Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 383, Octubre 2017

1. 626. The complaint is contained in communications dated 2 March and 17 May 2016, and 13 January and 11 July 2017 submitted by the Suzuki Motors Thailand Workers’ Union (SMTWU) and the Thailand Confederation Trade Union (TCTU).
2. 627. The Government sent its observations in communications dated 24 February, 27 March and 27 September 2017.
3. 628. Thailand has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), or the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 629. By their communications dated 2 March 2016, the TCTU and the SMTWU (TCTU’s affiliate) allege dismissal of workers involved in submitting collective bargaining demands to the employer, Suzuki Motors (Thailand) Co. Ltd (hereafter, “the company”). In these and subsequent communications, the complainants provide the following chronology of alleged events.
2. 630. On 17 December 2013, a group of workers formulated and submitted to the employer a set of demands regarding working conditions, wages and bonuses, in compliance with the procedures provided for in the Labour Relations Act (LRA).
3. 631. On 18 December 2013, the workers filed for the registration of a trade union.
4. 632. On 20 December 2013, the workers’ and management’s representatives negotiated for the first time on the demands, but failed to come to an agreement. Only one topic was discussed and the remaining 12 demands were rejected by the employer.
5. 633. On 21 December 2013, in accordance with the labour legislation, workers’ representatives filed a labour dispute case with a conciliation officer as the company’s representatives repeatedly refused to return to the negotiating table.
6. 634. On 25 December 2013, after a conciliation settlement, an agreement on bonuses was signed. It was further agreed to keep the existing labour conditions and not to consider the actions taken during the negotiation as violation of the workplace regulations. During the mediation, the company representatives agreed not to harass or dismiss workers who were involved in submitting the demands.
7. 635. On 26 December 2013, at 10 a.m., the workers were informed of the successful registration of the SMTWU. At 4 p.m., nine union leaders and one worker who had filed the demands and took the lead in the registration attempts were dismissed by the employer on various charges, including committing a crime with the intention to cause damages to the company, theft, neglect of duty, violation of work regulations, defamation of the company, incitement of workers, taking the company’s resources by sending electronic mails during the working time.
8. 636. On 14 January 2014, the dismissed workers filed a complaint of unfair dismissal with the Labour Relations Committee (LRC).
9. 637. On 9 April 2014, the LRC ruled in favour of nine workers stating that the dismissal violated section 121(1) of the LRA and ordered their reinstatement. While one worker’s complaint was rejected, the complainants consider that as he was fired for the same reason as the other nine workers, the reinstatement order should also apply to him. On 15 March 2015, he committed suicide. The complainants consider that his heirs should thus receive full compensation (in lieu of reinstatement).
10. 638. The complainants further allege that the employer failed to comply with the LRC’s order and indicate that in June 2014, the company filed an appeal against the LRC decision with the Central Labour Court (CLC). On 25 May 2015, the CLC upheld the LRC’s reinstatement order. In particular, the complainants indicate that it held that the employer must: reinstate nine workers to the same positions and retain them under the same working conditions; pay bonus under the collective bargaining agreement signed on 25 December 2013, including a payment of 15 per cent interest per year; pay social benefits due, including 15 per cent interest per year; and adjust annual wage of 2013 (at the rate of 6 per cent of worker’s salary, taking into account worker’s position under the wage structural framework).
11. 639. On 30 June 2015, the said nine workers wrote a letter to the employer requesting to return to work. The employer did not reply. On 7 July 2015, the TCTU submitted a letter, on behalf of the workers, to the employer requesting to reinstate the workers; but once again to no avail.
12. 640. On 7 July 2015, the company appealed the CLC decision to the Supreme Court.
13. 641. On 5 January 2016, the acting President of the SMTWU was demoted. On 17 March 2016, during a meeting with the Human Resources Department, he received a letter signed by the company’s President ordering him to immediately stop working and forbidding him from entering the factory. This resulted in the loss of his overtime pay, paid leaves and other benefits. The complainants point out, however, that the fact that he is still receiving wages precludes him from suing the employer because this situation does not violate the law.
14. 642. The complainants allege that the company continues to refuse to comply with the reinstatement orders of the LRC and the CLC and to prevent the SMTWU President from entering the workplace to meet workers and to check workplace conditions. The complainants consider that this is a clear indication of the employer’s anti-union and non bona fide attitude and underline that the company did not comply with the following international instruments: the Declaration of Philadelphia, the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the Termination of Employment Recommendation, 1963 (No. 119), Conventions Nos 87 and 98, and the Declaration on Social Justice for a Fair Globalization.
15. 643. Furthermore, the complainants denounce the inaction of the Government which failed to provide effective remedy. They refer, in particular, to section 158 of the LRA, according to which, “the employer who violates section 121 or section 123 of the LRA, shall be liable to imprisonment for a term not exceeding six months or to a fine of not exceeding ten thousand Baht, or to both”. The complainants point out that the violation of these sections was established by both the LRC and the CLC and non-compliance with the LRC and CLC orders should have immediately triggered criminal proceedings by the authorities. The authorities denied to file charges or to investigate the matter.
16. 644. By its communications dated 13 January and 11 July 2017, the TCTU informs that on 10 May 2016, it filed a complaint with the Japanese National Contact Point (NCP) pursuant to the OECD Guidelines for Multinational Enterprises. On 28 September 2016, the Japanese NCP informed the TCTU that “the company is unable to agree to engage in dialogue through the mediation of the Japanese NCP”. The TCTU further indicates that in its “Final Statement on a Specific Instance Involving [the parent corporation and the company] in Relation to the OECD Guidelines for Multinational Enterprises” rendered on 23 June 2017, the Japanese NCP concluded:
    • 5(2)(B). Despite the proposal for mediation by the Japanese NCP, the companies involved intend to respect the judicial procedures in Thailand and aim for resolution in accordance with the judicial procedures.
    • …
    • 6. The Japanese NCP recommends that [the parent corporation and the company] conduct activity while respecting the OECD Guidelines for Multinational Enterprises.
17. The TCTU thus concludes that the company also failed to comply with the abovementioned OECD principles.

B. The Government’s reply

1. 645. In its communications dated 24 February 2017, the Government outlines the facts of this case as follows. On 17 December 2013, a group of the company’s employees had submitted demands and negotiated with the employer in compliance with the procedures prescribed by the LRA. As no agreement was reached, on 21 December 2013 the employees notified a conciliation officer of the Rayong Provincial Office of Labour Protection and Welfare. On 25 December 2013, an agreement on conditions of employment was reached by both parties. On 26 December 2013, the SMTWU was registered. On the same day, ten labour leaders were dismissed. On 14 January 2014, the SMTWU filed a complaint of unfair practice (wrongful termination) to the LRC. On 9 April 2014, the LRC issued an order to the employer to reinstate nine labour leaders in their former positions on the previous conditions, without loss of pay and compensation and bonuses taking into account the terms of the agreement dated 25 December 2013. Regarding the tenth labour leader, the LRC determined that his termination was not an unfair practice as he was not involved in the submission of demands. On 14 March 2015, he committed suicide. The employer has not complied with the order of the LRC and appealed it to the CLC. On 25 May 2015, the CLC upheld the order of the LRC. On 7 July 2015, the employer appealed the CLC decision to the Supreme Court. At present, the appeal is still pending. The nine labour leaders have not been reinstated.
2. 646. The Government notes that the complainants allege that the Government has failed to: (1) provide effective remedy after the SMTWU President was demoted; (2) provide effective remedy when the company prohibited him to enter the workplace, which resulted in the loss of overtime pay, paid leave and other working benefits, and to enter the workplace to meet fellow workers and to inspect workplace conditions; (3) provide effective remedy after the company dismissed nine labour leaders unfairly; and (4) compensate the heirs of one of the signatories of the workers’ demands whose request for reinstatement was rejected by the LRC, which ultimately led to his suicide.
3. 647. In reply, the Government indicates, as concerns the above point (1), that the SMTWU President did not submit or assign his representative to submit a complaint on unfair practice regarding his demotion. Only when such a complaint is submitted, can the competent official determine whether or not the SMTWU President was demoted unfairly, in violation of section 20, 52 or 121 of LRA. If there is an unfair demotion, the competent officer can take an action as prescribed by the LRA.
4. 648. Regarding point (2), the Government indicates that the SMTWU President did not submit or assign his representative to submit a complaint regarding the alleged loss of benefits. When a complaint is submitted, the competent officer can take an action under the LRA against an unfair practice. Furthermore, as concerns the prohibition to visit the workplace, the Government considers that although the SMTWU President’s employment is terminated and the case is still under the consideration of the Supreme Court, he is free to contact and consult with the fellow employees outside the premises of the company.
5. 649. Regarding point (3), the Government reiterates that the LRC’s order provided for the payment of legitimate benefits to the employees concerned and that, while the CLC upheld the LRC’s decision, the employer appealed it to the Supreme Court where the case is still pending.
6. 650. Regarding the last point (4), the Government indicates that the LRC, a tripartite body, after a careful consideration, had found that nine of the ten employees were involved in submitting the demands and were unlawfully terminated under section 121 of the LRA. Subsequently, the LRC issued an order of reinstatement of these nine employees under section 123 of the LRA. The LRC did not issue an order of reinstatement for the tenth employee because he had not taken part in submitting the demands. Submission of demands was not a cause of his termination. It was found that 20 employees were employed on 24 September 2013, three of these employees resigned for personal reasons, 16 employees passed the performance evaluation after probationary period on 21 January 2014, and one, the person in question, failed the performance evaluation and his employment was terminated. Thus, according to the Government, his termination was not an unfair practice under section 121 of the LRA and was not protected by section 123 of the LRA.
7. 651. The Government points out that it is the right of both employee and employer who disagree with the CLC verdict to appeal to the Supreme Court, which determines the case based on facts and relevant legislation. If the Supreme Court upholds the verdict of the CLC, the employees concerned must be reinstated with compensation, and without loss of wages and benefits. If the employer fails to comply with the verdict of the Supreme Court, criminal proceedings must be taken against him/her.
8. 652. By its communication dated 27 March 2017, the Government forwards the company’s comments and observations on the allegations made in this case. The company first queries whether the TCTU could submit a complaint to the Committee on Freedom of Association on behalf of the SMTWU. The company further disagrees with the facts as related by the complainants and submits its own following outline.
9. 653. On 16 December 2013, at about 8 p.m. a night-shift employee who was absent from work commenced a protest with seven employees as core leaders. The demonstrators subsequently submitted informal demands to the employer and continued to protest with two more employees as leaders until 1 p.m. of 17 December 2013. The negotiations took place between the company and the representatives of employees who submitted demands. The negotiations did not involve the union, as the SMTWU had not yet been established at that time. A settlement agreement was signed on 25 December 2013.
10. 654. On 26 December 2013, the core leaders were dismissed. While the union was established on the same day, the company was not aware of its existence until 6 January 2014 when it received the union’s first official letter. The company argues that the nine employees were dismissed for acting as core leaders in inciting employees to stop working and join the protest during the night of 16 December 2013. Such action is considered to be a strike by the employees who have not properly and officially submitted demands and notified the employer and a labour inspector prior to the strike. Such practice is contrary to the process prescribed by the LRA and caused damage to the company as it had suspended the whole manufacturing process between 8 p.m. on 16 December 2013 and 1 p.m. on 17 December 2013.
11. 655. Furthermore, the termination of the tenth worker on 17 February 2014 was not due to the submission of demands which he was not involved in, but to his failure to pass his probation period (he did not pass the performance evaluation with a score of 53 points while the rating for passing is 60 points). To the company’s knowledge, he committed suicide due to his personal issues and that this was not related to the refusal of the LRC to issue protection order in his favour.
12. 656. The company further points out that the case was submitted to the LRC by the employees themselves, and not the union, on 17 January 2014. At present, the company does not accept the nine former employees back to work because the labour dispute involving these employees is not yet final. Following the LRC and the CLC decisions, the company exercised its right of appeal to the Supreme Court. It has deposited judgment amount and money to be paid in the future with the court as security and evidence that the company is capable of making payment when the dispute ends. The company further points out that it has submitted a request for stay or postponement of execution of the LRC’s order on the same day it filed its appeal with the Supreme Court. Therefore, the employer decided not to accept to reinstate the nine former employees because the decisions of the LRC and the CLC are not yet final and the case is still pending before the Supreme Court. The company further claims that the reinstatement of workers while the judgment is not final would affect peace, order and harmony of organization as well as be an obstacle for the employer to use its executive power as prescribed by the law.
13. 657. As regards the alleged demotion of the SMTWU President, the company indicates that this was not a demotion; rather, his duties were changed to adjust them to the new management structure of the company. Such adjustments involved many employees. Every employee concerned is still entitled to the same rights and benefits received prior to the adjustment. The company points out that according to the law, it is entitled to undertake such action without obtaining prior consent from the employees. Concerning the prohibition to access its premises, the company indicates that this is due to the fact that the employer is currently submitting a request to the court for permission to terminate his employment. The company claims that he lacks efficiency and intentionally causes work delay, thus causing damages to the company. Allowing him to continue working will only cause further damages to the employer. However, the company continues to pay him normal wages and benefits, despite the fact that he is not required to work; thus, he does not suffer any damages in terms of working benefits. Under the LRA, the company’s actions are not considered to be an unfair practice. Moreover, he is free to contact and consult with his fellow employees outside the company’s premises. With regard to the alleged loss of remuneration from working overtime and bonuses, the company points out that it is the sole discretion of the employer whether to request his or her employee to work overtime.
14. 658. Finally, the company points out that it is a juristic person incorporated under the Thai laws and that it is the duty of the Thai Government, as a member State, to legislate and prescribe domestic guidelines which are in line with the international labour standards, while the duty of the company is to adhere to and comply with the promulgated laws of the country.
15. 659. In its communication dated 27 September 2017 the Government indicates that the case is still pending before the Supreme Court.

C. The Committee’s conclusions

1. 660. The Committee notes that this case, brought by the SMTWU and the TCTU, concerns the dismissal of ten workers from the company, as well as the alleged demotion of the SMTWU President and prohibition imposed on him to access the company’s premises. The facts of the case on which the complainants, the Government, as well as the company, appear to agree can be summarized as follows.
2. 661. On 17 December 2013, a group of the company’s employees had submitted the demands and negotiated with the employer in compliance with the procedures prescribed by the LRA, while requesting registration of their union on 18 December 2013. As no agreement was reached, on 21 December 2013, the employees notified a conciliation officer of the labour dispute, in accordance with the legislation in force. On 25 December 2013, an agreement was reached by both parties. On 26 December 2013, the SMTWU was registered. On the same day, ten workers were dismissed. In January 2014, the SMTWU filed a complaint of unfair practice (wrongful termination) to the LRC. On 9 April 2014, the LRC issued an order of reinstatement of nine labour leaders in their former positions without loss of pay and benefits. Regarding the tenth labour leader, the LRC determined that his termination was not an unfair practice as he was not involved in the submission of the demands. On 14 March 2015, he committed suicide. The employer has not complied with the LRC order, but appealed it to the CLC. On 25 May 2015, the CLC upheld the LRC order. On 7 July 2015, the employer appealed the CLC decision to the Supreme Court. At present, the appeal is still pending. The nine labour leaders have not been reinstated.
3. 662. The Committee notes a copy of the LRC Order. It notes, in particular, that having heard the witnesses and conducted its investigation, the LRC concluded to the violation by the company of section 121(1) of the LRA, concerning unfair practices, and ordered the reinstatement of nine labour leaders. The Committee notes that according to section 121(1):
   • No employer shall:
     • (1) terminate the employment or act in any manner which may make it for an employee, a representative of the employee, a director of labour union or a director of labour federation unbearable to continue working, due to the fact that the employee or labour union calls for a rally, files a complaint, submits a demand, participates in a negotiation or institutes a law suit or acts as a witness or submits evidence to the competent official under the law on labour protection or to the Registrar, conciliation officer, labour dispute arbitrator or Labor Relations Committee under this Act or to the Labour Court, or due to the fact that the employee or the labour union prepares to do so.
4. 663. The Committee notes with regret that the case of nine workers dismissed in December 2013 is still pending on appeal and that in the meantime, these workers have not been reinstated. It recalls in this respect that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. In a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 826 and 827]. The Committee further considers that in view of the time that has elapsed and given that both the LRC and the CLC have called for the reinstatement of workers dismissed on anti-union grounds, consideration should be given to their reinstatement or compensation pending appeal so that they may continue efficiently to represent their interests without being unjustly deprived of any income throughout this lengthy process. The Committee therefore requests the Government to review the situation of workers whose reinstatement was ordered by the LRC and the CLC to see how they may be efficiently supported pending the final decision of the Supreme Court and to keep it informed of all measures taken in this respect. It further requests the Government to provide a copy of the Supreme Court decision once it has been handed down.
5. 664. The Committee further notes that having considered the facts and the information presented to it, the LRC concluded that there was no unfair labour practice with regard to the tenth worker who subsequently committed suicide in March 2015. While noting this information with sympathy and compassion, as no evidence was presented to it beyond the information already examined by the LRC, the Committee will not pursue the examination of this allegation.
6. 665. The Committee further notes that the complainants allege that the SMTWU President, was demoted on 5 January 2016, and thus, no longer benefits from the overtime pay, etc. and that on 17 March 2016, he was ordered to stop working and not to enter the premises of the company; however, the fact that he is still receiving wages precludes him from suing the employer, as the current situation is in conformity with the law. For its part, the Government indicates that no formal complaint of unfair labour practice was lodged by him. As concerns the prohibition to visit the workplace, the Government considers that although the SMTWU President’s employment was terminated and the case is still under the consideration of the Supreme Court, he is free to contact and consult with the employees outside the premises of the company. The Committee further notes that the company’s assertion that the changes in his duties were the result of the new management structure, which affected many employees and that all employees, including the union President, are entitled to the same rights and benefits they received prior to the adjustment. The company points out that according to the law, it is allowed to undertake such actions without obtaining prior consent from the employees. It further points out that it has sole discretion to request or not his or her employee to work overtime. Concerning the prohibition to access its premises, the company indicates that this is due to the fact that the employer is currently submitting a request to the court for permission to terminate the SMTWU President employment. While the company continues to pay him normal wages and benefits, despite the fact that he is not required to work, the company claims that he lacks efficiency and intentionally causes work delay, thus causing damages to the company. The company further confirms the Government’s statement that he remains free to contact and consult with his fellow employees outside the company’s premises.
7. 666. The Committee understands that the termination case of the SMTWU President, brought by the employer, is still pending while he continues to receive wages and benefits, with the exception of overtime income. With reference to the principles above, the Committee expects that the court will pronounce on his dismissal without delay and that the union and its President can exercise fully their freedom of association rights and trade union activities. It requests the Government to keep it informed in this regard and to provide a copy of the judgment once it has been handed down.