Informe provisional - Informe núm. 44, 1960

1. 126. The complaint of the International Confederation of Free Trade Unions (I.C.F.T.U) is contained in a communication dated 8 June 1959. The Government of Thailand forwarded its observations on the complaint in a communication dated 20 October 1959.
2. 127. Thailand has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Dissolution of Trade Unions and Prohibition of Occupational Organisation
  128. 128 The I.C.F.T.U alleges that when martial law was proclaimed, in connection with the political events of 20 and 21 October 1958, the National Assembly was dissolved, all political parties were abolished, the Labour Act of 1956 was repealed and all trade unions dissolved. Under that Act, workers had the right to form trade unions of their own choosing, to strike and to be protected against unfair labour practices, and their unions had the right to bargain collectively. Since then, alleges the I.C.F.T.U, martial law has continued in force despite the appointment of a Constitutional Assembly and trade unions have remained banned, permission to found new organisations having been refused by the Government, and permission was also refused to a group of bona fide trade union leaders who desired to form a labour association with collective bargaining functions. Although the Government has announced its intention to promulgate a new Labour Act, trade unions are still banned, declares the complainant, and workers cannot protect their interests.
  129. 129 By dissolving the trade unions, abrogating the Labour Act and refusing permission to form new unions, the Government, in the view of the complainant, has contravened Article 2 and other Articles of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and has rendered inoperative in Thailand the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  130. 130 The Government declares that Thailand has no other intention than to preserve its freedom and its way of life and cannot tolerate that external or internal subversive elements are given a free hand to undermine and subvert its institutions. The decision to repeal the Labour Act of 1956 and to abolish temporarily the trade unions and federations resulted from the fact that these organisations were heavily infiltrated and dominated by subversive elements. The Government goes on to say: " As indicated above, the abolition of labour unions and federations is temporary. They may be reinstated as soon as new labour legislation which will safeguard freedom is enacted." In the meantime, declares the Government, neither any " group of bona fide trade union leaders " nor any other persons have submitted any application to form a labour association as is alleged. During the absence of any Labour Act, claims the Government, workers are protected as formerly by the Ministry of the Interior and, in certain respects, more effectively than before. The Government states that at present workers have the right to organise an association to promote their welfare in accordance with the Civil and Commercial Codes and, by practice, may appoint their representatives for collective negotiations with employers. But the organisation of associations like the former trade unions must await a new Labour Act.
  131. 131 With regard to a new Labour Act, the Government makes the following statement: "The Department of Public Welfare has appointed a drafting committee, which is now carrying out its duty by drafting a Labour Law to be submitted to the Government. After consideration, the Government will submit the draft to the Constituent Assembly for its approval and thereafter it will be promulgated as a Labour Act. This Act is intended to rectify the shortcomings and loopholes of the former legislation and to protect the people's freedom and interests and security of the State. So it must be taken into careful and minute consideration in all its details and such work requires time."
  132. 132 The Committee observes that the complaint embodies a number of aspects of trade union rights alleged to have been infringed-refusal of the right to form trade unions with real collective bargaining functions, suspension of the guarantees and protection afforded by the Labour Act, 1956, and loss of the right to strike. These, however, are not distinct events which can in this instance be subject to separate examination ; they are different but connected aspects of one major allegation-the dissolution of all the trade unions by virtue of a decision of military administrative authority. The Government does not specifically accuse the trade unions of having engaged as such in criminal activity prior to their dissolution but states that they were infiltrated and dominated by subversive elements.
  133. 133 The Committee, in many previous cases, has emphasised the importance which it attaches to the observance of the generally accepted principle that trade unions should not be liable to be dissolved or suspended by administrative authority. In the present case, while the trade unions of Thailand have been suspended by decision of the military administrative authorities, this has been one of a series of important events - dissolution of the National Assembly, abolition of political parties - mostly not directly related to the exercise of trade union rights, which have taken place in a period of acute political crisis, in the course of which the Army assumed political power and martial law was proclaimed. Bearing in mind also the Government's statement that measures are being taken with a view to promulgating a new Labour Act, the Committee, before formulating its recommendations on this aspect of the case, recommends the Governing Body to request the Government to indicate when it anticipates that the drafting of a new Labour Act will have been completed and whether it is intended that the new legislation will fully guarantee and protect the right to organise and to form trade unions, and to furnish information as to its intentions in the meantime with regard to granting applications that may be made by trade union leaders and workers to form trade unions to protect their interests by means of collective bargaining.
• Allegations relating to the Regulation of Industrial Relations
  134. 134 The complainant declares that the Government, having abrogated the Labour Act, issued regulations to place the settlement of disputes between workers and employers in the hands of officials of the Welfare Department of the Ministry of the Interior and, in the final resort, of the Director of the Welfare Department. Thus, declares the I.C.F.T.U, industrial disputes are settled directly by the Government without any preceding collective bargaining between workers and employers and without the use of any conciliation machinery, and the Ministry cannot cope with all the requests for intervention in industrial disputes or carry out appropriately a function which is normally the subject of collective bargaining.
  135. 135 The Government maintains that collective bargaining negotiations between employers and workers are normally conducted before a dispute is referred to the competent authorities and that the Regulations complained against establish conciliation and mediation procedures by which the competent authorities shall endeavour to seek ways for the disputing parties to come to an agreement. In default of agreement, the competent authorities must take a decision, against which either party may appeal to the Director-General of the Department of Public Welfare, whose decision, according to the text of the Regulations furnished by the Government, is final. The Government denies that the Department cannot cope with the cases that arise, and states that in 1958, out of 114 labour disputes in the districts of Bangkok and Dhonburu, 107 were settled by conciliation and mediation, only seven being taken into account by the competent authorities. During 1959, declares the Government, out of 152 labour disputes, 141 were adjusted by conciliation and mediation and only four were determined by the competent authorities, the other seven being withdrawn by the parties concerned. In the view of the Government, these results obtained by conciliation and mediation demonstrate that the Ministry of the Interior is able to carry out its duties successfully.
  136. 136 It is clear from the Government's reply that the workers can no longer engage in collective bargaining through trade unions in the normal way. But, maintains the Government, they can form associations under the Civil Code and Commercial Codes for bargaining purposes, while in practice they still appoint bargaining representatives.
  137. 137 The present allegations are so closely connected with the allegations relating to the dissolution of the trade unions already examined by the Committee, however, that the Committee considers-while emphasising the importance that it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and to the principle that " trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof "-that it should adjourn its further examination of this aspect of the case pending the receipt of the further information from the Government referred to in paragraph 133 above. While doing so, the Committee recommends the Governing Body to draw the Government's attention to the importance of giving full effect to these principles in the proposed new legislation now being considered.
• Allegations relating to the Arrest and Detention of Trade Unionists
  138. 138 The I.C.F.T.U alleges that, when the trade unions were dissolved in October 1958, a number of trade unionists were arrested, and that trade unionists are still being kept in detention without any formal charges being brought against them.
  139. 139 The Government declares that the 19 labour leaders and union members who were arrested, were not arrested in their capacity as such but because of their subversive activities of a kind prohibited by law, that the investigations revealed that one of them clearly carried on Communist activities and acted against the Government and that sufficient evidence was found to show that three more engaged in Communist subversion. Their cases were referred to the Public Prosecutor for charges on the basis of these offences to be brought in the courts. The rest of those arrested, states the Government, are being investigated in respect of their connection with the " Congress of Workmen of Thailand ". The Government declares that the evidence shows " that they intended to use worker members, as a part of their strength, to instigate a revolution in order to change the régime of government of the country ".
  140. 140 In conclusion, the Government states that the measures which have been taken in Thailand have been dictated by the need to preserve freedom for the whole Thai nation, and that those elements which aim at jeopardising that freedom cannot be allowed, for the sake of freedom, to engage in their nefarious activities. In this connection, concludes the Government, " there is no iron curtain, or any kind of curtain for that matter, barring impartial observers who may come to verify the facts ".
  141. 141 In a number of earlier cases, the Committee has emphasised the importance which it has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions. In the past, moreover, where allegations that trade union leaders or workers have been arrested for trade union activities have been met by governments with statements that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings.
  142. 142 The Committee points out further that the Governing Body decided, at its 140th Session (Geneva, 18-21 November 1958), thenceforth to draw a distinction between urgent and less urgent cases. One criterion adopted in this connection was that matters involving personal freedom should be regarded as urgent. The Governing Body decided that in such cases the special attention of the government should be called, when the complaint was communicated to it, to the fact that the case falls within the category of cases regarded by the Governing Body as urgent, and that the government should be specially requested on behalf of the Governing Body to furnish for this reason a particularly speedy reply in regard to the urgent aspects of the case.
  143. 143 In these circumstances, the Committee recommends the Governing Body to request the Government to furnish, as a matter of urgency, and having regard to the principles enunciated in paragraph 141 above, further information as to the reasons for the arrests and detention of and as to the present position of the trade unionists who are still detained, including information as to the legal or judicial proceedings taken in respect of such persons and as to the results of those proceedings.