Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Thailand (Ratification: 1968)

In its previous observation, the Committee expressed deep concern over the situation of more than 2 million migrants, mainly from Myanmar, working in Thailand. Although the right to equal treatment of foreign workers in case of a work-related accident is recognized by the Workmen’s Compensation Act B.E. 2537 (WCA) of 1994, additional conditions for the implementation of this right, established by the Social Security Office (SSO) in circular No. RS.0711/W751 of 2001, have prevented legally employed migrants from affiliating to the Workmen’s Compensation Fund (WCF), pending completion of a complex and lengthy nationality verification procedure. Calling attention to the dire humanitarian situation of these workers, the Committee requested the Government to take positive and urgent measures to review the policy and legal framework concerning social security coverage and protection of migrant workers in case of occupational accidents and to instruct the SSO to lift restrictive conditions and facilitate access of migrant workers to the WCF irrespective of their nationality.

The Government states in its report of February 2011 that migrant workers who come to work in Thailand holding a passport and a work permit are fully covered by the WCA on an equal footing with Thai nationals and without any discrimination. If they suffer work-related injuries or sickness, these workers are entitled, in accordance with section 18 of the WCA, to disability benefits, medical care and rehabilitation services, as well as to survivor benefits and a funeral grant for their dependants in case of death, provided by the WCF. The Government further states that irregular migrants, on the contrary, will be arrested, detained and sent back to their countries, in accordance with the Immigration Act B.E. 2522 (1979). However, given the number of irregular migrants waiting for repatriation, the Government had decided, since 1996, to authorize those of them who have undergone registration with the national authorities – 1 million persons approximately – to work temporarily in Thailand pending their repatriation. In case an occupational accident occurs to such registered migrants, the competent official of the SSO adjudicates the case at an amount equal to the compensation paid to Thai employees, in accordance with section 50 of the WCA, and orders the employer to pay compensation directly to the victim. Employers failing to comply are to be prosecuted, and employees or their families may bring the case to the courts.

In an attempt to facilitate the registration of all irregular migrant workers, a Cabinet resolution of 19 January 2010 allowed undocumented migrants from Cambodia, Lao People’s Democratic Republic and Myanmar to register until 28 February 2012 and to work legally in Thailand, provided that they engage in the nationality verification process required by the SSO with a view to obtaining temporary passports. For nationals from Lao People’s Democratic Republic and Cambodia, their countries of origin have dispatched officials in nationality verification centres located in Thailand. By contrast, the nationals of Myanmar continue to be required by their Government to travel back to their country in order to obtain the necessary documents and complete the nationality verification process, as domestic regulations prevent government officials from operating outside Myanmar. The Thai Government reports that, as of September 2010, 188,323 migrant workers from Myanmar had, nonetheless, completed this process and become eligible to affiliate to the WCF on the same footing as regular migrants and Thai nationals, in accordance with the SSO announcement on the registration of Laotian, Cambodian and Myanmar migrants with verified nationalities, dated 8 October 2010 (B.E. 2553).

With regard to other migrant workers who have not yet completed the nationality verification process, the SSO proposed to set up a separate fund, in order to accord registered migrant workers who suffer work-related injuries, sickness, or death the same protection as that received by Thai workers under the WCF. In an effort to address its labour shortage problem and to decrease the employment of unregistered migrant workers, the Government has also taken measures, through diplomatic channels, aimed at recruiting new, so called “fresh”, migrant workers from the neighbouring countries. These “fresh” workers will be able to enter Thailand legally and be allowed to stay and work in the country for a renewable period of two years. Finally, the Ministry of Labour has started a policy of enforcing the law on labour inspection by targeting the risks of forced labour and human trafficking for labour exploitation.

According to the information provided by the State Enterprise Workers Relations Confederation (SERC) in September 2011, irregular migrants in Thailand represented 90 per cent of all migrants in the country and an estimated 5 to 10 per cent of the country’s labour force. Some 980,000 migrant workers have registered and obtained work permits from the Thai authorities. These temporary documents delivered by Thai authorities, however, are not recognized by the SSO and the workers concerned are required to complete the nationality verification process.

In many cases, these migrants are left without any guarantee of compensation for a work-related accident. This is because many employers also disregard the SSO orders to pay compensation, while the workers concerned often are unaware of their rights, face language barriers, and are unable to prosecute their employers in courts following a work accident. In some instances reported by the SERC, victims of occupational accidents are denied access to health care institutions with fatal consequences. The numerous cases referred to the Supreme and Administrative Courts by the SERC have so far remained unconsidered for many years, and no national court had accepted competence to review the 2001 SSO circular.

In this situation, the Government has recently taken new amnesty measures allowing more undocumented migrants to register and obtain the work permit. It approved the resolution of 14 June 2011, establishing a new Work Accident Insurance Fund for migrant workers undergoing the nationality verification process. This fund would be separate from the WCF and open to registered migrants possessing identification cards or identity documents issued by the Ministry of Interior or the Ministry of Labour. In contrast to the WCF, the affiliation of migrant workers to the newly established fund would be voluntary and no penalties would be imposed on employers who fail to contribute to this fund. The SERC concludes that the new scheme continues to discriminate against migrant workers by denying them equal access to the WCF and, together with the National Congress of Thai Labour (NCTL), demands that the Government repeal the 2001 SSO circular.

The Committee takes note of the above information and observes that the question of the protection of the rights of migrants in Thailand remains under the constant scrutiny of UN human rights bodies. In October 2011, the Government stated in the framework of the Universal Periodic Review of Thailand, held under the auspices of the Human Rights Council, that migrant workers from neighbouring countries make valuable contributions to the Thai economy and that it will seek to uphold international labour standards while preserving Thailand’s economic, social, and national security interests. The Government indicated that it has already taken action to address the problems faced by migrant workers by allocating funds to provide health care subsidies for people without status; launching campaigns to disseminate information on the rights and duties of employers and employees, as well as information pertaining to labour rights published for migrant workers in their native languages; and providing financial assistance for expenses incurred during the judicial process. The Government also indicated that it intends to ratify Conventions Nos 87 and 98 to protect the rights of Thai and migrant workers alike and to fully engage the civil society in the follow-up review aimed at enhancing human rights protection for migrant workers and preventing human trafficking.

The Committee recalls that a key principle on which the right to social security is premised is non-discrimination and pertains to all persons, irrespective of status and origin. The Committee recognizes that extending the right to social security, including the right to medical care to non-citizens is a key challenge for many societies today. With regard to non-citizens, even where they are in an irregular status on the territory of another state, such as undocumented workers, they should have access to basic benefits and particularly to emergency medical care (see General Survey on social security instruments, 2011, paragraph 260). In view of the foregoing, the Committee understands that the Government fully realizes the need to implement effectively the measures announced to protect the human rights and dignity of migrant workers, and that the Government also realizes the determination of the international community to help resolve the problems involved as soon as possible. The Committee urges the Government to ensure that these measures achieve rapid and substantial results on the ground in the near future and, that the measures effectively eliminate cases of denial of emergency medical care and related benefits to uninsured migrant workers suffering industrial accidents referred to by the SERC.

With regard to the question of the affiliation to the WCF of registered migrant workers, the Committee notes that, in law, the SSO circular No. RS.0711/W751 of 2001 continues to require that registered migrant workers who do not hold national passports complete the nationality verification procedure before they can affiliate to the WCF. The Committee regrets that the Government’s report is silent regarding the demands to amend or repeal this circular, or at least to instruct the SSO to recognize for affiliation purposes the temporary identity documents and work permits issued by the Government agencies to registered migrant workers. Considering the current legal impasse involving judicial proceedings initiated domestically by the SERC to contest the legality of the circular, the Committee also regrets that the report does not reply to the questions raised in its previous comments with regard to the procedures existing in the Thai legal system to supervise, review and revoke contested circulars issued by a governmental agency.

The Committee observes that the restrictions established by this circular, in contradiction with the Workmen’s Compensation Act of 1994, remain a major obstacle to the enjoyment by hundreds of thousands of registered migrant workers from Myanmar of the right to equality of treatment guaranteed to them by Article 1 of the Convention. In this situation, the Committee notes the Government’s decisions to re-open the possibility for irregular migrants not yet registered to do so and obtain work permits, and also to create a new Work Accident Insurance Fund (WAIF) specifically intended to ensure their coverage during the nationality verification phase, following which they would be, in principle, entitled to affiliate to the WCF. However, the Committee understands that the affiliation to the WAIF would be left to the discretion of employers. Those deciding not to contract the new insurance would remain directly liable to pay their workers compensation in case of employment injury. In practice, the creation of the WAIF does not bring the Government closer to guaranteeing the right to equality of treatment recognized by the Workmen’s Compensation Act of 1994 for migrant workers registered by the Thai authorities and given work permits. The creation of this new fund also risks introducing a double standard of protection, by giving employers a legal opportunity not to insure their migrant workers against occupational accidents.

Moreover, the decision to re-open the registration procedure to new undocumented migrants and provide for their voluntary insurance coverage by the WAIF during the nationality verification process may lead to institutionalizing the discriminatory status of these workers, few of whom end up actually protected by the WCF on a par with Thai nationals. The Committee observes that this long train of factors – the lengthy nationality verification procedure, the SSO prohibition for employers to affiliate their registered migrant workers to the WCF, the paralysis of the judiciary system unable to consider the legality of the SSO circular, the voluntary nature of the affiliation to the WAIF, and the poor enforcement of employer liability to pay compensation to victims of industrial accidents who are not covered by either fund – in effect, incites employers to evade paying any compensation or social insurance costs for their workers and creates vast opportunities for exploitation that have been denounced by trade unions and numerous non-governmental organizations.

The Committee also observes that this state of affairs defies the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, signed by Thailand, which calls upon the Thai Government to adopt a comprehensive migration policy promoting, in particular, the welfare of migrant workers through access to social welfare services and to the legal and judicial system in case they are victims of discrimination, abuse, exploitation or violence. The Committee calls on the Government to exercise its general responsibility for the proper functioning of the social security system and to ensure that the SSO adopts a proactive approach that will bring registered migrants under the protection of the existing employment injury scheme and at the same time to enforce the effective functioning of the direct employer liability scheme. The Committee considers that in order to change the current situation for the better and ensure the gradual transition of migrant workers to be under the protection of the WCF on an equal footing with Thai nationals, the Government should take urgent measures to strengthen and integrate all the available means of protection into a comprehensive safety net providing basic protection to all migrant workers in case of employment injury. It should also require employers to take out an insurance policy for each registered migrant worker employed by them, enforced by a regime of sanctions sufficient to dissuade employers from evading their legal obligations. The Committee invites the Government to provide detailed information regarding its plans and actions in this respect together with the complete statistical data on the number of migrant workers registered by the Thai authorities and given work permits, the number of migrant workers subjected to the nationality verification process and voluntarily affiliated to the WAIF, and the number of migrant workers that have completed this process and are compulsorily insured in the WCF.

The Committee also wishes to emphasize that, in accordance with Article 4 of the Convention, all ratifying members undertake to afford each other mutual assistance with a view to facilitating the application of the Convention and the execution of their respective laws and regulations on workmen’s compensation. In this respect, the Government of Thailand reports measures, taken in cooperation with Cambodia and the Lao People’s Democratic Republic, to make the nationality verification process easier for registered migrants originating from these countries, facilitating the fulfilment of the conditions for their subsequent affiliation to the WCF. The Committee also notes that the bilateral cooperation framework between Thailand and Myanmar has been reactivated recently on the occasion of a ministerial meeting which took place in June 2011. As part of this reactivation, the Government of Myanmar has committed itself to give all needed assistance through its diplomatic and consular representations and to issue in the near future the remaining temporary passports necessary for the completion of the nationality verification process by Myanmar migrants working in Thailand. The Committee underlines the need to protect the rights of migrant workers and to assist them effectively. In view of the fact that Myanmar and Thailand both have ratified the present Convention, the Committee hopes that they will pursue their cooperation with a view to overcoming the administrative difficulties in the application of the Convention.

[The Government is asked to reply in detail to the present comments in 2012.]