Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 392, Octubre 2020

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

1. 161. The Committee last examined this case, which was submitted in April 2013 and which concerns allegations of anti-union dismissals, imposition of penalties for conducting an industrial action and a number of failures in the law to protect the rights of workers and trade unions, at its March 2019 meeting [see 388th Report, paras 62–69]. On that occasion, the Committee requested the Government to: (i) keep it informed of any developments with regard to the draft bill amending the State Enterprise Labour Relations Act, 2000 (SELRA); (ii) provide information on any new developments concerning 13 members of the State Railway Workers’ Union (SRUT) whose dismissal had been confirmed by the Supreme Court; and (iii) endeavour to bring the parties together with a view to resolving the pending issues, including sanctions imposed against seven SRUT leaders for violations of strike prohibitions and the filing of corruption charges against several union leaders.
2. 162. In a communication dated 10 October 2019, two of the complainants – the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) – requested the urgent intervention of the ILO in respect of new developments in the present case and provided additional information in this regard. In particular, the complainants denounce continued judicial harassment and anti-union attacks against SRUT leaders by reason of their legitimate trade union activities. They allege that based on the Attorney General’s order of prosecution, the Central Criminal Court for Corruption and Misconduct Cases convicted 13 SRUT leaders for negligence of official duties under section 166 of the Penal Code. The leaders face a sentence of up to five years of imprisonment and a fine of 20,000 Thai baht (THB). Since the October 2019 decision, the union leaders have been on bail at an amount of THB100,000 each and have been ordered to present themselves to the court on 11 November 2019. In a communication dated 23 October 2020, the complainants allege that on 21 October 2020, the Central Criminal Court for Corruption and Misconduct Cases sentenced the 13 SRUT union leaders to three years in prison and that the unionists have been granted bail pending appeal. The complainants denounce the use of state bodies, such as the National Anti-Corruption Commission (NACC), to undermine legitimate trade union activities and the principles of freedom of association.
3. 163. The complainants further state that seven SRUT leaders started paying the damages ordered under the 2017 Supreme Court decision and recall that these amount to THB24 million (approximately US$500,000) and were imposed for legitimate trade union activities, contrary to the principles of freedom of association. They add that the 13 previously dismissed SRUT members – Wirun Sakaekum, Prachaniwat Buasri, Nittinai Chaiyaphum, Sorawut Phothongkam, Thawatchai Boonwisoot, Saroj Rakchan, Sawit Kaewvarn, Thara Sawangtham, Liam Mokngam, Pinyon Ruenphet, Arun Deerakchat, Bunjong Bun-net and Supichet Suwanachatri – are again facing the threat of termination by the enterprise. Finally, the complainants express concern that the continued harassment and anti-union attacks may result in bankruptcy of the union and its leaders, as well as imprisonment of the workers, and therefore ask the Committee to call on the Government to: withdraw the charges at the Central Criminal Court for Corruption and Misconduct Cases; withdraw the fines and reimburse the seven union leaders for monies deducted; ensure that the union leaders receive full compensation for lost wages and benefits which they have not received since their reinstatement; and abrogate obsolete laws that are contrary to its obligations under international labour standards, including sections 33 and 77 of the SELRA and section 166 of the Penal Code.
4. 164. The Government provides its observations in communications dated 22 March 2019 and 7 February 2020. As for the legislative reform, it indicates that the Ministry of Labour proposed a draft bill that abrogates section 33 and nullifies section 77 of the SELRA and contains additional provisions which allow industrial action among state enterprise employees in line with the rules and procedures stipulated therein. The draft bill underwent public hearing procedures and is currently being analysed under the Legislation Drafting and Regulatory Impact Analysis Act, 2019.
5. 165. With regard to the seven SRUT leaders, who were dismissed in 2011 and ordered to pay a fine of THB24 million in response to violations of strike prohibitions, the Government states that the workers fully exercised their rights across national judicial procedures, that a writ of execution was issued to put in force the judgment but that the Ministry of Labour and the relevant agencies, in cooperation with the enterprise, provide assistance to the concerned union leaders. In January 2019, the enterprise appointed a Working Committee on the Execution of Judgments Resulting from the Occupational Health and Safety Initiative to consider the possible withdrawal of or refrainment from executing the judgments resulting from this campaign. The Working Committee is chaired by a member of the Committee of the enterprise and is composed of the Director of the Human Resources Department, the Director of Finance and Accounting, the Head of District Legal Office and an SRUT representative, with the Director of Legal Bureau and the legal enforcement officer as the secretariat. The Government informs that the suggestion to assist the seven leaders in reducing the fines was proposed to the Committee for final consideration. At present, the enterprise provides immediate assistance to the workers by paying the salary of THB25,000 per month, instead of suspending the salary, so as to alleviate their difficulties. The Government adds that Mr Sawit Kaewvarn, who is also the Secretary-General of the State Enterprise Workers’ Relations Confederation, plays an important role as a workers’ representative and has been in a favourable relationship and cooperation with the Ministry of Labour for many years.
6. 166. Concerning the corruption charges filed against 13 SRUT leaders, the Government states that the NACC has identified the workers for negligence of official duties and the case is under criminal court process. The Government affirms that the Ministry of Labour is ready to give positive information on international labour standards to the Court, if requested, so as to ensure fairness for all parties. The Department of Labour and Welfare also conducted a meeting with 15 relevant agencies in January 2020 to discuss the case further with the aim of raising awareness of the agencies on the rights of workers and the principle of freedom of association.
7. 167. The Committee takes note of the information provided by the complainants and the Government. In particular, it welcomes the Government’s indication that a draft law that abrogates sections 33 and 77 of the SELRA underwent public hearings and is in the process of being finalized. The Committee trusts that the draft law will be adopted without delay and will be in conformity with the principles of freedom of association, in particular as regards industrial action of state enterprise unions and penalties imposable for violations of the provisions on the right to strike. The Committee requests the Government to keep it informed of any developments concerning the draft law and to provide a copy of the text once adopted.
8. 168. With regard to the sanctions imposed against seven SRUT leaders in response to violations of strike prohibitions, the Committee notes from the information provided that the workers have started paying the fines in the amount of THB24 million but that the Ministry of Labour and the relevant agencies, in cooperation with the enterprise, provide assistance to the union leaders through the payment of their salary. The Committee also observes the Government’s indication that a Working Committee has been appointed by the enterprise to consider the possible withdrawal of or refrainment from executing the court’s decisions and that the suggestion to assist the union leaders to reduce the fines is before the Working Committee for final consideration. While welcoming these initiatives and the Government’s engagement in exploring ways to alleviate the workers’ difficulties, the Committee regrets to observe that following the issuance of a writ of execution, the concerned union leaders were obliged to start paying the fines, especially considering that the fines had been imposed in response to violations of strike prohibitions, which are themselves contrary to the principles of freedom of association, and that their excessive amount is likely to have an intimidating effect on the trade union and its leaders and inhibit their legitimate trade union activities [see 372nd Report, June 2014, para. 617]. In light of the above, the Committee requests the Government to continue to endeavour to bring the parties together with a view to resolving this pending issue and trusts that the ongoing discussions in the Working Committee or through other channels will result in the withdrawal of the fines imposed on the SRUT leaders. The Committee requests the Government to keep it informed of any developments in this regard.
9. 169. Concerning the dismissal of 13 SRUT members for having organized or participated in the Occupational Health and Safety Initiative, the Committee recalls that the complainants had previously mentioned reinstatement of the workers and payment of wages but observes that, in their latest communication, they once again denounce the threat of imminent dismissal. The Committee notes this with concern and wishes to recall that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1104]. In these circumstances, the Committee requests the Government to engage with the enterprise so as to ensure that the 13 SRUT members are not subjected to the threat of dismissal or other forms of anti-union harassment and can freely exercise their freedom of association rights.
10. 170. As to the corruption charges filed against several SRUT leaders, the Committee notes with concern the complainants’ allegations that the Central Criminal Court for Corruption and Misconduct Cases convicted 13 SRUT leaders for negligence of official duties in relation to legitimate trade union activities, including the Occupational Health and Safety Initiative, and sentenced them to three years of imprisonment; the unionists are currently on bail pending appeal. The Committee recalls in this regard that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities [see Compilation, para. 80] and that the Committee has pointed out the danger for the free exercise of trade union rights of sentences imposed on representatives of workers for activities related to the defence of the interests of those they represent [see Compilation, para. 154]. In view of the above and observing the Government’s indication that the case is currently before the court, the Committee trusts that its conclusions will be brought to the attention of the relevant court and that the charges against the SRUT leaders will be dropped, should they in any manner relate to, or be motivated by, the exercise of legitimate trade union activities. The Committee requests the Government to keep it informed of any developments on this matter and to reply to the latest communication from the complainants dated 23 October 2020.
11. 171. Finally, observing the Government’s indication that the Department of Labour and Welfare conducted a meeting with the relevant agencies in January 2020 to discuss the case so as to raise awareness on the rights of workers and the principle of freedom of association, the Committee trusts that all pending issues in this case will be resolved without delay, bearing in mind the interests of all parties concerned, while ensuring a climate for the development of harmonious labour relations and full respect for freedom of association.