Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 353, Mars 2009

1. 1274. The complaint is set out in a communication of 7 March 2008 from the Federation of Thailand Automobile Workers’ Unions (TAW). The TAW submitted additional information in a communication of 10 July 2008.
2. 1275. The Government submitted its observations in communications of 18 June and 23 September 2008.
3. 1276. Thailand has not ratified 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. The complainant’s allegations

1. 1277. In its communication of 7 March 2008, the complainant states that the Thai Summit Eastern Seaboard Autoparts Industry Co. Ltd. (TSESA) had engaged in a pattern of systematic obstruction and violation of the rights to freely join a union and engage in collective bargaining after discovering that its workers had joined one of the complainant’s affiliates – the Ford and Mazda Thailand Workers’ Union (FMTWU).
2. 1278. According to the information provided by the complainant, on 17 August 2006, 400 workers among the total workforce of 795 employees at TSESA joined the FMTWU. On 16 September 2006, the FMTWU members employed by the TSESA held an Extraordinary Meeting and approved a formal resolution (as required by the Labour Relations Act (LRA), 1975) to put forward collective bargaining demands to the TSESA management; the said demands were submitted by the FMTWU to Mr Anek Atthajinda, TSESA’s Human Resources Director and designated representative, on 6 November 2006.
3. 1279. Bargaining sessions between TSESA management and the FMTWU took place on 8, 16, 24 and 29 November 2006, over the course of which demands and counter-demands were submitted by both parties. After the fifth bargaining session on 7 December 2006 failed to produce an agreement between the parties, the union decided to report a labour dispute (in accordance with section 21 of the LRA).
4. 1280. On 13 December 2006 the labour dispute was mediated at the Provincial Labour Protection and Welfare Office in Rayong province. At the mediation, the company’s representative agreed to transmit the union’s demands concerning a bonus and additional wages of 5,000 baht (THB) to the company for consideration. A second mediation session was held on 15 December 2006, in which the company’s representative presented a proposal comprising a bonus scheme, special additional money of THB2,000 deducted from the food allowance, and an annual wage increment; the union rejected this proposal.
5. 1281. At the third mediation session, which took place on 21 December 2006, the union proposed new demands comprising a minimum bonus of 4 per cent plus THB5,000, a food allowance of THB45 per day, and varied annual wage increments proportional to the employee’s performance; the company refused this proposal.
6. 1282. On 26 December 2006, a Ministry of Labour (MoL) mediator attempted to mediate the labour dispute at the TSESA office. At the mediation session the union representative proposed a 4 per cent bonus and the sum of THB5,000, which was refused by the company. On that same day, the management ordered union members to stop working between 8.00 a.m. and 5.30 p.m. and announced an indefinite lockout as of 5.30 p.m. The employer partially lifted the lockout on 27 December 2007, by allowing only those union members who agreed not to involve themselves in the collective bargaining demands to return to work.
7. 1283. Another mediation session was held on 9 January 2007, with both parties again failing to reach any agreement. On 10 January 2007, the union bargaining committee and several rank-and-file members travelled to Bangkok to seek the MoL’s assistance, and camped in front of the MoL for two nights. On 12 January 2007 a union bargaining committee representative and several union members, locked out by the employer, moved their demonstration to the area in front of the Rayong provincial government office. The union and the employer also agreed to consider the suggestion, made by a labour mediator from the Labour Relations Committee that their dispute be submitted to arbitration in accordance with section 26 of the LRA.
8. 1284. Mediation was again attempted on 15 and 17 January 2007 without producing any agreement between the parties; in the former session the union’s suggestion that the dispute be submitted to arbitration was rejected by the company. On 19 January 2007, the parties reached an agreement on the following points:
9. (1) the appointment of the Labour Relations Committee as the arbitrator of the two sides’ demands;
10. (2) that the company would pay THB2,000 as “assistance money” to each of those workers who had been locked out, and permit them to return to work between 1 and 3 February 2007;
11. (3) that the workers involved with the union’s collective bargaining demands would not be victimized by the company.
12. 1285. Subsequently however, several employees claimed that they had not received the assistance money, while the company insisted that they had been paid. Furthermore, upon returning to work the previously locked-out employees (249 persons, according to the list of names attached to the complaint) were required to attend special training sessions organized by the employer, held between 1 and 9 February 2007 and consisting of courses with such titles as “The etiquette of living together” and “consciousness building”. The employer informed these workers that similar training sessions might possibly be organized, at its discretion. On 9 February 2007 the employer announced the termination of ten of the most active union members, claiming that they had deserted their duties and were therefore not entitled to severance pay under the Labour Protection Act of 1998. The unionists dismissed were: Detnarong Wiriya, Nop Wareepipat, Suchart Pitto, Phongsiri Khomkham, Phanomkorn Phandet, Jetsada Kaenjan, Wichai Jandaeng, Parichat Lekpo, Chanida Khunin and Napasawan Khongthong. The employer further announced that training sessions would continue until 23 February 2007 for the remaining union members.
13. 1286. On 15 February 2007, Napasawan Khongthong and other union members filed a complaint against the company with the Labour Relations Committee (a tripartite body established under the LRA). The complaint requested the reinstatement of the ten dismissed trade unionists and a halt to the discriminatory acts being committed against the remaining 239 union members who had previously been locked out. On 19 February 2007, the company announced that the training sessions would continue until 28 February.
14. 1287. On 20 February 2007, the union submitted a complaint to the Thailand National Human Rights Commission (NHRC), which was received and designated as case No. 86/2550. The NHRC’s Subcommittee on Labour Rights was assigned to investigate the complaint. On 1 March 2007 union representatives and company management met at the Rayong Provincial Labour Protection and Welfare Office, where the MoL officer was informed that the company had agreed to pay remuneration of 1.5 times the wage rate of half an hour for both daily and monthly workers, which was to be wired to the workers’ bank accounts by 22 March 2007, and would then submit the evidence of payment to the MoL officer by 23 March 2007. The company had also agreed to change the working hours back to the old schedule – from 8 a.m. to 5 p.m. – and provide weekly holidays on a regular basis.
15. 1288. According to the union, the company continued to refuse to allow the union members to return to work, as earlier promised. Instead the latter were subject to training for another month, with the objective of eventually forcing them to leave in search of new jobs. On 14 March 2007, Somkiat Kanngam of the union subcommittee filed a statement with the Plaukdaeng Police Station accusing the company of not complying with the agreement of 19 January 2007. The FMTWU had also filed complaints with the following organizations and state agencies: the Pluakdaeng Chief of District Administration, the Rayong Provincial Governor’s Office, the Labour Protection and Welfare Department of the MoL, the Labour Minister, the National Security Council, the NHRC, the Prime Minister’s Office, the Solidarity Centre – Thailand, the 14th Military Regiment (Eastern Region), and the TAW.
16. 1289. On 30 March 2007, the employer declared 2 and 7 April 2007 to be holidays and stated that training sessions would resume on 16 April 2007. On that day, the company distributed leaflets offering money to union members wishing to resign, in amounts proportional to their years of service. The complainant asserts that this was tantamount to offering severance pay, and that the intent of the leaflets was to undermine workers’ morale and give the impression that terminations were to commence. It further states that although the workers were ready to return to work after the collective bargaining process was finished, the employer did not wish to settle the dispute peacefully. As of 15 April 2007, the company had still not allowed the union members to return to their regular work, but continued to require them to attend training sessions while paying them a basic salary.
17. 1290. On 9 May 2007, the NHRC Subcommittee on Labour Rights conducted a public hearing as part of its investigation and received evidence from the company’s management, the union and other stakeholders.
18. 1291. On 26 May 2007, the company moved several workers to a warehouse (factory 3) 3 kilometres away from the main factory. According to the complainant there is only one work shift at factory 3; the workers assigned there are divided into three groups and required to work one day while stopping for three days.
19. 1292. The complainant indicates that the company again offered buyouts to employees on 6, 7, and 8 June and 17 August 2007. Those who had worked longer than one year received eight times as much as their basic salary; the resignation and payment was conducted at workers’ homes. As of 23 October 2007, moreover, 25 union members continued to work at factory 3 and were unable to return to the main factory.
20. 1293. Attached to the complaint is a list of names of trade unionists, comprised of the ten dismissed union leaders and 239 other union members whom the company had subjected to training or reassigned to factory 3.
21. 1294. An order of the Labour Relations Committee (Pronouncement No. 329-577/2007), dated 15 May 2007, is attached to the complaint. The order was issued on the basis of the complaint filed by Napasawan Khongthong and the other trade unionists (249 in all) on 15 February 2007. The facts relating to the dispute, as recorded within the order, are as follows.
    • – Following the union’s submission of demands to the employer in November 2006, five negotiations and ten mediation sessions were held without concluding an agreement. On 26 December 2006 the employer locked out only those employees involved with the collective bargaining demands; on the following day the employees concerned were allowed to return to work after signing a letter of consent.
    • – The 250 union members who refused to return to work gathered in front of the company and were subjected to various forms of harassment, including being chased away by company staff and being charged with intrusion. The employer attempted to persuade them to return to work by offering benefits and simultaneously threatened them with dismissal if they did not return; it also telephoned and sent postcards to the employees’ parents in various provinces.
    • – An agreement was reached on 19 January 2007, under which the employer agreed to pay THB2,000 to the employees concerned and allow them to return to work from 1 to 3 February 2007. When the 249 employees returned to work on 1 February 2007, the employer issued a letter claiming to prepare the employees for returning to work and enhance labour relations by offering a training session to them, without specifying any timeframe for allowing the latter to resume normal employment. The employees concerned continued to receive compensation as if they were working on a regular basis. The employer furthermore prolonged the training sessions, claiming that the trainees had not demonstrated improvement as justification for this course of action, and had distributed forms for compensation in the event of resignation to the employees concerned during their training; approximately 50 of the trade union members decided to resign and accept the compensation offered by the employer.
    • – As concerns the ten trade unionists dismissed, they had initially given their consent to return to work and waived all collective bargaining demands on 27 December 2006. After doing so, however, they subsequently decided to stop working, as of 5 January 2007, and remain with the other employees who had refused to return. They issued a letter requesting cancellation of their consent to return to work forms and submitted this letter to the union; the union subsequently admitted that it did not forward the letter to the employer or inform the latter about the ten unionists’ retraction of their consent. The latter were dismissed on 9 February 2007, with the employer claiming that after agreeing to return to work they had failed to do so during the period
22. 5–31 January 2007, thus causing severe and wilful damage, violating company regulations, and constituting desertion of work for over three consecutive days without reasonable cause.
23. 1295. The Labour Relations Committee found, on the basis of the facts above, that the ten workers had not been dismissed on the basis of their membership in the union but for having deserted work, as they had earlier given their consent to return but subsequently failed to appear to work. It also concluded that requiring the union members to attend training sessions with no specified end-period, instead of assigning them regular work, may have led to the resignation of some among their ranks and therefore constituted an unfair labour practice under the LRA. The Labour Relations Committee subsequently dismissed the ten unionists’ claim for reinstatement and ordered the employer to assign regular work to the 239 other union members.
24. 1296. A copy of the NHRC’s investigation of the dispute at hand (report No. 101/2550) is also attached to the complaint. In addition to the facts set out in the complaint and the order of the Labour Relations Committee, the NHRC report makes reference to four men in military-like clothing – apparently members of the Royal Thai Navy – entering the company site during negotiations between the union and the company and being escorted around the premises by the company’s human resources manager. Among the NHRC’s findings were that the training sessions referred to by the complainant covered such topics as ethics on coexistence, unfair practices, leadership and followers, team work, organization conscience, and environmental awareness and safety at work. It also found that certain hardships were intentionally imposed upon the union members subject to these training sessions, as the training facility lacked water and was situated a considerable distance away from where the members could obtain meals. It concluded that the company’s conduct, including the imposition of mandatory training sessions, violated the employees’ right to organize or join a trade union and constituted an attempt to have the latter give up their rights to freedom of association and collective bargaining, in violation of the LRA.
25. 1297. In respect of the ten dismissed trade unionists, the NHRC found, inter alia: (1) that they were informed by their supervisors that signing the consent to return to work forms did not entail any obligations, and that once they realized the potential consequences of their actions they had verbally cancelled their consent forms to their respective supervisors; (2) that the MoL official who had acted as a mediator between the company and the union had informed the union that it was not necessary to cancel the signed consent forms, as the demands were submitted by the union and individual members were not entitled to withdraw them; and (3) that the union had nevertheless submitted the written cancellation of the ten unionists’ consent forms to the MoL official on 10 January 2007. The NHRC concluded that the real reason for the dismissal of the ten trade unionists was their union membership, and was therefore unjustifiable. Finally, the NHRC also concluded that bringing military personnel into company premises during negotiations constituted an attempt to intimidate the union and frustrate its attempt to exercise its right to engage in collective bargaining.
26. 1298. In its communication of 10 July 2008, the complainant attaches a translated version of the 19 January 2007 agreement referred to above.

B. The Government’s reply

1. 1299. In its communication of 18 June 2008, the Government confirms that in its Order
2. No. 329-577/2007 the Labour Relations Committee dismissed the ten unionists’ claim for reinstatement but ordered the employer to assign regular employment to the 239 other union members. Furthermore, the Department of Labour Protection and Welfare has followed up on the employer’s compliance with the order and presently understands that 61 workers have been allowed to work in a new factory operated by the employer. As for the 178 other employees, they have resigned from their jobs and received severance pay, including a special payment of two months’ wages for each worker in accordance with the provisions of the Labour Protection Law.
3. 1300. The Government further states that on 25 July 2007, the Department of Labour Protection and Welfare assigned a workers’ representative and an employers’ representative from the Labour Relations Committee, together with an official from that body, to a fact-finding visit to the factory where the 61 union members had been reassigned. On the basis of this visit the Department of Labour Protection and Welfare concluded that the assignment of the 61 workers to the factory constituted compliance with Order No. 329-577/2007 of the Labour Relations Committee and informed the union of its decision. The union was free to appeal the said order to the Labour Court, if it so wished.
4. 1301. In its communication of 23 September 2008, the Government indicates that although the 19 January 2007 agreement between the employer and the union stipulated that the union members concerned were to be reinstated in their previous jobs, some employees were assigned to a new factory with different working conditions from the previous one. Although Order No. 329-577/2007 of the Labour Relations Committee ordered the employer to assign jobs to all of the 239 members concerned, the employer has yet to comply with the order. Finally, the Government indicates that the union has brought an action before the 2nd Regional Labour Court, which was currently pending.

C. The Committee’s conclusions

1. 1302. The Committee notes that the present case involves allegations of acts of anti-union discrimination, including dismissals, harassment and other acts intended to frustrate collective bargaining and prevent workers from exercising their right to organize and join unions. The Committee notes that the information at its disposal establishes the following.
   • – In August 2006, 400 workers out of the employer’s total workforce of 795 joined the FMTWU, which subsequently submitted several collective bargaining demands to the employer on 6 November 2006. Several bargaining and mediation sessions were held in November and December 2006, without the parties concluding a collective agreement.
   • – On 26 December 2006 the employer locked out those employees involved with the collective bargaining demands and allowed those agreeing not to involve themselves with the demands to return to work the next day, after signing a letter of consent to return to work. Two hundred and fifty union members refused to return to work and engaged in demonstrations in front of the company, where they were subject to various forms of harassment, including being chased away by company staff and being charged with intrusion. The employer also attempted to persuade them to return to work by offering benefits and simultaneously threatened them with dismissal if they did not return.
   • – On 19 January 2007 an agreement was reached, under which the employees who had refused to return to work would be paid THB2,000 each and allowed to return to work from 1 to 3 February 2007. When the 249 employees returned to work on 1 February 2007, the employer issued a letter stating that to prepare the employees for returning to work and enhance labour relations they would be offered a training session, without specifying any timeframe for allowing the latter to resume normal employment. The employees concerned continued to receive compensation as if they were working on a regular basis.
   • – On 9 February 2007 the employer dismissed the following trade unionists, claiming that they had deserted their duties and were therefore not entitled to severance pay under the Labour Protection Act of 1998: Detnarong Wiriya, Nop Wareepipat, Suchart Pitto, Phongsiri Khomkham, Phanomkorn Phandet, Jetsada Kaenjan, Wichai Jandaeng, Parichat Lekpo, Chanida Khunin and Napasawan Khongthong.
   • – The employer subsequently prolonged the training sessions for the 239 other trade union members, claiming that they had not demonstrated improvement as justification for this course of action. It also distributed in April, June and August 2007 forms for compensation, in the event of resignation, to the employees concerned.
   • – On 15 May 2007 the Labour Relations Committee issued Order No. 329-577/2007 dismissing the ten trade unionists’ claim for reinstatement but ordering the employer to assign regular work to the 239 other trade union members. The Department of Labour Protection and Welfare, in following up on the employer’s compliance with the order, determined that 61 workers had been allowed to work in a new factory operated by the employer, while the 178 other trade unionists had resigned from their jobs and received severance pay in accordance with the provisions of the Labour Protection Law.
2. 1303. With respect to the allegations set out above, the Committee recalls, at the outset, that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 769 and 771].
3. 1304. As concerns the ten dismissed trade unionists, the Committee notes that in Order
4. No. 329-577/2007 the Labour Relations Committee determined that they had not been dismissed on the basis of their membership in the union but for having deserted work, as they had earlier given their consent to return to work but subsequently failed to appear without notifying the employer of their cancellation of the consent forms. The Committee nonetheless also notes that, in its investigation of the matter, the NHRC Subcommittee on Labour Rights found that the dismissed trade unionists were informed by their supervisors that signing the consent to return to work forms did not entail any obligations, and that, once they realized the potential consequences of their actions, they had verbally cancelled their consent forms to their respective supervisors. The NHRC also found that the MoL official who had acted as a mediator between the company and the union had informed the latter that it was not necessary to cancel the signed consent forms, as the demands were submitted by the union and individual members were not entitled to withdraw them; it concluded that the real reason for the dismissal of the ten trade unionists was their union membership, and was therefore unjustifiable.
5. 1305. The Committee further observes that these dismissals occurred within the context of other alleged acts of anti-union discrimination by the employer. In particular, the Committee notes that after announcing a lockout on 26 December 2007, the employer had allowed only union members who agreed not to involve themselves with the collective bargaining demands to return to work. It subsequently assigned the returning union members to mandatory training sessions for several months in 2007, which the Labour Relations Committee and the NHRC both deemed to be an unfair labour practice. In view of the information before it, then, the Committee considers not only that the assignment of the 239 returning trade union members to training sessions constitutes anti-union discrimination, but is also inclined to consider the dismissals of the ten trade unionists to be discriminatory in nature as well.
6. 1306. The Committee further notes that, although the Labour Relations Committee had ordered the employer to end the training sessions and assign regular work to the trade unionists concerned, the Department of Labour Protection and Welfare had subsequently determined that of the 239 trade unionists, 61 had been allowed to work in a new factory operated by the employer, while the 178 other trade unionists had resigned from their jobs and received severance pay. Recalling the complainant’s allegation that the employer had distributed leaflets offering money to union members wishing to resign, and had offered similar buyouts to the latter on several occasions throughout the training sessions, the Committee regrets that this development comes on the heels of a series of acts it considers to be of an anti-union nature, and which were found by the NHRC to constitute an attempt to have the trade unionists concerned give up their rights to freedom of association and collective bargaining. It recalls that, where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment [see Digest, op. cit., para. 814]. In light of the principle mentioned above, and bearing in mind that some of these matters may be before the Court, the Committee requests the Government to review the situation of these workers and, if the allegations are found to be true, to take the necessary measures for their reinstatement, should they still so desire. If the competent court finds that reinstatement is not possible, the Committee requests the Government to ensure that they are provided with adequate compensation so as to constitute sufficiently dissuasive sanctions against anti-union discrimination.
7. 1307. With respect to the ten dismissed trade unionists, the Committee recalls that no one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Digest, op. cit., para. 837]. Noting that the union has brought an action before the Labour Court, the Committee requests the Government to ensure that the Labour Court, in its hearing of this matter, is in full possession of all the material facts referred to above, including the report of the NHRC. It trusts that the Court will take due account of the Committee’s conclusions, particularly as concerns the need for effective protection – including the remedy of reinstatement – against acts of anti-union discrimination, and requests the Government to transmit a copy of the judgement once it is handed down.
8. 1308. Finally, the Committee notes the complainant’s allegation that the acts discussed above were intended to obstruct the collective bargaining process, as they occurred shortly after the union had submitted collective bargaining demands and engaged in several negotiation and mediation sessions with the employer. Recalling the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 934] the Committee requests the Government to take the necessary measures to ensure that the union and the employer engage in good faith negotiations, with a view to concluding a collective agreement on terms and conditions of employment, and to keep it informed of the progress made in this regard.