Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee has noted the Government’s report.

1.  Article 1(a) of the Convention.  In its earlier comments, the Committee noted that penalties of imprisonment may be imposed under sections 4, 5, 6 and 8 of the Anti-Communist Activities Act B.E. 2495 (1952) for engaging in communist activities, conducting propaganda or making any preparation with a view to carrying on communist activities, belonging to any communist organization, or attending any communist meeting unless able to prove ignorance of its nature and object. Similarly, under sections 9, 12 and 13 to 17 of the same Act, inserted by the Anti-Communist Activities Act (No. 2) B.E. 2512 (1969), penalties of imprisonment may be imposed for assisting any communist organization or member of such organization in a variety of ways, propagating communist ideology or principles leading to the approval of such ideology, or contravention of restrictions imposed by the Government on movements, activities and liberties of persons in any area classified as a communist infiltration area.

The Government states in its report that the national circumstances have changed considerably since the adoption of the Act, which has come to be considered obsolete and inappropriate to national conditions. The Committee notes with interest the Government’s indication that the Act is in the process of revocation and the draft entitled "the Act Repealing the Anti-Communist Activities Act B.E. 2495" has already been passed through the House of Representatives and is being scrutinized by the Ad Hoc Committee of the Senate. It hopes that the Anti-Communist Activities Act B.E. 2495 will be repealed shortly and requests the Government to supply a copy of a repealing text, as soon as it is adopted.

2.  Article 1(c).  Over a number of years, the Committee has been commenting on sections 5, 6 and 7 of the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), which provide for the forcible conveyance of seafarers on board ship to perform their duties. The Committee notes the Government’s indications in its report that the Act has not been applied during the past decade and that a committee was established in March 1999 by the Department of Labour Protection and Welfare for considering drafting seafarers’ legislation and upgrading their standards of work in compliance with the ILO standards. The Committee hopes that, in the course of the revision of seafarers’ legislation, the abovementioned provisions will be repealed or amended so as to bring the legislation into conformity with the Convention and the indicated practice. It asks the Government to provide, in its next report, information on the progress made in this regard.

3.  In its earlier comments the Committee noted that under sections 131 and 133 of the Labour Relations Act, B.E. 2518 (1975), penalties of imprisonment (involving compulsory labour) may be imposed on any employee who, even individually, violates or fails to comply with an agreement on terms of employment or a decision on a labour dispute under sections 18(2), 22(2), 23 to 25, 29(4), or 35(4) of the Labour Relations Act. The Committee pointed out that sections 131 to 133 of the Labour Relations Act were incompatible with the Convention in so far as the scope of sanctions involving compulsory prison labour is not limited to acts and omissions that impair or are liable to endanger the operation of essential services in the strict sense of the term, or which are committed either in the exercise of functions that are essential to safety or in circumstances where life or health are in danger.

The Government stated in its previous report of 1997 that it agreed that the distinction between essential and non-essential services should be addressed. However, it refers in its latest report of 1999 to a list of services given in section 23 of the Labour Relations Act and in the Ministerial Regulations of the Ministry of Interior No. 2, which in the Government’s view can be implied as essential services. The Committee wishes to point out in this connection, with reference to paragraphs 114 and 123 of its 1979 General Survey on the abolition of forced labour, that some of the services listed in section 23 of the Act (such as railway or port services) and all the services mentioned in the Ministerial Regulations No. 2 referred to by the Government, do not seem to meet the criteria of "essential services" in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population).

The Committee therefore expresses firm hope that the Government will reconsider this question in the light of its obligations under Article 1(c) of the Convention and that it will provide, in its next report, information on the measures taken in order to ensure compliance with the Convention. Recalling in this context the Government’s indication in its 1997 report that the Senate was in fact expected to discuss the definition of "essential services", the Committee asks the Government to indicate whether such discussion took place and to provide full details.

4.  Article 1(d).  The Committee previously noted that penalties of imprisonment (involving compulsory labour) may be imposed for participation in strikes under the Labour Relations Act: (i) section 140 read together with section 35(2), if the Minister orders the strikers to return to work as usual, being of the opinion that the strike may cause serious damage to the national economy or hardship to the public or may affect national security or be contrary to public order; (ii) section 139 read together with section 34(4), (5) and (6), if the party required to comply with an arbitrator’s award under section 25 has done so, if the matter is awaiting the decision of the Labour Relations Committee or a decision has been given by the Minister under section 23(1), (2), (6) or (8) or by the committee under section 24, or if the matter is awaiting the award of labour disputes arbitrators appointed under section 25.

The Government states in its latest report that the Minister shall exercise the powers conferred under section 35 in the case where the strikers may cause serious damage to the national economy or to the public order, and shall not exercise such powers to intervene in any peaceful strike which does not give that effect. The Committee wishes to point out once again that, under the abovementioned provisions of the Act, penalties of imprisonment involving compulsory labour may be imposed for participation in strikes not only where they concern essential services in the strict sense of the term (that is, services whose interruption would endanger the life, the personal safety or the health of the whole or part of the population), but also in a wider range of circumstances which cannot be held to be removed from the scope of Article 1(d) of the Convention.

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

5.  In its earlier comments, the Committee noted that under section 117 of the Criminal Code participation in any strike with the purpose of changing the laws of the State, coercing the Government or intimidating the people was punishable with imprisonment (involving compulsory labour). It referred to the explanations provided in paragraph 128 of its 1979 General Survey, where it indicated that, while the prohibition of purely political strikes lies outside the scope of the Convention, in so far as restrictions on the right to engage in such strikes are accompanied by penalties involving compulsory work, they should neither apply to matters likely to be resolved through the signing of a collective agreement nor to matters of a broader economic and social nature affecting the occupational interests of workers.

The Government reaffirms in its latest report that section 117 is only essential to internal security and does not concern the prohibition or restrictions on the right to engage in strikes or collective agreements. It states that this section has never been applied in practice. The Committee therefore again expresses the hope that the necessary action will be taken to remove strikes pursuing economic and social objectives affecting the workers’ occupational interests from the scope of sanctions under section 117 of the Criminal Code, in order to bring the legislation into conformity with the Convention and the indicated practice.

6.  The Committee previously noted that section 19 of the State Enterprise Labour Relations Act provided that workers of state enterprises may not in any case stage a strike or undertake any activity in the nature of a strike. Under section 45, paragraph 1, of the Act, violation of this prohibition may be punished by imprisonment (with labour) for a term of up to one year; this penalty is doubled in the case of a person who "incites, or aids or abets the commission" of the offence under paragraph 1. Referring to the explanations provided in paragraph 123 of its 1979 General Survey on the abolition of forced labour, the Committee recalled that the imposition of penalties of imprisonment involving compulsory labour on striking employees would be compatible with the Convention only in the case of essential services in the strict sense of the term (i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population).

The Committee notes the Government’s statement in its latest report that most of the state enterprises are essential for public service and public utility, and their interruption would cause serious damages to public order, national security and the safety of the population. The Committee wishes to point out once again that the distinction between essential and non-essential services is a functional one and does not depend on private or state ownership of the enterprises concerned. A blanket prohibition of strikes in all state-owned enterprises, if enforced with penalties involving compulsory labour, is incompatible with the Convention.

The Committee notes the Government’s indication in its latest report that a draft Bill intended to amend the State Enterprise Labour Relations Act, which had been prepared by the Senate and amended by the Ad Hoc Committee, was rejected by the House of Representatives in August 1999 and, as a result, was withheld for 180 days.

Noting the Government’s statement in the report that the draft Bill provides for greater freedom of association rights in the state enterprises, the Committee reiterates its hope that appropriate measures will be taken in the near future with a view to bringing the Act into conformity with the Convention. It asks the Government to provide, in its next report, information on the progress made in this regard.