advice to employers; monitoring the provision of welfare benefits to employees; and raising awareness about the right to equal remuneration for work of equal value. The Committee also notes the Government’s statement that there are no collective agreements covering specifically the question of equal remuneration for men and women for work of equal value. The Committee recalls that the determination of criteria for job evaluation and their weighting are matters on which cooperation between employers and workers is particularly relevant, giving collective bargaining an important place in this context (See General Survey on the fundamental Conventions, 2012, paragraph 705). In addition, Governments should take the necessary steps, in cooperation with the social partners, to ensure that the provisions of collective agreements observe the principle of the Convention (See General Survey 2012, paragraph 681). The Committee requests the Government to provide specific information on the measures adopted in practice by the welfare committees to promote and monitor the application of the principle of the Convention, including information on any initiatives directed at promoting objective job evaluations, and their impact. Please also indicate if any measures have been adopted or envisaged, in cooperation with the social partners, to promote the inclusion of specific clauses on equal remuneration for men and women for work of equal value in collective agreements.
Enforcement. In its previous comments, the Committee asked the Government to provide information on the following points: 1) how training activities undertaken on ILO standards, labour protection and labour law enforcement had contributed to increasing the awareness of labour inspectors on the issue of equal remuneration for work of equal value, and assisted them in better detecting and addressing violations of the principle of the Convention; and 2) the results of labour inspection activities, such as the number of written orders delivered to employers and any proceedings that have followed such delivery under sections 15 and 53 of the Labour Protection Act. The Committee notes that the Government refers to the implementation of various training and awareness-raising activities concerning the principle of the Convention that involved labour inspectors. The Committee also notes the Government’s indication that no violation of the principle of equal remuneration for men and women for work of equal value has been detected by the labour inspectors. The Committee encourages the Government to continue to conduct training and awareness-raising activities for labour inspectors on the principle of the Convention and to provide information about these activities as well as on the number of violations detected, the sanctions imposed and remedies granted under the Labour Protection Act.

C100 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1(b) and 2 of the Convention. Equal remuneration for men and women for work of equal value. Legislation. In its previous observation, the Committee noted that section 53 of the Labour Protection Act of 2008, in providing only equal wages in cases where men and women perform work of the same nature, quality and quantity, did not fully reflect the principle of the Convention. It: (1) expressed the hope that the necessary steps would soon be taken to amend it in order to include the principle of equal remuneration for men and women for work of equal value explicitly; (2) requested the Government to report on the progress made in this regard; and (3) asked for information on any further activities undertaken, in cooperation with workers’ and employers’ organizations, to promote the principle of the Convention in the public and the private sectors. The Committee notes with satisfaction that section 53 of the Labour Protection Act was amended in 2019 (B.E. 2562/2019) so as to prescribe that an employer shall set equal rates of wage, overtime pay, holiday pay, and holiday overtime pay for men and women for “work of equal value”. The Committee also notes that, in its report, the Government indicates that under the Homeworkers Protection Act (B.E. 2553/2010) informal workers are recognized as having the right to equal remuneration, irrespective of their sex. The Committee notes that section 16 of the Homeworkers Protection Act prescribes equal remuneration for work “of the same nature and quality and with the same quantity” only, which is narrower than the principle of the Convention. Concerning the activities undertaken in cooperation with the social partners to promote the principle of the Convention in the public and the private sectors, the Committee notes the information provided by the Government on various initiatives, including awareness-raising activities on good labour practices and reach-out activities for businesses. The Committee asks the Government to provide information on the application in practice of section 53 as amended (B.E. 2562/2019) of the Labour Protection Act, including any judicial decisions invoking this provision and any violation detected by the labour inspectors, the sanctions imposed and the remedies granted. The Committee asks the Government to adopt the necessary measures so that section 16 of the Homeworkers Protection Act (B.E. 2553/2010) is aligned in the near future to the amended section 53 of the Labour Protection Act in order to include the principle of equal remuneration for men and women for work of equal value explicitly. The Committee also asks the Government to continue to provide information on the activities undertaken, in cooperation with workers’ and employers’ organizations, to promote the principle of the Convention in the public and the private sectors and to raise awareness about it.
Articles 2 and 3. Determination of remuneration. Objective job evaluation. Public sector. In its previous observation, the Committee urged the Government to indicate the specific measures taken to ensure that job descriptions and the selection of factors for job evaluation are free from gender bias, and more particularly with regard to employees working in the public service who are not public officials. The Committee also requested the Government to provide statistical data, disaggregated by sex, on the distribution and remuneration of men and women in the various groups of the compensation schedule. The Committee notes the Government’s indications that the Remuneration System Manual for Civil Servants, which has been elaborated by the Office of the Civil Service Commission, sets out the factors that must be taken into account when determining remuneration rates for civil servants. Among these factors figures the “value of the work” performed, however the criteria used to determine the value of the work performed are not indicated. The Committee recalls that in order to determine the value of work, the use of appropriate techniques for objective job evaluation, comparing factors such as skills, effort, responsibilities and working conditions, is required (see 2012 General Survey on the fundamental Conventions, paragraph 675). The Committee requests the Government to indicate how the value of the work performed by men and women is determined for the purpose of setting remuneration rates in the public sector and how it is ensured that there is no gender bias in the process, so as to comply fully with the principle of the Convention. The Committee also reiterates its request for statistical data, disaggregated by sex, on the distribution and remuneration of men and women in the various groups of the compensation schedule.
The Committee is raising other matters in a request directly addressed to the Government.

C111 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1 of the Convention. Prohibition of discrimination and scope of application. Legislation. In its previous comments, the Committee noted that the non-exhaustive list of the prohibited grounds of discrimination contained in article 27 of the Constitution may cover all the grounds spelt out in Article 1(1)(a) of the Convention, although the ground of colour is not explicitly referred to. At the same time, the Committee noted that the Labour Protection Act (LPA) (B.E. 2541 (1998) and subsequent amendments) does not contain a general prohibition of discrimination in employment and occupation. Moreover, in the national legislation there is no definition of discrimination, with the exception of the provision of the Gender Equality Act (B.E. 2558 (2015)), section 3. In the light of the above, the Committee requested the Government to: (1) provide information on how article 27 of the Constitution as well as the relevant provisions of the LPA, and the Gender Equality Act are applied in practice to ensure that the principles of the Convention extend to all aspects of employment and occupation covered by Article 1(3) of the Convention and all grounds of discrimination prohibited under Article 1(1)(a) of the Convention, in particular how the Courts have been interpreting the expression “any other grounds”; (2) indicate how it is ensured that the same protection is applied to all workers – including the categories of workers excluded from the scope of application of the LPA and subsequent amendments under section 22; (3) indicate how non-discrimination and equality of opportunity and treatment are ensured and promoted in respect of the workers in provinces where emergency laws are applied; and (4) provide information on the application of the Convention to workers in the public sector with respect to all aspects of employment and occupation covered in Article 1(3) of the Convention and in respect of all the grounds of discrimination prohibited under Article 1(1)(a).
The Committee notes that in its report the Government states that, although the ground of “colour” is not expressly referred to in article 27 of the Constitution, the reference to “other grounds” gives the judiciary room to address cases of discrimination based on colour. Nevertheless, no judgment has so far been handed down concerning article 27 of the Constitution. Concerning the application of section 15 of the LPA, which prohibits discrimination between men and women, the Committee notes the Government’s reference to Supreme Court's decision No. 6011 - 6017/2545 concerning a case of discrimination in the determination of the retirement age of women and men employees. The Government further indicates that the Committee on the Determination of Unfair Gender Discrimination, which has been established under the Gender Equality Act to examine complaints concerning cases of discrimination, has received 60 petitions from 2015 to 2021, 12 of which concerned discrimination in employment, including alleged discriminatory rejections of job applications and discriminatory dismissals on the ground of gender and gender identity and sexual orientation. As regards the application of the protections of the Convention to the categories of workers excluded from the scope of application of the LPA, the Committee notes the Government’s statement that these workers benefit from the protections afforded by the Constitution and the Gender Equality Act, in addition to the ministerial regulations issued under section 22 of the LPA, such as the Ministerial Regulation on Labour Protection in Agriculture or the Ministerial Regulation on the Protection of Workers in Fisheries (B.E. 2557 (2014)), which make reference to the non-discrimination provisions included in the LPA. Concerning the workers in provinces where emergency laws are applied, the Government indicates that the application of emergency laws may nullify the provisions on discrimination under the Constitution and the Gender Equality Act. The Governments also states that it has been persistently trying to promote equality of opportunity for workers in these areas through the Labour Service Program in the Southern Border Provinces, the programme on Economic Development and Empowerment in Southern Border Provinces, and the Royal Vocational Training Center, among others. Finally, as far as workers in the public sector are concerned, the Committee notes the Government’s reference to a set of recommendations issued by the sub-Committee on Gender Equality Promotion to tackle gender discrimination and promote equality, which include, for example, the recommendation to have gender neutral job descriptions and requirements, to encourage women’s representation in decision-making positions and to raise awareness about sexual harassment and the means to prevent and address it. The Committee asks the Government to continue to provide information on the practical application of: (i) article 27 of the Constitution; (ii) the relevant provisions of the Labour Protection Act (LPA); and (iii) the Ministerial Regulations issued under section 22 of the LPA and the Gender Equality Act (BE 2558 (2015)), including relevant judicial decisions, cases dealt with by the Committee on the Determination of Unfair Gender Discrimination and any infraction detected by the labour inspectors, where applicable, as well as examples of application of the principles of the Convention to workers in the public sector. Please also indicate what mechanisms are available to workers in the provinces where emergency laws are in force allowing them to lodge complaints and obtain reparation in case of discrimination in employment and occupation based on at least the grounds listed in Article 1(1)(a) of the Convention.
Article 1(1)(a). Discrimination based on sex. Sexual harassment. In its previous comments, the Committee requested the Government to provide information on the following: (1) whether the prohibition of sexual harassment under section 16 of the LPA covers both quid pro quo harassment (any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job) and hostile work environment (conduct that creates an intimidating, hostile or humiliating working environment for the recipient); (2) examples of application of this provision in practice; (3) how protection from sexual harassment is ensured in law and practice in respect of harassment practised by co-workers and clients or other persons met in connection with performance of work duties; (4) how protection from sexual harassment is ensured in law and practice in respect of vocational training, access to employment, and performing work in an occupation; and (5) examples of application of section 10(2) of the Gender Equality Act, which envisages the adoption of special measures to eliminate gender-based violence, with regard to employment and occupation.
The Committee notes the Government’s statement that “any act which is intrusive, threatening, or annoying committed by those in superior positions against subordinates, either in the form of quid pro quo or hostile environment, shall be considered an offence under section 16” of the LPA. Concerning the practical application of this provision, the Government states that labour inspectors are charged with monitoring the application of section 16 of the LPA and receiving complaints from employees. However, no information is provided on violations detected or complaints received in this respect. The Government refers to two judgments of the Supreme Court related to section 16 of the LPA, namely: decision No. 1372/2545, concerning a case of sexual harassment by a worker in charge of assessing the probation period of a women worker; and decision No. 8379/2550, concerning a case of exaction of sexual favours by an employer from his employee. As regards the prohibition of sexual harassment by co-workers, the Committee notes that the Government states that the Criminal Code covers sexual offences as well as acts of bullying, maltreating, menacing, or causing to suffer humiliation or annoyance (section 397) that are committed by colleagues, customers or any other person met in relation to the performance of work duties. Section 397 of the Criminal Code also covers cases of sexual harassment in respect of vocational training, access to employment, and performing work in an occupation. In addition, the Government refers to the Rules on Acts Which Are Sexual Assault or Harassment (B.E. 2553 (2010)), issued under section 8(5) and section 83 of the Civil Service Act (B.E. 2551 (2008)), which provide for disciplinary actions in case of sexual harassment, ranging from warning and wage reduction to dismissal. The Government furthermore indicates that on 16 March 2021, Cabinet approved a Resolution on Administrative Measures for Effective Disciplinary and Ethical Procedures that provides for the application of maximum disciplinary and ethical measures to civil servants who are found to be guilty of sexual harassment, such as suspension or temporary dismissal. Concerning the application of section 10(2) of the Gender Equality Act with regard to employment and occupation, the Committee notes the Government’s indication that special measures to eliminate gender-based violence under section 10(2) of the Act are yet to be adopted. However, in 2020, the Gender Equality Promotion Committee elaborated a set of draft Measures to Prevent and Address Sexual Abuse or Harassment in the Workplace, including the establishment of internal complaint mechanisms and standard procedures to address cases of sexual harassment. The Committee recalls that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher standard of proof and the fact that criminal law generally does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (see 2012 General Survey on the fundamental Conventions, paragraph 792). The Committee asks the Government to continue to provide examples of the application in practice of section 16 of the LPA, including cases of quid pro quo and hostile environment sexual harassment, and encourages the Government to consider amending section 16 so as to also cover cases of sexual harassment committed by co-workers and clients or other persons met in connection with the performance of work duties. Please also supply information on: (i) the application of section 397 of the Criminal Code to cases of sexual harassment in employment and occupation; (ii) any developments concerning the adoption and implementation of the draft Measures to Prevent and Address Sexual Abuse or Harassment in the Workplace; and (iii) any other measure adopted under section 10(2) of the Gender Equality Act to prevent and address sexual harassment in employment and occupation.
Article 1(2). Inherent requirements of the job. In its previous comments, the Committee requested the Government to provide information on the application in practice of article 27 of the Constitution – which provides that, in the case of members of the armed forces, the police force, government officials, other officials of the State, and officers or employees of State organizations, the enjoyment of equal rights may be restricted by law “in relation to politics, capacities, disciplines or ethics” – and section 17(2) of the Gender Equality Act – which allows for exceptions to the prohibition of gender discrimination “for the compliance with religious principles” – , and to indicate how it is ensured that the restrictions provided for in those provisions comply with the Convention. The Committee notes the Government’s indication that to date there have been no judicial decisions related to the application of article 27 of the Constitution or section 17(2) of the Gender Equality Act. The Government also states that concerns have been raised about section 17(2) of the Gender Equality Act and the Department of Women’s Affairs and Family Development is consequently conducting public hearings with a view to evaluating the impact of this provision. The evaluation should be completed in November 2021. The Committee asks the Government to continue to collect and provide information on the application in practice of article 27 of the Constitution and section 17(2) of the Gender Equality Act so as to assess the compliance of these provisions with the Convention. Please also provide information on the results of the evaluation exercise conducted by the Department of Women’s Affairs and Family Development concerning the application of section 17(2) of the Gender Equality Act as regards in particular exceptions to the prohibition of gender discrimination “for the compliance with religious principles” and any action taken as a follow-up to the evaluation.
Article 2. National Equality Policy. In its previous comments, the Committee asked the Government to provide information on the specific measures adopted under the 20-Year National Strategy (B.E. 2018 – 2037) and the 12th National Economic and Social Development Plan (2017 – 2021) to eliminate discrimination based on, at least, all the grounds prohibited under Article 1(1)(a) of the Convention and promote equality of opportunity and treatment in employment and occupation, and on their results. The Committee notes the information provided by the Government on the projects implemented under the 20-Year National Strategy to promote equality and support employment and career development of the elderly and persons with disabilities as well as to improve the quality of life of target populations, such as hill tribes. The Committee also notes the Occupational Development Program for Women, aimed at fostering skills development, which benefited 16,630 women in 2020. Concerning the implementation of the 12th National Economic and Social Development Plan, the Government refers to a number of measures directed at providing women with vocational training, personal career counselling and skills development, as well as measures aimed at improving access to education for persons with disabilities, including through financial support. The Committee asks the Government to continue to supply information on the measures adopted to eliminate discrimination based on, at least, all the grounds prohibited under Article 1(1)(a) the Convention and promote equality of opportunity and treatment in employment and occupation, and to monitor and report on their results, in cooperation with the social partners and other interested groups.
Articles 2 and 3. Equality of opportunity and treatment between men and women. In its previous comments, the Committee asked the Government to: (1) continue to provide information on the results of the various initiatives undertaken to promote equality of opportunity and treatment between men and women; (2) provide statistical data on the evolution of the distribution of men and women in the various economic sectors and occupations; and (3) provide information on any specific measure, policy or plan adopted by the Gender Equality Promotion Committee with a view to promoting and applying the principles of the Convention in the private and public sectors, including the promotion of workplace measures which favour shared family responsibility between men and women and address gender stereotypes affecting women’s access to and advancement in employment and occupation. The Committee notes the information provided by the Government concerning the Women in STEM (science, technology, engineering and mathematics) project, which aims to reduce the skills gap between men and women and enhance women’s opportunities to career advancement. The project provided for the training of 986 women in Nakhon Ratchasima province in 2019, and 656 women in Chonburi and Samut Prakan in 2020. In 2021, training is targeted at the provinces of Patumthani, Nontaburi, and Prachinburi. The Government also states that women are for the largest part unpaid family workers and are otherwise concentrated in clerical occupations (women represent 70.3 per cent of all clerical workers). Regarding the measures adopted to promote shared family responsibilities between men and women, the Committee notes the Government’s reference to the establishment of childcare centres in workplaces and in communities, and the promotion of breastfeeding areas in business enterprises. The Committee asks the Government to provide information on the impact of the Women in STEM project on increasing the number of women employed in a wider range of occupations, particularly those in which they are underrepresented. The Committee also asks the Government to: (i) continue to provide information on the measures adopted to promote equality of opportunity and treatment between men and women and their impact, including information on the initiatives undertaken by the Gender Equality Promotion Committee; (ii) provide statistical data on the evolution of the distribution of men and women in the various economic sectors and occupations; and (iii) continue to supply information on the measures adopted to promote shared family responsibilities between men and women and the results achieved in terms of women’s access to and advancement in employment and occupation.
Equality of opportunity and treatment irrespective of race, colour and national extraction. Highland peoples and other ethnic groups. In its previous comments, the Committee asked the Government to continue to provide information on the measures adopted to promote equality of opportunity and treatment in employment and occupation for Highland peoples and other ethnic groups, including information on the measures taken to ensure that they can engage without discrimination in their traditional occupations and livelihoods and on any measures adopted in this regard as a follow-up to the recommendations issued by the National Human Rights Commission (Recommendation No. 3/2561of 2018). The Committee notes the Government’s reference to the Highland Occupational Security and Community Income Promotion Program, which was created in 2020 and benefited 3,255 persons. The Government also provides information on the implementation of Royal Projects aimed at promoting careers in both agricultural and non-agricultural sectors which involved 4,822 participants. Concerning the follow-up to the recommendations issued by the National Human Rights Commission, the Government states that a number of measures have been adopted in favour of the Karen people, including compensations, support for traditional occupations and a survey on land entitlements of the Karen people in national parks and reserved forest areas. The Committee further notes the Government’s indication that the Ministries of Culture and Education are working towards a ‘local curriculum management’ with a view to involving communities in the definition of educational curricula and complementing main learning courses in line with communities’ lifestyles and culture. The Committee also notes from the report of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises that: (1) ethnic minorities are disproportionately affected by large-scale development projects, with a significant negative impact on their livelihoods; (2) members of ethnic minorities who had toiled on the land for generations, through rotational farming, are being regarded as trespassers and are being criminalized, harassed and intimidated; and (3) a serious concern expressed by ethnic minorities relates to the lack of meaningful consultation before development projects are approved and/or special economic zones created (see A/HRC/41/43/Add.1, 21 Mai 2019, paragraph 72). In this regard, the Committee notes that the First National Action Plan on Business and Human Rights (2019–2022), available from the website of UNDP, provides for the conduct of consultations with ethnic groups “in order to get involved in the decision-making process in terms of strategy, policies and projects, especially in the formulation of land management and forest conservation policies as well as the development of large projects in accordance with the United Nations Declaration on the Rights of Indigenous Peoples” and also envisages the adoption of measures to ensure the livelihoods of highland peoples and other ethnic groups (p. 70). The Committee asks the Government to continue to provide information on the measures adopted to promote equality of opportunity and treatment in employment and occupation for Highland peoples and other ethnic groups, including information on the following: (i) the results of the survey on land entitlements of the Karen people in national parks and reserved forest areas and any follow-up action taken to ensure that the Karen people have access to the material goods, including secure access to land and resources required to carry out their traditional occupations, without discrimination; (ii) any measures adopted to prevent and address discriminatory criminalization, harassment and intimidation of workers belonging to Highland peoples and other ethnic groups that stem out of biased approaches towards their traditional occupations, which are often perceived as outdated, unproductive or environmentally harmful, adversely affecting their enjoyment of equality of opportunity and treatment in respect of occupation; and (iii) the measures adopted under the First National Action Plan on Business and Human Rights (2019–2022) to support the livelihoods of Highland peoples and other ethnic groups and involve them in the development of relevant policies, projects and strategies. Recalling the importance of access to education to achieve equality in employment and occupation, the Committee also asks the Government to continue to provide information on the implementation of the initiative directed at the ‘local curriculum management’.
General observation of 2018. In its previous comments, the Committee drew the Government’s attention to its general observation of 2018 and asked the Government to provide information in response to the questions raised in that observation. The Committee notes the information provided by the Government concerning various measures adopted in favour of stateless people in order to allow these people to live and work in Thailand.
Equality of opportunity and treatment irrespective of disabilities. Previously, the Committee asked the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment in employment and occupation for persons with disabilities, including information on the following: (1) any action taken by the National Commission on Promotion and Development of Life Quality of Disabled Persons and any relevant services provided by the Service Centres for Persons with Disabilities, and their results; (2) any petitions concerning discrimination in employment and occupation dealt with by the National Commission and their outcomes; (3) statistical data on the situation of persons with disabilities in the labour market, disaggregated by sex; and (4) information on the application of the quotas established under the Ministerial Regulations B.E. 2554 (2011) and subsequent amendments. The Committee notes the Government’s reference to the 2020 Report of the Department of Empowerment of Persons with Disabilities, according to which a proposal developed by the Disability Network Assembly has been approved and includes measures to: promote access to work and self-employment of persons with disabilities; enhance the role of provincial and general disability service centres; and address negative stereotypes in society affecting disabled persons. In addition, the Government provides information on the efforts made to combat corruption in the recruitment of persons with disabilities, promoting their career and supporting entrepreneurs and employees with disabilities during the COVID-19 pandemic, including through incentives, such as tax reductions for employers who hire persons with disabilities during the pandemic in addition to the minimum number required by the quota system. Moreover, the Fund for Empowerment of Persons with Disabilities, which has been established under the Empowerment of Persons with Disabilities Act (B.E. 2550(2007)), funds capacity-building for persons with disabilities and supports their organizations. As regards the petitions concerning discrimination in employment and occupation dealt with by the National Commission, the Government states that one complaint was received in 2020 about a case of alleged discrimination in recruitment by a public education institute. The Committee notes that the Commission found that no discrimination occurred in that specific case but recommended that the province where the petitioner lived should assist him in finding suitable employment. The Committee also notes the Government’s indication that available data indicate that the number of persons with disabilities employed in the private sector is increasing, including through the implementation of the quota system under the Ministerial Regulations B.E. 2554 (2011). Nevertheless, a number of challenges remain in meeting the employment quota of persons with disabilities, notably the shortage of people having the required qualifications, restrictions on workplace facilities and the distance between the workplace and the accommodation of the people concerned. In this regard, the Committee notes from the report of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises that about 1,152,254 persons with disabilities have only primary school education, and that public transport and workplaces are often inaccessible (see A/HRC/41/43/Add.1, 2019, paragraph 62). The Committee asks the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment in employment and occupation for persons with disabilities, including information on the measures adopted or envisaged to tackle the barriers faced by persons with disabilities in accessing employment and occupation and those affecting the fulfilment of the quotas established under the Ministerial Regulations B.E. 2554 (2011), such as the lack of qualifications and the inaccessibility of workplaces and public transport. Please also continue to: (i) collect and provide updated statistical information on the situation of persons with disabilities in the labour market, disaggregated by sex, in order to allow for the monitoring and evaluation of the impact of the measures adopted; and (ii) supply information on the petitions concerning discrimination in employment and occupation dealt with by the National Commission and their outcomes.
Equality of opportunity and treatment irrespective of HIV status. The Committee notes the information provided by Government concerning the Notification of the Ministry of Labour on Prevention and Management of AIDS in the Workplace of 5 November 2020 and the elaboration of a Draft Bill on the Elimination of Discrimination at the initiative of the Foundation for Aids Rights (FAR) that is currently under consideration by the Government. The Committee asks the Government to provide information on the measures adopted in the framework of the Ministry of Labour’s Notification in order to promote equality of opportunity and treatment in employment and occupation for persons living with HIV. Please also provide information on any new developments concerning the Draft Bill on the Elimination of Discrimination.
Article 3(a). Cooperation with workers’ and employers’ organizations. In its previous comments, noting the establishment of various tripartite committees in charge of labour-related matters, the Committee asked the Government to provide details on any specific initiatives undertaken by these bodies with a view to promoting the principles of the Convention. The Committee notes the Government’s indication that at present 15 tripartite committees have been established. Concerning relevant initiatives taken by these committees to promote the principles of the Convention, the Committee notes the information provided by the Government concerning a number of them. In particular, the Committee notes that the Labour Welfare Committee has focused on the prevention and management of HIV/AIDS in the workplace with a view to eliminating discrimination against people living with HIV in employment through the elaboration of the ‘notification’ mentioned above and the provision of support to employers to ensure that they comply with its instructions. The Committee further notes that the Wage Committee, in its announcement ;o. 10 on the minimum wage, has stated that employers shall pay wages not inferior to the legal minimum wage regardless of the nationality, age or gender of the worker (clause 8). The Committee asks the Government to continue to provide information on the initiatives undertaken by the various tripartite committees to promote the principles of the Convention and their impact.
Article 4. Measures affecting an individual suspected of activities prejudicial to the security of the State. In its previous comments, the Committee asked the Government to provide examples of application of article 40 of the Constitution – which provides that a person’s freedom to engage in an occupation can be restricted by law for the purpose of maintaining the security of the country or for other public interests - and section 17(2) of the Gender Equality Act – which allows for exceptions to the application of the principle of non-discrimination for reasons related to the national security – in the areas of employment and occupation, and to indicate how it is ensured that the restrictions adopted comply with Article 4 of the Convention and do not constitute discrimination under its Article 1. The Committee notes the Government’s reference to an example of the application of article 40 of the Constitution, namely the National Vaccine Security Act B.E. 2561 (2018) which provides that the National Vaccine Committee shall consist of members who do not hold political positions, are not local council members, do not hold local administrative positions, are not part of the managing committee of political staff nor are consultants or staff of political parties. The Government explains that those restrictions are justified by the need to ensure that the distribution of vaccines is not affected by political factors. As regards section 17(2) of the Gender Equality Act, the Committee notes the Government’s statement that it is aware that there are suggestions that this provision should be amended. The Act is thus being reviewed by the Department of Women's Affairs and Family Development. The Committee asks the Government to provide information on the outcome of the review of section 17(2) of the Gender Equality Act undertaken by the Department of Women's Affairs and Family Development as far as the exceptions to the application of the principle of non-discrimination for reasons related to the national security are concerned and any amendments proposed. Please also continue to monitor the application of article 40 of the Constitution to ensure that the restrictions provided therein comply with Article 4 of the Convention and do not constitute discrimination under its Article 1, and continue to provide examples of its application in practice.
Article 5. Special measures. Previously, the Committee asked the Government to indicate if any special measures have been adopted by virtue of article 27 of the Constitution to promote equality of opportunity and treatment in employment and occupation for categories in need of special protection or assistance. The Committee notes the Government’s reference to the measures adopted in favour of the elderly, people with disabilities, women and highland people, which have been recalled in the paragraphs above.
Maternity protection. In its previous comments, the Committee noted that under section 15 of the LPA unequal treatment between men and women may be allowed if required by the “description or nature of work”. Section 38 of the LPA introduces restrictions to women’s access to a number of occupations, such as mining or construction work to be performed underground, underwater, in a cave, in a tunnel or mountain shaft, except where the conditions of work are not harmful to the health or body of the employee. Section 39 further provides for restrictions in the case of pregnant women, concerning the type of tasks that they are allowed to perform and their working time (i.e. night work, overtime work and work on holidays). Therefore, the Committee asked the Government to review periodically the provisions on restrictions to women’s access to certain jobs or occupations included in the LPA in the light of the above principles to ensure that any protective measures taken are limited to maternity protection, in the strict sense, or are based on occupational safety and health risk assessments and do not constitute obstacles to the employment of women, and to provide information on the results of such review. The Committee notes the Government’s indication that the nature and working conditions for women and pregnant women are determined on the basis of women’s health risks. The Government states that 30 per cent of the employees in the mining industry are women and that the measures adopted to protect their health were not an obstacle to their employment. The Government also explains that section 39 of the LPA is meant to ensure that pregnant women have working conditions suitable to their health needs and that overtime may, for example, be allowed with their consent and provided that it does not affect their health. The Committee further notes the Government’ indication that, due to the fact that some workers produce or assemble products outside the workplace, the Homeworkers Protection Act B.E. 2553 (2010) was enacted to protect them. Section 20 of the Act in particular prohibits pregnant women from performing work that could harm their health and safety, such as work that may be dangerous because of vibrations, that involves lifting or carrying more than 15 kilograms of heavy loads, or requires exposure to aerosols, vapour, gas, dust, fumes, or fibres. Furthermore, the Committee notes that the Government has provided information on its plan to conduct reviews of the LPA and the Homeworkers Protection Act, which are expected to be completed, respectively, in 2024 and 2022. Noting the information provided by the Government and recalling that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health, the Committee asks the Government to provide information on the outcome of the reviews of the LPA and the Homeworkers Protection Act and the recommendations arising out thereof, as regards sections 15, 38 and 39 of the former and section 20 of the latter.
Enforcement. In its previous comments, the Committee asked the Government to: (1) continue to provide information on judicial decisions and cases dealt with by the National Human Rights Commission involving issues related to the application of the Convention, as well as information on any violations in this respect brought to the attention of or detected by the Labour Protection and Welfare Offices, and their outcomes; and (2) provide information on any relevant action taken by the Committee on Consideration of Unfair Gender Discrimination established under section 14 of the Gender Equality Act. The Committee notes the Government’s indication that in 2020 the National Human Rights Commission received nine complaints concerning discrimination in employment and occupation, including cases of gender-based discrimination and discrimination on the ground of HIV status. As regards the Committee on Consideration of Unfair Gender Discrimination, the Government states that a case of discrimination against a transgender woman was dealt with. The Committee also refers to the information about cases of discriminatory rejections of job applications and discriminatory dismissals on the ground of gender and gender identity and sexual orientation that have been noted in the previous paragraphs. The Committee asks the Government to continue to provide information on judicial decisions and cases dealt with by the National Human Rights Commission involving issues related to the application of the Convention as well as any relevant case addressed by the Committee on Consideration of Unfair Gender Discrimination. Please also provide information on any violations related to the principles of the Convention brought to the attention of or detected by the Labour Protection and Welfare Offices, and their outcomes as well as any measures adopted to enhance the capacity of labour inspectors to identify, prevent and address cases of discrimination.

C188 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). The Committee notes the observations of the International Transport Workers’ Federation (ITF), received on 20 September 2021 and the Government’s reply thereto. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention, while drawing attention to the following issues that still need to be addressed. If considered necessary, the Committee may come back to other matters at a later stage.
Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of fishers’ rights as laid out in the Convention. The Committee refers to the resolution adopted by the Governing Body in its 340th Session (GB.340/Resolution) concerning maritime labour issues and COVID-19 disease, which calls on Member States to take measures to address the adverse impacts of the pandemic on fishers’ rights. In this regard, the Committee notes that, in its observations, the ITF indicates that during the COVID-19 pandemic, fishers in Thailand have been discriminated against, forced to stay at sea for long periods of time without pay, restricted to jetties when in port, and, in some cases, fenced in with barbed wire by police. The ITF indicates that due to border restrictions, many fishers faced difficulties re-entering Thailand, which have resulted in undermanned vessels and longer hours of work, increasing the risk of accidents. The ITF also indicates that in-person Port In Port Out (PIPO) inspections have been greatly reduced due to the pandemic, resulting in less accountability for fishing vessel owners regarding non-compliance with the Convention. In this regard, the Committee notes the Government’s reply indicating that PIPO inspections will be normalized as soon as the COVID-19 pandemic situation improves and that a multidisciplinary body called Flying Inspection Team (FIT) has been established in order to ensure the effectiveness of those inspections. The Government further states that, as a measure to control the pandemic, it had to close the borders and isolate infected people for treatment, and that, in this context, some fishers chose to stay in the vessels. The Committee is of the view that it is precisely at times of crisis, like the one created by the COVID-19 pandemic, that the protective coverage of the Convention assumes its full significance and needs to be most scrupulously applied. The Committee accordingly requests the Government to ensure compliance with the provisions of the Convention and to provide information on any measure adopted in relation with the COVID-19 pandemic that can affect the implementation of the Convention. The Committee requests the Government to provide information on any case of violation of fishers’ rights in the context of the COVID-19 pandemic that has been reported to the competent authorities. Finally, the Committee requests the Government to provide information on the normalization of the PIPO inspections and on the work of the FIT.
Articles 1 and 2 of the Convention. Definitions and scope of application. Fishers. The Committee notes that the legislation provided by the Government does not contain the definition of “skipper”. Section 3 of the Notification of the Marine Department No. 216/2562: Manpower on Fishing Vessel Criteria and Methods states that the definition of “fishing labourer” does not include “captain” and “vessel operator” according to the Thai Water Navigation Law. The Committee recalls that the Convention provides that except as otherwise provided, it applies to all fishers and all fishing vessels engaged in commercial fishing operations (Article 2(1)) and that the skipper is the “fisher” having command of a fishing vessel (Article 1(e) and (l)). The Committee requests the Government to indicate the measures adopted or envisaged to give effect to the Convention to all fishers, including skippers.
Article 3. Exclusions. The Committee notes the Government’s reference to section 5 of the Emergency Decree on Fisheries B.E. 2558 (2015), which defines commercial fishing as “fishing operations using a fishing vessel of a size from ten gross tonnage or more or a fishing vessel installed with an engine with unit of horse powers as prescribed by the Minister” and artisanal fishing as “fishing operations in coastal seas in which a fishing vessel is used or in which a fishing gear is used without a fishing vessel, excluding commercial fishing”. The Committee draws the Government’s attention to the fact that, pursuant to Article 5, the possibility to use gross tonnage in place of length (L) or length overall (LOA) as the basis for measurement only concerns the implementation of Annex III. The Committee notes the Government’s indication that, according to section 5 of the Labour Protection in Fishing Work Act, B.E. 2562 (2019), the following categories of fishing are excluded from the scope of application of the Convention: (1) subsistence fishing; (2) freshwater fishing; (3) recreational fishing; and (4) fishing in accordance with the size of vessel or fisher as prescribed in a Notification by the Minister of Agriculture and Cooperatives. The Government indicates that, to date, no notifications have been issued in this regard. The Committee also notes that the Government indicates that during meeting No. 1/2018 of the Legislative Drafting Subcommittee to support the ratification of the Convention, it was suggested that artisanal fishing be excluded from the scope of application and that artisanal fishing operators wishing to sell aquatic products at the ports regulated by the Department of Fisheries would need to register as commercial fishing. Noting the reasons provided by the Government for such exclusions and the information on the consultations held, the Committee requests it to provide detailed and up-dated statistic information on the number of fishers who are working: 1) in the artisanal fishing sector; 2) on board fishing vessel of a size of less than ten gross tonnage; and 3) on fishing vessels that are engaged in commercial fishing operations on freshwater, like rivers, lakes or canals. The Committee also requests the Government to provide detailed information on any notification adopted by the Minister of Agriculture and Cooperatives providing further exclusions. In addition, the Committee requests the Government to clarify whether artisanal fishers (including artisanal fishing operators wishing to sell aquatic products at the ports regulated by the Department of Fisheries) are included in the scope of application of the national measures adopted in order to give effect to the Convention. The Committee requests the Government to provide detailed information on the equivalent protection provided to all the categories of fishers that have been excluded from the scope of application of the national measures adopted in order to give effect to the Convention.
Article 4. Progressive implementation. The Committee notes the Government’s indication that its legislation implements all provisions of the Convention and therefore it does not plan to make use of the flexibility foreseen in Article 4 of progressively implementation. However, the Committee also takes note that the Government indicates that some provisions of a few laws and regulations could be progressively implemented, including provisions related to the medical certificate, risk evaluation, fisher’s work agreement as well as benefits and compensation. Likewise, the Government indicates that representatives of employers and workers organizations considered that the implementation of such provisions needs time for adjustment. In this regard, the Committee recalls that, where it is not immediately possible for a Member to implement all of the measures provided for in the Convention owing to special problems of a substantial nature in the light of insufficiently developed infrastructure or institutions, the Member may, in accordance with a plan drawn up in consultation, progressively implement all or some of the provisions foreseen in Article 4. Noting the reasons provided by the Government for such progressive implementation, the Committee requests it to provide detailed information on any measures adopted or envisaged in order to give full effect to all provisions of the Convention that are subject to progressive implementation and to provide a plan to that purpose.
Article 5. Scope. Basis for measurement. The Committee notes the Government’s indication that the length overall (LOA) is used in place of length (L) as the basis of measurement, and that gross tonnage is also used as a basis for measurement equivalent to LOA. In this regard, the Committee notes the Government’s reference to the Labour Protection in Fishing Work Act, B.E. 2562 (2019), which uses LOA when referring to the inspection certificate on the compliance with living and working conditions (section 14) and gross tonnage when referring to accommodation (sections 13 and 22). However, the Committee notes that several laws and regulations use gross tonnage as the only basis of measurement, for instance, the Emergency Decree on Fisheries B.E. 2558 (2015) and the Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in Fisheries B.E. 2559 (2016). The Committee recalls that member States shall, for the purpose of the Convention, use L as the basis for measurement. The competent authority, after consultation, may decide to use LOA in place of L as the basis for measurement, in accordance with the equivalence set out in Annex I. Gross tonnage may not be used as a basis for measurement except for the implementation of Annex III and under the conditions specified (Article 5).  The Committee, therefore, requests the Government to indicate the measures taken to ensure full conformity with Article 5.
Articles 10–12. Medical examination. The Committee notes the Government’s reference to section 8 of the Labour Protection in Fishing Work Act, B.E. 2562 (2019) which states that “permission under the law on navigation in Thai waters, the law on foreigners’ working management and the law on fisheries, in respect of the working of fishing labourers, may be granted only in the case where the applicant for permission has a medical certificate indicating readiness, as regards health, for working on board a fishing vessel, including hearing and visual health as well”. The Committee notes, however, that the Government does not indicate whether such obligation for permission applies to all fishers, under the meaning of the Convention. The Committee also notes the Government´s reference to different relevant regulations and notifications, which require a medical certificate or examination for certain categories of fishers and for fishers working on board certain types of fishing vessels. Considering the various concurrent rules in this regard, the Committee, therefore, requests the Government to confirm that all fishers, as defined by the Convention, are not allowed to work on board a fishing vessel without a valid medical certificate attesting to fitness to perform their duties and to indicate whether any exemptions may be granted and on which grounds. Moreover, noting that the provisions indicated by the Government do not reflect the detailed requirements of Articles 10 to 12 on medical examination (for example, right to a further examination and reference in the medical certificate to the conditions foreseen in Article 12(1)(b)), the Committee requests the Government to indicate the measures taken or envisaged to ensure full conformity with these Articles of the Convention and to clarify what is the period of validity of the medical certificate for fishers. Additionally, the Committee requests the Government to provide a copy of all legislation, regulations, or any other measures adopted or envisaged to give effect to Articles 10 to 12, including the Annexes of the Notification of the Ministry of Public Health on Medical Examination and Insurance for Migrant Workers (No. 2), B.E. 2563 (2020).
Articles 13 and 14. Manning and hours of rest. The Committee notes the Government’s indication of section 5 of the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014) which states that: (1) an employer shall provide a rest period of not less than 10 hours in any 24-hour period and not less than 77 hours in any 7-day period for an employee; and (2) in case of emergency or necessity, the employer may require the employee to work during the rest period, provided that the employer allocates the rest period without delay and prepares the evidence of such rest period. In this regard, the Committee notes that, in its observations, the ITF indicates that fishers regularly report limited hours of rest, which increases injuries and accidents on board. Moreover, the Committee also notes the Government’s reference to the Notification of the Marine Department No. 216/2562 regarding Criteria and Methods to Determine Manpower on Fishing Vessels, which sets the maximum manpower for fishing vessels in accordance with the size of the fishing vessel and the types of fishing gears used (section 4). The Committee further notes that, in relation to the requirement that fishing vessels be under the control of a competent skipper, the Government refers to the Rule of the Marine Department on Criteria, Procedures and Requirement for Issuing Certification of Fishing Vessel Inspection for Vessel Permit and Registration B.E. 2561 (2018), but does not provide a copy of such rule. Noting that the provisions indicated by the Government do not reflect the detailed requirements of Articles 13(a) and 14(1)(a) on manning levels, the Committee asks the Government to indicate any measure adopted or envisaged to give full effect to these requirements of the Convention and to provide detailed information on the criteria and the procedure established to determine the minimum level of manning, including information on the fishers’ qualifications requirements. The Committee also requests the Government to provide a copy of the Rule of the Marine Department on Criteria, Procedures and Requirement for Issuing Certification of Fishing Vessel Inspection for Vessel Permit and Registration B.E. 2561 (2018). In addition, the Committee requests the Government to provide its comment on the observations raised by the ITF in relation to hours of rest provided to fishers.
Article 15. Crew list. The Committee notes the Government’s reference to section 82 of the Emergency Decree on Fisheries B.E. 2558 (2015) which states that, before taking the fishing vessel out to the sea, the owner or skipper of the fishing vessel shall submit the crew list to the competent official at the PIPO Control Centre. The Committee also notes the Government’s reference to the fisher registration form (Por Mor 3 form) provided for in the Notification of the Department of Labour Protection and Welfare Regarding Crew List Form for Employees in Fishing Work, B.E. 2557 (2014). Moreover, the Committee notes the Government’s reference to section 7 of the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014) which states that “in the case that the employer employs ten employees or more, the employer shall prepare the registration of employees in Thai language and keep it at the workplace of the employer and the employees for the inspection of the labour inspector, and send a copy to the Director-General of the Department of Labour Protection and Welfare or the person assigned by the Director-General of the Department of Labour Protection and Welfare within 30 days after the first day of employment.” The Committee requests the Government to clarify whether the requirement of submitting a crew list foreseen in section 82 of the Emergency Decree on Fisheries B.E. 2558 (2015) applies to all fishing vessels, regardless of the number of fishers employed by the fishing vessel owner or any other circumstance.
Article 16. Fisher’s work agreement. Annex II. The Committee notes the Government’s reference to section 49 of the Thai Vessel Act, B.E. 2481 (1938) which states that while a registered Thai vessel is in use, the crew’s work agreement shall be kept on board at all times. The Committee also notes the Government’s reference to the fishers’ work agreement form (Por Mor 1) provided in the Notification of the Department of Labour Protection and Welfare Regarding Employment Contract for Employees in Fishing Work B.E. 2560 (2017). The Committee notes, however, that some particulars required under Annex II of the Convention for instance, the protection that will cover the fisher in the event of sickness, injury, or death in connection with service, and the amount of paid annual leave or the formula used for calculating leave, where applicable, are not included in the aforementioned Notification. Moreover, the Committee notes that, according to the Por Mor 1, fishers’ work agreements shall be written in the Thai language. In this respect, the Committee notes that in its observations, the ITF indicates that the fishers members of the Fishers’ Rights Network (FRN) regularly report that fishers are not sure of their actual salary or other work agreement provisions because their work agreement is not written in their own language or is not in their possession. According to the ITF, a recent FRN research, based on surveys of 520 fishers in eight Thai provinces from March to June 2021, revealed that: (1) 87 per cent of fishers in Thailand were not in possession of a copy of their employment contract; (2) 96 per cent of fishers did not completely understand their contract; (3) 33 per cent of fishers who understood their contract stated that working conditions were not in accordance with the terms of the work agreements; and (4) 89 per cent of fishers have not had their contract translated or explained in a language they can understand. The ITF also indicates that fishers report that their passports, work permits, ATM cards, bank books, and other important documents are often held by the captain or vessel owner, which restricts the fishers’ movement as well as the possibility of changing vessels, accessing payments, freely transferring or remitting earnings, and reporting abuse. In this regard, the Committee notes the Government’s reply indicating that it is developing a work agreement with the relevant provisions in several languages and that work agreements do not remain in the possession of the fishers to prevent loss or damage, but that inspectors check whether such agreements are in the fishers’ accommodation. The Committee requests the Government to report any progress achieved in respect to the new fisher’s work agreement, ensuring that it is comprehensible to them (including to migrant fishers who do not read Thai) and consistent with the provisions contained in Annex II.
Article 17. Fisher’s work agreement. Examination of the terms and records of service. The Committee notes the Government’s reference to section 7 of the Notification of the Office of the Prime Minister Regarding Issuance of Seabooks in Accordance with the Legislation on Fisheries B.E. 2563 (2020), which states that an appointment shall be made for the negotiation of the fisher’s work agreement between the employer and the migrant worker, accompanied by a labour inspector and an interpreter in order to interview the migrant worker and verify the information foreseen in the agreement. The Committee notes that the Por Mor 1 provided for in the Notification of the Department of Labour Protection and Welfare Regarding Employment Contracts for Employees in Fishing Work B.E. 2560 (2017) has a standard sentence which indicates that both the employer and the employee have revised the fisher’s work agreement. The Committee requests the Government to indicate how it ensures that all fishers have an opportunity to seek advice on the terms of the fisher’s work agreement before it is concluded. In this regard, the Committee also requests the Government to clarify whether the appointment foreseen in section 7 of the Notification of the Office of the Prime Minister Regarding Issuance of Seabooks in Accordance with the Legislation on Fisheries B.E. 2563 (2020), allows for the migrant fishers to seek advice on the terms of their work agreements. It further requests the Government to provide details about the laws, regulations or other measures adopted or envisaged regarding the maintenance of records concerning the fisher’s work under such an agreement.
Article 21. Repatriation. The Committee notes the Government’s reference to the provisions on repatriation foreseen in section 9 of the Labour Protection in Fishing Work Act B.E. 2562 (2019), section 15 of the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014) and its amendments, and section 54 of the Emergency Decree on Fisheries, B.E. 2558 (2015). The Committee notes that the aforementioned legislation does not refer to the maximum duration of service periods on board after which a fisher is entitled to repatriation (Article 21(3)). In addition to the legislation referred by the Government, the Committee notes that the Foreigners’ Working Management Emergency Decree B.E. 2560 (2017) provides for the repatriation of foreigners (sections 50 to 58 and 77). In light of the above, the Committee requests the Government to provide detailed information on the measures adopted or envisaged to set out the maximum service period on board after which a fisher is entitled to repatriation. In the absence of specific information in this regard, the Committee requests the Government to explain in detail how it gives full effect to Article 21 with regard to migrant fishers, clarifying whether the aforementioned provisions of the Foreigners’ Working Management Emergency Decree B.E. 2560 (2017) apply to fishers.
Article 22(2) and (3)(c). Recruitment and placement. Private services. The Committee notes the Government’s indication that private recruitment and placement services are authorized in the country, subject to permission and registration by the Department of Employment. The Committee also notes the Government’s reference to the Employment Arrangement and Jobseeker Protection Act, B.E. 2528 (1985), including its section 8(2), which states that the application for, and the issuance of, a license shall be in accordance with the rules, procedures, and conditions as prescribed by the Ministerial Regulations. Furthermore, the Committee notes the Government’s indication that the process of bringing in migrant workers to work for employers in Thailand is based on the Foreigners’ Working Management Emergency Decree B.E. 2560 (2017) and its amendments, and the Memorandum of Understanding (MoU) between Thailand and Myanmar, Lao PDR, Cambodia and Vietnam. The Government indicated that there are 42,625 workers from such countries working in the fishing industry in Thailand. The Committee finally notes the Government’s indication that the Department of Employment has a mechanism to monitor and provide advice to the recruitment agencies to ensure their compliance with the Employment Arrangement and Jobseeker Protection Act, B.E. 2528 (1985) and its amendments, as well as relevant ministerial regulations. The Committee requests the Government to provide detailed information on such mechanism and to indicate whether any ministerial regulation has been adopted pursuant to section 8(2) of the Employment Arrangement and Jobseeker Protection Act. Furthermore, the Committee requests the Government to explain how it gives full effect to Article 22(2) and (3)(c) of the Convention with regard to private services that provide recruitment and placement services for migrant workers and to provide a copy of the abovementioned MoU between Thailand and Myanmar, Lao PDR, Cambodia, and Vietnam.
Article 22(3)(a) and (b). Recruitment and placement. Prevention or deterrence of fishers and fees or other charges. The Committee notes that both section 26 of the Employment Arrangement and Jobseeker Protection Act, B.E. 2528 (1985) and section 42 of the Foreigners’ Working Management Emergency Decree B.E. 2560 (2017) states that a domestic employment arrangement licensee and the person granted permission for bringing foreigners for working, respectively, are prohibited from demanding or receiving any money or property from a jobseeker other than service charges and expenses. In this regard, the Committee notes that, in its observations, the ITF indicates that fishers are at high risk of debt bondage due to unlawful migration and high broker or document fees. In this regard, the Committee recalls that Article 22(3)(b) provides that each Member shall, by means of laws, regulations or other measures require that no fees or other charges for recruitment or placement of fishers be borne directly or indirectly, in whole or in part, by the fishers. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that: 1) no fees or other charges for recruitment or placement are borne directly or indirectly, in whole or in part, by the fishers concerned; and 2) recruitment and placement services, whether public or private, are prohibited from using means, mechanisms or lists intended to prevent or deter fishers from engaging for work.
Article 23. Payment of fishers. The Committee notes the Government’s reference to section 10(1) of the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014), which states that whereas wage is calculated on a monthly, daily or hourly basis, or on the basis of other time periods not exceeding one month, wage shall be paid not less often than once a month unless otherwise agreed in favour of an employee. Moreover, section 10(2) states that shared profits in which an employer has agreed to pay according to the value of the aquatic animals being caught shall be paid according to a mutually agreed payment schedule, but the payment frequency shall not be less frequent than once every three months. In addition, the Committee notes that, in its observations, the ITF indicates that many fishers report receiving wages significantly lower than the amount stated in their work agreement, and that fishers members of the FRN regularly report that fishers are not paid for months. In this regard, the Government replied that some fishers choose to have employers buy goods and supplies for them, which is deducted from their wages, causing some to have the impression that they have not received their wages in full. The Committee requests the Government to provide its comments on the observations made by ITF with respect to fishers not being paid for months.
Article 24. Payment of fishers. Transmission of wages to families. The Committee notes the Government’s reference to the Ministerial Regulation on the Protection of Labour in Sea Fisheries (No. 2), B.E. 2561 (2018), which states that the employer shall pay the wages and holidays to the employee through bank transfer, and the expenses of such transfer shall be borne by the employer. The Committee notes, however, that the Por Mor 1 provided for in the Notification of the Department of Labour Protection and Welfare Regarding Employment Contract for Employees in Fishing Work B.E. 2560 (2017) has a standard sentence which indicates that the employer agrees to pay wages through bank account transfer for a transaction fee. In this regard, the Committee notes that, in its observations, the ITF indicates that, in most cases, wages are paid in cash rather than monthly bank transfer as required by Thai law. The Committee requests the Government to provide its comments in this regard. The Committee further notes the Government’s indication that the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014) is in the process of being amended in order to ensure “the transfer of wage and holiday pay to family members of the employee, upon the employee’s request, with the employer bearing the transaction cost”. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of the amended text once it is adopted.
Articles 26–28. Accommodation and Food. The Committee notes the Government’s reference to the provisions on accommodation, food and water supply provided for in the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014), in the Ministerial Regulation on Occupational Safety, Health, and Welfare System of Crews in Fisheries B.E. 2559 (2016), which applies partially to fishing vessels of 30 gross tonnage or more and partially to fishing vessels of 60 gross tonnage or more, and in the Rule of the Marine Department on Criteria, Procedures and Conditions relating to Accommodation Standards on Fishing Vessels B.E. 2563 (2020), which applies to new fishing vessels or extensively modified fishing vessels with a deck of 300 gross tonnage or more. Noting that the provisions indicated by the Government have their application limited by the gross tonnage of the fishing vessel and do not give full effect to Articles 26 to 28 and to the detailed provisions of Annex III, the Committee requests the Government to indicate the measures taken or contemplated to ensure conformity with the various aspects of fishing vessel accommodation mentioned in these provisions of the Convention. Recalling that the food and water shall be provided by the fishing vessel owner at no cost to the fisher unless an applicable collective agreement governing a share system or the fisher’s work agreement provides otherwise (article 27(c)), the Committee requests the Government to indicate the measures adopted or envisaged to give effect to this requirement of the Convention. Furthermore, the Committee notes that, in its observations, the ITF indicates that fishers regularly report cramped sleeping quarters and lack of toilet on board fishing vessels, as well as inadequate food and clean drinking water on board. In this regard, the Committee notes the Government’s reply indicating that fishing vessels in Thailand are old and have limited space, despite the Government’s efforts to encourage vessel owners to renovate their fleet in order to improve living and working conditions on board. The Committee requests the Government to continue to provide detailed information on any measures adopted or envisaged in this regard.
Articles 29 and 30. Medical care. The Committee notes the Government’s reference to the provisions on medical care provided for in the Ministerial Regulation on Occupational Safety, Health and Welfare System of Crews in Fisheries B.E. 2559 (2016), which contains relevant provisions for fishing vessels of 30 gross tonnage or more, and in the Ministerial Regulation concerning Labour Protection in Sea Fishery Work B.E.2557 (2014). The Committee also notes the Government’s indication that, according to the Rule on Vessel inspection, Procedure and Condition of Certificate of Inspection of Fishing Vessel, B.E. 2558 (2015), which applies to vessels operated by machine, fishing vessels with more than 10 gross tonnage shall be equipped with a radio transceiver. In this regard, the Committee notes that the ITF indicates, in its observations, that fishers regularly report poorly stocked and inaccessible first-aid kits. Noting that the provisions indicated by the Government have their application limited by the gross tonnage of the fishing vessel and do not give full effect to Articles 29 and 30, the Committee requests the Government to indicate how it ensures conformity with each of the requirements regarding medical care foreseen in these Articles, particularly in relation to Article 29(c) and 30(b), (c), (d), and (e). The Committee also requests the Government to clarify whether the radio transceiver foreseen in the Rule on Vessel inspection, Procedure and Condition of Certificate of Inspection of Fishing Vessel, B.E. 2558 (2015) ensures communication with persons or services ashore that can provide medical advice, taking into account the area of operation and the length of the voyage.
Articles 31 and 32. Occupational safety and health and accident prevention. The Committee notes the Government’s reference to the provisions on occupational safety and health and accident prevention provided in the Ministerial Regulation on the Protection of Labour in Sea Fisheries, B.E. 2557 (2014), Ministerial Regulation on Occupational Safety, Health and Welfare System of Crews in Fisheries B.E. 2559 (2016) and Guidelines for Occupational Safety in Fishing Work by the Bureau of Labour Safety, Department of Labour Protection and Welfare, Ministry of Labour (a copy of which was not provided). The Committee notes, however, that the provisions indicated by the Government do not give full effect to Articles 31 and 32, particularly to Article 31(c), (d), and (e), Article 32(2)(a), and Article 32(3)(b). The Committee also notes that the ITF indicates in its observations that health and safety conditions on board vessels are substandard, and fishers regularly report insufficient protective equipment and poor training. The Committee requests the Government to provide its comments in this respect. In addition, the Committee requests the Government to indicate how it ensures conformity with each of the requirements regarding occupational safety and health and accident prevention foreseen in Articles 31 and 32, providing a copy of any national law, regulation, guideline, or other measure adopted in this regard.
Article 33. Occupational safety and health and accident prevention. Risk evaluation. The Committee notes the Government’s indication that, during vessel inspections, the PIPO Controlling Centres conduct the Risk Assessment for Inspection System developed by the Department of Fisheries, which takes into account the information from its database on fishing vessels and fishers. The Committee requests the Government to indicate the measures taken to ensure that risk evaluation in relation to fishing is conducted, as appropriate, with the participation of fishers or their representatives, as provided for in Article 33.
Articles 34 and 35. Social security. The Committee notes the Government’s reference to section 2 of the Notification of the Ministry of Labour Regarding Provision of Health and Welfare Benefits in Fishing Works B.E. 2562 (2019), which states that employers shall provide: (1) non-work-related health protection; (2) compensation for non-work-related sickness or accident; (3) compensation for non-work-related disability; and (4) compensation for non-work-related death. The Committee notes that, in the case where a fisher is sick or injured from a non-work related reason and is not protected under the law on national health security, vessel owners shall provide the health protection in accordance with the Notification of the Ministry of Public Health on health examination and health insurance of migrant workers (section 3). The Government also indicates that, according to sections 7 and 8 of such Notification, employers may choose to provide health and welfare protection (1) by themselves, (2) by purchasing private insurance for fishers (except in case of non-work-related health protection), or (3) by joining the social security scheme. Likewise, the Committee notes that the Government indicates that in the case where fishers are insured under section 33 of the Social Security Act B.E. 2533 (1990), they shall receive the same benefits as the other insured persons, that is: (1) danger or sickness benefit; (2) parturition benefit; (3) infirmity benefit; (4) death benefit; (5) child allowance benefit; (6) old age benefits; and (7) unemployment benefit (section 54). The Committee recalls that Article 34 of the Convention provides that each Member shall ensure that fishers ordinarily resident in its territory, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. Therefore, the Committee requests the Government to provide detailed information on the number and the categories of fishers (i.e., artisanal fishers, migrant fishers, etc.) that are insured under section 33 of the Social Security Act B.E. 2533 (1990). The Committee requests the Government to describe in detail the social security benefits granted to fishers, including fishers working on foreign-flagged vessels ordinarily resident in Thailand. In addition, the Committee asks the Government to provide a copy of the Notification of the Ministry of Public Health on Health Examination and Health Insurance of Migrant Workers referred to in section 3 of the Notification of the Ministry of Labour Regarding Provision of Health and Welfare Benefits in Fishing Works B.E. 2562 (2019).
Article 36. Social security. Cooperation. Bilateral and multilateral agreements. The Committee notes the Government’s reference to a study on the development of a bilateral or multilateral Social Security Agreement to promote the portability of social security rights and benefits between the Association of Southeast Asian Nations as well as to the Siem Reap Roadmap Toward Labour Ministerial Declaration on the Portability of Social Security Schemes for Migrant Workers in the CLMTV Countries (Cambodia, Lao PDR, Myanmar, Thailand and Vietnam). The Committee requests the Government to keep the Office informed of any development in this respect.
Articles 38 and 39. Protection in the case of work-related sickness, injury or death. The Committee notes the Government’s reference to the Workmen’s Compensation Act B.E. 2537 (1994) and its amendments, which provides protection in case of work-related injury, illness, disability and death and establishes the “Workmen’s Compensation Fund”. The Committee takes note of sections 13 to 25 of such Act, which provide for medical care and monthly compensation in the event of injury or sickness and funeral expenses in case of death. The Committee notes that section 22 states that the employer shall not pay compensation when the injury or sickness: (1) occurred due to the employee’s loss of control because of the ingestion of alcoholic beverages or addiction and (2) was caused willingly by the employee himself or by someone else with his authorization. In this respect, the Committee recalls that Article 39(2) of the Convention provides that national laws or regulations may permit the exclusion of the liability of the fishing vessel owner only if the injury occurred otherwise than in the service of the vessel or the sickness or infirmity was concealed during engagement, or the injury or sickness was due to wilful misconduct of the fisher. The Committee, therefore, requests the Government to indicate the measures adopted or envisaged to ensure that the exclusion of the liability of the fishing vessel owner in relation to health protection and medical care are only permitted in the cases foreseen in Article 39(2). The Committee also requests the Government to clarify whether the Workmen's Compensation Act B.E. 2537 (1994) applies to fishers (including migrant fishers), indicating exceptions, if any. In addition, the Committee requests the Government to provide detailed information on any obstacles that may prevent fishers from being provided with health protection and medical care while employed or engaged or working on a vessel at sea or in a foreign port, and with coverage of expenses of medical care, including related material assistance and support, during medical treatment in a foreign country, until they have been repatriated.
Articles 40 and 41. Compliance and enforcement. The Committee notes the Government’s reference to the Labour Protection in Fishing Work Act, B.E. 2562 (2019) in relation to inspections and corrective orders (section 16) as well as reports on work in fishing results (section 6). In addition, the Committee notes that, in its observations, the ITF indicates that the effective implementation and enforcement of the Convention remain a major challenge, particularly in relation to migrant fishers, such as Burmese and Khmer fishers. The ITF indicates that PIPO inspections are superficial and are not carried out thoroughly enough to identify, report and correct violations. In this sense, it indicates that, according to a Thai government report, the PIPO inspected 55,818 fishing vessels in 2020 and 44,322 in 2019, identifying 19 and 20 vessels in violation of labour laws, respectively. At-sea inspections of 842 vessels were carried out in 2020, and one case of labour violation was detected. The ITF affirms that it is unclear to which officer or agency fishers should report violations and that most fishers in the FRN are intimidated by the inspectors and do not trust the inspection process, which often discourages and prevents fishers from effectively reporting violations. It affirms that fishers are not interviewed privately and away from the captain or vessel owner and that there is no interpretation in the fishers’ language during the inspection. The ITF further alleges that PIPO officers are reassigned frequently, which makes it difficult for officers to establish relationships with local fishers, trade unions and civil society organizations with a view to effectively investigating complaints, as well as sharing and updating information. In this regard, the Committee notes the Government’s reply indicating that PIPO inspections are conducted with the presence of an interpreter and by a multidisciplinary team, which receives complaints and transmits them to the responsible agency for in-depth investigation, enforcement and remedy. The Government also replied that it is willing to work with the FRN and the ITF in case of evidence of violation of fishers’ rights. The Committee requests the Government to provide further details on the system established for ensuring compliance with the requirements concerning complaint procedures and appropriate penalties. The Committee further requests the Government to provide an example of a valid document issued by the competent authority stating that the vessel has been inspected by the competent authority, or on its behalf, for compliance with the provisions of the Convention concerning living and working conditions.
Article 43. Compliance and enforcement. Complaints. The Committee notes that, in its reply to the ITF’s observations, the Government indicates that all fishers regardless of their nationality can file a complaint through a hotline, social network platform, civil society organizations, as well as complaint boxes installed at jetties and PIPO Centres. In this regard, the Committee requests the Government to provide details of the existing arrangements for investigating complaints submitted by a fisher, a professional body, an association, a trade union, or, generally, any person with an interest in the safety of the vessel, including an interest in safety or health hazards to the fishers on board, and ensuring that action is taken to remedy any deficiencies found. The Committee further asks the Government to provide information on the number of investigations carried following such complaints and on the measures taken as a result. In addition, the Committee asks the Government to describe any port State control measures taken in pursuance of Article 43 and to give information on the implementation of these measures (e.g. number and nature of cases considered and nature of any action taken).
[The Government is asked to reply in full to the present comments in 2024.]
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