Allegations: The complainant organization alleges: (i) legislative shortcomings
(denial or restriction of the right to organize and bargain collectively to public sector
workers, private sector teachers, agricultural workers, workers in the informal sector,
migrant workers and temporary, agency or other subcontracted workers; insufficient
protection against acts of anti-union discrimination; difficulty to bargain collectively;
and denial of the right to strike to public sector workers); and (ii) acts of anti-union
discrimination, interference, harassment and other anti-union practices in a number of
enterprises and the Government’s failure to protect the workers
- 977. The complaint is contained in a communication from IndustriALL
Global Union dated 7 October 2015.
- 978. The Government sent its observations in a communication dated 14
March 2016.
- 979. 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
A. The complainant’s allegations- 980. In its communication dated 7 October 2015, IndustriALL alleges: (i)
legislative shortcomings (denial or restriction of the right to organize and bargain
collectively to public sector workers, private sector teachers, agricultural workers,
migrant workers, workers in the informal sector and temporary, agency or other
subcontracted workers; insufficient protection against acts of anti-union
discrimination; difficulty to bargain collectively; and denial of the right to strike to
public sector workers); and (ii) acts of anti-union discrimination, interference,
harassment and other anti-union practices in a number of enterprises and the
Government’s failure to protect the workers.
Legislative shortcomings
- 981. The complainant alleges that Thai labour laws and their
implementation do not sufficiently protect freedom of association and are not in line
with Conventions Nos 87 and 98 as they fail to provide the right to organize and bargain
collectively to about 75 per cent of the 39 million workers, nearly half of whom work in
the informal economy. Stating that Thailand has the lowest unionization rate – about 1.5
per cent – of any country in South-East Asia, the complainant indicates that labour
relations are governed by primarily three laws, all of which fail to protect the right
of workers to freely associate, organize, form trade unions and bargain collectively.
The relevant laws are:
- – Labour Relations Act, 1975 (LRA) which covers employees
in the private sector;
- – State Enterprise Labour Relations Act, 2000 (SELRA)
which covers employees in state-owned enterprises; and
- – Civil Service Act,
1992 (CSA) which covers workers in the civil service and public
sector.
- 982. Firstly, the complainant alleges the denial or restriction of the
right to organize, form trade unions and bargain collectively to various categories of
workers: civil servants and public sector workers, including health-care providers,
teachers, police officers, fire fighters and administrative employees at all levels of
Government; teachers and professors at private schools and universities (through the
passage of the Private University Act, 2003); agricultural workers; and workers in the
informal economy sector, including domestic workers and homeworkers. Migrant workers,
who make up around 10 per cent of the workforce, also have their rights to organize,
bargain collectively and serve on trade union committees severely restricted as in line
with section 101 of the LRA, only Thai nationals by birth can organize or serve on a
trade union committee or office. Although migrant workers can join already existing
trade unions led by Thai born nationals, these are very few, as migrant workers are
concentrated in industries where not many Thai born nationals are employed, such as the
shrimp and commercial fishing industries. In such industries, the LRA has in effect
barred unionization and migrant workers are vulnerable to poverty, wage theft, poor
health and safety standards, dangerous working conditions, exploitation, extortion by
police and trafficking for forced labour.
- 983. The complainant states that the labour law also limits the freedom
of association and the right to bargain collectively of temporary, agency and other
subcontracted workers, who make up around 50 per cent of the workforce in industrial
zones specialized in export. Although agency and subcontracted workers have the right to
form their own trade unions and bargain with their agency employer or subcontractor
employer, such negotiations do not improve their working conditions since these are
established by the manufacturing firm, not the employment agency. According to the
complainant, in line with sections 88 and 95 of the LRA, trade unions can either
represent employees of the same employer or employees working in the same type of
industry. However, when trade unions try to change their statutes to be able to
represent agency and subcontracted workers, the Ministry of Labour mostly rejects these
initiatives. Furthermore, when temporary workers attempt to establish a trade union or
bargain collectively, they are often transferred to another workplace or lose their
contracts. The complainant adds that although these workers are considered as temporary,
the majority of them work in the same position for several years and perform jobs
similar to those performed by permanent employees and that employers frequently increase
the use of temporary workers to thwart unionization or weaken an already existing
union.
- 984. Secondly, the complainant alleges that the laws do not sufficiently
protect workers from anti union discrimination. It explains that although an employer
may not dismiss or take action against a worker for joining a trade union, submitting a
demand, calling a rally, filing a complaint or lawsuit, or for providing evidence to a
government official and may not threaten or force a worker to resign from a trade union
or to interfere with the operations of a trade union, the courts have interpreted these
prohibitions to mean that a labour union must already be in existence and registered.
Collective action or activities undertaken with the aim to form a trade union or discuss
forming a trade union are thus only protected from the time the trade union is
registered, leaving workers unprotected against anti-union discrimination and
retaliation during the process of organizing and forming a trade union. According to the
complainant, workers are only protected if they sign a demand and propose it to the
employer, which is why, in practice, workers organizing a union generally propose a
demand to the employer at the same time as they submit a request for registration.
However, during the process of establishing trade unions and before submitting a demand,
workers remain vulnerable especially considering that the Ministry of Labour usually
contacts employers to verify whether the workers who are trying to establish a trade
union actually work at the company, thus revealing their names to the employer.
- 985. The complainant also indicates that even once a trade union is
established, trade union leaders and employee committee members are vulnerable to
employer retaliation or interference in trade union affairs. Workers report that trade
union leaders are often dismissed on the pretence of a lay-off or downsizing, after
which they are prevented from entering the workplace and representing trade union
members, in line with sections 95 and 101 of the LRA, as they are not full-time
employees. Furthermore, Labour Courts and inspectors often side with employers to
pressure trade union leaders and members to give up seeking reinstatement; in some
cases, courts had dragged reinstatement issues for years, and even when a court order is
favourable to the workers, employers often ignore the ruling without impunity. The
complainant further states that while the LRA and the SELRA ostensibly protect the right
to freedom of speech for trade unionists by providing that they cannot be charged with
civil or criminal offences for explaining and publicizing the facts concerning a labour
dispute, the provisions allow pursuits in case of criminal offence against the
employer’s reputation, which can lead to fines and imprisonment and is reported to be
abused by employers during union organizing initiatives or in labour disputes.
- 986. Thirdly, the complainant indicates that although the LRA requires
the employer to begin negotiating within three days after the union submits its demands
and proposals, it does not oblige the employer to negotiate in good faith. Employers
often ignore trade unions and refuse to negotiate after the initial meeting, while not
providing any effective avenue by which workers can collectively bargain.
- 987. Lastly, the complainant alleges that the SELRA prohibits all state
enterprise employees from striking or engaging in industrial actions and stipulates
penalties both for participating in a strike – up to one year imprisonment or a fine or
both – and instigating a strike action – up to two years of imprisonment or a fine or
both penalties. It further states that the Committee had previously pronounced itself on
the restriction of the right to strike and expressed regret at the general prohibition
of strikes in the public sector and the severe penalties imposed.
Anti-union practices and the Government’s failure to protect workers
- 988. The complainant alleges that the Government fails to protect the
workers who exercise their freedom of association and collective bargaining and provides
the following illustrative cases.
TRW Steering and Suspension (company 1)
- 989. On 30 March 2012, the employer unilaterally increased wages without
negotiating with the union, in response to which the workers protested by refusing
overtime and proposed wage increases in line with the industry standard. On 20 April
2012, the company announced a lockout of three trade union leaders, including the
president, claiming in writing that they had led the workers to slow down the
production, causing damage to the company and violating its rules. Despite many
mediation meetings with the provincial labour office and Labour Court, the workers were
pressured to accept an offer from the employer to drop their complaint and resign. While
the locked out union president accepted the offer and resigned due to financial
difficulties, the other two trade union leaders asked for reinstatement and emphasized
that the labour authorities did not aim at their reinstatement but pressured them to
accept the offer and resign. The case is ongoing.
TechnoPLAS Thailand Factory (company 2)
- 990. On 25 December 2012, the factory trade union was registered after
which the workers, most of whom are female, proposed their demands to the company but
negotiations with the employer were unsuccessful. On 23 and 30 January 2013, the
employer dismissed 15 trade union leaders, allegedly due to organizational
restructuring, who were then pressured by the labour inspectorate to take a payout from
the company and resign. On 29 May 2013, the Labour Relations Committee (LRC) called upon
the employer to reinstate the remaining workers but in the meantime 14 out of 15 workers
took the payout and resigned due to financial difficulties, while the remaining trade
union leader is isolated and under constant surveillance.
Nakashima Rubber (Thailand) Co. Ltd. (company 3)
- 991. On 17 January 2005, the Nakashima Rubber Company dismissed four
trade union leaders, including the president, for having allegedly violated company
rules pertaining to “union duty leave” and other issues. Immediately following their
dismissal, the trade union leaders were prohibited from entering the enterprise and were
unable to meet with trade union members. While two trade union leaders took a payout and
resigned, the other two filed a complaint to the LRC and the Central Labour Court and,
after seven years of proceedings, won their case. In 2012, the Supreme Court had to
confirm the reinstatement order on two occasions before the two workers were finally
reinstated. However, when the company opened a second factory in Prachinburi Province,
the reinstated workers together with other trade union leaders were transferred there,
before being dismissed. In November 2013, another 11 members of the employee committee
were dismissed. The primary court upheld the dismissals but following the workers’
appeal, the case is currently ongoing at the Supreme Court.
Yum Restaurant International (Thailand) Co. Ltd. (company 4)
- 992. On 9 May 2011, the company dismissed three trade union leaders after
they had successfully registered a trade union and proposed their demands to the
company. Several trade union members were called to individual or small group meetings
with the employer and pressured to resign from the trade union; under financial
distress, two trade union leaders accepted the company’s offer while the third one
obtained reinstatement at court but was pressured by the judge to be more conciliatory,
accept the money and drop the case. When she returned to work, the employer subjected
her to various forms of intimidation and discrimination: isolation, lack of work, video
surveillance, exclusion from bonuses and company-provided benefits with the aim to
pressure her to take a payout and resign. The complainant states that both the LRC and
the Labour Court claimed that they did not have the power to consider or make a decision
on the specific allegations of anti-union discrimination. The company appealed against
the reinstatement order and the case is currently ongoing.
TA Automotive Parts (Thailand) Co. Ltd. (company 5)
- 993. On 10 February 2014, about 120 workers met, signed and submitted a
set of bargaining proposals to the company while being observed and videotaped by police
officers called in by the employer to intimidate the workers. Two days later, the
workers submitted a request to register their local trade union at the Ministry of
Labour. Although the company and the trade union met for three rounds of negotiations,
the trade union was asked to withdraw its proposals as the company was unable to meet
the workers’ demands. Further mediation meetings were held with no progress and on 24
March 2014, the company locked out 116 workers and replaced them with subcontracted
workers, including 45 Cambodian migrant workers, before cutting benefits for all trade
union members. Frustrated with the lack of progress and support from the labour
inspectorate and the Ministry of Labour, the union began to demonstrate in front of the
Ministry of Labour and the Thai Labour Solidarity Committee submitted a complaint to the
Royal Thai Police for allowing police officers to be used to threaten workers and
violate their labour rights.
- 994. On 23 May 2014, the employer agreed to sign a collective bargaining
agreement and to reinstate all locked out workers but in reality only a few workers were
allowed to come back and about 38 trade union members were forced to wait in tents set
up on company grounds and were monitored by video cameras. They were required to report
daily and were paid, but were not given work or allowed to use company bathrooms. Later
on, the company dismissed a worker for posting a picture on social media depicting the
workers in tents, claiming that the picture defamed the company’s image. On 28 June
2014, the employer dismissed seven trade union leaders who were also members of the
employee committee, claiming that other workers had gathered enough signatures to remove
the seven trade union leaders from the employee committee. On 8 July 2014, the company
suspended the 38 trade union members sitting in tents for allegedly refusing to work
overtime although they were not even allowed to work for most of the time they were in
the tents. The company then held private meetings, without trade union representatives,
with the 38 workers and pressured them to take a settlement and resign; 34 workers
agreed to the company’s demands while the other four workers initially refused but
eventually succumbed to the employer’s pressure. One of the workers was physically
assaulted but the police never apprehended any suspects. On 28 November 2014, the LRC
found that the dismissal of seven trade union leaders in June 2014 was illegal and
ordered the company to reinstate and compensate them but the company appealed the
order.
Alpha lndustry (Thailand) Co. Ltd. (company 6)
- 995. On 10 March 2014, about 260 workers signed a document containing
their proposals and submitted it to the company. When the company and the workers’
representatives met to negotiate, police officers were brought in to intimidate the
workers and the supervisors walked around the factory to force the workers to sign an
order to withdraw their proposals; those who refused were threatened with dismissal.
According to the complainant, six workers and negotiating committee members refused to
sign resignation letters even under pressure; the employer then called in police
officers carrying rifles to intimidate them and when they again refused they were
dismissed for violating company rules. The six dismissed workers reported a labour
dispute to the Prachinburi Provincial Labour Office. On 21 March 2014, the company
dismissed one more trade union leader for violating company rules. The workers then
elected seven new trade union committee members but the employer dismissed all of them
between 8 and 10 April 2014. The dismissed workers filed a complaint to the Royal Thai
Police over the use of police officers to intimidate workers and another complaint to
the LTRC, Ministry of Labour, and Japan Council of Metal Workers Unions. As a result,
the trade union and the company reached a collective bargaining agreement but under the
employer’s continued pressure, all trade union leaders eventually resigned from the
trade union that has since been dissolved.
HGST Thailand (company 7)
- 996. On 12 December 2014, about 1,500 workers protested against the
company’s low bonuses and a decrease in other payments. Although a mediation meeting was
held with the Ministry of Labour, the protesting workers became agitated, as the
employer did not allow workers inside the factory to leave after their shift, as they
feared they would join the protest. Other trade unions and workers from surrounding
plants also rallied behind the protesting workers. The following day, an agreement on
the disputed issue was reached and an amnesty clause requiring both the employer and the
workers not to retaliate against each other or to file legal charges, was agreed upon.
However, the company along with local political officials and the police began to
pressure the workers who had led the protest and had begun to organize a trade union, to
make them resign and terminate the trade union organizing drive. These workers, as well
as labour leaders from supportive trade unions, received death threats. At the beginning
of 2015, the company informed the workers that they could negotiate a collective
bargaining agreement by March but in the meantime, it increased the number of contract
workers, held meetings with the military and police to prepare for any future protests
and broke off the negotiations. The national trade union federation, fearful of
retaliation against the workers, advised not to protest or challenge the actions.
Hutchinson Technology Operations (Thailand) Co. Ltd. (company 8)
- 997. After failing to reach a collective bargaining agreement in November
2014, the employer proposed to decrease the benefits of trade union members. The local
trade union organized a protest and called for a mediation meeting that resulted in a
collective bargaining agreement, which included an amnesty clause for protesting
workers. However, soon after, the employer dismissed the local trade union president and
began to closely monitor the workers who had been involved in the protest with security
guards and video surveillance. As the trade union president was a member of the employee
committee, she could only be dismissed with a court order and thus challenged her
dismissal. Even when the Ayutthaya Labour Welfare and Protection Office informed the
employer that the worker was a member of the employee committee, the employer refused to
reinstate her. The trade union president then filed a complaint with the Labour Court
but while acknowledging that the dismissal was unlawful, the employer did not offer
reinstatement but compensation to resign, which the worker accepted due to continued
pressure. On 1 May 2015, the company began to separate the trade union leaders from
other workers and stopped giving them work while hiring short-term contract employees.
The complainant further refers to a gas leak that occurred on 20 January 2015, stating
that while the managers, office workers, and foremen were allowed to evacuate the
company premises, the workers were held inside the plant by security guards and were
told by the health and safety employee that it was safe to work. Fearful of dismissal,
the workers returned to work but soon began to pass out or develop other symptoms,
including swelling of the face, blackout, sore throat and high blood pressure. According
to the workers, several gas leaks have occurred in the past, and workers’ health had
suffered as a result.
Michelin Siam Company (company 9)
- 998. On 13 February 2014, the local trade union submitted its collective
bargaining proposals to the company but no agreement was reached, after which the trade
union organized rallies and demonstrations. When the trade union announced that a strike
would commence on 13 March 2014, several gunshots were fired at the demonstration site
but no one was injured. Eventually, the strike did not take place and on 29 April 2014,
the trade union and the employer reached a collective bargaining agreement. However, the
company then proceeded to a lockout of 60 trade union members and although all but two
of the workers were later reinstated, they were transferred to the worst positions in
the plant and were regularly verbally abused and pressured to resign. The workers filed
a complaint to the Labour Welfare and Protection Department but no action was taken to
resolve the complaint.
Stanley Works (company 10)
- 999. On 30 July 2013, the employer dismissed the president of the Stanley
Thailand Workers Union (STWU) for allegedly stealing company property – a leave request
form, which the trade union president had signed and took to photocopy for his own
record. As a dismissed trade union leader, he was not allowed to visit the plant or meet
with his members and the trade union elected a new leader. However, the company began to
directly support the creation of another trade local union – the Stanley Works Workers
Union (SWWU) – led by white collar employees instead of production workers. On 29
October 2013, the company locked out 44 STWU members, including the local union
executive council and four pregnant women, one of whom miscarried during the lockout
period, and demanded that the STWU withdraw its collective bargaining agreement and its
bargaining proposals. The company and the newly created trade union then signed a new
collective agreement containing wage freezes and other concessions. The STWU reported
that the company pressured its members to leave the trade union and join the SWWU and
presented the locked out workers with an 18 point consent letter they had to sign in
order to be reinstated, which requested the workers to perform a religious ceremony to
apologize to the company and repent for their actions, prohibited them from complaining
about the company and required them to drop all of their complaints and cases in the
Labour Court, and even required one of the trade union leaders to apologize to the
company on her social media for up to one year on threat of a criminal libel case
against her. Since the lockout, the STWU has been in mediation with a labour officer but
due to his slowness or unwillingness to protect labour rights, no progress was made. As
a result, on 11 November 2013, the STWU filed a petition to the National Human Rights
Commission against the lockout but despite additional mediation meetings with the
company, most of the STWU members who continue to work at the factory left the trade
union to avoid employer’s pressure.
- 1000. In January 2014, the trade union organized demonstrations due to
the employer’s refusal to negotiate but the company threatened to dismiss any worker
that participated in the demonstrations. Although to end the labour dispute, the STWU
offered to agree with the employer’s collective bargaining demands and requested a
mediation meeting with the Chacheongsao Labour Welfare and Protection Office, the
employer refused to meet unless the workers signed the 18 point consent letter. The STWU
then held meetings with various public institutions and labour organizations and the
Deputy Director of the Labour Welfare and Protection Department agreed to mediate
between the two parties. As a result, the employer agreed to reinstate 12 out of the 44
locked out trade union members and leaders, while the others accepted a settlement and
decided to resign. The employer, however, continued to threaten the reinstated workers,
dismissed one of the workers for posting a picture of the management on social media and
encouraged the newly created company trade union to stage a walk out against the
reinstated workers. As a result, three of the reinstated workers were pressured to
voluntarily resign and eight others were dismissed on 13 January 2015. According to the
complainant, the company trade union filed criminal libel lawsuits against four trade
union leaders from the Thai Confederation of Electronic, Electrical Appliances, Auto and
Metal Workers (TEAM) who provided assistance to the STWU and all four received fines.
The company is also planning to file civil lawsuits against additional TEAM leaders and
the STWU for alleged damages, including “defaming” the company. On 24 June 2015, the LRC
ruled in favour of the eight dismissed former STWU members stating that as the eight
workers had agreed to the demands proposed by the employer with the intention to be
reinstated to end the conflict, the dismissal was in breach of section 121(1)–(2) of the
LRA. However, the LRC did not order reinstatement as it found that the parties could no
longer work together peacefully and instead ordered the employer to compensate the
workers.
Yano Electronics (Thailand) Ltd. (company 11)
- 1001. On 9 December 2014, about 1,000 workers protested against the
company not announcing bonuses, after which mediation with the Prachinburi Labour
Welfare and Protection Office took place in the presence of police officers and the
parties agreed on a bonus plan. However, soon after, the company dismissed the leaders
of the protest and the workers were pressured and threatened by company-hired thugs. In
response to the workers’ complaint, the Labour Welfare and Protection Officer stated
that he had no power to remedy the situation.
NTN Manufacturing (Thailand) Co. Ltd. (company 12)
- 1002. On 10 February 2014, the NTN Workers’ Union of Thailand submitted
its proposals to the company, which led to several sessions of negotiations from
February to March. When no agreement was reached, about 700 workers took sick leave from
20 to 21 March 2014 and the company retaliated by suspending 34 trade union leaders and
demanded that the workers elect new leaders and representatives. Negotiations resumed
but no agreement was reached and the trade union requested mediation from the Ministry
of Labour. On 3 April 2014, the parties reached an agreement but the company also
demanded that the trade union sign an apology letter to which the workers disagreed, as
they were afraid that the employer would use the letter to file charges against them.
Although several draft letters were exchanged between the employer and the trade union,
one party always rejected the other’s proposal. In May 2014, eight trade union leaders
and a trade union member were dismissed. In protest, the trade union attempted to
organize a demonstration in front of the company but was prevented from doing so by the
security officers from the Eastern Seaboard Industrial Park. The employer then dismissed
27 additional trade union members. The trade union president and two other trade union
members filed complaints to the Labour Court while the other dismissed workers accepted
compensation. In December 2014, the court ordered the reinstatement of the two trade
union members but upheld the dismissal of the trade union president.
Summit Laemchabang Auto Body Work Co. Ltd. (company 13)
- 1003. In 2013, the company dismissed 60 trade union members for
incompetency, claiming that 20 trade union duty leave days that trade union leaders were
entitled to under the collective bargaining agreement hindered the company’s operations.
Although the workers filed a complaint to the Labour Court, the judge stated that the
employers had the right to dismiss workers at any time if they were not making profit.
On 11 November 2013, the employer suspended 17 members of the local union executive
committee, and although later reinstated all but four of them, it filed a court order
for permission to dismiss all trade union members and officers of the employee
committee, rejected mediation and claimed that the workers had hostile attitudes and
were incompetent because they were entitled to 20 days of leave per year for trade union
duty, which hurt the company’s operations. The judge stated that the workers took too
many union duty days and their actions were cause for dismissal but nevertheless refused
to render a decision and ordered the workers to negotiate with the employer. No progress
has been made on this issue.
Mitsubishi Motors (Thailand) Co. Ltd. (company 14)
- 1004. On 16 September 2013, the company filed for a court order to
dismiss the trade union president for allegedly having a hostile attitude, taking
unauthorized leave and having unlawfully appointed a worker as a member of the employee
committee. On 24 July 2014, the court rejected the first two accusations but upheld the
third claim indicating that the trade union president interfered with the justice system
as he unlawfully appointed a worker to the employee committee, while the worker was in a
separate legal process with the employer. After the dismissal of the president, the
trade union has been severely weakened and the company stopped transferring membership
fees to it.
Thai Sohbi Kohgei Co. Ltd. (company 15)
- 1005. In October 2013, the company unilaterally changed working hours
without consulting the local trade union or the employee committee. When the trade union
filed a complaint to the Labour Court, the company dismissed a trade union committee
member in retaliation, accusing him of having a hostile attitude and not following
company orders, including an order to memorize the company’s code of conduct. Taking up
the worker’s complaint, the LRC ordered his reinstatement but the company rejected the
order and filed a complaint to the Labour Court asking to nullify it. The company
continued to apply pressure on the worker and the local trade union; on 29 June 2014,
several gunshots were fired near the trade union president and on 1 August 2014, the
dismissed worker was physically assaulted. After these incidents, the company’s lawyer
negotiated with the trade union president to drop the complaint concerning the
unilateral change of working hours and to persuade the dismissed worker to resign
voluntarily, which he refused to do. On 4 September 2014, the local trade union
president was physically assaulted on his way home and the LRC issued another order to
the employer to reinstate the dismissed trade union committee member. The complainant
indicates that the employer has yet to comply with the reinstatement order and that the
assault on the local trade union president and local trade union committee member is
still under investigation.
Ricoh Manufacturing (Thailand) Co. Ltd. (company 16)
- 1006. On 29 November 2011, 274 workers signed a petition in support of
better working conditions and increase in bonus pay and a group of 21 workers delivered
the petition to the managers, who agreed to negotiate. The workers organized a trade
union and developed their proposals but on 6 December 2011, the employer dismissed 41
trade union leaders and members, claiming that the workers created a “dispute between
workers and management, thus inciting a rift in the company; created a bad example;
defamed the company’s reputation; built mistrust among workers; showed aggressive
behaviour and had bad attitude; and were unwilling to conform and could no longer be
trusted”. On 7 December 2011, the company dismissed another four workers for
participating in a rally and on the following day, it forced the remaining workers to
sign a pledge that they would not participate in any demonstration or rally in support
of the dismissed workers. A few days later, the company dismissed nine more workers
claiming that they had repeatedly violated the company’s warnings.
- 1007. On 16 December 2011, the local trade union was registered but the
employer refused to negotiate with the workers. The trade union filed several
complaints, including at the Parliamentary Labour Committee and the Rayong Labour
Protection and Welfare Officer but the complaint was dismissed by the former and the
latter took no action at all. Although the trade union received considerable
international support, the company refused to reinstate the dismissed workers or to
negotiate with the trade union. Furthermore, it handed out bonuses to workers who did
not support the trade union and transformed about 400 full-time permanent positions, out
of a total of 724, into short-term positions to undermine trade union support. The trade
union was dissolved as the workers had to find new jobs to support themselves.
Iida Seimitsu (Thailand) Co. Ltd. (company 17)
- 1008. In early 2012, the workers registered a trade union and in March
2012 proposed their demands to the company. However, instead of negotiating, the
employer suggested to take away many of the benefits the workers already had, an act
which they believe was retaliation for organizing a trade union, and on 18 April 2012,
the employer demanded that the trade union drop all its demands. Despite mediation
meetings with the provincial labour officer, the dispute was not resolved and on 27
April 2012, the employer locked out 112 trade union members and leaders. After several
rounds of mediation, the company agreed to reinstate all trade union members but
assigned them to cleaning jobs at 75 per cent of their pay. Many of the reinstated
workers resigned due to the discrimination and pressure they faced for being trade union
members and soon afterward, the trade union ceased to exist. The workers did not file
any further complaints for fear of retaliation.
Electrolux (company 18)
- 1009. On 21 December 2012, the company representatives and the trade
union met to discuss wages and short-term contracts but no agreement was reached and a
few days later, the company posted the new wage schedules without negotiating with the
trade union. On 9 January 2013, the company demanded each “line leader” to refrain from
carrying out any trade union activity and to instruct their subordinates to do the same
and repeated these instructions a day later. On 10 January 2013, the trade union again
requested the management to take their concerns about wage schedule into account when
calculating wage increases. The company called a meeting with trade union
representatives and informed the workers that it would announce the changes to wages,
use of short-term contract workers and bonuses, while also stating that it would not
retaliate against trade union members. However, when the workers gathered to hear the
announcement, the company director and managers grabbed the local trade union president
and physically escorted him outside the meeting where he was dismissed, taken into a
company van and driven off the company property.
- 1010. The workers refused to return to work after the meeting unless
their demands were met and the trade union president was reinstated. In response, the
company called in additional security guards as well as the police and barricaded about
100 workers outside the workplace. The workers, including pregnant women, were not
allowed to have lunch and were detained by the company guards for up to eight hours.
When the workers returned to work on 14 January 2013, the company dismissed them and
others as well – up to 127 workers. On 28 June 2013, following international pressure
and condemnation, the company agreed to reinstate the workers but has so far failed to
honour the agreement. The complainant alleges that since its registration in February
2011, the employer ignored the trade union and refused to bargain in good faith with the
workers, even though the trade union represented an overwhelming majority of the
workforce.
- 1011. In conclusion, the complainant requests the Government to ratify
Conventions Nos 87 and 98, to review the labour laws, in consultation with trade unions,
in view of bringing them into compliance with the Conventions and to ensure that in the
mentioned cases, employers comply with all orders for remediation and compensation and
that workers’ fundamental rights are respected.
B. The Government’s reply
B. The Government’s reply- 1012. In its communication dated 14 March 2016, the Government provides
observations on several types of labour organizations; progress made in legislative
revision; freedom of association of various categories of workers; measures to promote
the right to strike and combat discrimination against migrant workers; as well as on the
cases of alleged anti-union practices in numerous enterprises.
Observations on the allegations of legislative shortcomings
- 1013. The Government contests the complainant’s allegation that the vast
majority of Thai workers are prohibited from exercising freedom of association and that
Thailand has the lowest unionization rate of any country in South-East Asia. It asserts
that Thai workers are able to exercise freedom of association by participating in four
main forms of labour organizations, each protecting workers’ right to organize and
bargain collectively based on the LRA, the SELRA, the Thai Constitution, the Interim
Constitution and other related laws. The Government refers to the following
entities:
- – Trade unions: The number of trade unions increased from 1,366 in
2012 to 1,479 in 2015, while the number of trade union members grew from 402,633 in
2012 to 450,725 in 2015. Out of the 348,692 private enterprises in existence in
2015, 1,379 (0.42 per cent) had registered trade unions. The number of trade unions
also increased in state enterprises from 45 in 2012 to 47 in 2015, while the number
of trade union members expanded from 166,541 in 2012 to 180,681 in 2015. Out of 64
state enterprises in existence in 2015, 47 (73.4 per cent) had registered trade
unions. Representatives from labour organizations are also encouraged to nominate
themselves for participation in the Tripartite Committee.
- – Employees’
Committees: In line with the LRA, an Employees’ Committee may be established in a
business that has 50 or more employees and the employer must arrange for a meeting
with the Employees’ Committee at least once every three months, or upon the request
of more than one-half of the total number of Committee members or the trade union.
The Employee’s Committee can discuss many topics, including employees’ complaints
and settlement of disputes and many actions of the employer against a Committee
member, including dismissal, can only be taken with permission from the Labour
Court.
- – Welfare Committees: According to the LRA, a place of business with
50 or more employees shall arrange for the establishment of a Welfare Committee,
comprised of at least five elected employee representatives. As of November 2015,
there were 14,557 company-level Welfare Committees represented in businesses and
Employees’ Committees.
- – Unregistered labour organizations: Employees in
private sector and state enterprises are also able to organize without any
registration. There are a number of active, unregistered labour organizations, whose
reputations are well recognized among the civil society, namely the Thai Labour
Solidarity Committee (TLSC), Women Workers’ Unity Group (WWUG), Labour Coordinating
Center (LCC), Information and Training Providing for Labour Center and State
Enterprises Workers’ Relations Confederation (SERC).
- 1014. The Government also points out that workers not covered by the LRA
or the SELRA, benefit from the right to unite and form an association guaranteed by the
Constitution and the Interim Constitution. Article 64 of the Constitution states: “A
person shall enjoy the liberty to unite and form an association, a union, a league, a
co-operative, a farmers’ group, a private organization, a nongovernmental organization,
or any other group”. Furthermore, in line with section 13 of the LRA, employees can
bargain collectively, whether they are trade union members or not; they can submit a
demand for an agreement relating to conditions of employment to the employer if the
demand includes at least 50 per cent of the total number of the employees in the
enterprise and contains their names and signatures.
- 1015. The Government further indicates that the Ministry of Labour,
through the Department of Labour Protection and Welfare (DLPW), made progress in the
revision of the LRA and the SELRA, with the purpose of expanding the ability of workers
to organize and bargain collectively. Two draft acts were approved by the Office of
Council of State and submitted to the Secretariat of the Cabinet for subsequent
submission to the Cabinet and the National Legislative Assembly, but while the two
drafts were being processed the TLSC submitted a proposal to the Ministry of Labour to
halt the process of submission as it felt that the drafted acts needed revision in order
to comply with the principles of Conventions Nos 87 and 98. On 24 March 2015, the
Ministry of Labour convened a meeting with representatives from various labour
organizations and employers’ organizations to consider the proposal and it was decided
that the draft acts needed to be redrafted. On 10 August 2015, a working group comprised
of six representatives from the Government and the employers’ and employees’
organizations was set up. Its role is, among others, to review the drafts prepared by
tripartite actors and, using ILO Conventions as the source, elaborate a second draft of
the LRA and the SELRA. The working group convened five times between July and December
2015 and the Government provides minutes of each meeting. Once its work is completed, a
public hearing will be conducted to review and propose comments regarding the content of
the redrafted acts and stakeholders, including an expert from the ILO, will be invited
to participate. The Government states that it will ensure that the principle of freedom
of association and collective bargaining, consistent with ILO standards, will be
prescribed in the newly drafted LRA and SELRA in order to provide the right to organize
to Thai and migrant workers, irrespective of the type of industrial trade union.
- 1016. With regard to freedom of association and collective bargaining of
various categories of workers, the Government states that the existing legislation
affords Thai workers freedom of association and collective bargaining. In particular,
the Government refers to section 43 of the CSA, which states that: “Civil servants have
the liberty to assemble as a group, as provided in the Constitution, provided that such
assembly does not affect the efficiency of national administration and continuity of
public services, and must not have a political objective”. According to the Government,
the CSA intends to maintain national peace and order and does not violate the right of
civil servants but the Ministry of Labour will inform the principle of freedom of
association, right to organize, and collective bargaining, as set forth by the ILO, to
the Office of Civil Service Commission in order to protect the rights of civil
servants.
- 1017. Although in line with section 23 of the Private University Act of
2013, professors at private universities are not under the protection of the LRA, their
right to freedom of association is protected by the Constitution and the Interim
Constitution. In addition, employees of private universities must receive employment
protection, benefits and compensation coverage not less than what is prescribed by the
LRA and in line with the ministerial regulations. Consequently, teachers and professors
at private universities are able to exercise their right to form an association, as
prescribed in the Constitution and the Ministry of Labour will propose the principle of
freedom of association and right to organize and collective bargaining, as set forth by
the ILO, to the Ministry of Education for its consideration.
- 1018. The Government further states that according to the LRA, an
employee defined as a person agreeing to work for an employer in return for wages, is
able to enjoy the right to organize. Therefore, employees or workers in the agricultural
sector, domestic workers or any kind of contract employees are able to submit their
proposals for the registration of trade unions. Furthermore, workers in the informal
sector are allowed to form a trade union for the sake of collective bargaining and such
trade unions have played significant and active roles in collective bargaining in
various aspects. The Government indicates numerous organizations of this type: the
National Informal Labour Coordination Centre (LILC), which provides services to workers
in the informal sector in every region in Thailand; the Foundation for Labour and
Employment Promotion (Homenet) established for the purpose of promoting the trade union
workers in the informal sector and enhancing their capacity; WWUG which conducts
activities related to women workers’ issues in various aspects; and Women’s Movement in
Thai Political Reform (WeMove) which prioritizes women’s rights and gender equality
issues.
- 1019. With regard to the allegations concerning migrant workers, the
Government indicates that throughout 2015, it took a large number of preventative
measures to reduce the vulnerabilities of persons at risk of trafficking by implementing
new policies that respond to gaps in the system, developing partnerships and enhancing
capacity of government officials, the public and migrants. The Government also improved
the process of legalization of irregular migrants and proceeded to the registration of
1,010,391 migrant workers and their dependants from Myanmar, Laos and Cambodia to allow
them to stay and work within the country. The Government further states that migrant
workers are protected by the Labour Protection Act; the Home Workers Protection Act; and
the Occupational Safety, Health and Environment Act; that it enacted various regulations
to ensure their protection and that the Ministry of Labour has considered revisions of
the Labour Protection Act on issues of forced labour and debt bondage in order to combat
forced labour and human trafficking. The Government also provides detailed information
concerning the Kvaw Lin Naing case and the Rohingya trafficking case to demonstrate
progress made in combating human trafficking, including that of migrant workers.
- 1020. Concerning contract workers, the Government points out that section
11(1) of the Labour Protection Act prescribes that:
- Where an
entrepreneur has entrusted any individual to recruit persons to work, which is not a
business of employment services, and such work is any part of manufacturing process
or business operation under the entrepreneur’s responsibility, and regardless of
whether such person is the supervisor or takes the responsibility for paying wages
to the persons who perform work, the entrepreneur shall be deemed as an Employer of
such workers. The entrepreneur shall provide contract employees, who perform work in
the same manner as employees under the employment contract, to enjoy fair benefits
and welfare without discrimination.
- In response to the allegation that only full-time employees may serve
on trade union committees and that if a trade union official loses his or her job, they
can no longer be trade union members or elected officials, the Government indicates that
former members of trade union committees can only serve as elected trade union officials
and advisers if they are allowed and accepted by the trade unions.
- 1021. Concerning the obligation to bargain in good faith, the Government
states that although the LRA does not contain such an obligation, section 5 of the Civil
and Commercial Code provides that: “Every person must, in the exercise of his rights,
and in the performance of his obligations, act in good faith”. In addition, the LRA
allows employees to submit a complaint to a labour dispute arbitrator to request
negotiation. Furthermore, the newly drafted LRA will prescribe the principle of good
faith and training courses on negotiations in good faith will be provided to employers
and employees.
- 1022. The Government further states that, contrary to the complainant’s
allegations, both the LRA and the SELRA protect the freedom of speech of unionists,
especially for libel. Section 99 of the LRA provides:
- When a
Labour Union, for the benefits of its members, carries out the following activities,
not related to politics, the Employees, Labour Union, members of the Committee or
Sub-committee and officials of the Labour Union shall not be liable to criminal or
civil charges or actions:
- (1) participate in the
negotiation for settlement on the demand for rights or benefits to which its
members should be entitled with Employers, Employers’ Associations, Employees,
other Labour Unions, Employers’ Federations or Labour Federations;
- (2) cause a Strike or assist, persuade or encourage its
members to Strike;
- (3) explain or publicise facts
concerning Labour Disputes; or
- (4) arrange for a rally
or peaceful gathering for a Strike,
- that is, except
where the activities constitute criminal offences in the nature of offences
endangering the public against life and body, offences against liberty and
reputation, offences against property and civil infringements resulting from the
commission of the said criminal offences.
- The Government further indicates that individuals enjoy the right to
file a defamation lawsuit but the abovementioned categories constitute exemptions.
Nevertheless, any defamation case will be brought to the criminal court for trial but in
line with section 329 of the Criminal Code: “Whoever, in good faith, expresses any
opinion or statement: by way of self-justification or defence, or for the protection of
a legitimate interest; in the status of being an official in the exercise of his
functions; by way of fair comment on any person or thing subjected to public criticism;
or by way of fair report of the open proceeding of any Court or meeting, shall not be
guilty of defamation”.
- 1023. The Government concludes by stating that it has seriously
endeavoured to better protect labourers and eliminate forced labour, in line with
international labour standards. In cooperation with the ILO TRIANGLE Project, the
Government focused on the promotion of migrant workers’ rights, and under the ILO–IPEC,
it focused on the prevention and the elimination of forced labour, child labour, and
labour trafficking in the shrimp sector. Training courses to enhance the officials’
knowledge on labour inspection has resulted in effective law enforcement actions in the
sea fishery and fish processing industries.
Observations on allegations of anti-union practices in various enterprises and the Government’s inaction to protect workers
- 1024. With regard to the individual cases of allegations of anti-union
practices in various enterprises, the Government provides the following
observations.
Company 1
- 1025. In January 2012, there was a labour dispute between the company and
the trade union leader regarding the 300 Thailand baht (THB) minimum wage launched by
the Government. Some of the employees requested higher wages, but the demand was not in
accordance with the procedures prescribed in the labour law and the agreement on working
conditions was still in force, so the employer denied the demand. As a result, some
dissatisfied employees refused to complete their work assignments and despite warnings
from the employer, the trade union leader continued to persuade the employees to stop
working, causing business losses to the company. Eventually, the employer ordered two
trade union committee members and one member of the employee committee, to stop coming
to work, although they would still receive pay. According to the Government, the company
did not lockout the labour leaders but asked permission from the Labour Court to punish
the member of the employee committee. During reconciliation by the Labour Court, the
worker resigned with compensation. The trade union continues its activities and the two
trade union committee members continue to work at the company at the same wages and
retain their role as trade union officials. The Government states that they had not
submitted any further demands and the labour dispute was thus settled.
Company 2
- 1026. In December 2012, the employees submitted a demand to the employer
to change working conditions but an agreement could not be reached. The labour dispute
was submitted to the Government office in charge and successfully settled on 18 December
2012, with mutual agreement of both sides. On 23 January 2013, the employer announced a
scheme of the company reengineering as a result of which 15 employees, including ten
trade union committee members, were laid off with compensation, as prescribed in the
labour law. On 7 March 2013, the ten committee members submitted a complaint to the LRC,
which conducted an investigation and issued reinstatement and a compensation order. The
employer submitted an appeal to the Labour Court to revoke this order, but later
withdrew the appeal as it reached an agreement with the ten employees, who did not wish
to continue working in the company and voluntarily resigned with compensation. The
labour dispute was thus settled and the trade union continues to conduct its
activities.
Company 3
- 1027. In 2006, the company requested the Labour Court to stand down the
leader of the trade union and another four employees because they participated in trade
union activities beyond those, which are stated in the law and without having been
granted permission to do so by the employer. The Labour Court provided conciliation and
the employees agreed to cease their employment commitment with compensation. In 2012,
the company faced high losses from the severe flooding of 2011 and submitted an
application to the Labour Court to lay off the leader of the trade union and another 11
employees who were members of the employee committee and the trade union. The Labour
Court gave permission to the employer to lay off the employees and pay compensation in
accordance with the law. Although the employer obtained the right to unilaterally lay
off the employees, they can appeal such a court order. On 27 April 2015, the trade union
submitted its demand concerning working conditions to the employer and after two rounds
of discussions an agreement was reached and was registered on 28 May 2015 with validity
for two years.
Company 4
- 1028. When the company laid off three trade union members, they submitted
a complaint to the LRC, which made an order to rehire the workers but the employer,
submitted a legal action aimed at revoking it. The Central Labour Court provided
conciliation that resulted in two employees accepting the employer’s compensation while
the third employee was rehired in a different position but one of equal rank and pay.
Moreover, labour officers also supported the labour relations between both sides so as
to promote good labour relations and partnerships. As for the allegation of
discrimination, the employer indicated that the employee did not receive a bonus
payment, as he was not eligible due to his unqualified working performance when compared
with other employees of the same rank, while other forms of welfare, such as uniforms
and shuttle buses, were already provided to all employees. The Government points out
that employees can submit complaints on discrimination and unfair treatment to the
Labour Court or to labour officers.
Company 5
- 1029. On 3 February 2014, a trade union was registered, on 10 February
2014, it submitted its demands to the company and negotiations proceeded from February
to March 2014. However, agreement could not be reached and on 21 March 2014, the
employer locked out 104 employees who had participated in the demand submission. On 2
April 2014, the employer submitted its grievance to the Government and on 10 April 2014,
it locked out all members of the trade union. On 22 May 2014, the labour dispute between
the employer and the trade union was settled at the Ministry of Labour but on 8 July
2014, the employer imposed temporary suspension of employment to 38 trade union members
on the basis that they had not done overtime work during the bargaining period and had
caused losses to the company. On 14 July 2014, the company invited the 38 employees to
discuss the situation, as a result of which 34 employees decided to resign and received
compensation to the extent of 30 per cent of their salary, while the other four
employees were rehired and continue to work at the company.
- 1030. In August 2014, the company laid off seven employees who were trade
union committee members, claiming that they had not done overtime work during the
bargaining period and had caused losses to the company. The employees submitted a
grievance to the LRC asking to let them return to work and receive compensation and
accusing the employer of persecuting them in contravention of section 121 (1) and (2)
and 123 of the LRA because they signed up their names for the grievance and participated
as negotiators and trade union members. The company appealed to the Labour Court and
sued both the Committee and the trade union. The LRC issued an order to pay damages to
the employees but the employer requested the Labour Court to revoke the order.
Eventually, both sides reached an agreement at the court and the employees accepted to
receive compensation of THB470,000.
Company 6
- 1031. On 10 March 2014, a total of 261 employees submitted a demand to
the company to change working conditions but an agreement could not be reached and the
labour dispute was submitted to a labour officer for conciliation. On 13 March 2014,
both sides reached an agreement but the company laid off 14 employees who had led the
negotiations. The employees submitted their grievance to the LRC asking to be rehired.
After conciliation by the LRC, the company agreed to compensate the laid-off employees
instead of rehiring them. The Government indicates that the labour dispute did not
result in the laying off of the leader of the trade union.
Company 7
- 1032. On 12 December 2014, 800 employees took part in a strike to demand
the company to pay four-month salary bonus and other benefits. Although the labour
officers visited the workplace and advised the employees to appoint a leader for labour
negotiations, they preferred to negotiate jointly. On 13 December 2014, an agreement was
reached and the labour dispute was settled. The employees did not submit any further
grievance to the labour officers, the company rehired all employees without any
punishment and did not use subcontracted workers to replace the current employees.
Concerning trade union establishment, there was no grievance submitted to the labour
officers and the police officers were present at the workplace to act as safety guards
and not to confront the employees.
Company 8
- 1033. In September 2014, the company laid off trade union committee
members because they had violated company regulations. The employees submitted a
grievance to the LRC, which ordered the company to rehire the employees, but the
employer appealed to the Labour Court requesting conciliation and both sides eventually
agreed to cease the employment relationships with compensation. On 20 November 2014, the
trade union submitted a demand to the employer concerning the working conditions and the
employer submitted a counter demand to the employees. Despite four bilateral negotiation
meetings no agreement was reached and the employees gathered in front of the worksite
during the negotiation and verbally assaulted the employer. On 26 November 2014, both
sides submitted grievances to the labour officers requesting conciliation, after which
an agreement was reached and was registered on 9 December 2014 with validity for three
years. After the labour dispute had been settled, the employer laid off the chairperson
of the trade union as the employer found evidence that he had persuaded other employees
to stop working during working hours thereby causing losses to the company. After
conciliation at the Labour Court, the employment relationship was terminated and the
employee received compensation. In July 2015, the company transferred four trade union
committee members from one subsection to another within the same manufacturing section,
on the basis that there were no jobs in the former subsection available. While one of
the trade union committee members agreed to be transferred, the other three are still
undergoing the process at the Labour Court. A further four employees agreed to a
transfer requested by the employer and three more are undergoing a process at the Labour
Court.
- 1034. Concerning the gas leak incident, the Phranakorn Sri Ayutthaya
Labour Protection and Welfare Office assigned an occupational safety and health officer
to investigate the workplace, who found fluorine gas leaking at a level that did not
exceed that which was prescribed by the law. No employees were injured in the accident
and no grievances were submitted to the labour inspectorate regarding the security
guards’ misconduct resulting from not allowing employees to leave the area of the gas
leak. The labour inspector subsequently conducted another inspection and found no
evidence of misconduct.
Company 9
- 1035. On 13 February 2014, the trade union submitted its grievance to the
employer but the two sides were unable to reach a final agreement. The trade union then
claimed the right to strike and on 13 March 2014, the employer locked out the workplace
by erecting a barrier at the front part of the workplace and did not allow any employee
to access the area, claiming it was rented for the purpose of car parking. As a result,
a total of 1,500 employees gathered and occupied one lane of the road for a strike.
After the strike, the employer did not rehire two employees and applied pressure on
those who returned to work by assigning some of them to different offices and jobs. As a
result, the employees submitted a grievance to the LRC, which ordered the employer to
rehire two employees to their former positions. By virtue of the labour officers’
efforts in promoting sound labour relations, the employer rehired all employees without
laying off any trade union members.
Company 10
- 1036. The trade union and the employer submitted proposals to change
working conditions but could not reach an agreement. From 29 October to 7 November 2014,
the employer locked out 44 employees; 33 employees decided to resign, while 11 employees
remained locked out. The Labour Court decided against the employees but the labour
officer conducted conciliation talks on several occasions. On 8 November 2015, the
employer terminated the lockout and reinstated 11 employees to their former positions
before dismissing them with the claim that other groups of employees were not satisfied
with their behaviours and did not want to work with them. The employees received
dismissal benefits as well as special monetary benefit but they filed a complaint to the
LRC, which ordered the employer to pay dismissal benefits to the employees as the
parties could not continue working together. In relation to the issue of a defamation
lawsuit, the employer filed a complaint against a person who used an amplifier
microphone to insult him, and the court, having concluded that he had acted in violation
of criminal law, fined the worker.
Company 11
- 1037. On 9 December 2014, a total of 500 employees went on strike and
gathered in the company’s premises to demand four months of salary as a bonus payment.
Although the labour officers conducted conciliation talks and advised the employees to
appoint a representative to negotiate with the employer, the employees did not wish to
appoint one and the Welfare Committee thus offered to be their representative in the
negotiations to resolve the strike. The labour officers promoted good labour relations
between both sides and on 22 December 2014, the employer agreed to pay the four-month
salary bonus payment and the labour dispute was settled by mutual agreement. The
Government indicates that no grievance has been submitted by the employees regarding the
issue of being laid off.
Company 12
- 1038. On 10 February 2014, the trade union submitted its demand to the
company but after negotiations, the demand was withdrawn. However, the employer did not
allow the trade union leaders to go back to work unless they provided a written apology
letter regarding a work stoppage during negotiations, which had caused losses to the
company. Several draft letters were exchanged between the employer and the trade union,
one party always rejecting the other’s proposal. The employer then gave a written order
to lay off the trade union members and committee members and asked for permission from
the Labour Court to lay off the trade union committee claiming that it did not pursue
the working conditions agreement by refusing to sign the apology letter. On 16 December
2014, the Labour Court stated that the trade union chairperson had acknowledged that
sick leave taken by all company employees had caused the company losses and the court
permitted the employer to lay off the trade union chairperson without compensation,
while the cases of two other trade union members were dismissed. The trade union
chairperson appealed against the judgment.
- 1039. At the beginning of 2015, the trade union submitted its demand to
the employer who submitted a counter demand on two issues. In late June 2015, the
employer gradually asked for permission of the Labour Court to lay off some of the new
trade union leaders, announced long-term overtime work and hired more than 300 temporary
workers to support the workforce. The conciliation process is still ongoing as the
employer is suing all trade union leaders for having caused company losses.
Company 13
- 1040. At the end of 2013, the trade union submitted its demand to the
company but agreement was reached only once the labour officers provided conciliation.
On 11 April 2014, the employer issued a temporary employment suspension for four trade
union committee members stating that it was in the process of asking permission from the
Labour Court to dismiss the employees owing to their poor working capacity and their
acting as opponents of the employer thus causing damage to the company. In May 2014,
several sessions of informal negotiations took place at the Labour Court and once the
labour officers from the Department of Labour Protection and Welfare provided
conciliation, the employer agreed to discontinue the case. Two of the trade union
committee members had not been allowed to return to work but still receive wages from
the company. In March 2015, a total of 1,800 temporary workers submitted a grievance to
the labour inspectorate asking the employer to comply with section 11(1) of the Labour
Protection Act in relation to wage and welfare payments without discrimination. The
labour inspectorate issued an order to the employer to pay the stipulated benefits to
the employees but the employer submitted an appeal to the Governor of Chonburi Province.
Although the Governor confirmed the labour inspectorates’ order, the employer submitted
a grievance to the Labour Court to revoke the order. The Government indicates that both
sides consented to labour conciliation talks conducted by the Labour Court.
Company 14
- 1041. The employer filed a suit against the trade union chairperson
claiming that he had seriously infringed the company regulations by abandoning working,
rejecting supervisors’ commands and appointing an employee committee without having the
authority to do so. On 24 July 2014, the Labour Court permitted the company to lay off
the employee, who then appealed against the decision, which is now under consideration
of the Supreme Court.
Company 15
- 1042. On 10 October 2013, the company announced a new working time and
the trade union called a meeting among members of the employee committee, trade union
committee and the employer to find solutions but the employer refused to negotiate and
claimed that it had the authority to manage the company. The trade union submitted a
grievance to the Labour Court as the working time shift change was unfair to the
employees and on 28 May 2014, the LRC issued an order to re-employ the trade union
committee members who had been laid off by the employer for violating company
regulations. However, the employer refused to comply with it and submitted a grievance
to the Labour Court to revoke the order. By virtue of conciliation provided by the
Labour Court, the trade union committee received compensation of THB430,000. Concerning
the case of intimidation, the labour officer advised the relevant employee to submit a
complaint to the inquiry officers.
Company 16
- 1043. In November 2011, there was a labour dispute about bonus payments
equivalent to 2.9 months of salary and the employees blocked the entrance to the
workplace, requesting the company to increase the bonus to the equivalent of three
months’ salary, meaning an extra THB20,000 per person. On 2 December 2011, the employer
made an extra payment of THB5,000 per person but the employees were not satisfied with
the increase and continued to block the entrance to the company. Since the employees’
actions were not in accordance with the law, on 6 December 2011, the employer laid off
41 employees with compensation and notice payments. A further nine employees were laid
off because they failed to comply with a warning. Although labour officers tried to
provide conciliation, the employer confirmed unwillingness to continue to employ the
workers. On 26 January 2012, the employees submitted a complaint to the LRC requesting
to be rehired in the same positions with compensation payment for the time they had
spent being laid off. The LRC considered that the strike was not in compliance with the
labour law and consequently, laying off the employees did not contravene section 121 of
the LRA.
Company 17
- 1044. On 18 April 2012, the company and the employees could not reach an
agreement concerning wage increases and bonus payments, as a result of which both sides
submitted grievances to the labour officer and requested conciliation talks. However,
the employer did not agree with the employees’ demand and locked out the employees from
27 April 2012. On 18 May 2012, both sides reached agreement, withdrew their grievances
and the labour dispute was settled. The employees were able to return to work, accepted
their wage increases and bonus payments and the trade union was able to run its
activities as usual. Another labour dispute occurred when the company closed down some
parts of its production temporarily because of a slowdown in purchase orders. The action
was conducted in accordance with the law, taking measures such as informing competent
officers in advance and paying 75 per cent of wages as compensation, which is not
considered as a wage deduction or a form of ill treatment. After proceeding with the
investigation, the labour officer decided to close the case and explained the decision
to the employees involved.
- 1045. The Government further provides information on Case No. 3022
relating to State Railway of Thailand which is before the Committee as well as on
another situation involving Thai Airways International Public Company that was not
invoked by the complainant.
The Committee’s conclusions
The Committee’s conclusions- 1046. The Committee notes that in the present case the complainant
alleges: (i) legislative shortcomings (denial or restriction of the right to organize
and bargain collectively to civil servants and public sector workers, private sector
teachers, agricultural workers, workers in the informal sector, migrant workers and
temporary, agency or other subcontracted workers; insufficient protection against acts
of anti-union discrimination; difficulty to bargain collectively; and denial of the
right to strike to public sector workers); and (ii) acts of anti-union discrimination,
interference, harassment and other anti-union practices in a number of enterprises and
the Government’s failure to protect the workers.
- 1047. The Committee firstly notes the complainant’s general allegation
that Thai labour law and its implementation do not sufficiently protect freedom of
association as around 75 per cent of the workforce do not have the right to organize and
bargain collectively and only around 1.5 per cent of the total workforce is unionized.
The Committee observes that the Government contests the complainant’s allegations and
states that national legislation guarantees the right to organize and bargain
collectively, that Thai workers are able to exercise their freedom of association by
participating in four main forms of labour organizations and that even non-unionized
workers can bargain collectively. The Committee welcomes the statistical information
provided by the Government and notes with interest that since 2012 the number of unions
and unionized workers increased both in private and state enterprises, but observes that
only 0.42 per cent of private enterprises have a registered trade union. The Committee
further notes with interest the Government’s statement that the Ministry of Labour made
progress in the revision of the LRA and the SELRA, that the Government set up a
tripartite working group to further align the draft texts with Conventions Nos 87 and 98
and that the principle of freedom of association and collective bargaining, consistent
with ILO standards, will be prescribed in the newly drafted LRA and SELRA in order to
provide the right to organize to Thai and migrant workers, irrespective of the kind of
industrial trade union they are part of. While noting the positive developments in the
revision process of the LRA and the SELRA, especially the establishment of a tripartite
working group and the Government’s engagement to align these texts with the relevant
international standards, the Committee recalls that it has been examining the conformity
of the LRA and the SELRA with the principles of freedom of association in Case No. 1581
for a number of years and had previously expressed concern at the prolonged period of
revision of the relevant legislation [see 333rd Report, para. 137]. The Committee,
therefore, urges the Government to take concrete measures to speed up the revision
process of the LRA and the SELRA in order to align the applicable legislation with the
principles of freedom of association and collective bargaining and to ensure that all
issues raised by the Committee in this case as well as in Case No. 1581 are properly
addressed. The Committee reminds the Government that it can avail itself of ILO
technical assistance in this regard and requests the Government to keep it informed of
any developments in this respect and to provide it with the text of the amendments to
the LRA and the SELRA.
- 1048. Secondly, the Committee observes a divergence of views between the
complainant and the Government with regard to freedom of association of various
categories of workers. On the one hand, the complainant alleges that either the law or
its application deny or restrict the right to organize, form trade unions and bargain
collectively to specific categories of workers, on the other hand, the Government
asserts that all workers enjoy freedom of association, either through specific labour
legislation or by virtue of the Constitution and the Interim Constitution.
- 1049. As regards public sector workers, the Committee notes the
complainant’s allegation that the CSA does not allow civil servants and public sector
workers, including health care providers, teachers, police officers, fire fighters and
administrative employees at all levels of the Government, to organize or form trade
unions and negotiate collective bargaining agreements, and the Government’s statement
that the CSA intends to maintain peace and order and that its section 43 allows civil
servants to assemble as a group in line with the Constitution. The Committee observes,
however, that according to the CSA, such assembly may not affect the efficiency of
national administration or the continuity of public services and must not have a
political objective. Furthermore, the Committee notes that neither the Constitution nor
the CSA contain any provisions giving effect to the right to organize and form trade
unions and that the CSA does not provide any guarantees of collective bargaining. In
this regard, the Committee wishes to point out that all workers, without distinction
whatsoever, including without discrimination in regard to occupation, should have the
right to establish and join organizations of their own choosing. Public employees (with
the sole possible exception of the armed forces and the police, by virtue of Article 9
of Convention No. 87) should, like workers in the private sector, be able to establish
organizations of their own choosing to further and defend the interests of their members
[see Digest of decisions and principles of the Freedom of Association Committee, 5th
edition, 2006, paras 216 and 220]. With regard to collective bargaining of civil
servants, the Committee recalls that a distinction must be made between, on the one
hand, public servants who by their functions are directly engaged in the administration
of the State (that is, civil servants employed in Government Ministries and other
comparable bodies), as well as officials acting as supporting elements in these
activities and, on the other hand, persons employed by the Government, by public
undertakings or by autonomous public institutions. Only the former category can be
excluded from the scope of Convention No. 98 [see Digest, op. cit., para. 887]. Bearing
in mind the complainant’s concerns that the applicable legislation does not sufficiently
protect the right to organize and bargain collectively of civil servants, the Committee
requests the Government to indicate the manner in which civil servants enjoy freedom of
association and collective bargaining in practice and to indicate the specific measures
taken or envisaged to ensure that all civil servants, including health care providers,
teachers, fire fighters and Government employees, with the sole possible exception of
the armed forces and the police, can organize and form trade unions to defend their
interests, and that only those civil servants who are directly engaged in the
administration of the State can be excluded from collective bargaining.
- 1050. The Committee further notes with concern the complainant’s
allegation that by virtue of section 23 of the Private University Act of 2013, private
schools and university teachers are effectively excluded from the scope of the LRA and
are thus prevented from organizing, forming trade unions and bargaining collectively.
While noting the Government’s statement that teachers can exercise their right to form
an association as prescribed by the Constitution and the Interim Constitution and must
receive employment protection, benefits and compensation coverage not less than what is
prescribed by the LRA, the Committee recalls that teachers should have the right to
establish and join organizations of their own choosing, without previous authorization,
for the promotion and defence of their occupational interests [see Digest, op. cit.,
para. 235]. The Committee considers that these rights must be effectively ensured for
teachers in both the public and the private sector and requests the Government to take
the necessary measures to ensure that, in line with the mentioned principle, teachers
can fully enjoy, in law and in practice, the right to organize, form trade unions and
bargain collectively.
- 1051. Concerning the complainant’s allegation that agricultural employees
and workers in the informal sector, including domestic workers and homeworkers, have no
guaranteed rights to form unions or bargain collectively, the Committee notes the
Government’s reply stating that since the LRA gives every employee, defined as a person
agreeing to work for an employer in return for wages, the right to organize, employees
or workers in the agricultural sector, domestic workers and contract employees can
submit their proposals to register a trade union. The Committee also notes the
Government’s indication that workers in the informal sector can organize with the
purpose of collective bargaining but observes that the entities enumerated by the
Government seem to be non-governmental organizations active in the protection of
informal workers, rather than trade unions of workers in the informal sector. In this
regard, the Committee considers it useful to point out that workers in the agricultural
and informal sectors are often subjected to untraditional employment relationships, work
without contracts or are self-employed and requests the Government to take the necessary
measures to ensure that despite these circumstances they are effectively afforded the
full protection of their rights to organize and bargain collectively under the LRA.
- 1052. The Committee also notes the complainant’s allegation that the
restriction on the right to form a labour trade union based on nationality effectively
bars unionization in those industries where migrant workers prevail, such as the shrimp
and commercial fishing sectors. The Committee considers that such restriction prevents
migrant workers from playing an active role in the defence of their interests,
especially in sectors where they are the main source of labour and recalls that Article
2 of Convention No. 87 is designed to give expression to the principle of
non-discrimination in trade union matters, and the words “without distinction
whatsoever” used in this Article mean that freedom of association should be guaranteed
without discrimination of any kind based on occupation, sex, colour, race, beliefs,
nationality, political opinion, etc., not only to workers in the private sector of the
economy, but also to civil servants and public service employees in general [see Digest,
op. cit., para. 209]. The Committee regrets that the Government does not provide any
concrete observations on these specific allegations but notes with interest the
Government’s indication that the ongoing revision of the labour legislation will ensure
the right to organize and serve on a trade union committee to migrant workers. In light
of these considerations, the Committee requests the Government to eliminate, without
delay, the restrictions placed on the freedom of association rights of migrant workers
and trusts that the revised labour legislation will properly address this issue. The
Committee requests the Government to inform it of any developments in this regard.
- 1053. The Committee notes that while the complainant indicates that
agency and subcontracted workers can only bargain with their employing agency or
subcontractor but not with the manufacturing company, the Government states that even
where an entrepreneur entrusts another individual to recruit a person to work for him or
her, the entrepreneur is considered as the employer of the worker. The Committee
understands the Government’s indication to mean that subcontracted or agency workers are
allowed not only to bargain with their employment agency or subcontractor, but also with
the entrepreneur-employer. Bearing in mind the complainant’s concerns, the Committee
requests the Government to provide further details on the manner in which, in practice,
agency and subcontracted workers may bargain with the entrepreneur-employer.
- 1054. Furthermore, noting with concern the complainant’s allegation that
employers retaliate against temporary workers if they attempt to exercise their trade
union rights and repeatedly use short-term contracts over several years to thwart union
activity, the Committee regrets that the Government does not provide its observations on
this point and recalls that all workers, without distinction whatsoever, whether they
are employed on a permanent basis, for a fixed term or as contract employees, should
have the right to establish and join organizations of their own choosing [see Digest,
op. cit., para. 255]. The Committee further wishes to point out that fixed-term
contracts should not be used deliberately for anti-union purposes and that, in certain
circumstances, the employment of workers through repeated renewals of fixed-term
contracts for several years can be an obstacle to the exercise of trade union rights
[see for instance 377th Report, Case No. 3064 (Cambodia), para. 213; 375th Report, Cases
Nos 3065 and 3066 (Peru), para. 482 and 374th Report, Case No. 2998 (Peru), para. 723].
In light of these principles and the complainant’s concerns, the Committee requests the
Government to take the necessary measures to ensure that the repeated use of short-term
contracts is not deliberately used to obstruct trade union formation and that temporary
workers fully benefit from freedom of association and collective bargaining, and inform
the Committee of any developments in this regard.
- 1055. The Committee notes the complainant’s allegation that since the LRA
does not require the employer to negotiate in good faith, as a result of which employers
often refuse to negotiate after the initial meeting, the Government fails to provide any
effective avenue by which workers can bargain collectively, and observes that this issue
was raised in several cases described in detail above. The Committee also notes the
Government’s statement that although there is no obligation to negotiate in good faith
in the LRA, the Civil and Commercial Code provides an obligation to exercise rights and
perform obligations in good faith, that this obligation will also be prescribed by the
newly drafted labour legislation and that training courses on good faith for
negotiations will be provided to employers and employees. 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 trusts that the Government will take all necessary measures to encourage and
promote negotiations in good faith, and requests the Government to provide a copy of the
new labour legislation once it has been drafted.
- 1056. While noting with concern the complainant’s allegation that the
SELRA prohibits all state enterprise employees from engaging in strike or industrial
actions and stipulates harsh penalties both for participating in a strike and
instigating it, the Committee observes that the Government does not provide its
observations on this point. Recalling that it had previously examined this issue in Case
No. 1581 where it had noted with regret that section 33 of the Act imposed a general
prohibition of strikes and that penalties for strike action, even when peaceful, were
extremely severe: up to one year of imprisonment or a fine, or both for the
participation in a strike action; and up to two years of imprisonment or a fine, or both
for its instigation [see 327th Report, para. 111], the Committee once again requests the
Government to take the necessary measures to amend the SELRA, without further delay, in
order to eliminate the general prohibition of strikes in state enterprises and the
corresponding penalties and to bring the legislation fully into conformity with the
principles of freedom of association on this and other relevant points. The Committee
requests the Government to keep it informed of any developments in this respect.
- 1057. Finally, the Committee notes the complainant’s allegation that the
laws and their implementation do not sufficiently protect workers from anti-union
discrimination: (i) the courts interpret the law to mean that protection against
anti-union discrimination only starts once a trade union is registered, which makes the
workers vulnerable to dismissal during the setting up of trade unions; (ii) even where a
trade union is established, workers are vulnerable to interference and employer
retaliation, especially dismissals on the pretence of layoff or downsizing, as well as
pressure from the courts to accept compensation instead of reinstatement which is
coupled with long delays in judicial proceedings; and (iii) despite ostensible
protection of freedom of speech, workers often report that employers file civil and
criminal charges for libel against trade union leaders for allegedly harming the
employer’s reputation during trade union organizing initiatives or in labour disputes.
The Committee notes that to illustrate its points, the complainant provides detailed
information on alleged anti-union practices in a number of companies and denounces the
Government’s failure to protect the workers. The Committee notes that these allegations
can be summarized as follows:
- – lockout, suspension, transfer, layoff and
dismissal of trade union leaders and members; prohibition to enter factory premises
and represent trade union members after dismissal; regular refusal of employers to
comply with reinstatement and compensation orders;
- – intimidation and
harassment exerted by employers, police and security officers with the aim of
forcing trade union leaders and members to accept compensation and resign or to halt
trade union formation; these incidents include verbal abuse, physical assaults,
forced resignation letters, filing of criminal and civil lawsuits against trade
union leaders, threat of dismissal and death threats; pressure from the labour
inspectorate, the Labour Court or the Labour Officer to drop pending cases, resign
and accept compensation;
- – intimidation and discrimination of trade union
members and reinstated workers, including through isolation, separation from other
workers, lack of work, monitoring by video surveillance, reduction of benefits and
increase of bonuses to non-unionized workers, employer’s support for the formation
of a new trade union and pressure to join the trade union and obstruction of a
demonstration by security officers;
- – replacement of dismissed workers by
subcontracted workers; increase in the use of contract workers and transformation of
permanent positions into short-term contracts to halt trade union
formation;
- – use of police officers and video surveillance to intimidate
workers during collective bargaining and employer’s refusal to negotiate;
and
- – inaction of the LRC, the Labour Welfare and Protection Department and
the Labour Court on certain complaints of anti-union discrimination; delays in
judicial proceedings; inaction of the police on complaints of physical
assaults.
- 1058. The Committee takes due note of the Government’s detailed
observations to the complainant’s general and case-specific allegations of anti-union
practices. The Committee notes that, with a few exceptions, the Government’s factual
interpretation of the circumstances of each case broadly conforms to that provided by
the complainant. The Committee notes, in particular, that the Government acknowledges
the numerous incidents of lockout, suspension, transfer, layoff and dismissal of a large
number of trade union leaders and members, often for seemingly anti-union purposes, as
well as the employers’ regular refusal to implement reinstatement or compensation orders
of the labour inspectorate, the Labour Court or the Labour Welfare and Protection
Offices. The Committee further notes the Government’s indication that while its labour
authorities significantly contributed to solving the majority of the described labour
disputes through repeated conciliation, mediation and promotion of harmonious labour
relations, other cases are still ongoing. The Committee also notes that the Government
indicates that, contrary to the complainant’s allegations, both the LRA and the SELRA
protect freedom of speech of trade unionists and that although all defamation lawsuits
are brought to criminal court for consideration, the legislation sufficiently protects
trade unionists who express their opinion in good faith against accusations of
defamation. Taking due note of these observations, the Committee regrets that the
Government does not address a number of other serious allegations, in particular:
erroneous judicial interpretation of the beginning of protection against anti-union
discrimination; inaction by the police against complaints of physical assaults; use of
police and security officers to intimidate workers; delays in judicial proceedings;
inaction of labour authorities in some cases of anti-union practices; and pressure on
workers from labour authorities to drop their case, resign and accept compensation.
- 1059. With regard to the allegation that Labour Courts interpret the
protection against anti-union discrimination to begin only after registration of trade
unions, the Committee considers that such interpretation would considerably restrict the
scope of protection against anti-union discrimination, as it would not afford sufficient
protection to workers during the period of establishment of workers’ organizations, when
workers are especially vulnerable to anti union practices and employer retaliation.
Emphasizing that the establishment of trade unions is a legitimate trade union activity
within the scope of protection against anti-union discrimination and recalling 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 [see Digest, op.
cit., para. 769], the Committee considers that this restrictive interpretation of the
scope of protection, as alleged by the complainant, would not be in line with the
principles of freedom of association and could have a severe curtailing impact on
workers’ organizational rights. The Committee, therefore, requests the Government to
take the necessary measures to ensure that workers are effectively protected against
acts of anti union discrimination at all times, both in law and in practice, and that
this protection covers all legitimate trade union activities, including those relative
to the establishment of workers’ organizations.
- 1060. While acknowledging that in expressing their opinions, trade unions
should respect the limits of propriety and refrain from the use of insulting language,
the Committee expresses its concern at the allegation that employers often file civil
and criminal charges against trade union leaders for allegedly harming employers’
reputation when such workers try to organize trade unions or during labour disputes. The
Committee finds it important to recall that the right to express opinions through the
press or otherwise is an essential aspect of trade union rights [see Digest, op. cit.,
para. 155] and that allegations of criminal conduct should not be used to harass trade
unionists by reason of their trade union membership or activities [see Digest, op. cit.,
para. 41]. In light of these principles, the Committee expects the Government, within
its review of the existing legislative framework, to ensure that the freedom of
expression of trade union leaders and members is effectively protected.
- 1061. The Committee further notes with concern the numerous incidents of
lockout, suspension and dismissal of trade union leaders and members, as described by
the complainant and the Government, and the fact that although these allegations were in
many cases confirmed by the labour authorities through reinstatement and compensation
orders, employers generally refused to comply with them. In this regard, the Committee
also notes the allegations that trade union leaders and members were often dismissed for
allegedly economic reasons, were replaced with subcontracted workers and that dismissed
trade union leaders were not allowed to enter company premises and represent trade union
members. The Committee further expresses its concern at the serious allegations of
pressure, intimidation, harassment and discrimination of trade union leaders and
members, including through verbal abuse, physical assaults, reduction of benefits,
threat of dismissal, isolation, death threats and video surveillance, and observes that
where the complainant asserts that these incidents were aimed at forcing workers to
resign and accept compensation or halt union formation, the Government simply states
that the workers decided to resign voluntarily and accept compensation as a result of
negotiations, and that the labour disputes were thus successfully resolved. The
Committee further notes with concern the allegation that some of this pressure was
exerted by the police and the labour authorities. Taking into account these
considerations, the Committee considers that the situation raises serious concerns as to
the environment for free exercise of trade union rights and recalls that the right of
workers’ and employers’ organizations can only be exercised in a climate that is free
from violence, pressure or threats of any kind against the leaders and members of these
organizations, and it is for the governments to ensure that this principle is respected
[see Digest, op. cit., para. 44]. In relation to the variety of matters raised, the
Committee wishes to draw the Government’s attention to the following principles: the
requirement of membership of an occupation or establishment as a condition for the
eligibility for trade union office are not consistent with the right of workers to elect
their representatives in full freedom; 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; acts of harassment and intimidation carried out against
workers by reason of trade union membership or legitimate trade union activities, while
not necessarily prejudicing workers in their employment, may discourage them from
joining organizations of their own choosing, thereby violating their right to organize;
granting bonuses to non-union staff – even if it is not to all non union workers – and
excluding all workers who are trade union members from such bonuses during a period of
collective conflict, constitutes an act of anti-union discrimination contrary to
Convention No. 98; subcontracting accompanied by dismissals of trade union leaders can
constitute a violation of the principle that no one should be prejudiced in his or her
employment on the grounds of trade union membership or activities; the application of
staff reduction programmes musts not be used to carry out acts of anti-union
discrimination; the Committee has drawn attention to the Workers’ Representatives
Convention, 1971 (No. 135) and Recommendation (No. 143), 1971, in which it is expressly
established that workers’ representatives in the undertaking shall enjoy effective
protection against any act prejudicial to them, including dismissal, based on their
status or activities as workers’ representatives or on trade union membership, or
participation in union activities, in so far as they act in conformity with existing
laws or collective agreements or other jointly agreed arrangements; trade union
representatives who are not employed in the undertaking but whose trade union has
members employed therein should be granted access to the undertaking. The granting of
such facilities should not impair the efficient operation of the undertaking concerned
(see Digest, op. cit., paras 407, 771, 786, 787, 790, 796, 800 and 1105)
- 1062. In light of the circumstances of this case and the abovementioned
principles, the Committee requests the Government to take the necessary measures to:
ensure that, in cases where remediation and compensation have been ordered by the
courts, employers comply with such orders and decisions without further delay; provide
it with the outcome of all ongoing proceedings, as well as the measures taken to ensure
their implementation by the employers; ensure that, in the future, staff reduction
programmes and economic measures are not used to discriminate against trade union
leaders and members; ensure that when dismissed, trade union leaders can continue to
serve as union officials and are provided with access to trade union members; and
conduct independent inquiries on all pending allegations of intimidation, harassment,
pressure and physical assaults against trade union leaders and members in this case, and
inform it of the outcome and the measures taken as a result.
- 1063. Further noting with concern the allegations of inaction of labour
authorities in relation to some complaints of anti-union practices and the considerable
delays in judicial proceedings, the Committee points out that the Government is
responsible for preventing all acts of anti union discrimination and it must ensure that
complaints of anti-union discrimination are examined in the framework of national
procedures which should be prompt, impartial and considered as such by the parties
concerned. Cases concerning anti-union discrimination contrary to Convention No. 98
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 [see Digest, op. cit., paras
817 and 826]. The Committee trusts that the Government will take the necessary measures
to ensure that, in the future, complaints of anti-union discrimination against trade
union leaders and members are dealt with promptly and efficiently by the competent
authorities.
The Committee’s recommendations
The Committee’s recommendations- 1064. In light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee urges
the Government to take concrete measures to speed up the revision process of the LRA
and the SELRA in order to align the applicable legislation with the principles of
freedom of association and collective bargaining and to ensure that all issues
raised by the Committee in this case as well as in Case No. 1581 are properly
addressed. The Committee reminds the Government that it can avail itself of ILO
technical assistance in this regard and requests the Government to keep it informed
of any developments in this respect and to provide it with the text of the
amendments to the LRA and the SELRA.
- (b) With regard to the allegations of
insufficient protection against anti-union discrimination and anti-union practices
in various enterprises, as well as the Government’s failure to protect the workers,
the Committee requests the Government to take the necessary measures to ensure that
workers are effectively protected against acts of anti-union discrimination at all
times, both in law and in practice, and that this protection covers all legitimate
trade union activities, including those relative to the establishment of workers’
organizations.
