Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Minimum Age Convention, 1973 (No. 138) - Thailand (Ratification: 2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. National policy. The Committee notes the Government’s information that, in order to enhance the protection of young workers, the Government through the Department of Labour Protection and Welfare (DLPW) of the Ministry of Labour (MOL) has formulated: (i) a supervisory policy on the protection of young workers in accordance with the labour laws, aimed at proactively preventing unfair labour practices; (ii) a policy aimed at providing children and young workers with adequate knowledge about duties and rights at work (including occupational safety and health and welfare) in order to ensure that students are able to become qualified members of the workforce and young workers are able to attain a better quality of life; and (iii) a policy to promote a network for young workers’ protection. The Committee also notes that the MOL with assistance from the ILO/IPEC prepared a National Plan of Action for the elimination of the worst forms of child labour (NPA 2004–09). The objectives of the NPA are to decrease the probability of premature entry into the labour market for both Thai and non-Thai children, and to empower children to protect themselves from becoming engaged in child labour and its worst forms. Moreover, Thailand is currently engaged with ILO/IPEC’s assistance on various projects to combat the worst forms of child labour, especially child trafficking (Project on combating child trafficking for labour and sexual exploitation (TICSA project) and the Mekong subregional project on child trafficking (TICW)).

Article 2, paragraph 1. 1. Scope of application. Self-employed child workers. The Committee notes that an employee is defined under section 4 of the Labour Protection Act of 1998 (LPA) as “a person who agrees to work for an employer in return for a wage”. It observes that self-employed children do not benefit from the protection laid down in the LPA, or in Regulation No. 6 of 1998 (determining types of hazardous work prohibited to children). The Committee reminds the Government that the Convention applies to all branches of economic activity or work, whether it is carried out on the basis of an employment relationship or not, and whether it is remunerated or not. The Committee requests the Government to provide information on the manner in which children who are not bound by an employment relationship, such as those who are self-employed, are covered by the protection provided for in the Convention.

2. Minimum age for admission to employment or work. The Committee notes that, upon ratification of the Convention, Thailand specified 15 years as the applicable minimum age for admission to work or employment. It notes the Government’s information that section 44 of the LPA sets the minimum age for admission to work or employment at 15 years: “A boss shall be prohibited from employing a child under the age of fifteen years as an employee.” It also notes the Government’s information that, according to clause 8 of the Ministerial Regulation regarding protection of employees in agricultural work BE 2547 of 2004, an employer is prohibited from employing a child under 15 years in agricultural work.

Article 2, paragraph 3. Compulsory education. The Committee notes the Government’s information that section 17 of the National Education Act provides for nine years of compulsory education, requiring children aged 7 to enrol in education until the age of 16, with the exception of those that have already completed grade 9. The Committee therefore observes that, as a rule, education is compulsory until the age of 16 years. It notes that, by virtue of section 13 of the Compulsory Education Act, a guardian who fails to send juveniles (7–16 years old) to an educational establishment shall be liable to a fine not exceeding 1,000 baht (approximately US$25). Moreover, whoever, without reasonable cause, commits any act causing a juvenile not to be enrolled for education in an educational establishment, shall be liable to a fine not exceeding 10,000 baht. The Committee notes the Government’s information that the Notification of the MOL on the hourly minimum wages of 9 May BE 2548 (2005) prescribes that a student or an undergraduate aged over 15 years is entitled to work at a merchandising firm and customer services, food shops, department stores, convenience stores and warehouses provided that such work is safe and not dangerous and that he/she works for not more than four hours a day, outside school hours, and not more than seven hours a day during school holidays.

Article 3, paragraphs 1 and 2. Minimum age for admission to, and determination of, hazardous work. The Committee notes with interest that section 48 of the LPA of 1998 prohibits the employment of young persons under 18 in the following types of work: (i) metal melting, blowing, casting, rolling or pressing; (ii) work involving exposure to heat, cold, vibration, noise and light of an abnormal level which may be hazardous (details on the types of work concerned are provided for in Ministerial Regulation No. 6, BE 2541 of 1998); (iii) work involving exposure to hazardous chemical substances as prescribed in Ministerial Regulation No. 6 of 1998; (iv) work involving exposure to poisonous micro-organisms which may be a virus, bacterium, fungus, or any other germs as prescribed in Ministerial Regulation No. 6; (v) work involving exposure to poisonous substances, explosives or inflammable material, other than work in a petrol station (details on the types of work concerned are provided for in Ministerial Regulation No. 6); (vi) driving or controlling a forklift or a crane as prescribed in Ministerial Regulation No. 6; (vii) work requiring the use of an electric or motor saw; (viii) underground or underwater work; (ix) work involving exposure to radioactivity as prescribed in Ministerial Regulation No. 6; (x) cleaning of machinery or engines while in operation; (xi) work performed with scaffolding ten meters high or more; and (xii) other types of work as prescribed by Ministerial Regulation No. 6. Section 50 of the LPA further provides for a list of places in which young persons under the age of 18 years shall not work, namely: slaughterhouses, gambling places, massage salons, places selling and serving food, liquor, tea or other beverage, and discotheques. By virtue of section 47 of the LPA, young persons under 18 years of age shall not perform night work (i.e. between 10 p.m. and 6 a.m.). Clause 4 of Ministerial Regulation No. 11 prohibits an employer from employing young workers under 18 years to work in loading or unloading goods on sea vessels, except for the cleaning of vessels, tying, arranging, lining up or other work prescribed by the Director-General (for labour), which may be performed from the age of 16 years. Finally, section 16 of the Public House Act, 1966, as amended in 2003, provides that children under the age of 18 may not be employed in licensed “entertainment workplaces”. “Entertainment workplaces” include dancing places, restaurants, massage parlours, places with music or other shows for entertainment, with live bands, and places which close later than midnight.

Article 4. Exclusion from the application of the Convention of limited categories of employment or work. The Committee notes the Government’s information that, following tripartite consultations on 12 December 2006, after considerable discussion, it was decided not to exclude any categories of employment or work.

Article 5. Limitation of the scope of application of the Convention. The Committee notes the Government’s statement in its first report that no exclusion of any branch of activity concerning the employment or work of young persons and children shall be made from the scope of application of the Convention. It observes, however, that at the time of ratification, pursuant to Article 5 of the Convention, the Government limited the scope of the Convention to mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, with the exception of family and small-scale holdings producing for local consumption and not regularly employing hired workers. The Committee draws the Government’s attention to Article 5(4)(b), of the Convention, which states that any Member which has limited the scope of application of this Convention in pursuance of Article 5, may at any time formally extend the scope of application by a declaration addressed to the Director-General of the International Labour Office. It requests the Government to indicate whether it intends to extend the scope of application of the Convention to cover all branches of activity. In this regard, it also asks the Government to specify whether it intends to extend the scope of application of the Convention to the categories of work currently excluded from the scope of application of the Labour Protection Act, such as work in the informal sector (including domestic work, work performed in the fishing industries, trading, and work in restaurants).

Article 6. Apprenticeship and vocational training. The Committee notes the Government’s detailed information about the vocational training activities of the Department of Skills Development (DSD) of the MOL. During the fiscal year 2006, it trained 52,962 persons aged 15–25 years, among which 744 were aged 15. Tripartite input to DSD’s activities is achieved through nationwide Community Advisory Boards, representing employers, workers, decentralized government agencies, and other interested persons. The Ministry of Social Development and Human Security also provided vocational training courses for women, especially young female persons aged 16–35. Additionally, the Ministry of Education, through its Office of the Non-Formal Education Commission (ONFEC), has initiated a pilot project in 11 provinces, which aims by the end of 2008 to provide every Thai citizen aged 15–39 with at least 9.5 years of schooling and at least 50 per cent of the workforce with secondary education. The Committee notes that the Government provides no information regarding apprenticeship programmes. It recalls that Article 6 of the Convention authorizes work to be carried out by persons aged at least 14 in enterprises within the context of an apprenticeship programme. The Committee requests the Government to provide information on the minimum age for entering an apprenticeship programme.

Article 9, paragraph 1. Penalties. The Committee notes the Government’s information that section 148 of the LPA provides that an employer who violates section 44 (minimum age) must be sentenced to not more than one year’s imprisonment or fined not more than 200,000 baht (approximately US$6,370), or both. According to section 144 of the LPA, any employer who violates or fails to comply with the provisions related to child employment (under sections 46, 47, 48, 49 and 50) carries penalties of imprisonment of not more than six months, or a fine not exceeding 100,000 baht, or both. When such violation causes physical or mental harm to an employee, or leads to the death of an employee, an employer shall be liable to imprisonment or a fine not exceeding 200,000 baht, or both. Finally, non-compliance with the Ministerial Regulation regarding protection of employees in agriculture work BE 2547 (2004) entails a penalty of imprisonment of not more than six months, or a fine not exceeding 100,000 baht.

Article 9, paragraph 3. Keeping of registers. The Committee notes the Government’s information that section 45 of the LPA provides that, when a child under the age of 18 is employed as an employee, the employer shall: (1) report the employment of that child employee to the Labour Inspection Officer within 15 days from the date on which the child starts work; (2) prepare a record of conditions of employment, when they are changed from the original conditions, for storage at the boss’ place of business operations or office, ready for inspection by the Labour Inspection Officer during hours of work; and (3) report the termination of the employment of the child to the Labour Inspection Officer within seven days from the date on which the child left the job. The reports shall be in accordance with the formats prescribed by the Director-General. The Committee also notes that section 112 of the LPA prescribes that an employer who has ten or more employees shall prepare an employee register in the Thai language and keep it at the employer’s place of business operations, ready for inspection by the Labour Inspection Officer during hours of work. The employer shall prepare the employee register under section 112 within 15 days from the date on which the employee starts work. Section 113 provides the particulars to be recorded in the register: (a) name; (b) sex; (c) nationality; (d) date of birth or age; (e) address; (f) date of commencement of employment; (g) position or job duties; (h) wage rate and other fringe benefits; and (i) date of expiry of employment. The Committee requests the Government to provide a copy of the report form under section 45 of the Labour Protection Act.

Part III of the report form. Labour inspectorate. The Committee notes the Government’s information that section 139 of the LPA spells out the powers of the labour inspectors. A labour inspector may issue a written order to an employer or employee to comply with the provisions of the LPA. According to the Government, ten metropolitan offices under the supervision of the Labour Protection Bureau are responsible for labour inspection in the Bangkok area, and provincial offices under supervision of the Office of the Director-General for labour inspection in the provincial areas nationwide. The Committee notes the Government’s information that the Rule concerning labour inspection in establishments of 17 November BE 2542 (1999) sets out the general responsibilities of labour inspectors, and guidelines for the planning of their work, the obligation of labour inspectors to investigate complaints, and guidelines for compliance orders in respect of employers. In cases of forced labour, torture, confinement or other criminal offences, and in cases of violations of occupational safety and health resulting in injury and death, or of regulations regarding hazardous work forbidden for persons under 18 years, no compliance order is issued, and the case must be directly referred to the appropriate officials.

Part IV of the report form. Court decisions. The Committee notes the Government’s information that the Central Juvenile and Family Court confirmed that there was no litigation under its jurisdiction involving the violation of hiring a person under 18 years under the LPA. It takes note of the text of a decision of 26 July 2005 of the Central Juvenile and Family Court, supplied by the Government. The Court found that, under the Child Protection Act, the employment of a 15‑year‑old person in a factory in hazardous circumstances and for excessive hours was illegal, and sentenced the employer (who pleaded guilty) to 1,000 baht (approximately US$32).

Part V of the report form. Application of the Convention in practice. The Committee notes the NCTL’s statement that there are still a significant number of children below the age of 15 that are employed. In this regard, it notes the Government’s information that, in 2005, the labour inspectorate found that there were 8,882 young persons employed in inspected establishments, out of which 4,390 were male and 4,492 were female. Nine children below the age of 15 were found to be employed, and four between the ages of 15 and 18 where no notification had been made. In 2006, the labour inspectorate found that there were 8,806 young persons employed in the 656 establishments inspected. Some 558 children below the age of 15 were found to be employed. According to the Government, in these cases the employers were fined or imprisoned, in accordance with the LPA. The Committee also notes the Government’s information that, according to the statistics provided by the Ministry of the Interior, between December 2005 and September 2006 there were four cases of children under 18 years employed in entertainment workplaces in violation of the Public House Act. All cases resulted in the arrest of the licence holder and in a 30-day suspension of the licence. The Committee requests the Government to continue provide information on the manner in which the Convention is applied, including statistical data on the employment of children and young persons, extracts from the reports of inspection services and information on the number and nature of violations detected and the penalties applied involving children and young persons.