Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes the information provided by the Government in reply to its earlier comments.

1. Article 1(a) of the Convention. The Committee noted previously 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 indicates in its report that the Anti-Communist Activities Act is taken care of by the Ministry of Defence and repeats that it is important to the nation's interest and security.

The Committee must again point out that these provisions may be used as a means of political coercion or as a punishment for holding or expressing, even peacefully, certain political views or views ideologically opposed to the established political, social or economic system, and are accordingly incompatible with Article 1(a) of the Convention, in so far as the penalties provided involve compulsory labour. It therefore reiterates its hope that the necessary measures will be taken to ensure the observance of the Convention in this respect, and asks the Government to report on the action taken.

2. Article 1(c). In comments made since 1976, the Committee has noted that sections 5, 6, and 7 of the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), provide for the forcible conveyance of seafarers on board ship to perform their duties. In 1990, the Committee noted the Government's indication in its report for the period ending 30 June 1988 that "the Act for the prevention of desertion or undue absence from merchant ships, B.E. 2466 (1923), has not been changed or repealed at present", but that a committee had been established for considering seafarers' legislation.

The Government in its latest report attributes the lack of progress in this respect to the division of responsibility among several government agencies, such as the Ministry of Labour and the Harbour Department, the Bureau under Ministry of Transport and Communication. The Committee recalls the Convention's requirement that forced labour should not be used as a means of labour discipline and asks the Government to report on any 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, paragraph (2), 22, paragraph (2), 23 to 25, 29, paragraph (4), or 35(4) of the Labour Relations Act. The Government considered these provisions necessary to make both employers and workers abide by agreements on terms of employment or arbitration awards and that they do not provide for compulsory labour. The Government indicates in its latest report that the provisions of sections 131 and 133 were applied to only a few cases and no imprisonment was imposed. The Committee previously noted 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, 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 now states in the report that it agrees that the distinction between essential and non-essential services should be addressed, but that it is not ready to sacrifice its well-organized system of law for the clearer meaning of "essential service". The Committee trusts that the Government will nevertheless reconsider this question in the light of its obligations under the Convention, which aims to protect the fundamental human right to freedom from forced labour, and that it will provide full details in its next report. It notes in this context the Government's indication that the Senate was in fact expected to discuss the definition of "essential services".

4. Article 1(d). In its earlier comments, the Committee 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 Committee notes the Government's statements in its latest report, which seem to regard the effective enforcement of the provisions in question as dependent on the inclusion of compulsory labour in the penalty of imprisonment. Although under the above-mentioned provisions of the Act, penalties of imprisonment involving compulsory labour may be imposed for participation in strikes which are not excluded from the scope of the Convention, i.e. 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), in a wider range of circumstances their enforcement with penalties involving compulsory prison labour is contrary to Article 1(d) of the Convention. To this extent, then, the question seems therefore to depend once again on the definition of "essential services". With reference to paragraphs 122 to 132 of its General Survey of 1979 on the abolition of forced labour, and recalling the Government's indication in its report ending June 1988 that the powers conferred under section 35 of the Act have seldom been used, the Committee expresses firmly the hope that the Government will take the necessary measures to have the above-mentioned provisions amended.

5. The Committee previously 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 General Survey of 1979, 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 apply neither 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 Committee notes the Government's statement in the report that the sole object of section 117 is the prohibition of "purely political" strikes and not the suppression of the right to strike or to bargain collectively. It observes that Article 1(d) makes no distinction as between "political" and other strikes. The Committee again requests the Government to provide information on the application in practice of this provision, including the number of sentences of imprisonment and particulars of relevant court decisions, as well as on any measures taken or contemplated in this connection to ensure the observance of the Convention.

6. In its earlier comments the Committee 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 General Survey of 1979 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 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 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 report that the State Enterprise Labour Relations Act is now before the Senate for consideration and that the issue of a definition of essential services is likely to be discussed. The Committee therefore hopes that appropriate measures will be taken in the near future with a view to bringing the Act into conformity with the Convention and asks the Government to supply, in its next report, full information on the progress made in this regard.

7. In general, as regards the question of the roles of different government agencies and, in particular, in relation to the definition of "essential services" for purposes of the Convention, the Committee would remind the Government that the technical advisory services of the ILO are at its disposal.