Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 363, Marzo 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 221. The Committee last examined this case at its March 2011 meeting [see 359th Report, paras 1135–1176]. On that occasion, the Committee made the following recommendations:
   • (a) As to the dismissal of Ms Kotchadej, Chairperson of the Triumph International (Thailand) Labour Union, the Committee:
     • (i) concludes that the dismissal of Ms Kotchadej may indeed have been linked to the exercise of legitimate trade union activities;
     • (ii) requests the Government to take all necessary measures to seek her immediate reinstatement with full pay for back wages. If her reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to ensure that Ms Kotchadej is paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests the Government to keep it informed without delay in this respect.
   • (b) The Committee further requests the Government:
     • (i) to keep it informed of the final outcome of the judicial proceedings and of all measures of redress taken;
     • (ii) to supply a copy of the two judicial decisions authorizing the dismissal of Ms Kotchadej and to take the necessary measures to ensure that these decisions will be shortly revised in the framework of a procedure which will fully ensure her participation in the hearings, her right to a due process and the respect of her rights of defence;
     • (iii) requests the Government and the complainant to provide additional information on the appeal lodged by Ms Kotchadej against the decision of the Court dated 27 November 2008 confirming her dismissal (as alleged by the complainant but as contested by the Government).
   • (c) As regards the dismissal of the 1,959 workers, the Committee:
     • (i) requests the Government to inquire into whether anti-union criteria were applied when identifying the employees to be dismissed;
     • (ii) requests the Government to provide a copy of the decision of the Supreme Court on the appeal introduced by the dismissed board members of the union, as soon as it is handed down, as well as of any other relevant judicial decisions;
     • (iii) requests the complainant organization to provide a copy of the relevant provisions of the collective agreement, including article 6, which allegedly stipulates that if the company needs to restructure its workforces, the decision concerning a lay-off has to be collectively agreed.
   • (d) As to the dispersion of the demonstration, which took place on 27 August 2009, noting that the Government does not deny the use of Long Range Acoustic Devices (LRADs) to disperse the strikers, the Committee:
     • (i) urges the Government to undertake appropriate investigations into this matter, including the impact of the use of LRADs on the striking workers and to take the necessary measures to ensure that police forces or other government authorities do not intervene in demonstrations with excessive force and in a manner that is likely to cause injury to the striking workers;
     • (ii) further requests the Government to ensure the strict observance of due process guarantees in the context of any surveillance operations of workers’ activities by the army, in order to guarantee that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee urges the Government to keep it informed in this respect.
   • (e) The Committee expresses its concern at the arrests of the three trade union leaders, particularly given that the sections of the Criminal Law Codes 215–216 referred to could also encompass legitimate trade union activities. The Committee further:
     • (i) urges the Government to provide updated information on their present situation, including on the specific charges filed against them. Should these charges be related to their legitimate trade union activities and bearing in mind the Memorandum of Agreement concluding the dispute, it urges the Government to ensure that the charges are immediately dropped;
     • (ii) requests the Government to ensure that their lawyers will be allowed to have full access to the arrest warrants as well as to any other relevant information for their proper defence;
     • (iii) requests the Government to provide a copy of any relevant judicial decision in this respect, in particular, a copy of the appeal decision on the request made by the lawyers to receive a copy of the arrest warrants.
   • (f) Noting that the interference of the Department of Labour Protection and Welfare in the elections of the Triumph International (Thailand) Labour Union Chairperson is in direct contradiction of the freedom of association principles, the Committee:
     • (i) urges the Government to take the necessary measures to ensure, should this not already be the case, that the newly elected Chairperson is recognized by the authorities and the employer so that the right of workers to elect their representatives freely is fully ensured;
     • (ii) requests the Government to take steps so that, in the future, the authorities refrain from any interference in the exercise of the right of workers’ organizations freely to elect their representatives, as guaranteed by Convention No. 87;
     • (iii) requests the Government to keep it informed in this respect.
   • (g) The Committee expects that the Government will make all efforts to provide the information requested including by seeking information from the employer through the relevant employers’ organizations concerned.
   • (h) Finally, as to the alleged assaults against Ms Kotchadej, the Committee requests the complainant organization to provide detailed information on the date and circumstances of these assaults and, once this information is provided, requests the Government to take the appropriate steps to investigate these allegations and to provide information on the outcome.
2. 222. In its communications dated 10 June and 19 August 2011, the Government sent its observations in reply to the Committee’s recommendations. As regards recommendations (a) and (b), the Government indicates that the employer obtained a permission to dismiss Ms Kotchadej from the Labour Court, as prescribed by law. The Labour Court also latterly rejected her appeal and held that it was inadmissible because the application for leave to appeal was made on grounds of facts. The appeal on questions of fact is inadmissible according to the Establishment of Labour Court and Labour Procedure Act B.E. 2522 (article 54, paragraph 1). Ms Kotchadej then appealed to the Supreme Court, but the Supreme Court concluded that the Labour Court lawfully rejected such appeal. According to the Government, all litigations procedures were conducted in compliance with the laws.
3. 223. As regards recommendation (c)(i), the Government reiterates that the employer provided severance pay and other legal benefits to 1,959 employees who were dismissed, which amounted to 207 million baht (THB). The Department of Labour Protection and Welfare also launched a measure to provide additional monetary benefit amounting to THB55 million as well as 250 sewing machines to those employees. The employees were clearly informed that, in case of illegal dismissal, they could file a complaint to the Labour Relations Committee, but they did not submit the case to the Labour Relations Committee. As regards recommendation (c)(ii), the Government indicates that the case of the dismissed board members of the union is still pending before the Supreme Court.
4. 224. As regards recommendation (d), the Government indicates that the activities of the trade union were against the law. The union members illegally blocked a public road without permission, and such illegal action violated rights of civilians. The police negotiated with the union members to unblock the road, but the negotiation failed because the union members did not cooperate with the police. The police therefore took an action in order to open the road for passers-by and civilians. The Government reiterates that the police did not use violence to disperse union members.
5. 225. As regards recommendation (e), the Government indicates that the case of the three trade union leaders arrested is still pending for examination of evidence and witnesses.
6. 226. As regards recommendation (f), the Government reiterates that the Department of Labour did not interfere in the trade union election and it did not intervene in trade union management and trade union activities.
7. 227. The Committee takes note of the information provided. The Committee recalls that this case concerns five allegations of violations of the principles of freedom of association and trade union rights: (i) the individual dismissal of a leader of the Triumph International (Thailand) Labour Union in violation of the fundamental principle of freedom of expression, following a judicial procedure which took place in violation of the rights of the defence; (ii) the collective dismissal of 1,959 workers, including 13 union board members, in the framework of a restructuring process, allegedly in violation of a collective agreement in force; (iii) the use of dangerous sound devices by the police forces to disperse strikers who gathered in the aftermath of the collective dismissal; (iv) the arrest of three union leaders in the framework of a strike, on the basis of unsubstantiated criminal charges; and (v) the interference by authorities in the elections of the union. The Committee notes with regret that although it had made extensive recommendations, the Government did not provide full information in this regard. The Committee firmly expects that the Government will make all efforts to provide the information requested including by seeking information from the employer through the relevant employers’ organizations concerned, as requested in its previous recommendation.

Recommendations (a), (b) and (h)

1. 228. As regards recommendations (a) and (b), the Committee notes the Government’s indication that Ms Kotchadej lodged an appeal against the decisions authorizing her dismissal to the Labour Court which rejected her appeal and held that it was inadmissible because the application for leave to appeal was made on questions of fact, which is inadmissible according to the Establishment of Labour Court and Labour Procedure Act B.E. 2522 (article 54, paragraph 1). Ms Kotchadej then appealed this decision to the Supreme Court, but the Supreme Court concluded that the Labour Court lawfully rejected such appeal. In this respect, the Committee wishes to once again underline that the Government: (i) has not provided any information on the legal grounds and facts invoked on the basis of which the Court authorized the dismissal to take place, both during the first hearing and during the retrial procedure; (ii) has not commented upon the anti-union character of the dismissal alleged by the complainant; and (iii) has not denied the complainant’s assertion that the dismissal was invoked by the Court as being a breach of the “Thai national spirit”. As indicated before, on the basis of the elements in its possession, the Committee cannot conclude that the dismissal of Ms Kotchadej was in no way influenced by her activities as chair of the union and that, while the statement on her T-shirt may have been considered as offensive by some, the Committee has difficulty in understanding the relationship between this event and her employment, and once again expresses its deep concern that it gave rise to the dismissal of a trade union leader, impacting also upon the defence of the workers’ interests at the enterprise. The Committee notes with deep concern that, while reviewing the case of Ms Kotchadej, the Supreme Court refused to hear her arguments on the basis that they were questions of fact and therefore inadmissible.
2. 229. In light of the above considerations, the Committee once again urges the Government to take all necessary measures to seek the immediate reinstatement of Ms Kotchadej with full pay for back wages and requests to be kept informed in this respect. If her reinstatement is found not to be possible for objective and compelling reasons, the Committee requests the Government to ensure that Ms Kotchadej is paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee requests to be kept informed without delay of all measures of redress taken.
3. 230. Finally, as regards recommendation (h) concerning the alleged assaults against Ms Kotchadej, noting that the complainant organization did not provide information in this regard, the Committee reiterates its previous recommendation and expects that the complainant organization will be in a position to provide detailed information on the date and circumstances of these assaults in the near future in order for the Government to take the appropriate steps to investigate these allegations and to provide information on the outcome.

Recommendation (c)

1. 231. As regards the dismissal of 1,959 workers, the Committee observes that the Government did not indicate if it has inquired whether anti-union criteria were applied when identifying the employees to be dismissed. The Committee therefore urges the Government to inquire whether anti-union criteria were applied when identifying the employees to be dismissed. Noting that the case of the dismissed board members of the union is still pending before the Supreme court, the Committee once again requests the Government to provide a copy of the decision of the Supreme Court on the appeal introduced by the dismissed board members of the union, as soon as it is handed down, as well as of any other relevant judicial decisions. The Committee trusts that the Supreme Court will take into account the principle according to which no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 770]. On the other hand, noting that the complainant organization did not provide a copy of the relevant provisions of the collective agreement, including article 6, which allegedly stipulates that if the company needs to restructure its workforces, the decision concerning a lay-off has to be collectively agreed, the existence of such a clause being contested by the Government, the Committee expects that the complainant organization will be in a position to provide such documentation in the near future.

Recommendation (d)

1. 232. As regards the dispersion of the demonstration, which took place on 27 August 2009, the Committee regrets that the Government confines itself to indicating that the police did not use violence to disperse union members and makes no reference to the use of LRADs. In these circumstances, the Committee once again: (i) urges the Government to undertake appropriate investigations into this matter, including the use of LRADs on the striking workers and to take the necessary measures to ensure that police forces or other government authorities do not intervene in demonstrations with excessive force and in a manner that is likely to cause injury to the striking workers; and (ii) further requests the Government to ensure the strict observance of due process guarantees in the context of any surveillance operations of workers’ activities by the army, in order to guarantee that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against their leaders and members. The Committee urges the Government to keep it informed of the measures taken in this respect.

Recommendation (e)

1. 233. As regards the arrest of three trade union leaders, the Committee notes with regret that the Government confines itself to indicating that the case is still pending before the court for examination of evidence and witnesses. In these circumstances, the Committee once again: (i) urges the Government to provide updated information on their present situation, including on the specific charges filed against them. Should these charges be related to their legitimate trade union activities and bearing in mind the Memorandum of Agreement concluding the dispute, it urges the Government to ensure that the charges are immediately dropped; (ii) requests the Government to ensure that the lawyers of the trade union leaders will be allowed to have full access to the arrest warrants as well as to any other relevant information for their proper defence and to keep it informed in this regard; and (iii) requests the Government to provide a copy of any relevant judicial decision in this respect, in particular, a copy of the appeal decision on the request made by the lawyers to receive a copy of the arrest warrants.

Recommendation (f)

1. 234. As regards the elections of the Triumph International (Thailand) Labour Union Chairperson, where the Committee observed that there had been interference by the Department of Labour Protection and Welfare, the Committee notes that the Government confines itself to indicating that there was no interference. In these circumstances, the Committee urges the Government to indicate if the newly elected Chairperson of the union is recognized by the authorities and the employer so that the right of workers to elect their representatives freely and to bargain collectively is fully ensured.
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